After the Tall Timber (68 page)

In his fine biography of Jack Dempsey, Roger Kahn writes that, in looking at a video of the second Dempsey-Tunney fight, with its famous “long count,” “I am looking at a crooked referee.” Perhaps. Perhaps not, or not just the referee. Kahn, like most other experts on boxing history, writes that Al Capone was very eager to back Dempsey in that fight but that Dempsey, man of honor that he was, firmly rebuffed him. Something seems amiss in the underlying logic of this story. Mob bosses approach fighters and (as in the Black Sox scandal, which also took place in Chicago) baseball players not to
win
matches but to lose them. Winning is what the fighters, or the players, want naturally to do, when they are not bribed to do otherwise. Dempsey, of course, did lose. The fight-fixing for which Sirica and others were named in the sealed indictment of 1927 was the Dempsey-Tunney fight. (No referee is mentioned in the sealed indictment.) My source for the information about Sirica’s inclusion in the indictment (for fight-fixing and consequent tax evasion) was the Criminal Investigation Division of the IRS—which published its own historical study for internal use.

In my
Harper’s
piece, I confined myself to matters that virtually sprang off the page of Sirica’s own autobiography, the book I chose not to review. It was not my intention to address anything more sensational than the literal meaning of a few words on page 125 of my own book. Suddenly, these heroic defenders of reputation (not the reputation, perhaps, of a single scientist, like Wen Ho Lee, in solitary and in shackles, on the basis largely of their institution’s coverage) emerged, one after another, as though there were an honor roll: ten within the
Times
alone, to be followed by hundreds more. It was as though the press, self-important and self-righteous as it is, seems entirely unconscious of its own weight against any single, let alone dissenting, individual, or of its own role in the events it claims to cover. I thought this a more interesting and more important subject, than the details of Sirica’s status. In view of the astonishing aftermath of the piece itself, however, just for the record, a bit more about what any genuine biography of Judge Sirica would include.

Though Sirica describes Dempsey, at least after 1934, as “my best friend,” and although Dempsey, far more openly than Sirica, managed to avoid military service (after World War I, Dempsey was actually indicted and tried for draft evasion), there is, oddly, no mention of Sirica in the index of any Dempsey biography. Or for that matter, in the index of any biography of Senator Joseph McCarthy, or of Walter Winchell—at least two of whom, it may be remembered, had their own involvements with organized crime: Dempsey with Capone, and Winchell of course with Louis Lepke and Frank Costello.

By “organized crime,” incidentally, I never for a moment meant the Sicilian Mafia. The interests in question were for the most part Jewish and even Irish. I did leave out one Italian connection: Al Capone. That connection was Neapolitan. Al Capone’s father, Gabriel, had immigrated from Castellammare di Stabia, in the Bay of Naples, where he had learned his trade. Like Fred Sirica, who emigrated from San Valentino Torio (also in the Bay of Naples, a few kilometers from Castellammare di Stabia) Gabriel Capone was a barber. The two men were friends.

I leave aside any number of utterly incomprehensible omissions from Sirica’s autobiography. Senator Hiram Bingham, of Connecticut, for example, is introduced to Sirica by “a cousin,” who “happened to be active in local politics in Waterbury,” so that Bingham will “endorse” Sirica for the job of Assistant U.S. Attorney. It is not surprising that we hear no more about the “cousin.” Hiram Bingham, however, not only was one of the very few senators ever to incur a vote of censure by the full Senate (in 1929, for putting a lobbyist on the Senate payroll as his clerk). He also had been educated at Groton, Yale, Berkeley, and Harvard; served as lieutenant governor and then governor of Connecticut; written more than a dozen books, and, as a distinguished scholar and explorer, actually discovered the ruins of Machu Picchu.
That
Hiram Bingham.

Some readers seemed bewildered by what I could have meant, in the piece, by “totalitarian.” They seemed to think that it meant “totalizing” or something. What I meant by a totalitarian reaction to a piece of writing was this: not debate (particularly not “the free, robust, and wide-open debate” envisioned by the First Amendment); not even invective, or mockery, or expressions of rage, scorn, indignation, disdain, or argument of any sort. But advocacy of
retraction, eradication, silencing
. Not “I disagree with what you say,” but “I will attack to the death your right to say it, as well as the forum (book publisher, magazine) in which your work appears.” Eradicate, in other words, not just a book or a piece but, if possible, the author and eliminate future outlets for this heresy. This view of what writing is, and the appropriate response to it, is nothing if not totalitarian.

Supposing, however, just supposing, what was not the case: that I had been mistaken. That Sirica had been brilliantly competent on the bench and in his conduct of the case, that he had never so much as heard of Senator Joseph McCarthy or of any form of organized crime, that his book and his life had been models of rectitude and forthrightness. What then? Nowhere, in any of the
Times
attacks, was there the slightest indication that my reputation did not rest entirely on this single sentence on page 125 of my sixth book. If they had misspelled Sirica’s name, of course, or mine, they would have felt bound in fairness to run an Editor’s Note or a Correction.

People forget things. Everyone forgets. I keep forgetting, for example, to mention that the Starr volumes are in their way a masterpiece that, quite apart from any prosecutorial or political matter, is full of fascinating incidents and characters. It ought to be published with type large enough to read.

2001

I.

