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Arguments for the Petitioner, George W. Bush
THEODORE OLSON, Bush campaign attorney: Just one week ago, this court vacated the Florida Supreme Court's November 21 decision to uphold the will of the Florida voters, which had guaranteed the legitimacy of the next President, and had basically screwed my client, you know, The Dumb Guy. Just four days later, without a single reference to this court's December 4 ruling, the Florida Supreme Court issued a decision we don’t like, either.
JUSTICE ANTONIN SCALIA: Can you begin by telling us how we can help your client out? How can we convince people that a federal issue arises out of this matter, after we have consistently ruled similar matters to be issues of states’ rights?
OLSON: The federal question arises out of the fact that my client is the son of a former federal President, and has a lot of money. And so – Your Honors – you know, he deserves to win, even if he doesn’t have enough votes.
KENNEDY: It seems to me essential to the Republican Party’s theory of government that the constitutions of the United States and the states are a big inconvenience to their candidate. And to say that the legislature of the state of Florida is unmoored from its own constitution and therefore can certify its electors for the loser in the state’s Presidential election--it seems to me a holding which makes your guy – The Dunce – a total shoe-in.
OLSON: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of electors in state legislatures. The Florida Legislature, of course, has statutes on the books calling for the appointment of Presidential electors by popular vote in that state, but is fully willing to ignore its own laws. We have this information on good authority. Not only are our lawyers working with the Legislature to steal this election, but Jeb told us so.
KENNEDY: Then why are you here? No matter what we decide, it sounds like your guy is sitting pretty.
OLSON: Well, Your Honors, we have to make this look good. A lot of people don’t know what a bunch of partisan whores the majority of you are, so they think that a decision from you would be just. So, we are here for the PR angle.
JUSTICE SANDRA DAY O'CONNOR: But you think that people are going to fall for what we are doing? Don’t you think the press is going to report on our animus and bias against the Vice President and his Party?
OLSON: They certainly have not to this point.
O'CONNOR: Well, but apparently some of the damning information is leaking out none the less.
OLSON: Well, there was a leak with respect to Justice Scalia’s two sons’ employment with the law firm representing The Dummy … and people are beginning to talk about Justice Scalia’s remarks indicating he would not accept a Gore Presidency… and a lot of people have heard about your petulant remarks, ma’am, on election night, when Florida was initially called for Al Gore… and there is the little matter of Justice Rehnquist’s involvement with Operation Eagle Eye in past elections.
KENNEDY: I think that might present a problem.
OLSON: I do not believe that it will. Because, notwithstanding--well, the fact is that the media are in our pocket. Our Party’s contributors and fundraisers OWN them, so you can see that they have an interest in burying or down-playing these conflicts of interest…
KENNEDY: Well, this is serious business, because if the people ever did realize how partisan and biased we are, well, they might not accept a Bush Presidency… An outcome which I think we all can agree, can’t we, that we want? That we would do anything to get?
O'CONNOR: I have the same problem Justice Kennedy does, apparently, which is, I would have thought you could have totally killed these reports by now. What are your guys doing, letting reporters engage in investigative journalism? Don’t you have any control? Are these corporate employees completely un-tethered from the Republican Party?
OLSON: I think that I don't disagree with that, except to the extent that I think that the corporations have a lot of employees, and it's particularly difficult to keep track of ALL of them at the same time.
JUSTICE WILLIAM REHNQUIST: And is it critical to your argument that we try to appear impartial? I do not see the necessity. The media will report us as impartial and judicious regardless of our actual ruling.
JUSTICE ANTONIN SCALIA: DAMN RIGHT! The media isn’t going to let the truth get in the way, so long as we support THEIR candidate, and overturn the Florida Supreme Court's opinion.
