Title: Interview with Major Harding
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00067398/00001
 Material Information
Title: Interview with Major Harding
Physical Description: Book
Language: English
Publication Date: August 20, 2003
Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
 Record Information
Bibliographic ID: UF00067398
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 41

Table of Contents
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
Full Text


This Oral History is copyrighted by the Interviewee
and the Samuel Proctor Oral History Program on
behalf of the Board of Trustees of the University of

Copyright, 2005, University of Florida.
All rights, reserved.

This oral history may be used for research,
instruction, and private study under the provisions
of Fair Use. Fair Use is a provision of United States
Copyright Law (United States Code, Title 17, section
107) which allows limited use of copyrighted
materials under certain conditions.
Fair use limts the amount of material that may be

For all other permissions and requests, contact the
the University of Florida

FEP 41
Interviewee: Major Harding
Interviewer: Julian Pleasants
Date: August 20, 2003

P: This is Julian Pleasants, and I am in Tallahassee, Florida, talking with Justice
Major Harding. It is August 20, 2003. Would you talk very briefly about your
appointment to the Florida Supreme Court by Governor [Lawton] Chiles in 1991
and try to give me some sense of your judicial philosophy during the time you
were on the Court?

H: I was a circuit judge in Jacksonville and had been for twenty-three years. I was
for two years a juvenile court judge and then in 1970 was appointed to the circuit
bench and served there until my appointment to the [Florida] Supreme Court in
1991. It was a very interesting experience. My colleagues debated as to whether
or not I should wear a bow tie to the interview process with the nominating
commission, and ultimately, even against their advice, I said, I wear bow ties. If I
don't wear one to the nominating committee, they will wonder, who is this guy?
So, I did wear a bow tie and was thankful that when I walked in, I saw George
Bedell on the nominating commission with his bow tie.

In any event, I understand from the newspaper reports that there had been
twenty-four applicants. There were eight circuit judges, there were eight trial
lawyers, and there were eight district court of appeal judges who applied. The
nominations came out, and I was on the list, and I was fortunate enough to have
been selected. I, of course, had been a judge for so long that what I have been
referred to as a political eunuch because we could not participate in any political
kinds of things, and I had no political clout whatsoever with either Governor [Bob]
Martinez [1987-1991], who was just going out or Governor Chiles [1991-1998],
who was just coming in. It was January 21 of 1991 that I received a call from
Governor Chiles indicating he wanted to put me on the supreme court.

As to judicial philosophy, I don't know how I could be characterized. I guess one
of the things I recall in the announcement of my appointment, one of the
reporters asked me who my favorite supreme court justice was, and instantly it
flashed into my mind Byron "Whizzer" White [U.S. Supreme Court Justice, 1962-
1993], who had distinguished himself on the Supreme Court for a number of
years and had avoided successfully being labeled. I thought that was a wonderful
attribute and if I could have been thought of in my trial court career and in my
judicial time on the supreme court as being a judge who listened and who
evaluated the law and ruled in accordance with it, then I would have been a

P: How important was precedent in your decision making on the court?

FEP 41
Page 2

H: Precedent should be very important to every judge, and we should be controlled
by precedent except in very rare incidents. Interestingly enough, I went to law
school in the late 1950s and was amazed at the number of law books and
volumes of cases that had been reported on just so many aspects of the law.
Here fifty years later, the vast amounts of books that were in the library in the late
1950s have just multiplied ferociously. It is very hard not to find some precedent
for something, but when you look at the law from a holistic point of view, you
generally get some lines or you generally get some traditions established that
can give you guidance to a precedent, and you should follow those precedents
unless it has been determined that the precedent just does not work. I can't recall
specifics, but I can recall that there were times on the supreme court when it
became clear to us that prior cases were just not working in reality in the law and
in the trial courts, and so we would have to change. But to answer your question
specifically, precedent should be a strong factor in decisions.

P: What is your view of the concept of judicial restraint? Justice Antonin Scalia
would argue that courts should interpret, not make, law.

H: And Justice Scalia is an originalist, and he advocates that the Constitution should
be interpreted by the intent of the Framers at the time it was written. That is a
very easy concept, and as he has indicated in speeches that I have heard and
things that I have read, that puts you sometimes on what is labeled the liberal
side and that puts you sometimes on what is labeled the conservative side of the
issue. I was confronted on the Supreme Court of Florida one time with a case in
which a man and woman on their way to the airport to return to Argentina after a
visit in Dade County got off on a bad exit from the interstate, and they were
robbed. The police caught the robber and the robber went to trial, but the people
were in Argentina and for whatever reasons could not come back to Miami. The
judge there set up a satellite connection between a courtroom and Argentina and
the courtroom in Miami, and the testimony of those people was transmitted
instantaneously by satellite to that courtroom in Miami. The people were placed
under oath. The jurors had an opportunity to see the witnesses, the judge, and all
of the attorneys and the defendant. But, of course, the issue of the right of
confrontation came up and whether or not this fit within the concept of the right of
confrontation. If I had been an absolute originalist, I would have, of course, said
that was not consistent with the right of confrontation because the Founders had
no intent and no knowledge of the communication skill that would be available
200 years later. So, I determined and the court issued an opinion approving what
the trial court had done, and said that it was consistent with the right of
confrontation, and as I recall, that issue was sent to the Supreme Court of the
United States and they refused to take the case.

P: Was it more pragmatic in that sense?

FEP 41
Page 3

H: To that extent, I think that my view is probably more pragmatic, but certainly we
could not have done that had we taken an originalist point of view.

P: What is your political affiliation?