NOT INFREQUENTLY, an event so radical that it alters everything appears for a time to have had no effect, or even not to have occurred. This is true in personal as in public life. A loss, a flood, a medical diagnosis, a rolling of tanks toward the statehouse—life goes on apparently as usual. Nothing is changed. It is particularly true of events that are irremediable. When there is nothing to be done, people go to work, eat their lunch, sleep, awaken to a vastly altered world, in ways that seem uncanny in their ordinariness. The decision of the Supreme Court in
Bush v. Gore
, in all three stages—accepting the case at all; reversing the judgment of the Florida State Supreme Court; above all, perhaps, granting a stay of the recount in Florida—gave rise to lots of comment. Outraged, gleeful, satisfied, resigned, the response seemed in almost every case to follow from the politics of the speaker. Republicans and “conservatives,” for the most part, approved. Democrats and “liberals” did not. The decision seemed to close the subject. Normal life resumed. George W. Bush was president and that was that.

George W. Bush may become a distinguished president. As to the Court’s “fundamental fairness” in the matter—its claim, as Justice Kennedy put it, on the people’s “trust”—the issue seems settled in a single question: if Al Gore had been the petitioner, with the same set of facts and arguments brought by Bush, would the Court have decided as it did? A rhetorical question, surely. Not a single justice would have agreed to hear the case.

The major issue was never really who would become president, or even the immense damage that the Rehnquist Five have done to the integrity of the Court. Its moral, intellectual, and legal authority had already diminished over a long period of poorly reasoned opinions expressed in unseemly and unjudicial—often supercilious and even sneering—words. What remained was its power. The Supreme Court has made mistakes before:
Dred Scott, Plessy v. Ferguson, Korematsu
, and so on. What is unprecedented in
Bush v. Gore
is the exercise of power—specifically allocated by the Constitution to the states and to Congress, and specifically
not
to the federal judiciary—in the expression of a profound and absolute conflict of interest. The Rehnquist Five want the Court to become a self-selecting body. In their treatment of
Bush v. Gore
, they did what they could to achieve that result.

The decision,
per curiam
, unsigned, but apparently written by Justice Kennedy, with a separate concurrence by Justices Rehnquist, Scalia, and Thomas, is a swamp. No matter where you look at it, you find something specious, mischaracterized, incoherent, internally inconsistent, false. Because it issues from the Supreme Court, however, legal scholars, lawyers, judges, congressmen, voters, and senators—above all, senators—are obliged to take it seriously. Its consequences are serious in ways that have nothing, or almost nothing, to do with the election of George W. Bush. He would have become president in any case. If the hand count had gone, as it would probably have gone, for Al Gore, the procedures established in our system would have yielded two slates of electors from the state of Florida: one for Gore, one (submitted by the Republican Florida legislature) for Bush. Congress would have had to choose. If Congress could not agree, the choice would revert to Florida to be made and certified by its executive, Governor Jeb Bush.

A disorderly process, certainly. It just happens that some of the processes in our democracy are disorderly. The votes in all of the counties in all of the fifty states, for example, are submitted and counted by widely varying means. In Florida, the Supreme Court found in this lack of uniformity a violation of the equal protection clause. Just this once, just in this case, just in this state, just on this day. The equal protection claim was specious anyway. Just who, if the counting had been permitted to continue, was being denied the equal protection of the law? A voter whose vote had already been tabulated by machine? But that voter might be a Bush voter or a Gore voter, and the votes being counted by hand, in every county, might be Bush votes or Gore votes. There might be disparate treatment, but there could be no systematic or intentional disparate treatment, favoring one candidate, or one voter, over another. The standard for counting votes, in Florida as in most other states, was “a clear indication of the intent of the voter.” This was not something that needed to be “divined” or “discerned.” A voter, even in chadless counties, who both checked and wrote in the name “Bush” or “Gore” on his ballot, had expressed his intent—in what was clearly a “legal vote.” The machine would not count it. A manual recount would. The Supreme Court decision would disallow it.

In fact, both the decision and the concurrence express disdain for the legal standard, in Florida and in so many other states. Why, Justice O’Connor asked irritably during the oral arguments, could these voters not follow “clear instructions”? The concurrence actually devotes many lines to this sort of argument: “Florida law cannot reasonably be thought to require the counting of
improperly marked ballots
 . . . . Each precinct  . . . provides
instructions on how properly to cast a vote
”—as though voting were some form of test, which those aspiring to vote might pass or fail. The concurrence derides voters who cast “ballots that are not
marked in the manner
that these voting instructions explicitly and prominently specify”—in contrast to the machines, which perform “precisely in the manner designed.” (The machines performed, as it happened, poorly, and in some locations not at all.) Any other position, the concurrence goes on, in the diction that has become one of the Rehnquist Five’s defining characteristics, “is of course absurd.”

The difficulty remains: the standard for a “legal vote” is not an IQ test, or a test of classroom behavior that requires people to behave “properly” or to follow “instructions.” (The “instructions” in some counties, anyway, told the voter to make sure to “cast a vote on every page.” An unfortunate instruction: any voter who followed it would have produced an “overvote,” which the machine would disallow.) The accusatory, punitive, even contemptuous dismissal of voters whom the Court apparently deems too stupid to be allowed to vote at all (echoes here of the “literacy test” that used to accompany the poll tax in the South) dismisses as well what is, in Florida and most other states, the law: the test is, inescapably, the “intent of the voter.” It was according to this standard that the manual recount was proceeding when the Court brought it to a halt.

II.

The trouble with a swamp of a decision is that even to deal with it is to be drawn into it. The four dissents politely and eloquently demolished every element of both the decision and the concurrence, to the degree those elements could be articulated. Almost all subsequent commentary, whether in article or book form, demolished them in more detail. But always in ways that seem contingent. Some distinguished commentators have suggested that, if the Bush presidency turns out well, the decision will be vindicated. Or they have pointed out that when the Supreme Court has made mistakes before, it has with time corrected them. Or even that the real precedent for this judicial aberration was
Roe v. Wade
, when the Court made a decision that might, they felt, have been better left to Congress or the states. But all of them, I think, understate the gravity of what has happened, and its possible consequences for at least a generation.