By Terrence McCoy
By Scott Fishman
By Deirdra Funcheon
By Allie Conti
By New Times Staff
By Ryan Pfeffer
By Deirdra Funcheon
By Kyle Swenson
As the sun rose on Monday, cops in Kevlar vests patrolled cordoned-off streets around downtown Miami's federal courthouse. Shaded by the building where judges have deliberated the fates of Manuel Noriega and Elián González, 12 video cameras stood ready, and a few bleary-eyed newscasters blathered to their early-bird viewership. Inside, a clutch of slick-haired lawyers hired by George W. Bush discussed how best to convince federal circuit court judge Donald Middlebrooks to stop the hand recount of the presidential vote throughout the state of Florida.
It was no surprise that the judge issued an injunction after a four-hour hearing. The Bush team's ineloquent and perfunctory presentation, however, does not bode well for the next four years. The proceedings not only displayed Shrub's subpar eye for talent -- a worrisome quality in a guy who lacks both intelligence and a desire to show up at work. Worse, the hearing showed how quickly Bush II is willing to scrap the ideas he once championed in search of victory. "Will Rogers said it best a long time ago," former Florida Bar president Steve Zack said during a break. "Where you stand depends on where you sit."
Bush requested this day in court, claiming a hand recount of ballots in four counties -- Palm Beach, Broward, Miami-Dade, and Volusia -- was unconstitutional. The case drew international attention. Although Middlebrooks denied a request by television networks' attorneys to film the proceedings, updates were broadcast from outside the courtroom to places as far away as Malaysia and Kazakstan. Press from around the world jockeyed for one of 25 inside seats hours before the judge arrived.
When things got moving, the depth of Bush's miscalculation quickly became apparent. On his side a cadre of rather anonymous lawyers sat at the defense table. The one heavy hitter: Al Cardenas, a Miami lawyer, lobbyist, and chairman of the Florida Republican Party. The other side was standing-room only and featured even bigger names. Harvard law professors Laurence Tribeand Alan Dershowitz, two of the country's best-known constitutional experts, played for Team Gore. Also on board were Nova Southeastern University prof Bruce Rogow and former U.S. attorney for South Florida Kendall Coffey (whom you might recall either for his role in the Elián case or for biting a stripper after a bad day). Filling out their ranks was a large group of attorneys representing the four counties and Broward County Supervisor of Elections Jane Carroll. About 20 people stood on the Democratic side of the room, compared to six on the Republican side.
Bush's lead lawyer, Theodore Olson, a nerdy fellow in a dark blue suit, didn't present a very convincing case; none of the others on his side of the room even uttered a word. Olson tried to argue that Florida has no system for hand-counting votes. As a result, he said, each of the 67 counties would have to invent its own checks and balances. The quality of his explanation is best summed up in this gem: "The commonality here is the differential. There is no uniformity." Riveting!
The undisputed star of the proceedings was Rogow, who represented much-maligned Palm Beach County Supervisor of Elections Theresa LePore. Not only did Rogow make a solid case the legal superstars could merely echo -- that the federal courts have no right messing in a matter covered by state election law -- but he also filled his pleading with bons mots. In describing the way vote recounters would determine votes by studying whether or not a ballot had been pierced, he said: "Pregnancy doesn't count in Palm Beach County, only penetration does."
Rogow cited a state statute passed a decade or so ago, Chapter 120.168, which describes a process for recounting ballots and appealing such votes. He belittled the Bush team's argument as an attempt to hide the truth of the hand counts. "They want to suppress the vote totals," he said. "They would hold that knowing the vote went for Gore might hurt the national psyche. I think that's demeaning the national psyche." Indeed the issue raised the concern of how honest President Dubya will be with the people. (Folks didn't take kindly to the top-drawer deceit of Richard Nixon or Bill Clinton.)
Bush took another hit, one that has since reverberated through the electronic halls of the punditry, when Dershowitz, representing some disgruntled Palm Beach County voters, brought up a Bush-signed 1997 Texas law that states, "A manual recount shall be conducted in preference to an electronic count." While the Bush team tried to downplay that piece of legislation as one that simply set standards for a recount rather than affirmed their validity, Dershowitz said Bush lacked "clean hands" in "challenging a law that he finds acceptable."
Bush's hypocrisy goes far deeper than that, though. A cornerstone of his campaign was his preference for taking power away from the federal government and returning it to the states and the people. In debate after debate, stump speech after stump speech, the governor tried to distinguish himself from Al Gore with this seemingly substantive sound bite: "[Gore] trusts the federal government; we trust the people."