H: I am a registered Independent. No political party. In 1968, I was a registered
Democrat, and I was appointed to the court by a Republican governor.
Subsequently, I registered Republican, and I was appointed to the supreme court
by a Democratic governor. When I got here, I said, I am tired of living too close to
the edge, and I am going to register "no party," so I am an Independent.

P: I was very interested, and we can talk about this a little bit later, that a lot of the
press stereotyped the Florida Supreme Court, and they said it was the Dexter
Douglass [attorney for Al Gore in 2000 election; chairman, Florida constitutional
revision commission] court, that this was in fact a liberal Democratic court. How
did you react to those kinds of assessments?

H: First of all, at the very beginning, I recall that Craig Waters [Director of Public
Information for the Florida Supreme Court] indicated that we had had a request
for a disclosure of our political affiliations, and so all of the members of the court
disclosed how they were registered. I disclosed I was a registered Independent.
But it was very rarely ever mentioned. I think the picture painted was that all of
the members of the court had been appointed by Democratic governors, and for
that reason, we were all Democrats.

P: What was the political breakdown, do you recall?

H: I am not positive, but I think the rest of the people were registered Democrats.

P: Although I guess Peggy [A.]Quince was appointed both by Chiles and [Jeb]

H: Yes, that is true.

P: Does that in any way disturb you, because the assumption is that in the court
your decisions would be influenced by your political affiliations as opposed to
your legal considerations?

H: It disturbs me to the extent that it reflects on the independence of the judiciary.
The independence of the judiciary is the hallmark of what has kept this country
together for 225+ years in its history. I guess it is a very difficult thing for the
average public reader to separate that a person can make a decision not
consistent with his or her political affiliation. But we have to go back only to 1876
[Rutherford B. Hayes- Samuel Tilden presidential election that was decided by a

FEP 41
Page 4

special commission]. There were three justices on the Supreme Court of Florida
who were Republicans, and I think they were unabashedly Republicans, who
voted that the votes in Florida should go for Tilden, a Democrat. There are lots of
times a judge, if he or she is writing on a clean slate, would make a different
decision, and this falls into the discussion on precedent. But, you know, we don't
write on clean slates. We write on the basis of the laws that have gone before
and how they have effectively governed us. To some extent, you just have to
understand that the general public is going to think that a court is going to rule
consistent with its political leanings or affiliations, and I don't think that is fair, but
I understand that it is a reality.

P: It is interesting in retrospect to look back. Two judges thought to be Democrats,
Nikki Clark and Judge Terry Lewis [both of the Leon County Circuit Court], they
made rulings against Al Gore in the 2000 presidential election. In the case of the
Florida Supreme Court, characterized as a liberal court, and Barry Richard
[attorney for George W. Bush in 2000 election] wrote an article on this, and on at
least five major cases, the Florida Supreme Court ruled against Gore when any
one of those could have given him the presidency.

H: That is exactly right. In the last case, Justice Leander [J.] Shaw and Justice
[Charles T.] Charlie Wells were Democrats and thought that the decision should
have gone the other way. Your question is, does is bother me? You know, I was
a judge for thirty-four years, and, of course, when these things come out, there is
a certain wiggle in you that tends to bother you, but you quickly get over it and
move on. You have just got to. You can't let that determine the quality of your life.

P: Would you describe the circumstances in the court during these thirty-six days
when the 2000 presidential election recount was going on in Florida? If I may
quote from a statement you made: "Within the court and the deliberations, there
was a certain peace and a certain sense that we had a job to do. We have a
short time to do it, and we are not ruling on political issues; we are ruling on legal

H: That is a fair statement in my recollection of how things were. We were fortunate
because of communications, when these cases were filed in the circuit courts
around the state, the clerks of those courts sent to our court the pleadings,
because we had a realization that, in all likelihood, these cases were coming to
our court. So, we were able to get somewhat of a heads up on what the issues
were. Of course, we couldn't know what the facts being presented would be and
what the ultimate ruling would be, but at least we got a sense of what the issues
would be. We had a lot of long days, early mornings and late nights, because in
all of this, we still had cases to write and vote on and issues that needed to be
resolved. We had an oral argument week, I think, after Thanksgiving, and we had
to be prepared for that. These people had had these cases scheduled for a long

FEP 41
Page 5

period of time, and we could not allow the exigencies of these election cases to
totally undo our schedule.

P: And didn't you have one or two death penalty cases?

H: And during that course, the governor [Jeb Bush] signed two death warrants, and
we scheduled oral arguments on those, set scheduling for the trial courts, and we
had to dispose of those. They were scheduled on successive days. The first one
took place, but we could not get to the resolution of the second one, and that had
to be put off for a week.

Needless to say, we were busy, and needless to say, everyone was working very
hard. But as I indicated in that comment, there was a certain peace, a certain
sense of purpose that we had to resolve these issues. We discussed our
agreements, and we discussed our disagreements, and ultimately decisions were
made, opinions were written, and votes were cast.

P: This must have been a very difficult because, as I recall, the supreme court
during this period of time ruled on something like fifteen cases. Normally, this
might take several weeks or longer, and you were having to hear oral arguments
and make decisions in the space of forty-eight hours. Isn't that a little unusual for
the court?

H: It is very unusual for the court to have to get decisions out as quickly as we did,
but we realized that the exigencies of these circumstances required that we do it.
I thought that the opinions of the court, whether I agreed with them or disagreed
with them, were thoughtful and well-done and represented a lot of work and a lot
of effort in a short period of time.

P: And I thought they were very comprehensive.

H: Very comprehensive.

P: How did you utilize your staff? You would have had law clerks and there is a
central staff for the court.

