Settling Old Scores In The Swamp

It was a declaration that the man from the Bush-Cheney campaign might, at a calmer moment, like to take back, or perhaps phrase more delicately. But chaos and confusion can make petty despots of us all, and to any Bush supporter the scene in the Leon County Library must have looked like democracy unhinged. Amid a scattering of toys left over from a children's reading hour, a team of local judges was counting votes from Miami-Dade County--yet again. Would this time around put Al Gore over the top? Suddenly, mobile phones started ringing. There were press reports of a U.S. Supreme Court ruling. Chief Judge George Reynolds asked the clerks to find out what, exactly, was going on. That's when the officious middle-aged lawyer from Washington appeared, like a federal revenuer who had just discovered a still making moonshine. "I'm with the Bush-Cheney team, and I'm here to stop the vote," John Bolton proclaimed.

The United States Supreme Court may bring some dignity and legitimacy to the election madhouse this week, but the proceedings in Florida have been, for the most part, a swamp. For all the heavy breathing on the talk shows, the endless election has not been a grand contest of famous legal gladiators contesting broad constitutional principles. The Battle of Florida has been, in a profound sense, a local fight, a highly personal shoving match driven by old grudges and vendettas. The Sunshine State is a cultural stew, a mix of tribes with deep suspicions and blood feuds: downstate Jewish liberals and inner-city blacks, right-wing Cubans in Miami's Little Havana and the good ole boys of the Panhandle and the fast-disappearing farms and rural areas of the north. Their divisions have been played out in recent years in an ongoing struggle between the Republican state legislators, who want to press their conservative social agenda, and activist, generally liberal state Supreme Court justices, who want to stop them. The high-profile lawyers who got all the air time over the last couple of weeks were merely surfing along on waves of resentment that could roll them at any time. The real forces at work swirled in the undercurrents of Tallahassee statehouse and courthouse politics. For a long moment last weekend, it felt as if the entire nation could be sucked into the vortex.

The first tug of that downward pull was felt Friday morning, when The New York Times printed the views of the colorfully outspoken wife of the trial-court judge who had, as most commentators saw it, "slam-dunked" Al Gore's legal case that Monday night. Standing on Judge N. Sanders Sauls's front porch in the chilly air on Wednesday night, Cindy Sauls described a long history of bad blood between her husband and the state Supreme Court that would be reviewing his ruling the very next day. In November 1998, Judge Sauls had been removed as chief judge of the Leon County Circuit Court by the Florida Supreme Court. The justices, in effect, accused Judge Sauls of trying to run his court like an autocrat, chastising him for "continuing disruption in the administration of justice." Nonsense, Cindy Sauls insisted. "I think it was because he wouldn't bend over and kiss their boots," she said.

The Times story did not go into the details behind Sauls's removal, but the specifics shed light on the local culture clash. Sauls was born and grew up in Jefferson County, which is "about as close as you could get to the old plantation South," said Marc Taps, a local lawyer who has known Sauls for 20 years. According to Cindy Sauls, her husband was raised by his black nanny, whom he called "Mama." (His mother he called "Mrs. Sauls.") Sauls still likes to hunt quail and fish for bass in Jefferson County, and to drink bourbon, chew on his cigar and tell tall tales at a local bar called the 4th Quarter. He attracted notoriety in 1998 when he released a local man on bail who was wanted for tax evasion and considered a potential fugitive. The local paper, the liberal-leaning Tallahassee Democrat, reported that the man's lawyer was Judge Sauls's neighbor.

Sauls's real troubles began when he crossed the administrator of the local court system, who was trying to rid the courthouse of good-ole-boy patronage and bring in professionalism and diversity. Sauls was opposed to having a formal search committee hand out one choice plum, that of director of the court's guardian program. The judge wanted a friend of the daughter of the local sheriff, a hunting pal, for the job. The court administrator balked, and Sauls tried to get him fired. That's when the Florida Supreme Court stepped in and publicly humiliated Sauls by removing him as chief judge. Sauls was already a bitter foe of the state high court, which had reversed his decisions far more often than those of other judges. He regarded the justices as liberal activists who too often tried to make new law. According to Cindy Sauls, her husband was the victim of a smear campaign conducted by his "enemies" in the liberal local press and bar association. By Friday night she was no longer talking to reporters, though an old friend of the Saulses', Tom Ervin, told NEWSWEEK, "She would probably be ready to scratch eyes out if she could get her hands on the right people." Sauls, who was not talking to reporters, recused himself from the case, furious at the justices on the high court, whom his friend Ervin referred to as "Ewoks" (furry creatures from "Star Wars" who seem harmless but aren't).