OLSON: No, I think that it is, particularly in this case, where you have huge corporations, that it might be difficult to completely obscure the truth. Too many uncontrollable variables. And certainly it is true that corporations can employ their own processes to suppress this information, including terminating journalists who step out of line, and, as our friend Mr. Mellon-Scaiffe did, offering huge bribes to individuals to come forward with stories damning to the Democratic party and its leaders.
SCALIA: Is it your theory, in other words, that although these media conglomerates are huge corporations with many employees, that they have a means to suppress any information proving our bias and animus?
OLSON: No, we do not contend that they can suppress all of it ... In the context of this case, we're saying that they can suppress a great deal, and minimize the damage caused by what does leak, and…
SCALIA: Mr. Olson .. I know you rely very heavily on media interests to control the news product accessible by Americans, but even if they didn’t, it is not as though there is a higher court the Democratic Party can appeal this to. I mean, it is not as though they can say, “That’s not fair! We’re taking this to the Supreme Court!”
[LAUGHTER]
OLSON: Well, I still believe it would be in all of our interests to try to at least make this look good. Even though we all know how you are going to rule, it is our position that you should go through the motions, for the PR benefits that would create. If one looks at, for example, at the impeachment process in 1998, the media was clearly on the side of the impeachers. And yet, they were still unable to secure support for impeachment from a majority of Americans, because the process was seen as partisan . Your Honors need only consider the House Impeachment Managers, some of whom were defeated in this election cycle. We cannot afford to let this happen again. You must give your imprimatur of legitimacy to The Dummy’s Presidency. Otherwise, we will have serious issues in the next election.
REHNQUIST: What's the timetable here? We stopped the counting, like you asked, to make sure that the clock ran out on any chance the Vice President had to get the ballots counted manually…
OLSON: And we really appreciate that…
[LAUGHTER]
REHNQUIST: That's right, and we are willing to work within your timetable now. So, do we need to delay our decision? On this matter? Until after the 18th?
OLSON: Well, I think that, Your Honors, if you rule against everything that could allow the votes to be counted, and you do so quickly, that would also be really good for our guy.
REHNQUIST: It may well be, and I, you know, I will grant you, for the sake of argument, that since we are going to rule that your guy gets to be President no matter who the people actually voted for, that the timetable is moot.
OLSON: Well, I am hoping to convince you that you should wait at least a few days before ruling so people don’t realize that you wrote your opinions before you even heard any of the arguments in this case.
REHNQUIST: You've convinced us certainly that there is a danger of being seen as the partisan whores we are.
OLSON: It is, we submit, an utter necessity that you appear to be impartial and judicious.
REHNQUIST: But, Mr. Olson, we're back to the… didn’t we agree that that makes no real difference since our decision cannot be gainsaid by any other government body?
OLSON: That's correct.
OLSON: That's correct.
REHNQUIST: And what your argument boils down to, I think, is that you would like us to attempt to appear fair, although this is neither necessary for your candidate’s victory, nor likely to influence the manner in which the corporate media presents this story.
OLSON: We're saying that, if the court doesn’t pretend to be fair, it might cause some agitation from voters in other states, for those state legislatures to, as Florida has, give their electors away to the guy they like the best. And there are states that The Dummy has won which have Democratic legislatures. So, you see, it isn't just the decision. It’s the appearance of fairness that might prevent the voters from seeking to have their will expressed in this manner. (continued on next page)
REHNQUIST: Yes, you are, but even if these other state legislatures chose to give their electors to Gore, you know that our friends, the corporate media, would portray them as evil, and their actions as illegal.
OLSON: Well, I believe that is true, but there might be some citizens out there that would ask, “If it is alright for the Florida Legislature to act in this matter, then what is wrong with other states doing the same?”
REHNQUIST: And we need to take that possibility into consideration when rendering our decision?
OLSON: We submit to you that unless you make this look good, that could happen, yes. Furthermore, it is quite clear, we submit, that this would make The Dummy very unhappy.
REHNQUIST: Well, if your concern is with that possibility, how can we rule for your client and still prevent other states from awarding their electors to the guy we don’t want to have win?
