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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida
Nikki Ann Clark
Summary of Interview (September 25, 2003)
Clark talks about her background, from growing up in Detroit in the 1960s to graduating
from Florida State University Law School. She then discusses her background working
in several government agencies with the state of Florida, adding that those experiences
added to her ability to make tough decisions. In 1993, she was the first woman and the
first African American to be appointed as circuit judge by Governor Lawton Chiles.
Clark discusses cases she heard in the 2000 presidential election, including her
reactions to a recusal motion based on a supposed bias against the Bush family and
because she was an African American and a "liberal Democratic judge." She notes that
was not the first time as a judge she had motions for recusal. She was assigned Jacobs
v. Seminole County. A benefit of the proceedings, she adds, was that the public could
view the process from beginning to end.
Clark stresses the essence of her decision was the intent of the voter, and that
canvassing boards should err on the side of counting votes rather than submit to "hyper-
technical violations." She discusses the issue of the legitimacy of filling in voter
identification numbers omitted from absentee ballots by a printing error. She added that
she reserved several seats in the court for children to be able to watch the process.
Clark describes the added security necessary during the time of the trial. She notes the
cases had to be tried quickly because they realized time for an appeal would be part of
the process. Clark's decision was upheld by the Florida Supreme Court upon appeal.
Judge Clark discusses public reaction to her decisions from email and letters.
She again stresses her belief that the public was reassured by being able to witness the
process of the justice system. She hopes this process would eliminate some of the
public distaste left from such cases as the famous O. J. Simpson trial.
Clark mentions her belief that despite the media label, there was never a constitutional
crisis because the system worked to resolve it. Clark discusses the Florida Supreme
Court case of extending the vote certification and the decision to have the under-votes
counted. She adds her opinion that the U.S. Supreme Court's decision would have been
criticized no matter who became president. She ends the interview by commenting that
though the process was physically draining, she was glad she had the opportunity to
participate in a once-in-a-lifetime case. Regarding who legitimately won the 2000
presidential election, she responds that the only answer that matters was that George
Bush was declared the winner.
DH 1 1May2004
Interviewee: Nikki Ann Clark
Interviewer: Julian Pleasants
Date of Interview: September 25, 2003
P: It is September 25, 2003. This is Julian Pleasants in Tallahassee, Florida, and I
am speaking with Judge Nikki Clark. Start out by giving a little bit of your
background. I know you grew up in Detroit and ended up graduating from Florida
State University Law School. How did you get from Detroit to FSU?
C: I did grow up in Detroit. I went to Wayne State University where I graduated in
1974. When I graduated in 1974, I knew I wanted to go to law school. I had
applied a couple of different places and wasn't real sure where I was going and
in fact that summer had started at Wayne State University Law School. By the
fall, it was starting to get cold in Detroit. I got a phone call from FSU where I had
applied because I had a sister who lived here at the time. They called and said,
"we've still got your space available." I said, "well, I'm already at Wayne." And
the clincher was, and we've got some scholarship money for you. I said, "fine, I'll
be there by Friday." So, here I came.
P: How did you get interested in the law? I read somewhere that you had grown up
in Detroit and had watched the riots and saw that somehow the law was the way
to change things.
C: I'm not really sure if the riots really had anything to do with it. Some reporter
picked up on that and just ran with that, but I did grow up in Detroit during the
1960s, which was a very significant time in the history of this country, especially
in terms of social changes and social advancements. I was a teenager during
this time, so, of course, I was taking all of this in and watching all of it and very
much noticed that the significant social changes, especially as they affected
African-Americans, were happening in the courts. Now, I got real lucky. My
sisters I'm number six out of seven, so I've got lots of big sisters were friends
with a couple of attorneys in Detroit. Two in particular, Elliot Hall and Kim
Kacrow, were friends with my sisters, and my sisters introduced me to them.
They were young, very dynamic lawyers at the time, and they invited me to go to
court with them one time. I really don't remember if they were together or if I'd
gone on separate occasions, but I went to court with Kim Kacrow, and I must
have been about fourteen years old, no older than fifteen, and I was awestruck. I
was mesmerized. I was in love with the law. As Ken argued his case, I wasn't
really sure what he was saying, but I was knew he was right and I knew he felt
that in all of his heart and I knew that what he was doing was making a difference
in somebody's life. He was also a very dynamic person, a very fast talker, just
one of the most incredible people you'd ever want to meet, who took time with
me. After that experience, I just fell in love with the whole court system. I'd even
skip school to go down. I'd skip school and go to court and just watch what was
going on and pretty much decided then that I could do that and that's what I
wanted to do.