Five of the seven justices who removed Sauls as chief judge were still on the Florida Supreme Court that reversed his decision. Court watchers were careful not to imply that bad blood alone motivated their decision. But their history with Sauls was likely to make the justices "more skeptical of his findings," as one longtime Tallahassee lawyer put it. Sauls's rift with the high court is just part of a larger struggle between social conservatives and liberal activists that has divided Tallahassee, provoking bitter accusations and even fistfights.

In recent years, the high court--all of whose justices are Democrats--has been locked in a partisan and increasingly personal quarrel with the more conservative, GOP-dominated state legislature--and with Gov. Jeb Bush. Last January the high court overturned tough new death-penalty rules, earning a stinging rebuke from Governor Bush and prompting legislative threats to "pack the court" by creating two more justices, allowing Bush to make the appointments. The court has allowed the early release of prison inmates, anathema to law-and-order politicians. And it has repeatedly struck down restrictions on abortion, a particular irritant to the hard core of social conservatives who dominate the leadership of the state House of Representatives. The justices "sent a message that you can't work with us, they don't respect us and they don't respect the voters of Florida," railed House Speaker Tom Feeney (who later apologized to the justices).

A personable real-estate man, Feeney is also a right-wing firebrand whose legislative colleagues are sometimes fanatical. One of the constitutional experts hired to advise the state Senate, Roger Magnuson, is the dean of Oak Brook College of Law, a correspondence law school established on "Biblical foundations," according to its Web site. Magnuson has inveighed against the gay-rights movement, saying, among other things, that "one fifth of gays have indulged in sex with animals." The Florida Legislature can be a raucous place. Several years ago two members had to be pulled apart after they started choking each other on the House floor. More recently, a key committee chairman got into a fistfight with another member in the parking lot. It is no wonder that Feeney wanted to get a jump on the opposition even before the high court ruled last week, pushing the legislature to choose a set of Bush electors. Feeney was immediately denounced by Democrats and many liberal commentators for jumping the gun and trying to pressure the justices. He may have just inflamed them.

Personal ties and enmities loom large in this fight. Three of the justices who voted for Al Gore's position were handpicked by Dexter Douglass, former general counsel to the late Democratic governor Lawton Chiles. Douglass is now a key member of Gore's legal team. At least four of the court's seven justices are considered unapologetic liberals. Two of them--Barbara Pariente, an ex-plaintiff's lawyer known for representing the underdog, and Harry Anstead--are from Palm Beach, where voter outrage first surfaced over the so-called butterfly ballots. One of Pariente's best friends is Lois Frankel, the fiercely partisan House Democratic leader. Frankel, who spoke at Pariente's investiture as a justice, is the arch-foe of Speaker Feeney. Governor Bush had a hand in choosing only one justice, Peggy Quince, who was a joint selection with outgoing Governor Chiles in 1999. But Quince is a "hard-core liberal and judicial activist who is committed to the African-American agenda," said a dispirited Republican lawyer. Added the lawyer: "Anybody who looked at this cast of characters should have known what was going to happen."

Despite some foreboding, the Bush forces were counting on a well-connected local lawyer to help them navigate through the judicial minefield. At the recommendation of Jeb Bush, the Bush camp had quickly snapped up the best hired gun in town, Barry Richard, a registered Democrat, who has no clear party allegiance but many friends on all sides. "This is my town," Richard boasted to NEWSWEEK last week, just before the Florida Supreme Court's surprise ruling. "I've known most of the justices professionally for years."