H: We have a central staff, and each justice has a staff of law clerks. I think at that
time, we had three. We would put them to researching certain issues and also to
checking records and transcripts of proceedings below. It was a collective effort
in each office as to how the law was viewed and how the ultimate decisions were

P: Could you give me some sense of how much time you would have spent
individually working on your opinions and then how much time you would have

FEP 41
Page 6

spent as a court discussing these issues?

H: No. I just know that from the time we heard oral arguments in particular until the
time the opinions were released, it was an all-consuming task. As to amounts of
time, I just don't have any particular recall as to how the time was devoted. I
really don't know that I can answer that quantitatively.

P: Could I ask the process of how the court voted? Does the chief justice have any
extra influence?

H: Oh, no. From just a procedural matter within the court, if you are asking how the
votes take place, when an opinion is circulated, there is a vote sheet with that
opinion, and you have all the choices of concurring or concurring in part,
dissenting in part, concurring in result, dissenting with an opinion, without an
opinion. You have all those options, and those votes are then sent back in to the
clerk and ultimately tabulated.

P: I talked with Craig Waters, and because of the website and the technological
ability of the court, reporters were getting the pleadings and the decisions almost
instantaneously, and that is rather extraordinary, particularly under these

H: Yes. As I understand it, the first case was filed in our court at like 3:00 in the
morning on November 15, and the clerk put that on the Internet by 7:00. It took a
while, but as the reporters wanted to get that information, they were told where
they could get it. They soon learned that they could get more information quicker
off of the computer screen than they could coming to the courthouse. That solved
a great deal of problems because of the security that we had imposed on us
during that period of time and the restrictions on access to the buildings. So, you
are right. They were not only able to see the opinions, but they were able to see
whatever pleadings were filed, the briefs, and it was just a remarkable
experience in modern technology. I thought it was not only good for the press to
be able to do that but, you know, the general public was able to do that. We got
just random letters from people out there in the world who felt like that they had
an opportunity to see the court in action and the decision-making process, and
they felt good about it.

P: And unfiltered because the press had not commented. They could see that

H: That is right.

P: I think Craig Waters said there were something like 3.5 million hits a day. That is
a huge number.

FEP 41
Page 7

H: That is right. Interesting, and you may want to get this, but after it became
obvious that the supreme court was going to be involved in the case, we started
getting lots of phone calls. Of course, soon people were wanting to indicate how
they wanted us to vote on these cases, but particularly after each opinion was
released, the phone calls were phenomenal. The clerk had to put, I understand,
more than 4 people just answering the phones in his office, and the phone lines
were tied up so badly in the clerk's office that the judges couldn't communicate
with the clerk, the lawyers couldn't communicate with the clerk, and I understand
they had to put in separate telephone lines in order to accommodate that, which
is interesting. My secretary would just not answer the phone after these opinions
were released. People would put their messages on the voice mail. Then
periodically, somebody on the staff would empty the voice mail and I would have
a little list of the calls. But my secretary, who retired from the court when I did,
came in one day and said, Justice Harding, I am not old enough to listen to a lot
of the comments that are being made on the voice mail.

P: Plus, you got thousands of emails as well, I guess.

H: We got thousands of emails, and we got hundreds of letters.

P: Would you comment on these calls and emails. I know at one point, you had
mentioned some of the emails were quite derogatory, such as, "Justices are
rednecks who can read."

H: First of all, we got some really wonderful letters. I got a letter here from a guy.
The subject of his email was "You make me proud." "I am an immigrant from
Ireland who became a Marine Corps infantryman and spent thirty-four years in
the service, serving in both Vietnam and the Gulf War. I followed the Bush/Gore
case on television and have read all of the relevant documents on the Internet. I
am honored to have played a part in my life in fighting for a system which is
capable of such judicial action. The entire conduct of the Florida Supreme Court
and the Bush/Gore case was exemplary. The dignity of the court and penetrating
questions asked by the justices, the ethnic and gender diversity of the justices
and everything made me proud. It is the kind of advertisement for America that I
hope is seen overseas. I have read the decision twice and find it truly worthy of
Solomon. Regardless of how this election turns out, you have played a key role
in restoring a sense of dignity, intelligence, fairness and respect to the rule of
law." Then he concludes by saying, "Again as a fellow American, thank you and
may God bless you, and as they say in Ireland, 'May the wind always be at your

Then I got a personal note from a fellow in Palo Alto who said, "I just want you
and the other justices of the Florida Supreme Court to know how much I
appreciate the fair and honest decisions you have rendered during the recent

FEP 41
Page 8

presidential elections. Of course, these were decisions that were characterized in
favor of Bush and those that were characterized opposed to Bush. Though not
an attorney, I read a lot of legal documents, and the clear logic of your decisions
was inescapable. Somehow, this nation is going to benefit from all of this,
probably with a strong dose of election reform. I voted on a punch card ballot in
California and hopefully with a different method next time."

Then we got a letter from a person in Memphis who said, "Major B. Harding, you
evil, liberal, godless Democrat. How dare you think you are above the law? You
need to stop and think about where you will spend eternity. I pray for you."

And then this one from Omaha, Nebraska. It is addressed to the Florida Supreme
Court (The Seven Dwarfs), and it addressed to the chief justice, "Dear Doc, It has
been said that a lawyer in Florida is sometimes just a redneck that can read. It
has also been said that a judge in Florida is sometimes a lawyer who has failed
in private practice." He went on and it was signed a copy was sent to Sleepy,
Happy, Grumpy, Bashful, Sneezy and Dopey.