P: Talk a little bit about your other work experience, because I know you worked
with Governor [Lawton] Chiles [of Florida, 1991-1998]. I think you were director
of cabinet affairs. Then you worked with the Department of Environmental
Protection, and then, I think, you worked with the attorney general.
C: It is backwards, but that is exactly right.
P: How did all of those experiences influence your term as a judge?
C: I spent ten years with the attorney general's office after having been about two
years and a little bit with the legal services office. After my decade with the AG's
office where I had a chance to work with Attorney General [Robert A.]
Butterworth [1987-2002] and became very good friends with him, then I went to
the department of what was then Environment Regulation. I stayed there about
two years and then became Governor Chiles' chief cabinet aide. I did that for
about a year. That is a good question, how those influenced me or affected my
career as a judge, and I don't know if I can give you a direct answer to that, but I
got very, very good training in what it means to have influence in people's lives. I
mean, I knew from those experiences what an awesome responsibility I was
taking on in coming on the bench. My coming on the bench was not the first time
I had been in a position to make decisions and recommendations that intensely
affected people's lives. During that time, especially with the AG's office and with
the governor's office, I also had a chance to watch some very bright people,
some very important public stewards carry out their public responsibilities. I had
a chance to really learn about the responsibilities of being a public official.
P: Plus, you had a lot of experience in varied forms of state government, in an
environmental agency, governor's office, attorney general's office. You're bound
to learn a lot of law and a lot about government.
C: Absolutely. I had plenty of experience as an attorney. Like I said, ten years with
the AG's office, a couple of years with legal services. Anybody can get that kind
of experience, but even more important than that, I had the experience of
learning from public servants who were so dedicated to what they were doing
and who were so committed to making people's lives better.
P: You were appointed to the court in 1993 by Governor Chiles.
C: That's right.
P: In this circuit, you were the first woman and the first African-American. Is that
C: I was the first African-American judge in the circuit, and the circuit is comprised of
six counties. I was the first woman circuit judge. When I came on, there were
two woman county judges, but I was the first woman circuit court judge in the
P: Did that put extra responsibility on you as you took your oath?
C: I don't think it put extra responsibility on me, really. I mean, I was coming on to a
very responsible job, so I didn't really see it as extra responsibility. I think it put
extra attention on me. There was a lot of attention, but I don't think it added
anything to the responsibility.
P: How about to the pressure?
C: I don't think it really added anything to the pressure. It was certainly a high
pressure job. When I started off, I was assigned to the criminal bench, so it was
a very high pressure job. Again, I really don't think the fact that I was black or a
woman added to the pressure. What added to the pressure was the interest of
the media. It seemed that every case I had suddenly became a high profile case.
I was on the criminal bench, so [I had] felonies, so all the cases I had were
basically murder and mayhem. Suddenly, all my cases became high profile
cases. That added pressure.
P: The first case you hear in the 2000 presidential recount is Butler v. Harris, and let
me just briefly describe some of the issues. The plaintiff was a resident of Collier
County, obviously a voter. On November 17, 2000, he filed a suit claiming that
102.166, which is the Florida statute which set up rules for the protest, denied
him due process because that statute didn't allow a voter to ask for a recount. In
other words, the candidate could, the political party could, but the voter could not.
When you heard that case, what was your ruling?
C: My ruling was that the statute was absolutely not unconstitutional. There were
no due process violations. There were no equal protection violations.
P: Because it's the same in every county.
C: It was the same all over the state, exactly. The statute itself set up a scheme,
and the scheme allowed for a candidate, a political party or a political subdivision
to request a recount. Then the statute gave discretion to the local government,
to the county government, as to whether to grant that request. The statute didn't
specify that each county could have different rules on setting up a procedure or
anything. The statute said, these are the folks who can challenge it under these
circumstances, and then the county officials had discretion.
P: The canvassing board has to decide whether to grant the request..
C: Exactly, they have to decide. This fellow didn't have a constitutional right.
Nobody had an absolute right. Like I said before, the county had discretion,
which means you don't have a right.
P: No, you can make a request. They can turn it down.
C: You can make a request, absolutely.
P: Only in this case, he could not because he didn't qualify.