Silver-coifed, elegantly dressed, Richard became a national celebrity in the last two weeks as he raced from courtroom to courtroom to TV stakeout. He proudly notes that he has represented Bush in more than 40 cases over the last month and has appeared in as many as five different courtrooms in a single day. "It was like running from concourse to concourse at the Atlanta airport," he told NEWSWEEK. His firm's PR woman in Miami sends him regular updates on his tally of TV appearances. The latest count at the weekend: 1,700. Richard follows his press closely. When talk-show host Don Imus dubbed him "Little Richard," after the rock-and-roll king, for his pompadour, Richard got a haircut the next day. Richard seemed to be loving it all. On Thursday night, he was filmed kissing his young second wife (it was their fourth anniversary), while other diners in the upscale restaurant erupted in applause. Richard allowed himself to be wired by ABC's "Nightline" for a "day in the life" so that every word he uttered could be heard--unless he switched off a little knob so he could confer privately with his partners. "He's having a marvelous time," said his wife, Allison Tant, a lobbyist in the state capital. "He says it's just surreal to be walking down the street and to have hundreds of people around you--'If I walk this way, they walk this way'."

Richard was given great freedom by the Bush high command. Unlike his opposite, David Boies, who talked to Vice President Gore at least every day (and was heard patiently muttering, "Yes sir, yes sir," on a mobile phone as he walked into the Supreme Court arguments last week), Richard has spoken to George W. Bush only once. He had just argued before the Florida Supreme Court in the first round on Nov. 21 when the phone rang at home. His wife answered, then handed Richard the phone. "Is this guy for real?" she said. "He says he's George W. Bush." It was. The Texas governor apologized for calling him at home and told him to keep up the good work.

By Friday, as he lunched with reporters before the ubiquitous ABC camera, Richard and his wife were already wondering whether he would get a flood of new business out of the case. "I'd be curious about Johnnie Cochran," said Allison. Richard "feels like a winner," a local lawyer was telling a NEWSWEEK reporter. "But all that could turn around on a dime... Barry will only remain a celebrity if Bush wins." On Friday afternoon, Allison was on the phone with the reporter, talking about his fame ("it hasn't gone to his head"), when a Supreme Court spokesman announced the ruling on TV. "Oh, my God," she said slowly. "I've got to call Barry."

During the Siege of Florida, Gore lawyer David Boies had enjoyed equally glowing publicity. He arrived heralded as the "Michael Jordan of trial lawyers" and did not disappoint. His relaxed courtroom demeanor played off Richard's smooth formality. While Richard wore tailored suits and monogrammed shirts, Boies arrived in court in his trademark black knit tie and black leather athletic shoes. He was a soothing camera presence who bolstered Gore's case. ("I think I probably did play a role in that," he told NEWSWEEK.) He may have also bucked up the increasingly isolated vice president with his reassuring and regular phone calls. Within his own camp, he was deferred to. He seems to have almost intimidated his fellow litigators, a bunch not easily cowed. In legal strategy sessions, "we weren't arguing our positions. It was more like making presentations to a judge," said a member of the Gore team.

But behind the scenes, Boies has been caught up in a close and controversial call. In Broward County, the local canvassing board adopted a very liberal standard for counting "indented chad," a boon to Gore. The board was pressed to adopt the standard by a member of the county attorney's office, Andrew Meyers--whose wife, Dawn, happened to be at that moment conducting "background research" for the Gore legal case as a member of the Ft. Lauderdale law firm of Mitchell Berger, a powerhouse Democratic fund-raiser. (Meyers said he never consulted his wife.) Republicans vigorously protested the new standard, but Boies himself arrived on the scene in Ft. Lauderdale with a new weapon: an affidavit from a Chicago-area lawyer, Michael Lavelle, describing how a local elections board in Illinois had used the same liberal ballot-counting standard in a case that had been cited by no less an authority than the Florida Supreme Court. Meeting with the Broward County officials, Boies passed the affidavit around like a smoking gun. Only later did it emerge that Lavelle considered his own affidavit to be misleading and tried to take it back. That wasn't what the Gore forces wanted to hear. "We're f---ed," said Berger. "We have to correct the record." By the time the Goreites did, however, Broward had almost finished counting and Gore had picked up more than 500 votes. A conservative legal foundation has filed an ethics complaint against Boies, who dismissed it as frivolous.

