 |
| Dean Kathleen Sullivan |
Sullivan served as co-counsel with Harvard Law Professor Laurence Tribe, on the first election-related case that went to the U.S. Supreme Court [Bush v. Palm Beach Canvassing Commission]. The case involved a challege to Florida’s recount procedures, and ultimately, to the authority of the Florida Supreme Court.
“I got involved,” she said, “because of my litigation experience working with Tribe and my connection through the school with Warren Christopher. . . . I thought it was very important to the rule of law and respect for the law to defend the Florida Supreme Court from a kind of court-bashing that was beginning to sweep the country, and also to make the argument that, in the first round, the Florida Supreme Court was trying to interpret the law, not make the law.” Tribe, in describing Sullivan, has said she “has a great sense of mission.”
She explained that the issue in the case was whether there existed a federal statute that required Florida to decide who its presidential electors were by a particular time. “And on that issue, we basically won nine-to-zero,” she said. “In both Bush v. Palm Beach and the second round, Bush v. Gore, the Supreme Court decided that federal law was a safe harbor provision. Little did we know that the two lurking issues of Article II were, firstÑwas there a federal constitutional bar on Florida judicial involvement in deciding who the electors were, and, secondÑwas there some requirement in the Fourteenth Amendment equal protection clause that recounts by a state be decided in some uniform fashion? Those two sleeper issues came to life in the second round of the case.”
Sullivan said it was fascinating to sit in the second chair watching Stanford Law graduates Chief Justice William H. Rehnquist ’52 (AB ’48, AM ’48) and Associate Justice Sandra Day O’Connor ’52 (AB ’50) play a crucial role in the ultimate decision. “The most exciting part about it was to see the importance of law to our national political health. This is a country in which, as [Alexis] de Tocqueville said, ‘The most important controversies eventually get decided by lawyers.’”
Sullivan said that whatever you might think of the election outcome as a political matter, you have to be impressed with “the energy and vitality of the profession that produced it, the power of the advocacy, the remarkable speed and quality with which the briefs were produced, and the arguments prepared, and the array of lawyers who volunteered their time pro bono on both sides of the aisle.”
Asked how the case will affect the teaching of the law, she said, “For a constitutional lawyer, you can’t just teach Bush v. Gore as garden variety equal protection case. You have to teach it as something more momentous, more about the relationship between the court and the political process, something closer to teaching about Brown v. Board [of Education] and the relationship between the court and the political process.”
Sullivan said that, as a casebook author, she would place Bush v. Gore near those cases that are about what should be legal questions and what should be political questions, “so it belongs more with Marbury v. Madison than with the cases about unequal taxation and commerce among the states.”
In addition to developing a deep appreciation for how the courts work, Sullivan pointed out a second positive outcome of the case: the development of the private, bipartisan National Commission on Federal Election Reform. She was recently appointed, along with former Senator Slade Gorton of Washington, as one of the vice chairs of the commission. (See NewsBriefs).
As for the election’s end result, she believes that the very best outcome would be “to increase the attention that we pay to elections by increasing voter turnout and also strengthening each person’s belief that each and every vote really does count. With respect to procedures, we need to make sure that, to ensure that every vote does count, those votes are counted correctly.”
Sullivan said she got involved in the election reform movement by way of writing an op-ed in the New York Times, “One Nation, One Standard Way to Ballot” (November 15, 2000). Serendipitously, the article appeared on the day Sullivan was attending a board meeting of the Century Foundation.
In the article, Sullivan wrote, “A constitutional amendment of Article II could provide for uniform election methods simply by emulating the fail-safe clause of Article I: for example, by providing that Congress should prescribe the time, places, and manner by which electors should be included on the ballot and elected, and the method for settling disputed votes.”
The coincidence of the furor over the election, the op-ed piece, and the board meeting provided the impetus needed for the foundation to became one of the major sponsors of this private election reform commission, Sullivan said.
She summarized her role in the election this way: “This is really a story of a constitutional scholar who gets involved in a constitutional case, loses, and becomes involved with constitutional reform. . . . I hope we’re ultimately going to win.”