P: Now, he could have waited until the contest phase, and then he would have had
the opportunity, but under the protest phase, it's pretty clear.
C: Under the protest phase, the statutory scheme was just not set up to allow a
voter to make that kind of challenge. That was a legislative decision, and I
certainly can understand that legislative decision. Imagine the chaos if we had
15 million people at that stage saying, hey, I want a recount, I want a recount.
P: That was really a pretty easy case.
C: Oh, that was a real easy case.
P: When you were assigned Jacobs v. Seminole County, was that according to the
P: What was your reaction when you got that case?
C: My reaction when I got that case, I guess, was pretty much, oh, darn! [laughing]
When I found out I got that case, I had some other matters pending, and I had a
trial I was about to start in another case, and we had to set all that stuff aside and
pretty much just clear out my office and concentrate on this one. It wasn't a
surprise. Like every other observer in the country, we knew there were more
challenges coming. None of us really knew how many challenges were coming.
We didn't know what form they would take. We just knew they were coming.
P: Since by law they are heard in Leon County, you were going to get them anyway.
C: Absolutely. We knew we were going to get them.
P: Judge Terry Lewis [Leon County Circuit Court judge] told me that when he got
the Martin County case, which is of course very similar, he said to you, these are
sleeper cases because everybody was concentrating on the Palm Beach County
case. In the initial phase, I don't think too many media people were paying a lot
of attention to this. Is that correct?
C: The media was not, but I never thought of it as a sleeper case, not in the least.
When I reviewed that initial petition of course, that's how the case was started
I thought, hmm, look at this. What do you say about this? It was, in my mind,
absolutely not a sleeper case. Now, you have to remember what a frenzy the
media was in at this point, and so many people were getting their information just
from the media. Of course, we were all watching the media, too. We were
watching the news and listening to the news. The media's description of it as a
sleeper case didn't influence my opinion that it wasn't a sleeper case in the least.
Right off the bat, I knew it wasn't a sleeper case. I knew it was significant.
P: You knew the decision could change the course of world history, actually.
P: It was that paramount.
C: Exactly. I don't remember what the numbers were right now, but it was certainly
close. The Seminole County case involved some 15, 000 [votes]. If those votes
were thrown out, that was going to make a huge difference. That would turn
P: In the beginning, the Republicans tried to get the challenge thrown out, and a
Republican judge, Judge [Debra] Nelson [appointed to the Eighteenth Judicial
Circuit Court of Florida by Governor Jeb Bush] refused to accept that challenge.
I assume the Republicans appealed that to your court, to the circuit court. Is that
C: That is not correct. There was no appeal to my court. An appeal would have
had to have been through the Fourth D. C. A. [District Court of Appeals] since it
was in Palm Beach County. It was transferred up here.
P: Alright. Now, in the beginning, the Republicans tried to have you recused from
the bench, and their argument was, at least from my perspective, somewhat
flimsy. They said that you had been turned down by [Governor] Jeb Bush [1999-
present] for a judicial promotion and therefore would be angry toward Bush or the
Bush family. Other people's reading of this is that they assumed, since you were
African-American and the Black vote in the state was something like 92 percent
for Gore and that you had been appointed by a Democratic governor, that you
would be biased in favor of Gore. What was your reaction to that recusal
C: My reaction, first of all, [was that] I wanted to be able to rule on it right away. I
mean, the case was moving fast, everything was moving quickly, and when I got
it, my JA, my judicial assistant, brought it in to me and said, here, this motion has
been filed. I think she was kind of waiting to see what my reaction was going to
be. I took the motion, looked at it, told her I would get an order out on it. I put
her out, put everybody out, and decided really immediately that it was not legally
sufficient. That one would not be selected and note, I didn't say that one was
turned down for a district court of appeal position is hardly grounds for one to
get angry or one to feel vindictive or the other language that was in that motion.
In fact, being nominated really was quite an honor, especially since most DCA
judges don't get it the first time or the second time. If you want a position like
that, you have to prove that your worth it and you have prove that you really want
it, and you keep on applying for it. A sense of disappointment in not getting it
was by no means in my mind or, I think, anybody else's who has ever been
through that process, a grounds for revenge, or I forget the other words that they
used in the motion. But I looked at the motion, looked at the cases they had
cited, and just ruled that it was legally insufficient. I didn't even take a lot of time
with it. It just wasn't sufficient.