There was nothing the skillful Boies could do about Judge Sanders Sauls. When Sauls was randomly assigned to the case, Boies asked for an assessment from the local lawyers on his team. "We were basically told that he was the worst judge we could have gotten," said one Gore lawyer. "His social circles were all Bush friends. His buddies wouldn't like it if he ruled for us." Boies made the best of it: he decided to put on a bare-boned, streamlined case before the lower-court judge and hoped that the state Supreme Court would quickly take up the case.

Boies's cheerful demeanor did not fail him in Judge Sauls's courtroom. But Gore's lawyers quickly concluded that the judge was "winking and nodding" to the Bush team and that he was simply "playing" with the Gore lawyers, winding them up so he could later knock them down. That he did with relish on Monday night, reading his own opinion rejecting the Democrats' case in virtually every particular. Boies got his wish for a fairly rapid hearing in the Florida Supreme Court, but he seemed to stumble a bit on Thursday morning as he was battered by questions from Chief Justice Charles Wells almost as soon as Boies opened his mouth.

The Gore team had no way of knowing that Wells would wind up in the court's minority. By Friday, the conventional wisdom had locked in. The story line, embraced by virtually every commentator, was this: the nation was sick of chads and dimples. Cable-TV news ratings were dipping. On Wall Street, the stock market was crying for order. The lower-court judge had been folksy, plain-spoken and tough. Surely the Florida Supreme Court would go along, if only to avert chaos. True, Gore was still insisting that he had a "50-50" chance of winning, but everyone knew he was deluded. Even his feisty running mate, Joe Lieberman, had begun to refer to the campaign in the past tense.

Inside their storefront bunker in Tallahassee, many of Gore's own lawyers and spinners were listening to the Beltway chatter and beginning to believe it. After a last lunch of stone crabs, flown in from Miami, the high-priced legal eagles were booking plane reservations home to Washington and New York. Some were quietly telling reporters that they had tried to warn the veep that the legal game was over, but Gore and his True Believers just wouldn't listen. Then, at about 4 p.m. Friday, the phone call came. Ron Klain, the top Gore aide on the legal team, clenched his fist and pumped his arm. "We won, 4 to 3!" Stunned surprise. Wild cheers, a few tears. The preternaturally calm Boies strutted into the room. By now, Gore was on the line. "Congratulations!" the veep told his Litigator in Chief. "Congratulations to you," Boies replied. "You said our chances were 50-50. Well, 4 to 3 is a little better than 50-50."

By evening all the lawyers and their weary entourages had filed back into court. The judge this time was Terry Lewis, a sometime author of legal thrillers. (His novel "Conflict of Interest," about an alcoholic lawyer appointed to defend the accused murderer of his onetime flame, garnered decent reviews.) On paper, Lewis looked like another candidate for cronyism, having been appointed by Governor Chiles at the recommendation of Douglass. But in two earlier election cases, Lewis had seemed like a cool and dispassionate hand. He ruled twice against the Democrats while generally earning the respect of both sides.

Just before midnight, Lewis ordered the counts to begin at 8 a.m. and set a tight schedule. But he left the tricky question of the proper standard for recounting votes to the local canvassing boards. That, the Republicans protested, was a prescription for caprice. Already, teams of observers from both parties were flying into Florida from Washington and Texas. There were sure to be protests--and more lawsuits, maybe in every one of the 67 counties eligible to conduct a manual recount. In several of the counties on Saturday, officials were flummoxed by the prospect of isolating the "undercounted" votes, which were mixed in with the machine-counted votes.

In Tallahassee, Boies had been on edge early that morning, fearful that a federal appeals court would stop the counting before it began. But when 8 o'clock passed and lunchtime rolled around and the courts were still silent, Boies began to relax. He was having a late lunch at Andrew's Capital Bar and Grill, the media-lawyer-lobbyist hangout in town, when CNN warned that some kind of ruling was coming down shortly. Suddenly, Boies was distracted. But when the bad news for Gore came from the Supreme Court a few minutes later, Boies displayed no emotion at all. "That's surprising," he said, betraying no surprise. As he walked out of the restaurant, he was already rehearsing his arguments before the high court, mumbling about "no irreparable harm."

The legal wars may go on, at least for a while longer. But it was interesting to see how fast most of the vote-counting rooms emptied out when the order to halt came down from the U.S. Supreme Court. It was as if the lawyers and officials couldn't wait to get out of there and go home. Most of the country feels the same way.