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Boies Will Be Boies


Boies learned early that granting access was the surest way to bank media goodwill -- that and flattering the media's sense of its own importance. "Other than the lawyers on the other side, the people in the press that really cover a case know more about it, think more about it, worry more about it, care more about it than anyone else," Boies says. "They are the people that will have the best information. They are the people that are likely to have the insights you didn't see, the idea you didn't think of, the fact you didn't know. That's why you go out and drink with them."

Jimmy Miller, the Florida divorce lawyer who has been Boies's best friend since they met in law school in 1962, sees more than a little calculation at work. He and Boies just made a trip to Las Vegas with a 60 Minutes crew tagging along. "I asked David, 'Why do you want to get filmed shooting crap?' and he says, 'I don't want to ever say no to the press,' " Miller says. "Have you ever seen anybody have better press than David? When you get as successful and famous as he is, there's always someone out to cut your nuts off. No one is out to cut his nuts off."

Boies is indeed good company, charming and easygoing. That is not to say he reveals much. And Boies doesn't do introspection. By dessert, my neck is stiff with tension, as if I've been pushing heavy furniture around.

"Although he always appears to enjoy and relate to different people, my view is that he is very insular and tribal," Miller says. "He doesn't have nearly the number of friends you would think, people he really cares about."

I mention the ecstatic Republican cameraman and ask Boies what he makes of his new rock-star status. "I think what happened in Florida touched people in a way that public events often don't," Boies says. "I think what it was about was the people's right to vote and have those votes counted. And if you think back through our history, an awful lot of what we've fought over, struggled for, is the right of people to vote. That's what the civil-rights movement was, at its bottom, about. At the fundamental level, democracy means a government in which the people vote. Lincoln's words 'Government of the people, by the people, and for the people' I think resonate at an emotional, as well as an intellectual, level. I've had a lot of Republicans, just like that guy out in the street, stop me and say, 'I'm still glad Bush won, but you were right, the votes should have been counted.' I think that that experience has touched a chord in people that isn't very close to the surface."

True, I say, but cable viewers weren't responding to a still picture of the Constitution. They were reacting to him. Boies stares at the floor. "Well," he says, "part of my presentation, or style" -- a self-deprecating laugh -- "is a style that tries not to get in the way of the argument. When you're in front of a jury, what you want that jury to do is focus on the argument, not on you. You try to not get in the way of the message. And I think that particularly with this particular message, where I think the message really struck people, I think a style of presentation that simply let the message speak for itself, and didn't try to build it, didn't try to accompany it with partisan attacks, but just sort of stuck to the fundamental point that was at issue, I think helped people relate both to the issue and, in an ironic way, to the messenger. Because they began to associate me with the message."

"Who knows? Maybe there's an argument that would have persuaded them. But I couldn't think of it then."

Boies has long said that if he weren't a lawyer he'd be a history teacher like his father. His choice of the law, he says, was purely pragmatic -- the shortest route to a graduate degree, making up for the two years he'd taken off between high school and college. A marriage to his teenage girlfriend, followed by the birth of two children by the time he was 21, motivated him to speed through the University of Redlands while also teaching journalism at a mental hospital. In 1963, after his first year at Northwestern's law school, Boies was divorced. He soon fell in love with a fellow law student, Judith Daynard; inconveniently, she happened to be married to a Northwestern law professor. The school eagerly helped Boies transfer to Yale. He married Daynard three years later and had twin sons; they divorced in the early seventies. Boies and his first two wives remain on good terms; all parties blame Boies's work obsession for the divorces. He met Mary McInnis in Washington when she was working as assistant director of domestic policy in the Carter White House; they were married in 1982, after she'd become a vice-president at CBS in New York. He and Mary also have two children.

Mary Boies, now in private practice, seems to have a lower tolerance than her husband for his status as a media darling. When the latest batch of photographers arrive to shoot David at home, Mary demands they return to the entryway and wipe up every drop of snow they've tracked in from the driveway.

In November, within twelve hours of arriving in Florida, Boies had supplanted campaign chairman William Daley and Warren Christopher as Gore's public face. "For him to be our spokesman," Lieberman says, explaining the spin, "it put the case into the system of justice, not in the political system anymore." Bush lawyers were less charitable in assessing the effect: They dubbed the media adoration "the COB," the Cult of Boies.