P: I've talked to Republicans, and it's very clear from them that the purpose of it was
because you were African-American and "a liberal Democratic judge." Doesn't
that concept offend you, that they would assume that you would be biased?
C: First of all, the concept that I would not fulfill my role as a judge bothered me. I
mean, if somebody thought I would put a case, no matter how significant, ahead
of my responsibility to the people of this state to uphold the law, [that] was
P: If I may read what you were quoted as saying: "I was surprised that someone in
such a major case would think I would be so childish and upset that I would not
be able to do my job. Either they had a very unfortunate misperception of what a
judge's job is or they had a misperception that I wasn't able to do my job for
some reason." Now, [Reverend] Jessie [L.] Jackson [civil rights leader and
political activist] defended you, and if I could read his statement: "They
challenged her competence. Her compassion to be fair is outstanding and
should never have been challenged in the first place. They sought to get her off
the bench based on their own fears. Nothing is sacred." What is your reaction to
C: They obviously wanted me off the case. That the motion was legally insufficient
means that they probably had some other reason for wanting me off the case.
When you start making assumptions about people the way that some articles and
some people have said they were making assumptions about me, then you are
always wrong. The minute you start assuming that somebody thinks a certain
way because they look a certain way or that somebody is going to either not do
their job or do their job well because they look a certain way, then you have just
lost all credibility. I think the most bothersome thing about it was that they were
seeking to impugn my integrity. I value my integrity.
P: I notice that throughout this, the press was referring to the Florida Supreme Court
as the "liberal Dexter Douglas court," and they assumed that everybody on it was
a Democrat, and they assumed that everybody would, in fact, vote for Al Gore.
As you know, the 4:3 decision on Gore v. Harris, and on at least five occasions,
the Florida Supreme Court voted against Al Gore. But that perception goes on.
In California the other day, this three-judge court that put off the election,
everybody said, oh, they're all Democratic appointees. Doesn't the media have a
flawed perception of the judiciary?
C: Absolutely, and I think that the public in some ways shares that perception. I
really believe, though, that with our courts, our circuit court as well as [our state]
supreme court, with us having everything out in the open, everything on
television so people could watch the entire process from start to finish they
could see the legal arguments, they could see the evidence, they could be a part
of it I really think that we were able to show the public how the court system
really works, what really happens when a case goes to trial. I sure hope and I
really believe in some little small part of me that we did make a difference in
showing people what the court system was all about. It does a huge disservice
to the public to make the public believe that the judges have one big fat voting
machine up there we could just pull a lever on, as if we were substituting our
DH 1 lMay2004
judgement for the judgement of voters. That never was the case, that never was
the request, and that never would have happened.
P: In that case, do you think the media was unfair?
C: I sure do.
P: I talked to Barry Richard [Bush attorney], and he was vehemently opposed to this
recusal. He refused to sign on to it. He said, "listen, I know her. I know that she
is fair and has great integrity". He said, "this is a stupid thing to do," and they
went ahead with it anyway. In the long run, it probably had no impact on the
case, but it may have hurt the Republicans a little bit in terms of their attempt to
get rid of you.
C: I don't know if it hurt anybody. You get those motions as a judge. That wasn't
the first time I'd had a motion to disqualify me, [and] it wasn't the last time.
Sometimes, the dickens move to disqualify you. As a judge, you really have to
be above getting into the middle of the fray, trying to figure out what their motive
was or what their intent is. As a judge, you look at the motion and it's either
sufficient or it's not sufficient. If it's sufficient you get off, if it's not sufficient you
P: Of course, this is the most highly contested, the most important presidential
election in American history. Emotions were running pretty high and both sides
were trying very hard to win, and part of the battle was public opinion.
C: Absolutely. Emotions were running high, but, again, you've got to keep in mind
the role of the judge. I've got to leave my emotions at home. So, when emotions
start running high, that's when I get even more intent [on] making sure that I don't
bring my emotions into it, because the minute I bring my emotions into it I'm no
longer an independent judge, I'm an emotional wreck. The motion to disqualify a
judge really has to take extra pains to make sure that all you are doing is
reviewing the sufficiency of the motion. Now of course, in the back of your head
you're going to have some visceral reaction to it, but it's not those visceral
reactions that you get paid to share.
