MONDAY

• Home
• Video
• Podcasts/RSS 
• Local Showtimes
• Past Shows
• Blogs
• About the Show
• Tell Tavis
• Features
• Mobile

RELATED LINKS

• Op-ed piece by Mr. Boies
• Boies, Schiller & Flexner
• About Courting Justice

E-mail a friend

Tavis: David Boies is a highly respected and sought-after attorney whose high-profile cases have included Bush vs. Gore, the U.S. vs. Microsoft, and New York Yankees vs. Major League Baseball, just to name a few. All of his real-life legal thrillers are told in a new book, 'Courting Justice.' You see the book cover on your screen, and here you see with me David Boies. Mr. Boies, nice to have you here.

David Boies: Nice to be here.

Tavis: Congrats on the book. We'll talk about that in just a second here. Let me start with this election, given that you were Gore's attorney 4 years ago. You were on retainer by the Kerry campaign just in case something legally crazy were to happen this time around. So are you off retainer yet? Is it officially over now?

Boies: I think it's over. I think it's over. And we were on retainer in Florida before the election.

Tavis: Did you expect that 4 years later there might be some legal drama here?

Boies: Well, I think we were prepared for it. I think one of the reasons there wasn't so much a legal problem at this time is that this time we were prepared for it, and some of the things that had happened last time we were able to prevent from occurring.

Tavis: There was not much conversation at all in this campaign, which we talked about on this program--in fact, one show, as I recall, lamented, a couple of my guests, that there wasn't much conversation about the Supreme Court when everybody knew it was gonna be an issue. Rehnquist had taken ill with thyroid cancer. First of all, before we get to the makeup of the court in the future, potentially, why do you think there wasn't any conversation between either of these guys about it? We all know it's a very real issue with, what, 3--4 members who are over the age of 65.

Boies: Yes, at least for... I don't know, I think Iraq dominated, war on terrorism dominated, the economy dominated. I think to some extent the Supreme Court nominations are hard to get across in a sound bite. It's too bad because it's critical, and it lasts longer than an election. We're gonna have another Congressional election in 2 years; we'll have another presidential election in 4 years. But the people that are put on the Supreme Court last for 20 or 30 years.

Tavis: Take me back--I'm jumping around all over the place here, because all these things are connected, as I see it, at least in my mind. Take me back 4 years ago and tell me in retrospect now what the worst of--what the downside is of the decision that this Supreme Court rendered 4 years ago which was essentially to kick this case back to the state of Florida and let them make a decision.

Boies: Well, except that they didn't. What they did was they stopped the state of Florida from counting the votes. The real downside was this was the first time in the history of our country--more than 200 years--when the Supreme Court ever intervened in a presidential election, when they ever ordered a state to stop counting votes before the state believed it had finished counting those votes. And I think that's an unfortunate precedent.

I think that the... In our democracy, I mean, in a kind of funny way, we give our most final absolute power to our least representative, our least democratic institution. We do so, in effect, to insulate it from political pressures, partisan pressures, and with the faith that they will not use that enormous power for partisan purposes. And I think that when the Supreme Court steps into these kind of election issues, and particularly when it prematurely, in my view, at least, steps in and orders the state to stop counting votes before the state is finished--whether they're right or wrong, because they can always review them after the state is finished--I think that undercuts the respect and the reverence, almost, that we have for that court.

Tavis: Explain this for me in a little more detail, because I want to be clear about your understanding of this so that I'm clear on it. Did the Supreme Court actually stop the state of Florida 4 years ago from counting, or did the Supreme Court say the state of Florida gets to decide how it wants to do that, which resulted in them stopping the counting?

Boies: No, it was the first.

Tavis: OK.

Boies: On December 9th, the day before the Supreme Court had even heard argument, the Supreme Court ordered the state of Florida to stop counting votes. In fact, vote counting would have been finished within about 24-36 hours after that if they'd simply allowed the recount to go forward. The recount had started--statewide recount--had started about 24 hours before that, and if they had just allowed it to go forward, then the court could have ruled on a complete record as to whether it agreed or disagreed with that count. I think one of the really unfortunate aspects was that it stopped the count, and as a result, the American people will never know how that would've come out.

Tavis: All right. Going forward, what do you expect this president, now reelected, to do with the Supreme Court? And there are a number of arguments, of course, but two central that come to my mind. One is that the president, if he really does want to be a uniter and not a divider, will nominate moderate justices to this court. You're laughing already. Ha ha ha!

Boies: You want to take a bet on that?

Tavis: You're laughing already. Let me get it out, though. OK.

Boies: OK.

Tavis: So there's one school of thought that Mr. Boies finds laughable and ludicrous, I suspect.

Boies: Well, not ludicrous. I'm hopeful, you know, but I've been disappointed before.

Tavis: Yeah, that he might appoint moderate judges to bring the country together or, of course, his base wants more Scalias, more Thomases. Mr. Bush has said those are his two favorites on the court. What's going to happen?

Boies: Well, it could be both.

Tavis: Yeah.

Boies: He's going to get more than one nominee. I would think that his first nominee is going to be pretty far to the right. I think he's going to try to satisfy his base.

Tavis: Let me stop you right quick. Doesn't that first nominee have to be Hispanic, unless he knows he's going to get more than one?

Boies: I suspect it will be Hispanic, and I suspect it will be Hispanic because he won't be sure he's going to get more than one, and I also think he will think that will help diffuse, maybe, some of the filibuster-type opposition. So I think the first one is likely to be Hispanic, and it's likely to be somebody who's really quite to the right in terms of the political spectrum. But it's very possible that if he gets 2 or 3, then he'll try to balance it. It's also quite possible that if he's appointed 2 or 3, the Senate, which under our constitution has the right to advise and consent, will require him to do that.

