Jewish World Review Dec. 11, 2000 / 14 Kislev, 5761
The election will determine whether the norms that defined the Clinton-Gore era will be transcended or become routine. Will there be an end to slash-and-burn politics, one cost of which is wear and tear on the rule of law?
Americans have seen David Boies, Gore's lawyer, inflict such wear and tear. Boies's behavior has not received proper scrutiny, partly because many round-heeled journalists have a crush on Boies, who plays them as effortlessly as Paganini played a Stradivarius. But to understand why the Boies coda to the Clinton-Gore era illustrates the continuity of the era, step back two Decembers.
In December 1998, during the House debate on articles of impeachment, Henry Hyde said the issue was not sex, it was lying under oath. The case for impeachment was: If a president is allowed to lie under oath in a civil proceeding, the justice system is in jeopardy, because it depends, utterly, on the truthfulness of advocates and witnesses. Which brings us to Gore's Florida month of living dangerously, and evidence that Clinton's and Gore's practice of playing fast and loose with truth and law is a communicable disease.
Florida's chaos deepened when Boies convinced Florida's credulous Supreme Court of a crucial falsehood. He said that in an Illinois election case 10 years ago, a judge ordered that stray, random--so-called "rogue"--dimples be counted as votes. But in fact such markings were not counted. The judge counted dimples as votes only if the voter left a pattern of dimples, indicating an intent to vote but a failure to follow directions. Florida's court, combining judicial activism and intellectual sloth, did not trouble itself with anything as recondite as independent verification of this assertion by an interested party.
Next, to influence the Broward County canvassing board, Boies had someone associated with the Illinois case awakened around midnight to send an affidavit confirming Boies's misrepresentation. A day later, the sender's memory refreshed, he sent a revised affidavit. But Boies's team did not advise Broward County of the second affidavit. Broward counted hundreds of Gore votes by following the misrepresented standards from the Chicago case.
Days later, in Judge N. Sanders Sauls's court, Boies, arguing that Palm Beach County's punch-card voting machines failed to register votes for Gore, presented as an expert witness a Yale statistician. The statistician testified that there are more "undervotes" (ballots on which no candidate for an office is voted for) when candidates for that office are listed in a ballot's left-hand column. To validate his theory, the expert relied on Palm Beach County's 1998 ballot. Boies's team signed and filed a "proffer" advising the court that their statistician would testify that "a closer inspection of the  Palm Beach County ballot reveals that the senatorial race was recorded in the first column and the gubernatorial race in the second column."
But the senatorial and gubernatorial candidates were listed in the same column. The statistician never examined that 1998 ballot, closely or otherwise. He said he relied on "facts" supplied by Gore's legal team. Not wise.
In a sworn affidavit on the same subject, the statistician qualified his judgment in a way inconvenient to Boies's team, saying that to be certain of a particular conclusion that Boies's team liked, further study would be required. But Boies's team did not include the qualifying phrase in a document presenting the statistician's views to the court.
When Boies took Gore's stricken case from Judge Sauls's circuit court to Florida's Supreme Court, Boies said, "We accept the rule of law." How should one respond to that? Perhaps, "Awfully good of you." Or, in the spirit of Boies's client, "Well, that's one option."
Boies, like a pet that resembles its owner, resembles his client, who in turn resembles his patron, the president, whose spirit
infused Gore's Florida war. When a few dozen mingled journalists and Republicans noisily protested the Miami-Dade
canvassing board's decision to conduct a recount in private, some Democrats demanded an investigation by the U.S. assistant
attorney general for civil rights, Bill Lann Lee. He occupies his office by virtue of an illegal use of a recess appointment by Bill
Clinton. Making the appointment after the Senate refused to confirm Lee, Clinton breezily said, "I have done my best to work
with the United States Senate in an entirely constitutional way. But . . . " But the constitutional way is just one
12/06/00: A Chastened Court