P: Let's talk about the specific case. The essence of this case is that Sandra
Goard, the supervisor of elections in Seminole County, allowed one man,
Michael Leach [Republican Party Representative], to come into the supervisor's
office and put voter ID's, which had been left off by the printer, on something like,
2, 126 ballot applications. I guess the issue was whether or not this was a
violation of Florida Election statues. In my interpretation of the law, Michael
DH 1 May2004
Leach did not fit the qualifications to ask for the absentee ballots, and this is, of
course, just the request for the absentee ballot. Therefore, if he did not qualify
under the law, the Democrats viewed this as an illegal request. I know Harry
Jacobs argued that this absentee ballot request should have been thrown out.
Sandra Goard went back and allowed them to be accepted. Jacobs argued that
was another violation of Florida Statute. How did you deal with those two crucial
C: First of all, the issue of whether Leach was entitled to request the ballots was
[not] an issue in the case. I mean that wasn't a part of the pleadings, it wasn't a
part of the allegation, and I don't recall that it was part of the proof. The
gravamen of the irregularities in this case involved the people who added the
voter identification numbers to the ballot request after they had been turned back
in. So, there really was just that one issue. Clearly the statute says that the
person requesting the absentee ballot should provide certain information. The
statute lists off, I think it's eight or nine things that are supposed to be included in
it. So, the issue really came down to whether or not the irregularity of allowing
somebody else to fill in the voter identification number was so substantial in
irregularity as to invalidate the entire ballot; that's what it really came down to.
Part of my analysis was whether there was a penalty available for the failure to
put that voter identification number on there.
P: In your ruling did you use a precedent like Boardman v. Esteva, and Beckstrom
v. Volusia County?
C: Absolutely, there's a whole body of them, McLane v. Bellamy. There was a
whole body of law, and that's the thing about this case. This case was high
profile, it was emotional, it was hard fought, but it wasn't a complicated case. It
wasn't breaking any new grounds legally. There was already a whole body of
law on the issue.
P: The essence of the Florida Supreme Court rulings, I think both in Beckstrom and
in Boardman, was the intent of the voter.
P: According to the Florida Supreme Court, the canvassing boards and the anyone
making these decisions should err on the side of counting votes. In other words,
the vote is so important, and these were, as some people said, hyper-technical
C: I never did agree with that phrase, 'Hypertechnical Violations," but the bottom line
was that the sanctity of the ballots was supreme. If a judge could give affect to
the will of the voters, then the judge had to give affect to the will of the voters and
could not throw any votes out on a technicality.
P: Plus, if you threw out all the votes that's a pretty draconian penalty isn't it?
C: Yes, it sure is, and then you disenfranchise people.
P: That would have been if you threw them all out.
C: Can I just read to you that the crux of that case in terms of what the significance
of it is?
P: Yes, please.
C: Here it is, and it's on page two of my order, "The sanctity of the ballot is as old
and treasured as our democracy. This court is guided by the guiding principles
set forth in the Florida Supreme Court in the Boardman case which reads," and
I'll just read a portion of it, "'The real partisan interest here, not in the legal sense
but in realistic terms, are the voters. They are possessed of the ultimate interest,
and it is they whom we must give primary considerations.'" That's the crux of it.
P: The other question that came up, and I asked Justice Major Harding about this, I
thought it was interesting. According to the U.S. Constitution, the vote for the
president is only held on one day, so technically there really wasn't a remedy,
C: There were remedies suggested, but to this day, I don't know what a good
remedy would have been.
P: Then you get to the issue of whether you decide this case based on state law or
federal law, is that right?
P: Of course you're adhering, in your position, to the state law.
C: Right, I only had to look at state law. There were really not any federal questions
raised in the cases that I had, so I just looked at state law.
P: Another element of this case was when the Democrats argued they'd been
denied equal access and they had not had the opportunity to come in and
DH 1 May2004
change any kind of ID numbers on their request for absentee ballots. What was
your ruling on that?
C: My ruling on that was that they had not been denied equal protection and they
had not been denied equal access. Certainly, they hadn't been given access to
come in and correct things, but there was nothing for them to correct. What the
Democrats had sent out was correct. It had the preprinted voter identification
number or a space with directions indicating to the absentee voter that the
absentee voter had to complete that information, to include the voter
identification number. So, there wasn't a matter of whether they had equal
access. The Democrats never even sought access for that, they didn't need to
[because] they had done it right.
P: Therefore, they were not denied access. They didn't need access for that.