OLSON: Well, I don’t know…
REHNQUIST: You'd better find out.
[LAUGHTER]
OLSON: Because we argued, and I believe, that an Al Gore Presidency, though this is what the people have chosen, would be bad for our contributors and large corporate interests. These interests control the media, and although the stealing of electors by legislatures in states other than Florida would be no difference in substance than what is occurring now in Florida, these media interests could be relied upon to characterize them very differently.
SCALIA: I thought your point was we needed to pretend to be impartial in our ruling to lend legitimacy to The Dummy being inaugurated?
OLSON: But, in some ways, that doesn’t matter at all because 1) the media will never report your bias and animus in any substantial way, and 2) the Gore campaign will have nowhere to go for relief, no matter how screwy your decision is.
SCALIA: Good enough. On to more important things. If I throw this election to your guy, what kind of raise are we looking at for my two sons? Ha ha! Wasn’t that a TV show? Sorry… What kind of money, though, are we talking about exactly?
OLSON: I think, Your Honor, that we can safely say it will be substantial and that you and your sons will be more than satisfied with our expression of gratitude.
Arguments for the Respondent, Al Gore
SCALIA, questioning Gore campaign attorney David Boies: Well, what have we here?
BOIES: If I could respond to that, Your Honor.
SCALIA: Not sure why you would want to, but give it a shot. We don’t have anywhere to be.
THOMAS: I do! I don’t want to miss the noon showing of “How the Snatch Stole Dick-mas!”
BOIES: We are here, your Honors, trying to get justice for the American people, and to assure that their votes are counted according to the standard in Florida: the intent of the voters. From the writing of the Declaration of Independence, which said, “Governments are instituted among Men, deriving their just powers from the consent of the governed,”…
O'CONNOR: Don’t quote us the price when we haven’t got the time…
[LAUGHTER]
BOIES: I think ... the court needs to take into account the fact that the American people believe themselves to be entitled, if legally registered, to vote for their Presidential electors. The breadth of federal court opinions on this subject have held that voter error, where voter intent can be determined, is not sufficient reason to deny this right.
O'CONNOR: I'm sorry. You are responding as though there were no special circumstances here. There are! Some of us on this bench would like to retire, and will not be able to, until Bush is President. We can’t let Gore become President, even if he is the preference of the voters! We can’t! I want to go back to Arizona and rope horses!
BOIES: I think there is, Your Honor, no reason why your personal preferences concerning who you would vote for should nullify the votes of other voters, or the voters in question here.
O'CONNOR: You think? Who cares what you think?
BOIES: But, Your Honors…
O'CONNOR: Here’s, I think, another concern that we have. We did not find, really, a response by the Florida Supreme Court to this court's remand in the case a week ago. Why are they refusing to bow down and kiss our butts like everyone else?
BOIES: Your Honor, the Florida Supreme Court was focusing on this contest period, not on the protest period decision to which you now refer. With respect to Miami-Dade and Palm Beach, there was a contest trial. It is the appeal from that trial that is before this court. In that trial record, there was undisputed evidence that the votes that were counted there were valid, legal votes, and those votes need to be included.''
SCALIA: Fine. You can win your little “contest.” But what the Florida Supreme Court said is that there shall be added to the certification these additional numbers.
BOIES: Of course. That is the purpose of bringing a contest. To correct an incorrect certification, and to establish that the will of the people is reflected in the election results.
SCALIA: Those legal votes established by the contest trial cannot be added to the certification.
BOIES: What the hell are you talking about? Are you insane? Of course they can be added to the certification. They have been found, as a matter of fact and law, and with the agreement of the Bush campaign, to be legally cast votes! You have to include them in the results!
SCALIA: You may do a review of the ballots and have your little “contest” of the certification, but you can’t change the certification. You may win, but the votes don’t count. Case closed!
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