The War This Time

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Late last Friday afternoon, Senator Patrick Leahy, the gentlemanly Democrat from Vermont, sequestered himself in his office on Capitol Hill and ordered his aides not to interrupt him for anything short of war. "I don't care what's going on," he told them. "I don't want to be bothered." A bushelful of memos had piled up on his desk, the fruit of a frantic political week of Senate power struggles framed inside the titanic power struggle for the White House. Leahy figured the Florida Supreme Court would bring the hammer down on Al Gore's final appeal and didn't care to watch. So he glared when an aide came in just after 4 p.m. "I think you may want to hear what the Court just did," the aide told him. "Well, is it all over?" Leahy asked.

"No, it's just starting," the aide said. Leahy's paperwork really had been interrupted by news of war. "Oh, boy," Leahy said. The state supreme court — in a bitterly divided 4-to-3 ruling — had found for Gore, cutting Bush's Florida lead from 537 votes to 193 (or 154, depending on how some disputed ballots are counted) and ordering an immediate recount of 42,000 "undervotes" from around the state. The top Democrat on the Senate Judiciary Committee, Leahy will be in the thick of things if the election dispute ends up in Congress. He summoned his staff lawyers and ordered them to dig through the law books and statutes, war-gaming all the ways this fight could go. But it was moving so fast that his lawyers couldn't possibly keep up.

By Saturday afternoon, the recount was under way in Florida, with a strong chance that by day's end Gore might pick up enough votes to move ahead of Bush for the first time. Then the U.S. Supreme Court joined the battle. In another acrimonious split decision — this one 5 to 4 — the Justices halted the recount and scheduled oral arguments for Monday on George W. Bush's claim that the manual counts are unconstitutional and could do "irreparable harm" to his candidacy. Al Gore's top lawyer, David Boies, was eating lunch with another hotshot lawyer, Stephen Zack, when the news came over the television. Boise threw up his hands and cried, "What possible irreparable harm could they be talking about?" At that moment, 700 miles to the north, an aide called Leahy at home and said, "You're not going to believe what the Supreme Court just did." Just then Leahy's TV flashed the news. He was speechless. "You got to be kidding," he said finally. "After this, I never want to hear the Republicans complain about activist judges."

Americans like to think of the third branch of government — especially the highest court in the land — as a bastion against the surgical divide in the country. The voters couldn't decide between Bush and Gore, and Congress is split between Republicans and Democrats, but as we groped for a solution to the election mess, we couldn't help looking to the courts for a wisdom that rises above the nation's two angry political camps.

It was a naive hope. Judicial decisions cannot be made inside some lovely, ideology-free zone — especially when the matter before the high court is the outcome of an election in which the appointment of future Justices was a persistent issue. The liberal Florida Supreme Court majority ruled for the sanctity of counting the votes, throwing Gore a lifeline, while the court's own Chief Justice warned that its ruling "propels this country and this state into an unprecedented and unnecessary constitutional crisis." Bush allies like Jack Kemp tried to discredit the court, charging that it had carried out a "judicial coup d'état." But then the conservative majority of the U.S. Supreme Court ruled for the sanctity of the election procedures, questioning the legality of the recount and bailing out Bush while the liberal dissenters warned that "preventing a recount from being completed will inevitably cast a cloud on the legitimacy of the election."

"It's one more institution divided down the middle," says a Gore strategist.

The astonishing chain of events — one concussion bomb after another after another — left the soldiers in both the Gore and Bush camps dazed and bloodied, wondering when the next explosion would come. Only Bush and Gore, along with their top lawyers and strategists, seemed to have had a sense of how the week might go. Since both courts had handed down key rulings earlier on — the state supremes extending the timetable for the initial recount, the U.S. Supremes slapping that ruling back to Florida — Bush and Gore knew which courts tended to smile on their claims. On Friday night, Gore told TIME that he was "not all that surprised" by that day's state supreme court decision rescuing him from the abyss. "I had a feeling from the start that the principle that every vote should be counted would end up prevailing." But he hadn't predicted what the U.S. Supreme Court did the next day. About the prospects for Bush's appeal, he said, "I still have that same faith."

That night Bush strategist Karl Rove held a conference call with GOP senators and told the skeptical and depressed Republicans that Gore's victory in the state supreme court would be short-lived. The court had clearly "overstepped" its authority, Rove said. The U.S. Supreme Court would have no choice but to lower the boom on the state justices. The senators weren't convinced. They worried that the Supreme Court wouldn't move quickly enough to stop the recount before Gore pulled ahead and the media announced a new winner. That could alter the landscape drastically — and permanently.

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