Then we got a letter from a fellow from Whitehall, Pennsylvania. "You may call
yourself a judge, but you are in reality one of seven dung heaps of injustice." He
said, "You are so ashamed of your biased ruling that instead of facing the media,
you sent out a clerk to read one paragraph of a forty-two page report." I am sure
he is referring to Craig Waters who went out and gave a prepared statement that
had been approved by the court to the press. But this fellow continues, "You
someday will be judged by a 'higher authority'. I pray that God will banish you to
burn in hell. There is no justice in the Florida Supreme Court."

So, what was happening did create a great number of emotional responses. We
recognized that it was a political issue and it was being resolved by the courts,
and we recognized that this was a natural part of a fallout of this. But we also
recognized that as [Mitchell] Berger [attorney for Al Gore] said in his law review
article, when these issues came up, they went to the law, not to the generals, to
resolve them. And do you know that the case was decided, the president was
inaugurated in January. There were no tanks in the street. Nobody died a violent
death. I have had a conversation with the marshal at the supreme court who tells
me that there was not even an arrest made during all of that time with all of those
people on the grounds and across the street at the Florida Supreme Court.

P: Did you get any death threats?

H: No.

P: Did you have a security guard with you in public?

FEP 41
Page 9

H: No, but there were times when we had additional security. I had to go to a funeral
the day of the last opinion being released, and they would not let me go to that
funeral with my wife without security. But we were aware that they had extra
security in our neighborhoods, and once or twice, we came home and found a
police car in our driveway. They were just checking around and making sure
everything was okay. We were offered whatever portion of security we thought
would be appropriate, and as I recall, none of us felt any fear. They would stop
traffic so we could get out of the parking lot area under the supreme court. There
were one or two times when they found cars parked in the drive that went to the
parking lot, and so they would ask us to wait until they could get those people out
of the way. But, you know, I never felt physically threatened in any way.

P: Another thing that is important about this event since Florida is under the
Sunshine Law, I would assume without knowing specifically, maybe the state of
Washington, this must be the most open court system in the country. People
were able to watch all the proceedings, and some had never ever seen a trial, let
alone a supreme court proceeding.

H: That is right. I think you are right. I don't know of any system that is more open.
Of course, I was a trial judge during the time when the issue of whether or not the
court should be open to television and photographs [was being debated]. I never
have felt during the course of my entire judicial career that the openness that the
supreme court inaugurated was a problem. I thought it was always the best thing
for the system. I never felt like anybody ever played to the cameras or anything
like that during the course of any of the trials I presided over, and I just think it is
a wonderful thing. We had friends who were in Singapore. They got up at 3:00 in
the morning to watch the first oral argument. They tell me they didn't stay up, but
they got up and were able to see this going on in a courtroom in Tallahassee,
Florida. I have nephews who lived in Ethiopia, and they went, as I recall, to the
American embassy and were able to watch the proceedings at the embassy. I
had a lawyer friend in Jacksonville from Chile watch it from Chile. He and his wife
were down there. So, people from all over the world were able to see the court in

P: How much television did you watch, and how much press coverage did you read
during these thirty-six days?

H: We didn't watch much television because we were busy. Actually, it was really
not until after the case was over that we sort of had an opportunity to
decompress. I guess we were aware of the headlines. But, you know, when I
would get home at night, I would enjoy having some time with my wife and we
just didn't talk about those things. We got some letters at home during the course
of this from people I had considered to be friends for years there in Jacksonville.
Evidently there was a letter-writing campaign in my old neighborhood and Rotary

FEP 41
Page 10

Club, people wrote and said some very unpleasant things and, I guess, in effect
severed friendships that I had known and enjoyed for many years. Of course, I
really did not have an opportunity to dwell on those until after the election was
over. Those kicked in some other issues that I had to deal with, like the issue of
forgiveness, and whether or not I was going to allow these issues to determine
the quality of my life for the rest of existence.

P: Were you aware, for example, that James Baker [U.S. Secretary of State, 1989-
1992; spokesman for George W. Bush] was highly critical of the Florida Supreme
Court, particularly after Palm Beach County Canvassing Board v. Harris?

H: Sure. I was aware of that. It is interesting that you should mention that because
several months ago, I was either coming into work or going home, and there was
a segment on NPR [National Public Radio] with a panel of some former press
secretaries I can't remember the names right now but they all agreed that Jim
Baker was the master [political] spinner. This little segment on NPR dealt with the
origin and the art of spinning. I thought to myself, that was what he was a master
at and that is what he did after that case. Of course, I was aware that he did that.

P: "The votes have been counted, recounted and counted again," Baker said.

H: "And they [the Florida Supreme Court] have moved the date [of certification to
November 26.]" But, you know, we understand that in those difficult cases where
people's emotions are high, there are going to be those who seek to inflame the
emotions. I have heard it wondered the impact of Jim Baker on the decision of
the Supreme Court of the United States to take that first case because it was a
state law issue and ruled on by the state court. You don't know what goes
through their minds [U.S. Supreme Court], but when they got it, they obviously
had second thoughts and sent it back without ruling on it, except to stop the
voting recounts.

P: In the trade, Baker is known as the Velvet Hammer.

H: That is right. I think that probably was mentioned in that interview.

P: In many of the cases you took, the first circuit court of appeals passed those
directly through to you. I guess this is called pass through jurisdiction. They knew
that it would be in your court eventually.

H: It is not as nice a word as pass through. It is a throw up. The district court of
appeal here in Tallahassee was the natural place for those cases to go, and they
realized that they didn't have the luxury of hearing the arguments, ruling on it and
getting a decision up to us before the time ran out.

FEP 41
Page 11

P: So, it was expediency.

H: It was expediency, and I don't think that anybody thought that any other process
would work.

