VINCENT BUGLIOSI V. THE FIVE JUSTICES OF THE BUSH V. GORE MAJORITY: A Review Of the Betrayal Of America
By LAURA HODES
Vincent Bugliosi, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose our President (Thunder's Mouth Press/Nation Books 2001)
In his recent book, The Betrayal of America, the outrage of famed prosecutor Vincent Bugliosi towards the five Supreme Court justices who halted the election recount, and in effect, made George W. Bush President, leaps off every page. It's no surprise that the Nation article upon which this book is based drew more reader reaction than any other in the magazine's history. Bugliosi writes with anger, with passion, and with courage. He is not afraid to take aim.
Few escape Bugliosi's wrath, and that no-holds-barred take on the whole fiasco is what makes this an unusual and worthwhile read.
Criticisms of David Boies and the Gore Legal Team
The Bush team argued before the Court that the lack of a uniform standard to determine the intent of Florida voters violated the equal protection clause of the Fourteenth Amendment. Bugliosi points out that the Court had already once declined to review the Bush team's equal protection argument on November 22, when the Bush team first requested that the Court consider it. Only on December 12 after a second Bush request for a hearing, and under time pressure from a federal statute setting a deadline relating to the selection of electors did the Court, or at least the five Justice majority, embrace the argument.
Bugliosi contends that Boies and the entire Gore legal team should have pressed hard on, and poked holes in, the equal protection argument, about which at least some of the justices were probably already dubious. While not as appalled with the Gore team's performance as he is with that of the five majority justices, he does not hold back in his criticism, asserting that "I have no doubt in my mind that thousands of civil lawyers in the country could have done a far superior job."
Arguments the Gore Team Should Have Highlighted
Bugliosi makes one wonder why the Gore team failed to make several excellent points, which Bugliosi makes here in response to the Bush team's invocation of the Equal Protection argument. (Indeed, there is no doubt in my mind that the next president or president-elect who finds him or herself before the Supreme Court will in future, if he or she reads this book, consult Bugliosi.)
First, normally in equal protection cases, the aggrieved party in this case, the Florida voter who claims his or her vote was not counted equally brings the action. That was not the case in Bush v. Gore, which raises the question whether Bush had standing (that is, the legal right) to sue.
Second, the Supreme Court has consistently held that the equal protection clause can only be successfully invoked if the discrimination was intentional, and in this case, an excellent case can be made that it was not. Any differences from county to county as to how intent was assessed probably were not intended to discriminate among various voters, though they may have had that effect.
Third, if the five justices were truly concerned about the voters' equal protection rights, then how could they adopt a solution that meant that those who submitted "undervotes" would not have their votes counted at all? Certainly eliminating certain voters' ballots, and not those of others, is the greatest voting inequality of all.
Bugliosi does not suggest that by doing a better job in oral argument, Boies could have changed the outcome. He is convinced that the "five conservative Justices had already made up their minds." But Bugliosi would have liked to have seen the Gore team make it more difficult for the Justices to rest their decision on a flawed Equal Protection argument.
Bugliosi also points out several mistakes that Boies made before the Florida trial court that made it easier for the U.S. Supreme Court justices to rule as they did. Because experienced trial lawyers never "assume that the judge knows the law of a case," and Judge Sauls "gave no indication that he was a legal or mental giant," Bugliosi contends that Boies "should have put a bib on Sauls and spoon-fed him."
Too Passionate a Writer?
All these points are excellent and they are made with passion and conviction. But while Bugliosi's passion is the book's strength, it also results in its weaknesses.
The writing is a bit rushed and sometimes repetitive. And the book's stridency, too, could be seen as a flaw. Bugliosi not only contends that the five justices were wrong to rule as they did, that their ruling lacked a legal basis, and that they were motivated purely by politics, he also claims hyperbolically that their act makes them "criminals."
To make his point, Bugliosi resorts to references to his prior legal career as the prosecutor of such heinous criminals as Charles Manson: "I think my background in the criminal law is sufficient to inform you that Scalia, Thomas et al. are criminals in the very truest sense of the word." Indeed, he states at one point that "Rehnquist should be making license plates, not sitting as Chief Justice."
Of course, these remarks are, to some extent, humorous, and to a large extent, merely rhetorical. Bugliosi himself seems to acknowledge this when he urges that "even if one were to reject all the evidence that I believe points irresistibly to the conclusion that the five Justices criminally and deliberately stole the election for Bush," that should not prevent the reader from at least agreeing that the Court "ruled incorrectly when it concluded there was a violation of the equal protection clause of the Fourteenth Amendment."
Therefore, he does not intend his frequent declarations that the Justices are criminal to be literal. Instead, his tactic is familiar to 1L's across the country: Put forth your boldest argument and then offer a milder alternative which will then look eminently reasonable in comparison, and be more likely to persuade the judge.
While Bugliosi, in the end, hardly convinces the reader that the justices are criminals, he does succeed in robbing them of their cloaks revealing their fallible, political selves beneath their robes. After reading his book, few will trust the Supreme Court to fulfill its intended role as objective arbiter and guardian of the rule of law as the highest court in the land.
Insights From a Trial Lawyer, and a Fighter
Bugliosi argues that Boies, while he may be an excellent corporate or business lawyer, nevertheless is not an effective trial lawyer, because he is not a "fighter." Bugliosi complains that Boies "wasn't forceful or eloquent at all in making his points. And although he seemed to have a very good grasp of the facts, he seemed completely incapable of drawing powerful, irresistible inferences from those facts that painted his opposition into a corner."
Bugliosi marshals facts from a wide range of sources: the trial, newspaper articles, bits from news talk shows, law experts, and legal precedents. And from these facts, he eloquently draws conclusions, to paint a waterproof argument and to force the other side into a box. Some of his points, or "amplifications," miss the mark, but others hit the bull's-eyea successful trial strategy.
Bugliosi shows in the book that he is the fighter he wishes Boies had been. It makes one wish that Bugliosi had had the chance to deliver the oral argument and, at least, make it difficult for the justices to deliver the ruling they did. It is as if, with every word, Bugliosi is punching a blow at the five justices.
While The Betrayal of America could have been more organized and less strident, that approach would have prevented the reader from seeing Bugliosi, the famed prosecutor, at work. In effect, Bugliosi puts the five Bush v. Gore majority justices on trial. While he fails to convince the reader that they actually belong behind prison bars, he does persuade us that they acted wrongly, and betrayed the country's confidence in the Supreme Court as the guardian of the rule of law.