Boies News Conference
Monday, December 11,
is the transcript of a news conference with Gore campaign attorney David Boies.
BOIES: I feel tired. It
was a very good argument. The justices were obviously extremely well-prepared.
They asked a lot of very probing questions. They required a review of the cases
and the trial record. And it was a very satisfying argument, but one that required
a lot of work.
QUESTION: Do you assume
this is the last one you're going to be making in this case?
BOIES: I'm not sure. Every
time I've made a prediction about what the last argument was, I've been proven
wrong. So I don't want to say that this will be the last argument, but I think
this was an extremely important argument.
QUESTION: Any questions
that surprised you at all?
BOIES: I'm sure there were
questions that I was prepared entirely for. I think there were a lot of questions
that I was prepared for. What you had was a 45-minute interrogation, and it
was a very, very good bench; everybody was very well-prepared.
QUESTION: Which questions
were you not anticipating?
BOIES: I don't think there
was any particular question that I was not anticipating.
QUESTION: No line of attack?
BOIES: I don't think there
was--there was certainly no subject matter that had not been raised before.
QUESTION: ... questions
about the unequal standards?
BOIES: I think one of the
issues that the court clearly has in mind is whether a standard of the intent
of the voter is too general or not.
It is, of course, a standard
that is applied not only in Florida, but in many, many other states in the country.
Some states provide by statute how to define the intent of the voter, although
even those states, as for example Texas, also has a catchall phrase that says
if you find the intent of the voter from any other source you're to give the
intent of the voter weight.
What you have in Florida
is a consistent line of authority that goes back for almost 100 years, that
the primary consideration is the intent of the voter and that there is no specific
identification of what that means, other than that it has to be determined on
a case-by-case basis.
QUESTION: Much has been
made of the notion that you would have to try to sway Justices O'Connor and/or
Kennedy. Did you direct any of your comments at them? Were you sort of looking
at them more?
BOIES: When they asked
me questions, I looked at them. And when other justices asked me questions,
I looked at them.
QUESTION: Is there any
justice who asked you more questions than others?
BOIES: I think they all
asked a lot of questions, or almost all of them asked a lot of questions.
QUESTION: Did Justice Thomas
ask any questions this time?
BOIES: Justice Thomas did
not ask any questions this time.
QUESTION: Justice O'Connor
seemed to say that the voters should have followed the instructions. She seemed
quite emphatic on that point.
BOIES: I think that Justice
O'Connor did ask about that. I also think that Justice O'Connor was aware of
the Beckstrom case that both sides discussed in which the Florida Supreme Court
reaffirmed two years ago that voter error was not a rationale for disregarding
And this, of course, goes
all the way back to 1917 and State v. Darby, in which the Florida Supreme Court
said, even though the voter's told to make an X in a particular place, if the
voter makes the X someplace else, but you can tell what the voter's intent was,
that vote has to be counted.
QUESTION: How did you feel
you did? Can you make any predictions?
BOIES: I wouldn't make
predict about that. The judges will decide what the right decision is. Their
job is to decide the case. My job is to make the arguments.
QUESTION: ... positive
or negative toward your argument?
BOIES: Again, I don't think
that you can read into the court's questions what they're going to decide. What
they're doing is, they're probing both sides; they're trying to figure out what
the right way is to decide this case. And they're going to decide that; I'm
not going to decide that.
QUESTION: ... from the
way the stay was written, that it implies that they're already favoring Bush's
argument coming into this discussion?
BOIES: Well, certainly
the fact that the stay was granted, as Justice Scalia noted, means that a majority--five
justices--found that there was at least a reasonable probability that Governor
Bush's side would prevail.
However, as Justice Scalia
also indicated, he would come into the argument with an open mind, he would
listen to the arguments, as I'm sure they all did.
They all asked question
and I think that while it's an uphill battle with respect to somebody that has
a point-of-view, I think they will make an effort to listen to the arguments
and make a decision based on the arguments.
QUESTION: Were you surprised,
sir, that Justice Thomas didn't ask you any questions at all, since so many
minority voters feel as though they've been disenfranchised?
BOIES: I wasn't particularly
thinking about who was asking questions. I was just trying to answer the questions
as they came.
QUESTION: Do you divine
anything from the questions that Justice O'Connor and Justice Kennedy in particular
BOIES: Not other than that
they were very interested in the issues that both sides had raised, and that
they had obviously read the cases. Justice O'Connor had a number of Florida
cases that she was interested in.
QUESTION: Is it true that
this is the first time in history that the Supreme Court has ever taken a case
involving an election, in over 100 years?
BOIES: Yes. I think this
is the first time that the United States Supreme Court has ever taken a case
that would decide the future president of the United States in its history.
QUESTION: Mr. Boies, can
you envision a scenario in which this is not the final decision, what comes
out of this?
BOIES: Well, we still don't
have the votes counted. And those votes, from our position, need to be counted.
If the Supreme Court agrees that the votes need to be counted, we'll go back
to Tallahassee and count those votes.
QUESTION: And if they say
they're not to be counted, this is the end?
BOIES: If the Supreme Court
rules those votes are not going to be counted, then the votes are not going
to be counted.
QUESTION: Mr. Boies, why
do you believe that there is more time, that there is enough time left to do
what you are asking than some of the justices seem to be suggesting there is?
BOIES: Well, first of all,
we know that the count was proceeding very, very rapidly, and could have been
completed in about a day or a day and a half. Whether we can now get in completed
in a day or not I think is open to question.
Thank you very much.