[End of side Al]

P: Would you comment on the performance of the attorneys who appeared before
you, and how important were the oral arguments in helping you make your

H: The attorneys were just extraordinarily helpful in our decision making. Barry
Richard was just a master, and David Boies [attorney for Al Gore] was just
phenomenal. When we learned later from articles in Time or whatever that David
Bois was dyslexic and had a hard time writing out, and we all marveled that he
could get up there and speak without notes, but of course we realized upon
reflection that he had to accommodate and adapt that. There were lots of local
lawyers involved, Dexter Douglass and John Newton, but primarily the lawyers
were David Boies and Barry Richard. We were very pleased to have them
appear before the court.

P: Would there be an occasion that you would make a decision prior to oral

H: No. You cannot get a case, read the briefs, look at the record and then do some
research and check out the case without having a preliminary predisposition
about the case. In all of my time on the Supreme Court of Florida, I never knew
of our going into an oral argument with a preset result in mind. Many times, I
have heard in conference, wow, the oral argument, I am really 180 degrees from
what I thought I would be when the arguments were concluded. I know
somebody wrote a book and said that somebody had made an announcement
that we had decided the case before the oral arguments. I wish I knew that had
happened because it would have saved an awful lot of time and effort that we
spent after the argument.

P: I think that was in Jeffrey Toobin's book [Too Close to Call: The Thirty-Six-Day-
Battle to Decide the 2000 Election].

H: That is correct. If somebody made that report... I think it was to Jim Baker?

P: That is correct.

H: ...they were inaccurate, and if anybody had made a decision, I did not know
about it.

FEP 41
Page 12

P: Let's talk about some of the key cases. The first one of some importance was
Fladell v. Palm Beach County Canvassing Board, the butterfly ballot. The court
ruled rather quickly on that, and I think the way you put it, that although there
may have been some problem with the ballot, it "did not amount to substantial
noncompliance," which is what the statutes say. Another issue, it seems to me,
was that there really wasn't a remedy? This is a presidential election. You can't
re-vote anyway, can you?

H: I don't know. I cannot at this point in time go back with any degree of specificity
and give you anything other than what was contained in the opinions as to our
reasoning for that. I know that there have been people who have criticized the
court for deciding this during the protest phase when they thought it should have
been decided in the contest phase. I don't know, I cannot recall, and I have not
had a chance to go back to determine whether or not that issue was raised as to
whether or not the issue was ripe for determination at the time that it was
presented to us. The remedy is certainly a significant issue. If the court and I
don't know that I had thought about it in those particular words... I have not read
the opinion recently. Did we say anything about the remedy?

P: Not that I recall.

H: I don't recall that we did, but the remedy would have been to reprint the ballots,
have another election, and, wow, would that have created all sorts of legal

P: But under the United States Constitution, in a presidential election, the vote has
to be November 7, just that one day.

H: So, you know, whatever the remedy was available, it would probably have been
not able to be accomplished.

P: Also, I noticed that a lot of times, the court cited Beckstrom and Boardman v.
Esteva, which were cases where there were minor problems with, in one case,
the envelope of the ballot had been mangled, and the hypertechnicality should
not override the will of the voter. Was that the essence of your opinion?

H: Well, you know, we are almost three years after, and I think that the best answer
that I can and should give to you on that is that the opinions should speak for
themselves. Needless to say, we have been voting in America for many years,
and also needless to say, there should be confidence that the votes that are cast
are appropriately counted and that the one who gets the most votes wins the
election. When we first started our research, we found it interesting that so many
elections had been subject to judicial scrutiny over the course of the years to
include the election of 1876. There was a county judge election down in Wakulla

FEP 41
Page 13

County back in the 1980s, I guess. It took three years for it to ultimately resolved,
and the person who took office and judged all those years was determined not to
be the winner. But we just did not have the luxury of that type of scrutiny in this
type of case when there had to be a determination of who won the election under
constitutional guidelines.

P: One issue that comes up over and over again is the validity of a ballot, and
Judge Posner argued that the Democrats had confused voter error with
tabulation error. The question is, if a voter does not properly vote and the
machine does not pick up the vote, can you go back and with a human being
determine the intent of the voter? Some people argue that if the vote is "invalid"
because you didn't punch the ballot properly that you should no longer consider
that ballot as valid.

H: After this was all over, I called the supervisor of elections here in Leon County
and talked to him. He indicated to me, as I recall, that the voting machine ballots
and punch cards had been in existence since the 1950s and that the statutes
authorized recounts of those machine-cast votes manually under certain
circumstances and that when those circumstances existed as determined by the
local supervisor of elections, you manually recounted the votes. That has been
done for fifty years. He said that you are able to determine what the voter
intended many times by looking at the ballot manually as opposed to what
happens when it is run through a machine.

P: So, for example, if somebody didn't punch Bush but circled Bush and wrote in
Bush, you would assume that they intended to vote for Bush?

H: I am not up on all of the actual procedures, but his comment was that you can tell
how those votes were intended. Not only that, but the people who were manually
recounting those votes down in Palm Beach, Broward and Miami, many of them,
Republican and Democrat, were reported to say that they could tell what the
intent of the voter was by looking at the ballot. So, it was not anything new. Of
course, it took on all sorts of political overtones when Secretary of State
[Katherine] Harris and the state election board determined that she and it were
not going to receive manual recounts.

P: Section 101.5614 of the state statutes indicates that no vote shall be declared
void if there is a clear indication of the intent of the voter as determined by the
canvassing board.

H: Right.