Michael Carvin, one of Bush's main lawyers, claims Boies's overexposure helped the Republican strategy for the final showdown. "I was surprised and gratified that he was on the Sunday-morning talk shows before his Supreme Court argument," Carvin says. "We watched them and got a sense of what he was going to say in court the next day. I also think, as hardworking as he is, it certainly hurt his prep time. Maybe he might have anticipated a couple of the questions at argument if he'd had a little bit more time to prepare."

Boies scoffs at the suggestion he tipped his hand. "They didn't have to watch me on the Sunday shows! All they had to do was read my argument on November 20" -- in the first Florida Supreme Court hearing -- "or any of my press statements!" he says. "If anybody needed to watch the Sunday shows to figure out what we were arguing, it was somebody who had not been in Florida."

On the afternoon of Saturday, December 9, Boies was in a Tallahassee sports bar and grill. The day before, he'd won a key victory in the Florida Supreme Court; the recounts were revived. Boies was eating a burger and fries and drinking a vodka and grapefruit juice when MSNBC flashed the news that the U.S. Supreme Court had ordered an immediate halt to the counting, at least until the top court could hear arguments already scheduled for Monday. Boies was stunned. "It took CNN about 60 seconds more to put it on," he says. "And during that 60 seconds, I found it hard to believe that MSNBC was right."

Still, Boies was so confident his work was finished that he flew home to Armonk; Harvard professor Laurence Tribe was in a Watergate hotel room in Washington preparing to argue for Gore on Monday. Boies agreed with the choice. "Larry has an intimate knowledge of constitutional law and of equal-protection cases that will always be substantially greater than mine," Boies says. He had some personal knowledge of Tribe's talents in front of the Supreme Court: In 1987, Boies, representing Texaco, faced Tribe, representing Pennzoil. The Supreme Court voted 9-0 in favor of Pennzoil.

"David is a brilliant lawyer," Tribe says. "But I don't know that being in an appellate context and answering questions that are fired at him by judges, and anticipating what's really going on in the questioner's head, if it's a smart judge, is David's forte. Especially in the Supreme Court, the questions tend to represent the tip of some kind of iceberg. If you simply answer straightforwardly the thing that's been asked without keeping in mind what it is they're really trying to deal with, you will very often say something that may sound okay to an outside observer, but doesn't advance your cause very much."

Both men were shocked when, late Saturday, Gore picked Boies over Tribe. The conventional analysis has been that Boies was more fluent in the details of the Florida cases that the Gore team thought the Supreme Court would dissect. "Even with the stay, we all thought we had a chance in the Supreme Court hearing," says Ron Klain, Gore's chief legal strategist. "We knew the chance was below 50 percent but well above zero."

Boies was more pessimistic. "A litigator always spots himself a 5 percent minimum chance," he says, "but it wasn't much more than that." So, Boies says, public relations was high on his agenda. "There was a sense that five justices of the Supreme Court had already made up their minds that they were not going to permit the votes to be counted in Florida," Boies says, his cadence slowing to a crawl. "If that was the case, the function of the Supreme Court argument was to reveal to the American people and to history whether that decision had a basis or not. There was a view that, in part because of my familiarity with the Florida record and the Florida cases, that I was the right person to do that."

When Tribe is told of Boies's thinking, he's silent for a long time. "Wow," he finally manages. "Sometimes you put some of your emphasis on providing ammunition for what will end up being the dissenters, who might get vindicated by history. But if there's any trade-off at all between clarifying the historical record and trying to find that slight chink in the wall for O'Connor or Kennedy, I would always go for the latter. History will write itself."

Tribe admits he's not an objective critic, but he says the same weaknesses that hurt Boies thirteen years earlier surfaced again in December. "There was the suggestion by Breyer of sending the case back so that the Florida court could reformulate what was going on, and proceed to count until the 18th," Tribe says, pointing out one tiny opening. "If that had been pursued, either by other justices or by David, in terms of, 'Yes, the 18th is really the deadline after all, not the 12th' -- then I might have had a feeling of greater hope at the end than I did."

Boies dismisses all the hindsight. The second-guessing about delaying Katherine Harris's certification of Bush as the winner, thereby sacrificing time that could have been spent on the "contest phase"; about the Gore camp's decision to hurry through its argument before Florida judge N. Sanders Sauls because it assumed Sauls was a lost cause; about Boies's supposed blindness to the ultimately decisive equal-protection issue -- none of it, in Boies's view, is relevant.

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