Down & Dirty (99 page)

Gore and Daley have one last talk Tuesday night before a decision is made.

“I think it looks pretty bad,” Gore says. “There seems to be unanimity” among the lawyers’ opinions.

Not Samurai Klain, of course, who wants to keep fighting until the last breath he draws, but among all the others. Boies,
in particular, thinks that this is the end of the road, if for no other reason than that he doesn’t buy the Supreme Court’s
equal protection argument at all. Every county in Florida does have the same standard, he thinks—the “intent of the voter”
standard. It may be a very general standard, but it’s Florida law. They had asked the Florida Supreme Court not once but twice
to give them a more precise explanation, a more detailed statewide standard, and both times the court balked. The SCOTUS itself
could have suggested something back
after the December 1 hearing—it’s not as if the Bushies weren’t complaining about this very issue as long ago as in their
very first briefs before Middlebrooks, submitted on November 11.

Moreover, Boies thinks—and says, often—if a single general standard is unconstitutional, then elections in many, many states
for many, many years have been a violation of the equal protection law. And the difference between counties in terms of the
application of that standard is much less significant than the differences in counties based on different voting machines.
The difference between how counties might apply the intent standard is a lot less than the difference between juries in the
North and the South in terms of putting somebody to death—or even in terms of the difference in the application of the death
penalty in Broward County versus Leon County! So if there’s an “equal protection” problem on this, then it’s a problem that
pervades much of what local government and courts do.

All of which is to say, Boies concludes: the SCOTUS was going to find a way to put an end to this one way or another, and
this was the way they chose, and that’s all she wrote.

The next morning, Daley returns to NavObs. Gore’s working on his speech.

Klain and his team—O’Melveny & Myers Los Angeles partner Mark Steinberg, Ohio State University professor Richard Cordray,
Mark Messenbaugh, Dan Feldman, Bash—work all through the night, preparing a brief to the Florida Supreme Court. It explains
how a statewide recount can be done in keeping with equal protection. It establishes a statewide standard based on
Delahunt’
s slutty standards—with any “discernible indentation or mark, at or near the ballot position for the candidate.” It asks the
Florida Supreme Court to clarify to the SCOTUS that December 12—which just passed—was not the deadline, despite what Boies
told them at that first state supreme court argument. It’s a brief that will never be filed.
^*
At around 8
A.M
., Klain gives the team the news: the vice president has decided to suspend all efforts. Klain delivers an emotional thank-you.
“I’m privileged to have worked with a group like you,” Klain says.“It’s time for us to stop.”

At 11 or so, Gore himself calls. He’s put on speakerphone. “Boy, that was
some Election Night, huh?” Gore jokes. He thanks them all. “I can’t tell you how much that meant to me and the country. Tipper
and I are grateful. You people are unbelievable, just unbelievable. Your performance was absolutely astonishing.”

It’s an emotional moment for Klain in many ways, pushed that much closer to tears because he hasn’t had a good night’s sleep
in more than a month. Finally he had been put in charge of a Gore campaign. He didn’t win. But he had done everything he could,
and, he feels, there are few serious tactical errors—if any—that could have been anticipated and could have definitively changed
the outcome. And, after all, Gore hadn’t officially won Florida even once, and it came this far. And while the battle had
gone on, not only did Klain prove himself to Gore, but the Al Gore whom Klain had admired—and liked, even—had reemerged.

Gore breaks up the moment with another joke. He’s having a party at NavObs Wednesday night, everyone’s invited. They shouldn’t
have any problem finding the place, Gore says. “You’ll know it when you see a group of people shouting, ‘Get out of Cheney’s
house!’”

But even as the Gore attorneys pack away their legal-size manila folders, and Fabiani reaches for his bourbon, other Democrats
are in denial. Richman and Jacobs are looking into a way to appeal the Seminole County lawsuit at the U.S. Supreme Court.
Then there are the three Florida house Democrats who call for Gore to continue to pursue whatever legal avenues remain available
in his quest for the presidency. And in the protests of representatives Alcee Hastings, Peter Deutsch, and Carrie Meek, it’s
made crystal clear that many Americans will forever harbor lingering doubts about Bush’s legitimacy as president.

“The vice president should not concede and should actually use that opening the Supreme Court has given him,” Deutsch says
in a conference call with reporters Wednesday. “There’s still time to count the votes.” Despite legal experts’ claims to the
contrary, Deutsch insists, the Supreme Court ruling, in remanding the case back to the Florida Supreme Court, leaves an opportunity
for the recount to be reordered on constitutional grounds. The actual final deadline “is January 6, when Congress accepts
the electors,” Deutsch says. They slam the SCOTUS for what they consider to be a partisan ruling precluding, according to
Meek, “my African-American constituency” from having a “chance of having their votes counted.” The Court’s decision “reminds
me of some terrible, horrible mistakes of the past,” she says.