P: So, that is pretty precise. Miami-Dade County Democratic Party v. Miami-Dade
County Canvassing Board where the Democratic Party asked the canvassing

FEP 41
Page 14

board to resume the count. The court ruled based on the Dade County
Canvassing Board's decision they could not complete the count in time, you
could not order them to do something they could not do.

H: I am not sure exactly of all of the details, Julian. You will have to excuse me for
that. Except I think we denied the writ. Isn't that correct?

P: That is correct, yes. The court could not compel the performance of an act that
was futile or impossible to perform.

H: Right.

P: When the Miami-Daded canvassing board quit, that was November 22, and by
that time, they had until November 26 to complete the count. When Judge Terry
Lewis finally went and counted these 9,000 votes, they were able to count them
in half a day. I just wondered, in retrospect, do you see that in this case, the key
issue for the court was the decision of the canvassing board, that you had to rely
on their judgement that they could not complete the count on time?

H: I think that common sense would indicate that was the case and that the court
did not think that there was a... A writ of mandamus is a discretionary writ. The
court, in denying it and not taking that, determined that it would not exercise its
discretion to get involved in that. There had been a decision by the canvassing
board, and those are the people whose decisions over the course of this the
court tended to honor. They were the ones there making those decisions.

P: I noticed that in Gore v. Harris, Justice Charles Wells was arguing that it was up
to the canvassing boards and the voters to make these decisions, not the courts.

H: Right, but nonetheless, the courts have been involved. I have not done a study of
this, but my recollection of a lot of that research is that where the courts could
support the decision of a local canvassing board, they were supported.

P: In Palm Beach County Canvassing Board v. Harris, obviously this is the first
prominent national case, and in this case, the court by 7-0 vote decided to go
ahead and extent the certification to November 26. Several issues are relevant
here. 102.111 "shall" and 102.112 "may" and obviously those two statutes are
contradictory. How did the court decide which took precedence here?

H: Well, the opinion speaks for itself in the resolution of that issue. I think it ought to
be pointed out that as late as 1999, the legislature was dealing with these
statutes. During the course of this, the Speaker of the House and many people in
the legislature acknowledged that the statutes were conflicting and confusing.
Rightly or wrongly, the courts have been, since the beginning of this country, cast

FEP 41
Page 15

in the position of resolving conflicting statutes. This was an issue that was, you
know, how do you make sense and that is what we are according to
precedence supposed to do how do you make sense out of conflicting
statutes? That was one of the things we looked at and tried to make sense out of
it. As the opinion indicates, we determined that in the state election, Secretary
Harris had inappropriately stopped the recounts and the extension was only the
amount of time that they would have had to get the recounts in had she not
stopped them.

P: So, that was why you picked November 26? Just the number of days.

H: That is the way, I think, it worked out, and as I recall, that day was on a Sunday
and gave her the choice of taking them that day or the day after.

P: There was a little bit of a puzzle because the court decision said 5:00 Sunday if
she is open. Well, of course, she had never been open, but I presume the court,
since you decided on the November 26 date, that, that would be an appropriate
choice for her.

H: Yes. We gave her the choice. If she wanted to accept them that day, that was
good, or if she wanted to accept them the next day. I think that is what the
opinion [stated].

P: There are traditional rules of dealing with statutory construction, usually specific
statute over nonspecific. I think the second part of the statute was 1989, the
other one was 1961 or something like that, but you make clear in this decision
that you are interpreting legislative intent and are not making law. Immediately
after this decision, everybody said, well, as soon as they changed the date, then
they had changed the law because...

H: And that is the point, as I recall, that Jim Baker made: they have rewritten the
law, they have changed the law. George Will [conservative columnist] wrote an
article that was in the Sunday, November 26 opinion section of the Tallahassee
Democrat. He wrote an [article] that called us a lawless court and that we had
been legislating by rewriting Florida election law and applying it retroactively. One
interesting aspect of that was that the headline in the Tallahassee Democrat for
that opinion was entitled "Ground Control to Major Harding, Don't Legislate From
the Bench" [in the tune of "Space Odyssey" by David Bowie]. Of course, I did not
know what that meant. Well, we had just been up in Callaway Gardens with all of
our children and grandchildren, and we came home on Saturday, and this was in
the paper on Sunday morning. I called one of my sons, and he told me that
Ground Control to Major Harding was Ground Control to Major Tom.

P: In the opinion on Palm Beach County Canvassing Board v. Harris, the court said

FEP 41
Page 16

that in order to resolve this, we have to fashion a remedy. Do you think that
terminology might have indicated to some observers that you were changing the
law to resolve issues?

H: Obviously, they seized upon it, but what they legitimately thought, I really can't

P: Do you think the United States Supreme Court misread your opinion here?

H: I was a trial judge for twenty-three years, and many of my cases made their way
up to the appellate courts and even the supreme court of the state of Florida.
When I would get opinions back from them, I would sometimes wonder, is this
the same case that I tried? I have learned from my time on the appellate court
and the supreme court that I just can't speculate on what went on in the minds of
those justices in making that determination.

P: Let's talk now about Gore v. Harris. I think Justice Wells may have been
concerned about whether or not the court had jurisdiction. I know Barry Richard,
for example, said, absolutely the court does have jurisdiction. Was that an issue
for you?

H: No. I don't recall it as being. I don't think anybody challenged the jurisdiction of
the court from any of the parties. I don't recall that, and I think everybody
acknowledged that it had to be resolved and it had to be resolved in a short
period of time. I just don't recall that. I know Justice Wells started out the oral
argument that day with that issue, and I wondered, quite frankly, if his statements
were a "surprise" to the attorneys.

P: They were. I asked Barry Richard about that. He said, boy, I really had no inkling
that was coming. He said, I had to respond quickly.

