Vote of no confidence

A self-described "election junkie" surveys dozens of books about the 2000 presidential contest and arrives at some troubling conclusions.

Published January 30, 2002 4:45PM (EST)

By my count, the 36 days following the Nov. 7, 2000, presidential election generated not less than 36 books and one Ph.D. dissertation, plus countless articles and essays. To examine and understand the historic Florida vote count, however, no reasonable person is going to read all this material, excepting perhaps another Ph.D. dissertator. Nonetheless, being an election junkie, I was sufficiently interested to read almost half of them.

Many observers believe that the 2000 presidential election story is over and dead. I don't. Rather, I think these events are going to return to haunt future elections, not to mention the Senate confirmation hearing of the next nominee to fill any vacancy on the United States Supreme Court. For example, after reading these books, I would not be surprised to discover that Enron's political largess was somehow involved in the Florida vote-counting debacle.

Most of the book-length efforts at recounting, explaining, criticizing and justifying the 36-day imbroglio have been ignored. Clearly, some books have been victims of the tragedy of Sept. 11, which rendered Election 2000 irrelevant, passi.

Yet even before that, only two Election 2000 books had attracted any real attention; former Los Angeles prosecutor Vincent Bugliosi's "The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President" spent six weeks on the New York Times paperback bestseller list, and Harvard law professor Alan Dershowitz's "Supreme Injustice: How the High Court Hijacked Election 2000" enjoyed seven weeks of New York Times bestsellerdom.

Both books (which were reviewed by Salon), however, had fallen off the New York Times list a month before the terrorist attacks. I read Dershowitz's broadside on the Supreme Court's majority ruling in Bush vs. Gore for the same reason that people stop to watch a wrecking ball knock down a building. The professor does not disappoint. He does a smashing job ... so to speak.

Similarly, I couldn't resist mince-no-words Vincent Bugliosi, who makes Dershowitz appear shy as he asserts that the five justices who "literally stole a presidential election" did so because "they had, incubating inside them, the most squalid of characters, a lowness that may never have manifested itself if they had never been presented with this situation."

More specifically, "these five justices are criminals in every true sense of the word, and in a fair and just world belong behind prison bars as much as any American white-collar criminal who ever lived."

A seasoned senior editor at a New York publishing house told me shortly after the Sept. 11 terrorist attack that all the Election 2000 books still in the publishing pipeline -- and there were many -- would be DOA; even those by previously bestselling authors like Jeffrey Toobin would tank. He was correct. No other Election 2000 book would become a bestseller.

Certainly, after Sept. 11, my own thoughts and reading turned from the election debacle to understanding terrorism. But as that clear and present danger has seemingly diminished, my interest in all those Election 2000 books was revived.

I decided to take a serious look. Leaving aside institutional books (those prepared by Lexis-Nexis, Congressional Quarterly, the New York Times, the National Commission on Election Standards and Reform, and the like), as well as those I had already read (Dershowitz, Bugliosi, Jake Tapper and Bruce Ackerman, to name a few), I selected nine more authors I thought might be worth adding to my library. There were a few surprises, both good and bad.

Because most of these books are highly critical of the Supreme Court's ruling in Bush vs. Gore, I was particularly interested in any that defended the high court's action. They are few, with the most prominent being "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts" by Federal Court of Appeals Judge Richard A. Posner. While a partisan, Judge Posner is always judicious.

Having read many of the prolific judge's writings -- indeed I'm reading his latest on "Public Intellectuals" as I write this -- I found that his Election 2000 apologia may be the worst book he has ever written. It is poorly organized and so thinly argued that it is difficult to find justification for his conclusion "that the Florida Supreme Court acted unreasonably and that the U.S. Supreme Court did not -- which is not the same thing as saying that the Court's decision was correct. That is a close question, perhaps unanswerable."

