TOO CLOSE TO CALL: THE THIRTY-SIX-DAY BATTLE TO DECIDE THE 2000 ELECTION
By Jeffrey Toobin

"I am at times almost sorry that I undertook to write their history, for they appear like mere grasshoppers kicking and gesticulating on the Mississippi River. There is no possibility of reconciling their theories with their acts . . . They were carried along on a stream which floated them, after a fashion, without much regard to themselves." - Henry Adams

So Henry Adams confessed to Samuel Tilden while engaged in his monumental history of the presidencies of Jefferson, Madison and Monroe. As the 2000 election played out its final days, both before the cameras and before the courts, it seemed newly appropriate. One had the sense that the parties involved were simply doing what they thought they had to do, without any regard for what the right thing might be.

There were two major media stories surrounding the American presidency in the last two years and Jeffrey Toobin has written accounts of both. The first, the Clinton-Lewinsky affair and subsequent impeachment hearings, was dealt with in A Vast Conspiracy. The second is the subject of Too Close to Call. I mention the two stories together not just because of the fact that Toobin wrote books about both, but because they make an interesting paradox. The Clinton-Lewinsky scandal was a story about nothing made into something, while the tale of the 2000 election was a story about something made into nothing. "Monica" is still with us; one suspects that fewer Americans remember where Broward County is.

But back to Bush and Gore, in their appearance as grasshoppers gesticulating on the Mississippi. Reading Too Close to Call, it is pretty clear that Toobin would not agree with the fatalism of Henry Adams. Despite being a clear Democratic partisan (Republicans are identified as vicious, brutal, even "feral" in their lust for power), Toobin has plenty of harsh language for the defeatists in the Gore camp during the 36-day struggle, not the least of which was the Vice President himself. It was not the forces of history that propelled the Gore side toward "the judicial abyss that fate had sent them." If the abyss was fate, it was one they let themselves be pushed into.

And yet one wonders how the insects might have behaved otherwise. The road was clear for Team Bush from Day 1: They had a victory on the books and all they had to do was sit on their lead. To cooperate on any point with the Gore campaign would have been risking everything for nothing. And while it’s true that Gore might have fought harder, the final outcome, given that lack of cooperation, was inevitable.

It is in the "judicial abyss" that the currents of the Mississippi really picked up speed. The outrage over the Supreme Court’s 5-4 ruling can be located precisely in the "impossibility of reconciling their theories with their acts." As their critics (most notably Vincent Bugliosi and Alan Dershowitz) have put it, one simply can’t imagine the majority deciding the case the same way if the shoe had been on the other foot.

In other words, the majority were hypocrites of the darkest dye. In one opinion the Rehnquist court overturned nearly all of its core principles in order to arrive at a predetermined result. While often compared (by commentators on the left) to the infamous Dred Scott case, it was, in law, a less tenable decision. The majority in Dred Scott at least had some legal argument, however immoral, to hang their hats. The absurd invocation of the equal-protection clause of the Fourteenth Amendment to save the day for the Bush forces was entirely without reason or precedent (a fact recognized by the majority, who went out of their way to explain that their decision could not be taken as establishing a precedent either).

Toobin is no doubt correct in concluding that, "in any real, moral, and democratic sense, Al Gore should have been declared the victor over George W. Bush - in the popular vote, in Florida, and in the Electoral College." Only a confirmed cynic could suggest otherwise.

But it is fate that makes cynics of us all.

Notes:
Review first published online November 21, 2001.