Special report: George Bush's America

Special report: the US elections

Michael Ellison
Monday September 10, 2001
The Guardian

George Bush might have been prevented from entering the White House if a US supreme court judge
had had another day to work on persuading his colleagues, according to a new book.

David Kaplan writes in The Accidental President that the liberal Justice David Souter met a group of
prep-school students one month after the court ruled 5-4 in favour of stopping the Florida recount,
making Mr Bush president rather than Al Gore.

"If he'd had 'one more day - one more day,' Souter told the students, he believed he
would have prevailed," says Kaplan, according to an excerpt in this current issue of Newsweek.

"The sands of history will show Bush won by a single vote, cast in a 5-to-4 ruling of the US supreme court,"
says the book, touted as the first behind-the-scenes look at how the court handled the fallout from last
November's disputed election "The vote was Tony Kennedy's. One justice had picked the president."
Justice Kennedy, appointed during the Reagan years, is considered a moderate.

Justice Souter, installed when George Bush Sr was president, wrote in his dissent from the court's ruling
that it "inevitably cast a cloud over the legitimacy of the election".

Kaplan reveals also that Mr Gore asked the activist Erin Brockovich, played by Julia Roberts in the
Oscar-winning movie, to help him in the weeks after polling day to gather evidence of lost votes in Florida.

Animosity among the judges broke out while they were the hosts of a visit to Washington by six Russian justices.
"In our country," one of the Russians is quoted as saying, "we wouldn't let judges pick the president."
Kaplan writes: "The justice added that he knew that, in various nations, judges were in the pocket of
executive officials - he just didn't know that was so in the United States.

The court's liberal wing did not spare the Russians their views. "Stephen Breyer was angry and launched into
an attack on the decision, right in front of his colleagues. It was 'the most outrageous, indefensible thing' the
court had ever done, he told the visiting judges. 'We all agree to disagree, but this is different.' Breyer was
defiant, brimming with confidence that he'd been right in his long dissent."

Justice Ruth Bader Ginsberg, another in the minority, attempted to rationalise the legitimacy of the judgment.
"'Are we so highly political after all?' she said. 'We've surely done other things, too, that were activist,
but here we're applying the Equal Protection Clause in a way that would de-legitimise virtually every
election in American history." The clause is intended to ensure equal application of laws.

Justice Kennedy is said to have told the Russians: "Sometimes you have to be responsible and step up
to the plate. You have to take responsibility." Justice John Paul Stevens, at the age of 80 the oldest of
the court's four liberals, said simply: "I'm so tired. I am just so tired."

Ms Brockovich, it seems, was too tired to go to Florida to help the Gore campaign.
"Gore had not only been thinking about the problem, but he'd done something about it,"
says the book. "He'd called Erin Brockovich ... the real Erin Brockovich.

"The vice-president thought 'she should come to Florida and lead our efforts to collect affidavits.'"
One aide told the vice-president that he thought his was a poor notion, though another, Ron Klain,
said at first: "Sounds fine to me. It's great."

Later Mr Klain changed his mind and mocked the idea.