Tavis: I know you're not a constitutional scholar, but when was the last time you can recall historically that we have had a court that was so far... Because if he gets 2 or 3 appointments, this court, if he takes the advice of his conservative friends and stacks this court with more Scalias and Thomases, this will be certainly in my young lifetime, and I'm 40 now, the most extreme court one way or the other that we've ever had.

Boies: I think it's probably the most extreme court. I think if you look at the court that followed the Roosevelt years--and Roosevelt had a chance to essentially appoint the entire court--Roosevelt and Truman together--and I think that that court very much reflected their political philosophy. I think the people that were put on that court tended to be people that were more in the center of the judicial mainstream than some of the people that have been put on more recently, but I think that's the analogy to go back to.

Tavis: Something hit me the other day in the middle of a conversation with somebody, and I raise this issue again. I'm no legal expert, but it just hit me that we got more, in terms of civil rights and human rights, things I'm certainly passionate and care a great deal about as I know you do...

Boies: Mm-hmm.

Tavis: We got more out of a court of 9 white guys--

Boies: Yeah.

Tavis: Back in the day...

Boies: Right.

Tavis: Than we've gotten out of the most diverse court, if you will, in the nation's history.

Boies: Right, and I think the reason for that is I think you can find people of all gender, of all color, of all race, of all ethnic background, that you can find--if you look for them--that are going to be over to the far right.

Tavis: Mm-hmm.

Boies: And I think that what you've seen is an attempt by some presidents to pick people that are on the far right and to look for what I would call superficial, surface diversity.

Tavis: Look for gender, look for race, ethnicity.

Boies: Look for gender, race, ethnicity without sort of looking for what I would think of as a substantive diversity, which is, are they in the mainstream of what we think our judges ought to be.

Tavis: To this book 'Courting Justice,' let me throw a few things at you and you give me your version, your top-line response to these historic cases that you've been at the center of. We've already talked about Bush vs. Gore of 2000. Major League Baseball--the Major League Baseball case vs. the New York Yankees--the Yankee vs. major league Baseball.

Boies: I think one of the things that we were defining there was, what is the freedom of a club to pursue its own interests? To what extent are you going to have real competition, real independence, or are you going to try devolve into something sort of Major League Baseball, Inc., where it looks like there's competition on the field, but everything is sort of stage-managed. And I think one of the things that the Yankees and George Steinbrenner were trying to do for their own interest, to be sure, but I think also in the long run interest of baseball, was to maintain the incentive to compete and invest in that sport.

Tavis: The U.S. vs. Microsoft. We can't forget that anytime soon.

Boies: I think that that was a case that defined how the antitrust laws, the spirit of competition, were gonna apply to high tech. Before the Microsoft case, it was a real debate as to whether the antitrust laws even ought to apply the software industries and high-tech industries. That debate is over. They're applied, and now the question is how should they be applied? So I think it was a major step forward in preserving the opportunity for the next Bill Gates to come along, the next innovator, the next entrepreneur, make sure that they have the same opportunities to succeed that Bill Gates had.

Tavis: Every great lawyer has cases that they are passionate about, that they work on pro bono for 10, 20 years that never really gets talked about in the annals of history with regard to what they contributed to the legal profession. I recall talking to Johnnie Cochran once and Johnnie was just--the case that meant so much to him was getting Geronimo Pratt out of prison after all those many years. Never mind O.J. and Michael Jackson. That's the case that mattered to him. I suspect that you're gonna tell me from reading the book that the case of the Guatemalan family was the case that really meant perhaps the most to you.

Boies: I think that's right, because you saw...this was the situation in which an American mother, 2 children, married to somebody from Guatemala divorced. The court gives her custody, the husband--former husband--who's very wealthy, flies to Florida from Guatemala in his private plane, asks for permission to take the kids to Disney World. She says, 'Sure.' Doesn't take them to Disney World, takes them to Guatemala, and Guatemala, at that point, was not a signatory to what's called The Hague Convention, which is a treaty that allows you to return kidnapped children, so he held them under guard in this sprawling estate with armed guards. Unable to get them returned, we engaged in years and years of litigation. Got contempt fines, got hundreds of millions of dollars of sanctions against him. Finally, he was arrested by the FBI, and finally the children were reunited with their mother.

Tavis: For all those lawyers who are watching, a final exit question here. For all those young, would-be lawyers who are watching right now who want to be a David Boies when they grow up and be a great attorney--everybody agrees, like you or loathe you, agree or disagree, you're a great attorney. What makes a great attorney?

Boies: Luck to some extent.

Tavis: Oh, come on, you don't mean that.

Boies: No, I do mean that because you get the cases that you get, particularly when you're young, in part by luck. If I hadn't had Westmoreland against CBS-- the IBM litigation--I wouldn't have gotten these other cases because what happens, whether you're Johnnie Cochran or myself or whoever, you get a big case, do well in it, and you get more cases. Now, doing well is not luck. But getting that first case, that's luck. So luck plays an important part. The other thing is attention to detail, being prepared. You lose and win a lot more cases in preparation than you do in the courtroom.

Tavis: Well, for all you young would-be lawyers, get yourselves prepared and good luck. May you become a David Boies, too. Nice to meet you. Glad to have you on the program.

Up next on this program, we celebrate the 35th anniversary of the PBS institution known as 'Sesame Street' with original cast member Dr. Loretta Long. Stay with us.