H: It is interesting that you should say that because I had no indication one way or
the other, but I wondered if there was some surprise in that. As I recall, both of
them responded very effectively to that.

P: That is really quick thinking, isn't it? Because you can prepare for some things,
but when they throw you a curve like that to start out...

H: And I think that issue, wasn't that issue raised in the opinion sending the first
case back to us?

P: The Republicans did. At that point, I think Ben Ginsberg and other people at a
higher level were hoping that the Florida supreme court would not hear it. In the
decision, the 9,000 Dade under votes, by a 4-3 vote, had to be counted. Gore

FEP 41
Page 17

was awarded 168 votes in Dade, 215 in Palm Beach, but not the 51 votes in
Nassau County. My reading of this case, and I know you dissented, is that the
majority saw that under the contest statute, if there were irregularities that could
have changed the outcome of the election, the judges had to correct that.
Secondly, that even though the ballot might not have been properly filled out or
punched, again, if it could be determined that this was the intent of the voter, that
vote should count, i.e. the votes in Miami-Dade and the votes in Palm Beach.
You dissented. You agreed with Judge Sauls' opinion, but you dissented on two
major issues.

H: Well, the opinion speaks for itself, but I just did not think that he got it right as far
as his assessment. He applied the wrong standard, as I indicated in my dissent.
He, I think, used the abuse of discretion standard, and I pointed out in my opinion
that that was not the appropriate standard. He was to look at it from a de novo

P: Because that was under the protest.

H: Wasn't that under the contest?

P: What you are saying, he has to look at all the ballots fresh.

H: Yes.

P: Do you think he should have done that?

H: Well, you know, I am not going to sit here and speculate three years later as to
what he should or should not have done, but I think I did ask during the course of
that oral argument whether or not any of those ballots had been viewed by the
judge, and the answer was no.

P: Now, in this vote, it is very clear, at least from the majority, that they are dealing
with an issue that is the contest statute "established by the legislature" and that
the court was aware of 3 US 5 and Article II of the Unites States Constitution. So,
it seems to me that, at least in the majority opinion, they are notifying the United
State Supreme Court that, look, this is a statutory issue. We are not deciding this
on the basis of the Florida Constitution. Is that a fair assessment?

H: I don't know what a fair assessment would be, Julian. Are you talking about the
case that was rewritten?

P: No. This is the 4:3 Gore v. Harris.

H: Well, we have all learned over the course of the years that these opinions, rightly

FEP 41
Page 18

or wrongly, or good or bad, speak for themselves, and to speculate beyond them
is really not appropriate. I learned that as a trial judge and have tried to abide by
that as an appellate court judge.

P: One issue that comes up, and I feel pretty sure you dealt with this in your dissent.
If there has to be a counting of the votes, at least as it appears in the contest
statute that it should be a statewide, not limited to counties.

H: That was the way I interpreted it.

P: Yes. Did you also see December 12 as the safe harbor, that in effect there would
not be time for a remedy?

H: I think I stated that.

P: You did say there was not enough time for an adequate recount with December
12 as a safe harbor.

H: Yes, I stated that. In light of the fact that Judge Lewis was able to count so many
votes in such a short period of time, I began to wonder if maybe I had been
incorrect in that. But then on the other hand, there were places around the state
that could not get the people together to count the votes. As it worked out, as I
recall, it would have just been impossible to have gotten the full statewide
recount done in the time that was required to do it.

P: Duval County would have had to separate the over votes from the under votes.

H: Yes.

P: In your opinion you kept referring to an under vote as a no vote. What precisely
did you mean by that?

H: Well, I think a no vote was determined to be a vote that was cast on the ballot
that you could determine manually but it had run through the machine and was
counted as a no vote. That was what I think the terminology of no vote worked
out to be.

P: And in some case, I think it is pretty clear people deliberately did not vote for
either candidate, so that would fall in that same no-vote category.

H: That is right. Sure.

P: Were you surprised, first of all, that the supreme court took cert, and were you
surprised at the remand?

FEP 41
Page 19

H: This is in the second case?

P: Yes.

H: No. I left for Jacksonville on Saturday, but I called my son in Jacksonville on the
Friday night that we released the opinion and I told him what the results were. I
said, but I bet you by the time I get to your house tomorrow, the Supreme Court
of the United States is taking this case to stop the recount. About five minutes
before I got to his house in Jacksonville, we were listening to NPR, and they
broke in and said the Supreme Court had taken the case and stopped the

P: Let me go back to this remand of Gore v. Harris. When the U. S. Supreme Court
remanded back to the Florida Supreme Court, the U. S. Supreme Court said, we
are not clear about how you took into consideration the legislative authority of
Article II and US 5. The final response to that, I don't think came out until
December 22.

H: That is correct.

P: Why didn't the Florida Supreme Court immediately answer the United States
Supreme Court?

H: We got that case back, I don't remember the date. But, you know, we had a week
of oral argument, we had these other cases, we had to prepare for the oral
argument in the last case, and it was just a question of being able to prioritize our
time. I know Justice Sandra Day O'Connor in the audiotapes of that case
wondered why we had not responded. We just had a very full plate, and we could
not get to it effectively until then.

P: One other issue that I thought was interesting. Tom Feeney, who was the
Speaker of the House, determined that under 3 US 5 the Electoral Count Act of
1877, and Article II of the U.S. Constitution that, in fact, the legislature
determined the choice of electors and as these issues were being determined in
the courts, by a vote of 79-41 the House of Representatives chose the Bush
electors. Did you think that was constitutionally sound?