Posner's less than ringing defense of Bush vs. Gore is typified by his claim that the "decision is not lawless merely because the majority opinion is weak, especially when pressure of time made it impossible for merely human judges to do a good job." But this rushed-ruling argument ignores the fact that each of the four dissenting justices managed to assemble well-reasoned, articulate arguments that eviscerated their conservative colleagues' thoughtless work. Judge Posner's public intellectualism on Election 2000 will disappoint even his most ardent fans. It did me, anyway.

A book that I consider a great "little" find is Fordham law professor Abner Greene's "Understanding the 2000 Election: A Guide to the Legal Battles That Decided the Presidency." This concise volume does exactly what it promises. Greene explains what happened during the various legal proceedings and why.

He offers commentary rather than criticism. This book can serve as a terrific summary reference work for students, journalists and others interested in getting a quick handle on the many legal actions involved during the Florida vote count.

However, for a fuller account of the legal machinations -- and a similarly dispassionate, scholarly and accessible analysis -- there is the work of University of Southern California political science professor Howard Gillman, "The Votes That Counted: How the Court Decided the 2000 Presidential Election." Gillman's analysis is often striking, not by reason of his rhetoric, but rather because of his cold logic and lucid arguments.

Particularly powerful (as well as carefully and tightly reasoned) is Gillman's analysis and conclusion -- which is the exact opposite of Posner's -- that the Florida Supreme Court acted in a nonpartisan manner while the U.S. Supreme Court acted in a partisan fashion.

He states: "The five justices in the Bush v. Gore majority are ... the only judges involved in this election dispute who fall uniquely within the category that is most indicative of partisan justice: they made a decision that was consistent with their political preferences but inconsistent with precedent and inconsistent with what would have been predicted given their views in other cases."

Not all the authors discussed here focus on the monthlong festival of bickering lawyers as they carried briefs for either Bush or Gore in and out of Florida and federal courtrooms. The legal activity that culminated in the controversial landmark Bush vs. Gore ruling was not the sum total of the story. Actually, for most authors examining the 36-day Florida vote contest, Bush vs. Gore was merely the story's finale.

Larry J. Sabato, a University of Virginia political scientist, succinctly covers the full spectrum. Professor Sabato (with UVA colleague Joshua Scott) introduces an anthology of thoughts and commentary from both participants and observers in "Overtime! The Election 2000 Thriller."

For me, the most interesting essays were those by Gore's legal advisors Ron Klain and Jeremy Bash (explaining what they tried to do) and by Bush's legal advisor George Terwilliger III (explaining his team's efforts), and Jake Tapper's revealing essay, "Down and Dirty, Revisited: A Postscript on Florida and the News Media."

As Salon readers know, Tapper covered the election, including the Florida vote-counting phase. He writes for Sabato about researching his book, "Down and Dirty: The Plot to Steal the Presidency," and reports that when he returned to Florida after it was all over he discovered he "was learning tons. Waaaaaay too much. It was unnerving how much I did not know."

Even more striking, Tapper writes, he was virtually alone as a journalist digging out the details of what had actually happened. Tapper found that once Bush had been elected, his colleagues in the news media turned away from the story. And this was long before Sept. 11.

The failure of the mainstream news media, particularly television news, during Election 2000 is a central theme of University of California philosophy professor Douglas Kellner's book, "Grand Theft 2000: Media Spectacle and a Stolen Election."

Kellner asserts that the mainstream news media "failed in their task of providing probing investigative journalism, intelligent analysis and critique of partisan positions, and independent analysis of the stakes of the combat in the events such as the struggle for the presidency that followed Election 2000." Employing the tools of critical social and media theory analysis (but explaining his findings in lay terms), he persuasively documents the basis of his conclusions, not only regarding the media's failure, but also supporting his contention that the Republicans stole the presidency.

Before joining the UCLA faculty in 1997, Douglas Kellner was at the University of Texas in Austin. As an experienced Bush watcher, he offers this heads up: "The coming Bushgate will be the inexorable and possibly cascading torrent of revelations that will uncover the slimy political and economic history of the Bush dynasty, the particular scandals that George W. Bush has been involved in, the correlation between the contributors to the Bush campaign and his actual policies, and the hopeful uncovering and dissemination of the manipulations, machinations, and possible criminality involved in his theft of Election 2000."

Given the current headlines about Enron's colossal failure and its close ties to the Bush administration, it is not easy to dismiss Kellner's charge as mere Bush bashing by a left-leaning scholar. To the contrary, I found myself carefully rereading parts of Kellner's book where he addresses the media's failure "to pursue George W. Bush's family history, scandalous business career, dubious record as governor, lack of qualifications for the presidency, and serious character flaws."

If Kellner is correct, Enron may prove a calamity for George Bush. Still, if Enron is covered by the mainstream media as poorly as Kellner asserts they covered the 2000 election, Bush will survive it.

Without doubt, the best title of the bunch belongs to John Nichols, Washington correspondent of the Nation magazine and author of "Jews for Buchanan." While his subtitle slightly distracts, it lets you know where he's headed: "Did You Hear the One About the Theft of the American Presidency?"

This diminutive paperback, about six inches by six inches, could be mistaken for a novelty book on Election 2000. And indeed, it is fun and funny, but its humor is deadly -- for the Bush folks.

"Jews for Buchanan" is filled with amusing quips, cartoons and more than incongruous -- but apparently authentic -- e-mail from a recused Florida governor, John Ellis "Jeb" Bush. No presidential election is complete without the observations of gonzo journalist Dr. Hunter Thompson, which can be found in this small volume: "Bush didn't actually steal the White House from Al Gore, he just brutally wrestled it away from him in the darkness of one swampy Florida night. Gore got mugged, and the local cops don't give a damn."

Also, Nichols has included an exclusive interview with Pat Buchanan: "Look, I am not unaware of what 20 years of accusations in the media can do to your reputation. Remember, I worked for Richard Nixon. I heard one old fellow in Palm Beach County say he would sooner vote for Farrakhan than Pat Buchanan."

The delight of Nichols' effort is its brevity, his light-handed but relentless deconstruction of the vital events leading to Bush's Florida victory. This is wit worth taking seriously.

While reading all these accounts, I expected the experience to be like watching Akira Kurosawa's "Rashomon," the Japanese film masterpiece showing the varying perceptions that people can have of the same event. Remarkably, this did not happen. The underlying story, told from varying viewpoints and focuses, is consistently reported.

This is not to say that all the books rehash the same account. To the contrary. Take the analysis by two working journalists, both of whom are trained as lawyers: David Kaplan, who is a senior writer for Newsweek magazine, and Jeffrey Toobin, who writes for the New Yorker.

Kaplan's "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" reports the same events as Toobin's "Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election," but relies on different details, with only a few exceptions. When they happen to deal with the same facts, they rarely disagree, although there are a few irrelevant discrepancies.

For example, both report on an interesting tidbit previously known to no one outside the Gore camp. Al Gore wanted to get Erin Brockovich, who had organized victims of corporate pollution, involved with the recount. Apparently, the vice president had seen Julia Roberts' portrayal of Brockovich, which was on screens everywhere at the time. So Al called Erin.

Kaplan writes that Ron Klain had no problem with bringing Brockovich into the recount undertaking, but deferred to Michael Whouley, the aide who was out collecting affidavits from voters; Whouley, Kaplan reports, thought it would be a disaster. Toobin writes that it was Ron Klain who turned Gore off the idea. The difference is irrelevant, however, because obviously Gore listened to someone, and as a result avoided being savaged by late-night comics who could have found endless material in his hiring of Brockovich.

Both Kaplan and Toobin report on the inner workings of the Gore and Bush camps. Both found Gore far more restrained than Bush, for Bush's operatives had only one goal in Florida -- winning.

While Gore wanted to win, he did not want to offend anyone in the process. The Bush team could not have cared less about who they offended. Maybe Gore should have hired Brockovich, for she doesn't work on a leash. And her arrival in Florida might have given a freer rein to the entire Gore team.

David Kaplan concludes that George W. Bush became president because of a fluke, a series of aberrant events, and because he got lucky. Jeffrey Toobin thinks that Gore lost Florida because he was overly concerned about elite opinion makers, men and women who write the editorials for the New York Times and the Washington Post, rather than with doing what was necessary to win. Kaplan's writing is highly entertaining; Toobin's eloquence flows beautifully. Either or both might have been bestsellers had Osama bin Laden not let loose his twisted wrath on America.

Of all the books reviewed here, however, I found none more enjoyable and informative, from a very different perspective, than CNN senior political analyst Jeff Greenfield's "Oh, Waiter! One Order of Crow! Inside the Strangest Presidential Election Finish In American History." This is a look inside CNN's Election 2000 coverage.

Greenfield tells how CNN and the other news organizations mistakenly called the winner of the presidential race not once, but twice. He provides a feel for the off-camera drama of covering this historic election, showing both the show business side of television news, as well as the backstage nitty-gritty of anchors and analysts cramming their heads, or notecards, full of interesting facts and figures to fill the airtime. Greenfield makes no effort to justify the goofs, rather he reveals how they so easily happened.

Greenfield explains how exit polls work -- or sometimes don't work -- how TV news organizations (CNN, ABC, CBS, NBC, Fox News and AP) underwrite, at a total cost of $33 million, the gathering of exit poll information by Voter News Service. Each news organization has its own analyst who evaluates the VNS data, along with a small percentage of actual voting returns, to make the call on the winners and losers, usually within minutes of the polls' closing.

While exit polls have strengths (they are directed at actual voters with fresh memories), they also have weaknesses (they do not always include sufficient absentee ballots, which must be accounted for based on samplings that can be flawed). Florida, it became clear after the fact, was statistically too close to call.

Jeff Greenfield, who went to Yale Law School with Sen. Joe Lieberman, addresses both legal and political matters. His writing percolates, particularly when he reconstructs what he was thinking during various crises and events. Unfortunately, this terrific book is flawed by the failure to include an index.

I could easily fill another book with what I gleaned from the Election 2000 books that now fill my shelf. But you should know a few bottom-line facts I learned from my reading. For these, the evidence is overwhelming, and the conclusions are inescapable, if not irrefutable:

  • Al Gore, to win in Florida, should not have restrained his Florida team, worrying unnecessarily that the establishment elite would be unhappy with him, for if he had taken the attitude of his opponent -- Bush was prepared to tie up the election indefinitely, if necessary -- he could have prevailed in the Florida recount. He had more actual votes than Bush, not to mention more voters who were disenfranchised by Florida election errors. In truth, he won the Florida vote, but lost the recount.

  • Florida Governor Jeb Bush's behind-the-scenes efforts and influence are still not fully known, but his presence was felt everywhere during the recount, assuring his brother's team a win. Jeb Bush's influence helped open doors for George W. Bush, and closed doors for Gore. This part of the story still remains to be told.

  • The U.S. Supreme Court's intervention into the Florida recount was pure partisan politics, driven by the court's conservative majority, and their actions resulted in one of the high court's most shameful decisions ever.

  • Finally, until we modernize our presidential election processes and procedures with new laws (and, if necessary, a constitutional amendment to abolish the outmoded electoral college), another presidential election debacle could easily, and very likely will, occur again.

By John W. Dean

John W. Dean served as counsel to President Nixon from 1970 to 1973. He now writes a column for Findlaw and is the author of several books, with the next to be published in January 2004, a biography of Warren G. Harding. .

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2000 Elections Al Gore Books George W. Bush Supreme Court