Having read Toobin's book on OJ, I picked up Too Close To Call with high hopes that I would see a journalistically responsible recounting of what happened in Florida.
Never have I been so disappointed.
The title Too Close to Call belies what are clearly Toobin's true feelings - Gore won, and there is nary an issue underlying the dynamics of what happened in Florida that was a tough call.
A clear clue to Toobin's lack of objectivity is his recurring failure to address both sides of important issues before laying out his conclusions. Instead, he regularly addresses complex situations as though they are plain and simple - and almost always understood in ways that support the Gore cause. A close cousin of this habit is Toobin's repeated criticism of the Bush campaign (and those viewed as sympathetic to him) while allowing Gore, et al to skate when they act in exactly the same way. In some cases, Toobin simply ignores facts or issues that are inconsistent with a Gore victory. But perhaps the clearest clue to Toobin's bias is his allocation of adjectives and pejoratives. Consistently, Gore and his supporters are characterized positively, with the brickbats almost always reserved for Bush people.
The problem, in a nutshell, is that Toobin is much smarter than this effort shows - if he wanted his book to be viewed as objective, he could still come to the same conclusions without the obvious signs of bias evident from failing to have a balanced discussion and the heavy handed use of pejoratives.
Perhaps my greatest disappointment is in Toobin's legal analysis. As an accomplished and experienced lawyer, I expected much more in his analysis of the legal issues and the conduct of the justices on both the US Supreme Court and the Florida Supreme Court.
Every lawyer - and even first year law students - are familiar with the broad discretion that Courts generally accord to the acts of public officials within the scope of their statutory responsibilities. As a matter of comity, Courts generally respect the determination of public officials if it is rationally based and within the scope of their authority. This stems from the respect normally accorded to public officials to whom the law delegates executive responsibility and who, as a result, have experience in administering the law.
One can argue that Katherine Harris abused her discretion and hence the Court was right to take the highly unusual step in overruling administrative decisions that would normally be accorded great judicial respect. The problem with this book is that Toobin never makes the argument. He never addresses this very basic principle of law - he simply dismisses Harris' judgments as worthy of rejection even against the longstanding respect accorded administrative decisions.
More to the point, Toobin never addresses what would motivate the Florida Supreme Court to sweep away traditions of comity and respect so dismissively, a signal event of the Florida situation that telegraphed that Court's attitude and pre-dispositions.
Yet Toobin is very glib in harshly analyzing the conservative majority on the US Supreme Court's conduct in going against their own traditions regarding states rights and equal protection. Having said that, he is silent about the SCOTUS minority's rejection of their own liberal states right and equal protection standards.
Toobin slams the conservative majority on the SCOTUS as having made up their minds before hearing argument, yet he has no problems with the fact that the Florida Supreme Court had not only made up their mind, but also actually circulated a draft opinion before even hearing arguments (he says it's done all the time). He has no problem with the fact that Federal Court Judge Middlebrooks, a Clinton appointee, rejected the first Bush federal suit, reading a judgment he wrote before hearing argument from the bench.
In defending both Florida decisions, Toobin ignores the fact that in their rush to get to the Florida Supreme Court, Gore's lawyers didn't waste time with the presentation of evidence, either as to how Harris abused her discretion or as to the failure to count lawful ballots in the contest case before Judge Sanders Saul.
And just as Toobin ignores the Florida Court's extremely rare refusal to respect executive discretion in administrative matters, he gives even shorter shrift to the unusually rare act of the Court's decision to dismiss Judge Saul's finding of facts. It is a touchstone of the legal system that while conclusions of law are appealable, finding of facts are appealable only when they are grossly inconsistent with the evidence. Yet Toobin never picks up on this distinction and the failure of the Court to address Saul's clear findings of facts that Gore failed to produce evidence that any of the ballots in evidence had been lawful and excluded - the distinction in proving actual ballot errors and dropping a bag of ballots on the table and saying there must be some errors in there. Instead, he simply smears Sauls as a "kneejerk conservative" and dismisses him as a crackpot.
Finally, Toobin fails to address the Florida court's odd behavior regarding their delayed response to the SCOTUS unanimous reversal of their first decision. He fails to address the odd timing of the release of the revised opinion - after the SCOTUS criticized their failure to do so and while the second case was under consideration by the SCOTUS. Did the Florida Court seek to throw a monkey wrench into those deliberations? A legitimate question that Toobin never even asks.
Instead, he defends the Court by saying that they were too busy with the fast pace of events to draft their reply, a defense that falls in the face of their prior ability to write a quick first decision even before hearing any evidence and laying further delay at the feet of a dissenting Judge Wells, who hadn't yet written his dissent.
Nor does Toobin ask the question as to how the first Florida opinion was solidly based upon the Florida constitution, yet the second opinion makes no reference to the constitution at all. The SCOTUS made it clear in its reversal that basing the case on Florida constitutional provisions rather than Florida statute would be fatal. Thus, the second opinion cured that infirmity, yet without any explanation as to why the court spent so much time, energy and effort in discussing seemingly inapplicable provisions of the Florida constitution. And Toobin doesn't ask for any explanation either....
It is impossible to reconcile Toobin's harsh review of the conservative SCOTUS majority's conduct with a complete silence of analysis of the conduct of the Florida Court and the SCOTUS minority.
This silence is an important building block to Toobin's conclusions, because jumping right over the lawful authority of the Secretary of State to exercise discretion in applying election law is fundamental to getting to friendly Florida Supreme Court in the first place and engaging in the torturous arguments over chads, vote counting standards, etc. All this talk about "the intent of the voter" would be pointless, because intent of the voter is to be applied if and only if there is a legitimate hand count to be performed.
This takes us to the analysis of the Florida law, which attorney Toobin completely sidesteps. Toobin discusses the Florida statute solely in political terms. He acknowledges that the statute permits hand recounts ONLY in cases where there is an error in vote tabulation. He cavalierly interprets the law in the broadest possible sense to allow the broadest possible interpretation to include voter error as opposed to tabulation error, and ignores the fact that Florida counties, including Palm Beach County had previously limited the interpretation to exclude voter error.
Yet whichever way you come out, this is no small question because the whole 36-day fiasco turned on this interpretation. If Harris was correct in applying the law the same way Palm Beach did in the past, there were no recounts to be made, no chad standards to fight over, no equal protection arguments to be waged. How Toobin completely ignores this fundamental point is stunning.
Still, ignoring the inconvenient is a recurring theme in this book. Hand counts are touted as much more accurate, yet Toobin never addresses the issue of the human bias factor that gets added to the mix when partisan vote counters start making subjective decisions. He never addresses the mysterious recovery of 643 votes in Palm Beach County in the first machine recount - 44% of Gore's state wide harvest during the mandatory machine count.
Thus, Toobin accepts every vote counter as being able to do a clinically sterile review of each ballot without having personal bias affect subjective decisions about dimples, dents and dings. It may be that people can rise to the occasion. But Toobin never addresses the obvious risk of bias since every board involved in the selective recounts requested by Gore sat in Democrat strongholds and were dominated by Democrats, some of whom (like Carol Roberts) were longstanding party activists. He never addresses the grave concerns
It's worth noting that Carol Roberts has changed her party affiliation away from the RATS (to Indy) because of all the abuse she took from her fellow RATS after the election. Just another example that, if you lay down with dogs......
Heckuva way for a national party to show it's appreciation to someone who "took a bullet for that guy".