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HLS Makes Its Mark on Presidential Contest

In the dispute over the results of the 2000 presidential election, political affiliation could almost uniformly predict one's position. While Laurence Tribe '66, a constitutional law professor at HLS, backed Al Gore in the election, he said partisanship did not propel him in front of the Supreme Court to argue the vice president's case.

photo of Bush supporters"I have had a powerful commitment to the idea that every lawful vote should be counted and that the state's highest court should have the last word, as long as it was operating within the bounds of reason," Tribe said. "And I was offended by the use of the federal court and the federal constitution for what I thought were largely partisan purposes. So I honestly did not see--although others looking from the outside might attribute it to me--that I was motivated politically at all."

Tribe joined a roster of HLS faculty who argued for both camps in the aftermath of the presidential election. Professor Alan Dershowitz represented West Palm Beach County voters in federal court, advocating for the right to have ballots hand counted. On behalf of George W. Bush, Professors Charles Fried and Einer Elhauge '86 each assisted the Florida Legislature when it considered naming the state's 25 presidential electors.

"We have some of the world's best legal minds on our faculty," said Todd Rakoff '75, dean of the Law School's J.D. Program. "It is no surprise that both sides in this mega-stakes contest wanted their help."

Many other faculty members were featured in the print and electronic media, including Arthur Miller '58, Lani Guinier, Heather Gerken, Richard Parker '70, Frank Michelman '60, and Martha Minow. But Tribe's work garnered the most attention, culminating in his Supreme Court appearance on December 1.

Tribe, who has argued 30 times before the highest court, acknowledged that this case felt different from all others. "I sensed I was much more at the vortex of some sort of historic moment and that the forces that were swirling around me were pretty dramatic," he said.

In his oral argument before the U.S. Supreme Court, Tribe contended that the initial Florida Supreme Court ruling, to extend the deadline for hand counting ballots in disputed counties, did not usurp the role of the state legislature. The U.S. Supreme Court then vacated and remanded the case to the Florida Supreme Court for further explanation. Prior to responding to the remand, the Florida Supreme Court ruled in a related case that ballots containing votes not registered by machine should be counted by hand. The Bush side again appealed to the U.S. Supreme Court, which overturned the ruling and ended the Gore camp's legal challenges.

While Tribe wrote the brief, David Boies argued the Gore case in the second U.S. Supreme Court argument on December 11, a strategic decision made by the vice president and Warren Christopher. "They wanted to underscore that this was really mostly about the details of Florida law," said Tribe. "And they thought the best way to do that was to have someone who was completely in tune with every step of the Florida procedure, having been there and having done it, to be presenting the argument."

Though Tribe disagreed with the final outcome, he said that the public, which for the first time heard live audio of Supreme Court proceedings, gained a valuable insight into the final arbiters of the nation's laws.

"I think people got a definite sense, much more than they ever did before, of what the Supreme Court as an institution is about," he said.

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