Thursday, May 15, 2008

The Feel Bad Hit Of The Election Year

Above is the trailer for HBO Films' Recount, which seems to want to take the entirety of the painful 2000 election, boil it down to a buzzy, chipper flick that contains one or two potent Katherine Harris jokes, and call it a day. I have a sinking feeling that this won't be the dramatization that delves into some of the darker issues that were at play in Florida back in fin de siecle America such as the Florida Voter scrub list, or the truly nonsensical legal case the Bush team put forth as their claim (I still have no idea how Bush even had standing to sue).

And I'd be really surprised if the movie made mention of just how truly awful the Gore legal team was in making their case before the SCOTUS:

Boies already knew (from language in the December 9 emergency order of the Court) that Justice Scalia...Clarence Thomas...and three other conservatives on the Court...intended to deodorize their foul intent by hanging their hat on the anemic equal protection argument, wouldn't you think that he and his people would have come up with at least three or four strong arguments to expose it for what it was--a legal gimmick that the brazen, shameless majority intended to invoke to perpetrate a judicial hijacking in broad daylight? And made sure that he got into the record of his oral argument all of these points? Yet, remarkably, Boies only managed to make one good equal protection argument, and that one near the very end of his presentation, and then only because Justice Rehnquist (not at Boies's request, I might add) granted him an extra two minutes. If Rehnquist hadn't given him the additional two minutes, Boies would have sat down without getting even one good equal protection argument into the record.

This was Boies's belated argument: "Any differences as to how this standard [to determine voter intent] is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida." A more powerful way to make Boies's argument would have been to point out to the Court the reductio ad absurdum of the equal protection argument. If none of the undervotes were counted because of the various standards to count them, then to be completely consistent the Court would have had no choice but to invalidate the entire Florida election, since there is no question that votes lost in some counties because of the method of voting would have been recorded in others utilizing a different method.

And I really doubt that in the film's denouement, it will be revealed that not long after the dust settled on Bush v. Gore (the most high-profile per curiam decision in the history of American jurisprudence?), David Boies would deliver a warm and personable keynote toast to Ted Olson, the man who opposed him in the case, at a party in Olson's honor on Capitol Hill. For as much pain as the case caused many Americans, it was just all in a day's work for the guy Gore-supporters trusted to win the case.


Anonymous said...

It took me by surprise. Even though this trailer is upbeat, I couldn't keep from crying. Really hard. Truly one of the most painful and devastating events in U.S. history.

Anonymous said...


I thought that Gore was the one who sued. And that Bush counter-sued... I agree with Boies being the worst choice. What a hippy-dippy self-serving goofball!