Book Review

A Long Time Ago, In An Election Far, Far Away:
Down & Dirty, The Plot To Steal The Presidency
by Jake Tapper
(Little, Brown and Co., 2001)

The Accidental President
by David A. Kaplan
(William Morrow & Co., 2001)

Supreme Injustice
by Alan M. Dershowitz
(Oxford Univ. Press, 2001)

The Vote: Bush, Gore & The Supreme Court
edited by Cass R. Sunstein & Richard A. Epstein
(Univ. Chicago Press, 2001)

Breaking The Deadlock
by Richard A. Posner (Princeton Univ. Press, 2001)

reviewed by Richard A. Forsten, Esquire

On the one hand, the 2000 presidential election and the post-election trauma in Florida seems like it happened a lifetime ago; on the other hand, two years doesn't seem like a long time and Florida often seems like only yesterday. Such is politics, where two years can be a short time but also a political lifetime.

In the two short years since then, over twenty-five books have been written about what happened. These works can generally be classified into three or four broad categories. First, there are the "behind the scenes" accounts such as Down & Dirty, The Plot To Steal The Presidency by Jake Tapper and The Accidental President, How 413 Lawyers, 9 Supreme Court Justices, And 5,963,110 Floridians (Give Or Take A Few) Landed George W. Bush In The White House by David A. Kaplan. Second, there are the diatribes and polemics which simply condemn the Supreme Court for its decision in Bush v. Gore as purely political and one of the worst Court decisions of all time. Alan Dershowitz's Supreme Injustice, How The High Court Hijacked Election 2000 falls into this second category. Third, there are several books are made up of short articles and essays by various law professors offering different thoughts and ideas about the Supreme Court decision and the mess in Florida, including The Vote: Bush, Gore & The Supreme Court, edited by Cass R. Sunstein and Richard A. Epstein. Finally, there is Richard Posner's book, Breaking The Deadlock: The 2000 Election, The Constitution, And The Courts, which I put in a category of its own. Unlike the other legal works, Posner's book presents, for the most part, a fairly straightforward and unbiased review of the legal issues and does the best job of dispassionately analyzing all of the legal arguments and strategies which culminated in the Supreme Court's decision.

Before discussing any of these books, though, a word of caution. If you're a diehard Democrat who believes the election was stolen from Al Gore, then it doesn't matter what you read, you will always believe that. Conversely, if you're a rock-solid Republican who believes the Democrats and the Florida Supreme Court tried to cheat George W. Bush by changing the rules after the election, it won't matter what you read because you will always believe that. Partisan politics aside, though, at least some of these accounts are entertaining or otherwise make worthwhile reading. Both the "behind the scenes" accounts and the legal analyses offer something of interest.

If there is one concept which the "behind the scenes" accounts convincingly demonstrate, it is this: legal strategies and political strategies don't always mix well. By this I mean that what might make sense as a legal strategy won't necessarily play well as a political strategy. A lawyer wants to win his case before the court. A politician (usually) wants to win his case in the court of public opinion. The two aims, though, will often call for opposite strategies. Perhaps nothing more vividly demonstrates this than Al Gore's decision regarding recounts. Initially, he sought recounts only in heavily Democratic counties. This was a sound legal decision because it maximized his chances of picking up as many votes as possible while minimizing the chance for gains by his opponent. Yet from a political view, the decision was much less sound. It appeared as though Gore was trying to stack the deck in his favor, rather than trying to act in a fair and evenhanded manner. Gore certainly didn't do anything legally wrong, but it may not have been the best political decision. The point is that the best legal decisions aren't necessarily the best political decisions, and vice versa. Time and again, in both Down & Dirty as well as The Accidental President, this conflict is apparent.

Several other things are also apparent or are otherwise memorable from the "behind the scenes" accounts. First, there was a tremendous amount of activity on numerous fronts happening throughout the state such that it is difficult to keep track of everyone and everything that happened. The pace was frenetic. Second, both books are written with a real "you are there" feeling that often makes for riveting reading. The election night tenseness, as both sides waited. The drama as Al Gore rode in his limo to give his concession speech, while his aides in trailing limos desperately tried to get hold of him to stop the speech (cell phone use was so heavy, that no one could get through by cell). Much in both accounts holds the reader's interest as we are taken, literally, behind the scenes and see and hear the major players reacting to developments and making the decisions that shaped the Florida recount and lawsuits. At times it is a roller coaster effect. At one point, Al Gore wanted to hire Erin Brockovich (yes, that's right, the same woman that Julia Roberts portrayed in the movie) to help get stories from folks for lawsuits claiming denial of voting rights. His advisors all stood silent, and the idea was quickly forgotten. Although this is just one of the many "behind the scenes" scenes, for some reason it sticks with you as somewhat surreal.