H: I don't want to speculate on that. I know there have been some articles written
that said the legislature did previously determine how the electors would be
chosen, and that is by the vote of the people. I never got into the issue of
whether or not they could in a subsequent or after an election change what had
been done or not. So, I would be speculating.

P: And ultimately, as you know, in Bush v. Gore, the U.S. Supreme Court reversed

FEP 41
Page 20

the Florida Supreme Court, and in talking with David Boies, there was the
argument that maybe Judge Lewis or the Florida Supreme Court, somebody
should have set a standard. David Boies said, well, if they had set a standard,
they would be making law; if they didn't set a standard, they violated the
Fourteenth Amendment, so it was kind of a catch 22.

H: That is right. It was a catch 22. In this article by George Will, he referred to the
justice who reached up and said, are we to just pick a standard out of the air?
How are we to do that? I think that the court ultimately in the majority opinion in
Bush v. Gore, the court said use the statutory language that the intent of the
voter could be determined. That is how the majority chose to deal with that,
rather than setting forth, I guess, any number of corners on the chad and that
sort of thing.

P: In the stay, and you obviously anticipated that stay, it is pretty clear from Justice
Scalia's opinion that Bush would win. Scalia wrote about the question of
irreparable harm and saw harm to Bush if votes of questionable legality were
counted, and that would threaten his legitimacy. But Justice Stevens came back
and said the key is the state law, we should respect the state law, and how could
you do irreparable harm if you count votes?

H: I did not understand the argument that Scalia made in light of the fact that, of
course, if a person received less votes, they would be irreparably harmed in that
they could not take office. But the number of votes is the determining factor,
without getting into the legality or his thought processes. I just quite frankly did
not understand.

P: Is that the standard for granting an injunction, irreparable harm?

H: Yes. If something is going to happen and you can't undo it, that is a standard.

P: Give me your reaction to the 5:4 Bush v. Gore decision by the United States
Supreme Court.

H: My reaction is the same as my reaction on all the cases that I decided as a trial
judge that were reviewed by the appellate courts of this state. They had the right
to make the last decision, and I am not in a position to say they are right or they
are wrong beyond the fact that they were last. That is the way I have always
viewed appellate review of any of my decisions. I do not think it is appropriate to
begin questioning motives or personal implications. I certainly did not think it was
appropriate for that to be done for those of us on the supreme court. So, I have
just refrained from doing that. I have had the privilege of meeting and being with
on a number of occasions justices from the Supreme Court of the United States
and found them to be decent and honorable and wonderful people, and I have a

FEP 41
Page 21

great high regard for them.

P: Were you surprised that the Rehnquist court made a decision based on the
Fourteenth Amendment, Equal Protection, particularly after the Eleventh Circuit
Court of Appeals, which is generally considered a rather conservative court,
voted 8-4 against that particular issue?

H: Julian, I will say once again, I am not surprised by anything that comes out. You
know, in that regard, I have been reversed by appellate courts when I thought I
should have been affirmed, and I have been affirmed when I thought I should be
reversed. Over the course of my thirty-four years as judge, I have just learned
"not to be surprised."

P: Are you glad you had a chance to participate in these events?

H: Yes. Upon reflection, it was a wonderful opportunity to be a part of what makes
America so great. I just think that this experience was just such a significant
milestone in the fact that we can resolve our disputes, and we can do it
peacefully in a respectful and a dignified manner and without any violence.
Whether you are right or whether you are wrong, the people have exhibited their
faith in the decision-making process of the court. The president was inaugurated.
So, yes, to that extent, it was a very wonderful opportunity to be a part of a
historic American election.

P: I don't want to ask you a very personal question here, but did this experience
have anything to do with your decision to retire?

H: Oh, no. I had been a judge for thirty-four years. You know, Julian, the wife and I
never expected that I would retire before I was seventy. We talked about when
we would, and periodically we would just discuss it, and all of a sudden in the
beginning of 2000, it just became clear that it was the right time. No event, no
anything other than the peace of knowing you have made a correct decision
prompted my retirement when I did. I wonder if I would have had any angst or
emotion to retire because I knew I had to at the time when I became seventy.
The answer to your question is no, that had nothing to do with my decision to

P: Is there anything that I have not asked you that you would like to discuss or talk

H: I think you have been very comprehensive, and I have been very successful in
avoiding answering your questions.

P: [Laughs.] Well, I understand your position absolutely.

FEP 41
Page 22

H: I think that we have covered it. One of things that has just been a wonderful
opportunity is to be able to go around the country and talk to people like I did at
the University of South Dakota.

[End of side A2]

H: I have talked to justices, conferences around the country, a conference of trial
judges, law schools. [Tape interrupted.] And just sharing the joy of what an
experience it was and how important the independence of the judiciary is and
how the country can get itself in these bad situations and then get out of them
with dignity and with respect.

P: Do you see all of this as a very positive reflection of not only the judicial system
but of the legal profession, because of these O. J. Simpson cases. I think over a
period of time, at least if you look at public opinion polls, there had been sort of a
deteriorating view of the legal profession. Do you think this restored confidence in
both the legal profession and the courts?

H: I don't know that it did. All I know is that when the decisions were made, the
people complied with them, and they continued to get up and go to work in the
morning and they continued to live their lives in a peaceful manner. There were,
as I indicated earlier, no tanks in the street, nobody died a violent death. We are
just blessed to live in America where that can happen. There are just numbers of
places in this world where it could not.

P: So, you see that essentially as a validation of the rule of law.

H: I certainly do.

P: Anything else that you would like to comment on?

H: No. I think we have covered it.

P: On that note, I would like thank you very much for your time.

H: It has been a pleasure.

[End of the interview.]

University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs