Unforgiven.

Supreme Injustice: How the High Court Hijacked Election 2000, by Alan Dershowitz (Oxford, 288 pp., $25)

Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, by Richard Posner (Princeton, 264 pp., $24.95)

An hour after a colleague and I arrived in Orlando last November to work on the trial team representing George W. Bush and Richard Cheney in Jacobs v. Seminole County Canvassing Board, there was to be a telephone conference with our judge, Nikki Ann Clark. There was intense anxiety about Clark in the Bush-Cheney war room. Not only was she considered a staunch liberal, she had been turned down in September for a seat on the Florida court of appeals-by our client's brother, Gov. Jeb Bush. A motion seeking her recusal had been drafted and was ready to be filed as soon as the conference was over.

The concern about Judge Clark illustrates a characteristic common to all the Florida election-contest cases-the unprecedented depth to which party politics invaded the province of law. Americans are accustomed to having their Supreme Court controversies served up bitter and partisan. Ordinarily, though, the debates are driven by lofty principles of morality, justice, or faith. Never before in recent memory had such a rancorous debate been divided along naked party lines. This was as true in Seminole County as in the suit brought by Al Gore seeking a hand recount of so-called undervotes in Miami-Dade and other counties. That was the case, ultimately known as Bush v. Gore, that went up to the U.S. Supreme Court not once but twice, and is the subject of several recent books.

In Bush v. Gore, the Supreme Court was asked to review a decision of the Florida supreme court ordering an immediate hand recount of "undervoted" ballots (ballots on which no vote for president had been detected by the tabulating machinery) in Miami-Dade and other counties. According to the Court's majority opinion, the recount ordered by Florida's high court was invalid under the equal protection clause because the state court had not suggested standards by which the "undervotes" were to be counted. Different counties had used wildly different standards for determining voter "intent." Some counted only "dangling" chads; others were willing to count even the so-called "dimpled" chads, mere bumps in the punch-card ballot through which no light could be seen. The inequities resulting from such standardless procedures were constitutionally impermissible.

The equal-protection theory found broad support on the Court; the justices lined up 7 to 2 on the issue, which captured even the votes of dissenters Souter and Breyer. The Court's remedy-stopping the recounts- was more controversial. The Court's decision was handed down on December 12, and as the state court had suggested, the Florida legislature intended for the election results to be certified by the December 12 deadline of Title III of the U.S. Code. This left no time for the state to cure the equal-protection violation the Court had identified. Doing so would have required sending the case back to the Florida courts for developing uniform recount standards (which would have been the subject of legal briefing by both sides), conducting the recount itself, and dealing with the legal challenges that were certain to result.

One measure of the correctness of the Court's decision was the fact that neither side was entirely happy with it. In Supreme Injustice, Harvard Law celebrity-professor Alan Dershowitz makes an impassioned case for the Gore side. Indeed, passion is mainly what Dershowitz has going for him. The book is frankly and avowedly ad hominem. A sample of his rhetoric: "This is the most perverse misuse of the equal-protection clause I have seen in my forty years as a lawyer"; "I certainly thought [the equal-protection argument] was underwhelming as I listened to Ted Olson deliver it to a packed courtroom that morning"; the "lawless decision in Bush v. Gore promises to have a more enduring impact on Americans than the outcome of the election itself"; "time will never heal this wound so long as it remains untreated by the strong disinfectant of sunlight." "Let me be as clear as I can," he writes:

The criticism I am making of the majority justices includes a significant ad hominem component. I am not limiting my criticism merely to the intellectual or precedential weaknesses of their arguments. I am accusing them of partisan favoritism-bias-toward one litigant and against another. I am also accusing them of dishonesty, of trying to hide their bias behind plausible legal arguments that they never would have put forward had the shoe been on the other foot. These criticisms are directed at the justices personally . . .

Dershowitz's view of Bush v. Gore relies on the provision of the Florida election code stating that "no vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board." According to him, this statute gave voters in Florida "the right to have their ballots counted if they left a hanging chad or if they failed to punch their chad all the way through-even if it was their fault, not the machine's." The Supreme Court "ignored" this law, says Dershowitz, and held any ballot spoiled due to voter error invalid, even if the "voter's intent" was clearly discernible. Dershowitz maintains that the Court's constitutional reasoning does not comport with traditional equal-protection principles, and caps his discussion with this: "I challenge any law professor or Supreme Court litigator to defend the majority's equal- protection conclusion and remedy in a public debate."

Whether or not Dershowitz's constitutional views are debate-worthy, he does raise a troubling point about the Court's use of precedent. Not only did the majority fail to cite a single equal-protection case directly supporting its result, as Dershowitz points out, but it also failed to rely much on precedent in constructing its argument or to explain how its holding was consistent with other equal-protection cases. This failure suggests that the majority was relying less on the law than on some free-floating equal-protection idea-something closer to basic fairness. Fairness has its virtues, but it does not have a limiting principle. The Court would have done better to anchor its holding to precedent-if only to limit the potential scope of that holding.

Even where Dershowitz does have a point, his overheated rhetoric intrudes. This is particularly true with respect to his treatment of conservative thinkers like Judge Richard Posner. Of Dershowitz's many villains, only the five majority justices rank higher than Posner. More than that, Posner is Dershowitz's intellectual bete noire, the man to beat. "During the preparation of this book," he writes accusingly, "my office repeatedly called and wrote Judge Posner requesting galleys of the book and article in which [his] arguments are elaborated. He did not respond to my requests . . ." Posner himself takes little notice of Dershowitz in his own new book about the Florida litigation controversy, noting only that of all the commentators who were heard from, Dershowitz was undoubtedly the shrillest.

In Breaking the Deadlock, the prolific Judge Posner provides a tough- minded and masterly analysis of this unique episode in American political history. His book reads like the opinion he might have written had he been a member of the Court-but with the luxury of unlimited time and hindsight. Posner concludes that the 5-4 majority- working under extraordinary pressure-may not have adopted the best reasoning, but did arrive at the right practical result.

The main Democratic strategy in Bush v. Gore might be summarized by the old lawyers' adage, "If the law is on your side, argue the law; if the facts are on your side, ignore the law and argue the facts." The plan was to remain focused on the "fact" that more Florida voters in Miami- Dade and elsewhere intended to cast a vote for Gore than were actually tallied in his column. As Posner emphasizes, however, there are no such things as independently significant "facts" in legal proceedings; facts have significance only if rules of law make them so. This becomes Posner's primary theme: "One of the most persistent fallacies in the public, especially political, commentary on the deadlock," he writes, "has been the notion that the winner of an election can be determined without reference to election rules." Elsewhere he states: "To call the winner of the popular vote for President the 'real' winner, to accord constitutional status to the winner of the popular vote, and to question the legitimacy of the candidate who won the electoral vote and so became President are further examples of changing the rules of the game after the game has been played."

Under Florida law, the "rules of the game" gave the secretary of state a great deal of discretion in interpreting election laws. It was Katherine Harris's call whether or not to extend the statutory November 14 deadline for completing the hand recounts, and her interpretation was supposed to be binding. The statute allowed for countywide hand recounts in only one situation: where there had been an "error in the vote tabulation." Harris determined that voter error was not an "error in the vote tabulation" and thus did not warrant extending the deadline. The Florida courts should have deferred to Harris's decision unless it was patently unreasonable-which it was not. As Chief Justice Rehnquist noted in his concurring opinion: "No reasonable person would call it 'an error in the vote tabulation' or a 'rejection of legal votes' when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that the[] voting instructions explicitly and prominently specify."

Like other conservatives, Posner is concerned that the equal protection clause provides a poor ground of decision, not least because of its potentially broad application. Does Bush v. Gore mean that a close election for dogcatcher now has constitutional implications? In fact, such a far-reaching interpretation seems unwarranted. Even without the Court's instruction that its holding was to apply only to this particular case, the Bush decision would easily be limited to its particular facts-i.e., the relatively rare case in which a hand recount has been ordered but no uniform standards have been promulgated.

According to Posner, the best way around these difficulties was the one identified by Chief Justice Rehnquist in his concurring opinion: Article II's "manner directed" clause, which imposes a duty on state legislatures to determine the manner in which electors for president and vice president will be selected. Article II could be interpreted as prohibiting a state court from interfering with the election scheme enacted by the legislature-such as the provision of Florida law that the secretary of state is empowered to provide binding interpretations of the election code. When the Florida court extended the statutory deadline for certification, shortened the contest period, and ordered the inclusion of vote totals even after the wrongfully extended deadline, it departed from the legislative scheme and committed a violation of the "manner directed" clause.

But though Posner focuses mainly on the law, neither is he willing to concede the facts, and his statistical analysis of the supposed undervotes reveals some surprising results. He concludes, for instance, that "hand recounts of undervotes using objective criteria would have been unlikely to change the outcome of the election." Gore was not even the "real winner" in Florida, as his supporters have assumed. Or, perhaps more accurately, "Gore . . . won the election as it might have been conducted in different circumstances."

Only time will tell whose version of events will become the judgment of history. One supposes, however, that passions will cool, and that Posner's pragmatic view will prevail. Even if it is true, as Dershowitz says, that "many Americans remain outraged" by the Court's decision, there are many others who recognize that judges faced with difficult decisions can still keep their integrity intact. Nikki Clark is certainly one of those judges. She ultimately denied the recusal motion in the Seminole County case, but she proceeded to rule in our clients' favor at trial. Her ability to do so underscores one of the most significant, reassuring, and even surprising elements of the entire Florida election litigation-that judges are frequently capable of putting aside partisan sympathies to focus on the rule of law.