Hastings says that the ruling turned American politics upside down.
“Rather than be a place where presidents choose judges, these were judges choosing a president.” Deutsch says that his ten-year-old
son summed up the perception problem of the Court Wednesday morning when he said, “It’s not fair.” “It looks like a political
decision,” Deutsch says, calling the ruling “maybe [the Supreme Court’s] darkest hour ever.” While Hastings, Meek, and Deutsch
allow that they will live with a President Bush, Hastings calls the decision a “stain on democracy….The people are going to
be left saying, ‘I’m not certain this guy won this election.’” Factor in the various disputes surrounding the Florida election,
Hastings says, including the butterfly ballot, the failure of various hand recounts to be completed, the fact that some ballots
were “on an eleventh-grade reading level” and on and on. After all that, “you tell me that you know that George Bush won this
election, I will tuck myself under the legitimacy that you have just falsified. The legitimacy of any president where the
votes are left uncounted is automatically a consideration.”

Yes, they’ll work with him. “He’ll ‘be’ the president,” Hastings says. “And if the Middle East explodes tomorrow, we will
rally around him as we would Al Gore.” Still, the wounds from this election may be slow to heal, Meek says, particularly among
black voters, who are especially wary of the legitimacy of Bush’s presidency. “Our voters are suspect [
sic
] of the judicial system,” Meek says. “They feel there’s something rotten in Denmark. There have been too many circumstances
that belied honesty and integrity in this process. They don’t believe that Gore has been treated fairly. They feel that their
votes have not been counted.”

“I don’t think this thing is over,” Deutsch says. “Just think about every Bruce Willis movie you’ve ever seen.”

“I prefer
Friday the 13th
and Freddy Krueger from the
Nightmare on Elm Street
films,” jokes Hastings.

But even Bruce Willis movies roll the credits at some point. What about the members of the Gore team who are saying that it’s
all over?

Deutsch refers to them as “the people in Al Gore’s office who want to go back to being lobbyists” and “don’t want to offend
a Bush administration,” because they’re “afraid of losing their clients.” Deutsch says that he knows Gore fairly well and
that “I know in his heart I don’t think he wants to stop.”

Carter Eskew pitches in, makes some suggestions about Gore’s speech. As do Attie, Daley, Bob Shrum, Tipper, Karenna, Kristin,
the Gore family in general. Even historian Richard Goodwin throws in an idea or two. But Al
Gore’s speech is largely his own. He’s working hard, finding the right tone, working on delivery, making sure that it’s the
speech of his life. There’s some debate about whether or not he should use the word “concession.” He decides he’d better.

His speech is human, heartfelt, self-deprecating, completely and absolutely deferential to President-elect George W. Bush.
Gore steps to a podium in the Old Executive Office Building. He seems to take a moment to mentally prepare himself; a barely
perceptible shift from a wince in horror to a sigh of relief.

“Just moments ago, I spoke with George W. Bush and congratulated him on becoming the forty-third president of the United States,”
Gore says. “I promised him that I wouldn’t call him back this time,” he jokes. Gore spells out his concession so clearly that
no pundit could read any doubt into it, or slam him for anything but unconditional surrender,“offer[ing] my concession… and
accept[ing] my responsibility, which I will discharge unconditionally, to honor the new president-elect and do everything
possible to help him bring Americans together.”

Without trying to justify his hard-fought legal battle to have the Florida undervotes counted, Gore acknowledges that he “strongly
disagree[s] with the [Supreme] Court’s decision.” But he also says: “I accept the finality of this outcome, which will be
ratified next Monday in the electoral college.”

Showing a glimmer of the pugilistic “Fightin’ Al” who felled Bill Bradley and so turned off the media, Gore says that “some
have asked whether I have any regrets. And I do have one regret: that I didn’t get the chance to stay and fight for the American
people over the next four years, especially for those who need burdens lifted and barriers removed, especially for those who
feel their voices have not been heard. I heard you, and I will not forget. I’ve seen America in this campaign, and I like
what I see. It’s worth fighting for, and that’s a fight I’ll never stop.”

He quotes Sen. Stephen Douglas telling Abraham Lincoln, “‘Partisan feeling must yield to patriotism.’” He says that “what
remains of partisan rancor must now be put aside, and may God bless his stewardship of this country.” He thanks the Liebermans
for not only bringing “passion and high purpose to our partnership” but for “open[ing] new doors, not just for our campaign
but for our country.” (In case anybody forgot: Lieberman’s a Jew!)

The camera cuts to Tipper, sandwiched between Lieberman and wife,
with a tearful daughter Karenna and husband, Drew Schiff, behind them, as well as a mop of blond hair from an unidentified
Gore daughter.

Karenna must have lost it when Gore quoted his father (quoting poet Edwin Markham), saying, “As for the battle that ends tonight,
I do believe, as my father once said, that no matter how hard the loss, defeat might serve as well as victory to shape the
soul and let the glory out.

“I personally will be at his disposal,
^*
and I call on all Americans—I particularly urge all who stood with us—to unite behind our next president,” Gore says.

“And now, my friends, in a phrase I once addressed to others”—namely President George H. W. Bush and Vice President Dan Quayle
in 1992—“it’s time for me to go,” Gore says.

Boy! the pundits exclaim. If only he had spoken like that during the campaign! And this is how it always is, which is something
for civilian Al Gore to remember. Because when the pundits praise Gore over the next few days for his grace and class, they
are merely doing what the media always do with presidential losers.

“A Concession Speech with Grace and Class,” headlined the
Washington Post
… on November 5, 1980, for President Jimmy Carter.

“Bush, Gracious in Defeat, Promises Smooth Transition,” wrote the Associated Press… on November 4, 1992, about President George
H. W. Bush.