Neither Down & Dirty nor The Accidental President is particularly flattering with respect to either candidate or their advisors, although I believe that both tend to be more derogatory of the Bush camp. While both books are critical of various decisions and tactics employed, and describe many of the players as arrogant, only Bush is subject to out and out derogatory comments such as Tapper's "I do, in fact, picture Bush clutching his pilly, curled up in the fetal position, holding on to his daddy's leg."

At the end of the day, though, one is struck with the observation that by and large the Bush team made the better tactical decisions than the Gore team and played its hand better. Of course, Bush had a better hand to play - he was leading after all - but one can't help but speculate how the Gore team might have done if it had called for a statewide recount immediately, or if it had allowed the initial vote certification to occur on the original timetable set by the legislature, thereby allowing more time for the contest phase of the election. Indeed, there is a certain irony. The Gore team got the Florida Supreme Court to extend the deadline for certifying the results, but at a cost of greatly reducing the time for a contest. The Supreme Court ultimately ended the recount over concerns about lack of time to finish. If the contest phase had started 10 or 12 days sooner, there may very well have been time to complete the recount.

But "behind the scenes" accounts of Florida and Bush v. Gore are, of course, only part of the story. There is the ultimate Supreme Court decision which ended the matter, as well as the lower court decisions preceding it. Neither book attempts a legal analysis, but Supreme Injustice, by Dershowitz, The Vote, edited by Sunstein and Epstein, and Breaking The Deadlock, by Posner, all provide varying views of the Supreme Court decision and the lower court decisions.

Dershowitz, as the not-so-subtle title of his book (Supreme Injustice) suggests, believes that the Supreme Court's decision in Bush v. Gore was wrong and represents nothing more than the naked preferences of the five majority justices. His book is entirely one-sided, vitriolic, and mean-spirited. Indeed, it is so partisan and one-sided that it detracts from the arguments Dershowitz makes. Moreover, his relentless attack on the "five" justices who found an equal protection violation completely ignores the fact that seven (count'em) justices found an equal protection violation, but that only five of the seven justices voted to end the recount, with Stevens and Souter expressing their view that the Florida Supreme Court should be afforded the opportunity to create uniform standards and the recount should be allowed to continue. While Dershowitz excoriates the "five" justices who found an equal protection violation as acting contrary to past Supreme Court decisions and contrary to their own previously expressed views, he says nothing about Souter and Stevens, who also found an equal protection violation. Dershowitz has written some good books. This is not one of them.

A more balanced analysis can be found in The Vote: Bush, Gore & The Supreme Court, which is a collection of eleven short essays by various law professors and legal scholars on the Bush v. Gore decision. Some of the essays are critical, others more positive. They are wide-ranging in their views and conclusions, but they all offer interesting thoughts and ideas.

Of all the books written about Florida and Bush v. Gore, however, Richard Posner's book, Breaking The Deadlock: The 2000 Election, The Constitution, And The Courts, is probably the best written in terms of style, substance and balance. Posner reviews the vote totals as reported and demonstrates that, based on statistical analysis, in all likelihood Gore would have lost even if the Supreme Court had not halted the recount. However, Posner also believes that more voters probably intended to vote for Gore than Bush, although for a variety of reasons they failed to cast proper ballots, meaning that in his view Bush was the winner of the election because it's proper ballots that count.

More importantly, though, Posner walks the reader through the litigation in a way that makes sense and keeps things clear. He believes the Florida Supreme Court repeatedly erred, first by extending the certification date by twelve days, and then by overturning the lower Florida court's holding rejecting Gore's contest. He argues that the Supreme Court's ultimate decision to reverse the Florida Supreme Court was the right course for pragmatic reasons, although he believes that the stronger ground for such a decision would have been that the Florida court's actions violated Article II of the Constitution (that the election be conducted in the manner directed by the legislature) rather than the Equal Protection clause. Posner defends his pragmatic justification based upon any number of scenarios that could have played out had the Supreme Court not stopped the counting (including a scenario under which Lawrence Summers could have become acting president in January 2001, while legal challenges continued). Yet, whether one agrees with Posner's own ultimate conclusions or not, he has written a fair and balanced review of the entire situation which is both thought provoking and highly readable.

But what do any of these books or others ultimately tell us about how history will judge Florida and Bush v. Gore? In so many respects, it seems far too early to gauge the ultimate impact of the Supreme Court's decision. If Bush is re-elected and has a generally successful presidency, then one suspects that the decision (while it will be subject to continuing derision by some) will ultimately be treated as something of a footnote and largely forgotten, particularly when compared to cases such as Marbury v. Madison, Brown v. Board of Education, or Roe v. Wade. However, if Bush's presidency is generally perceived as unsuccessful and he is not re-elected, then the decision will probably be remembered in a harsher light. History, though, will have the advantage of judging with the benefit of hindsight and reflection.

Return to November 2002 Table of Contents.