P: One other thing that came up, and I know this was not part of your ruling, but
when I was talking to Harry Jacobs he said, he thought what was truly dangerous
about this, is that Leach was in there for three weeks unsupervised and that he
could have been tampering with Democratic absentee ballots. Of course, there's
no evidence that that was the case, therefore it was not an issue, but you did
come down on Sandra Goard for using bad judgement.
C: I sure did.
P: Did you see that as a violation of election law?
C: I basically said she violated the law. It wasn't my job to follow up on that, but I
sure put in my order. I also mentioned, and I can go through here and find it, but
I also talked about her bad judgement.
P: Technically, she could have been prosecuted for that, could she not?
C: As far as I'm concerned she could have been prosecuted for that.
P: But obviously was not.
C: Not that I've ever heard.
P: When you were hearing the case I know that both sides brought a series of
witnesses. I remember reading about one, a woman named Helga Powell who
DH 1 lMay2004
had been a member of the Nazi Youth or something similar and she was upset
about being disenfranchised. Then the Democrats brought in some individuals
who had heard Sandra Goard say "well, if it doesn't have the voter ID number I
am throwing all these out." Did any of that testimony have any influence at all?
C: Not really Julian, because, again, there was already an established body of law
and my job was to figure out and make a determination of the facts, whether or
not there was a substantial violation that would effect the will of the voter.
P: How would you assess the ability of the lawyers in this case? I know Gerald
Richman was one, I know Darrell Bristol was one, I can't remember the other
lawyers. How would assess the quality of their briefs in their presentations?
C: That was some of the finest lawyering I've ever seen. They were terrific lawyers
to work with, every one of them. They were well prepared, they were courteous,
they were professional. There were a couple of times when lawyers on both
sides had to be reigned in a little bit so as not to turn the court case into a press
conference, but those were some of the finest lawyers I've ever worked with.
P: I wanted to find this quote from Harry Jacobs about your work. He was the one
who brought the suit. I don't know if he made some of the arguments, did he?
C: He did not.
P: I didn't think so, no. But anyway, he was present for all of this. He said, "She did
an excellent job at conducting the trial and came across as a very strong
individual. She was certainly in control of the court room. I think she did what
she did for reasons outside of any influence by the media whatsoever." That is a
pretty strong endorsement from a person who lost the case.
C: It sure is, thanks. [That is] a nice compliment.
P: I also wanted read into the record what was said when I asked Judge Terry
Lewis about what he thought about the attempt to recuse you. This is what he
said, "I have a word for it, but I wouldn't have it go here, and the word starts with
chicken." [laughing] In the process of dealing with this case, how aware are you
of the public attention, of the intense pressure, of the extraordinary importance of
this case? How did you manage to make a decision in a much shorter period of
time than you would normally have?
C: I was very, very aware of the intense pressure. There were demonstrations
going on outside the courthouse. There were people around the courthouse at
DH 1 May2004
all hours. Of course [there] were hundreds of reporters here, there were scores
of cameras here. When I went home and would turn on the TV for five minutes
all the talk was [about the recount], so I was very, very aware of the pressure. I
had to stop by the grocery store one afternoon to pick up some eggs or
something, people in the grocery store were bugging me. You know I go to get
some eggs or go to pick up some chicken or something and even people in the
grocery store; little old ladies, young ladies, old men, everybody was telling me,
well, you know I can tell you what you ought to do with this case and what you
ought not do with this case. One lady pulled me inside and said, "honey, I've
been around for a while, let me tell you what's really going on." I mean people
would just gratuitously make comments to me about what I should do or what I
shouldn't do. I didn't shop anymore until the whole thing was over. I was very,
very aware of the pressure. At the time, my daughter had just turned seventeen.
She, of course, was very, very aware of the pressure. In fact, I made sure in my
court room that I had a couple of seats reserved for some kids, because I just
didn't think it was right to have just the media in attendance.
I reserved about seven seats for kids. My daughter came everyday and some
other kids came every single day to watch this and be a part of it. At one time I
had to send a message to the media by way of our court administrator that if they
even thought about interviewing my daughter, I would probably hold them in
contempt of court. There had been a message that was relayed to my office that
they wanted to interview my daughter. I sent back a very strong no and that if
they even put a microphone in her face I'd hold them in contempt of court or at
least would try to. The pressure was real to me.
P: What kind of security did you have in the court?
C: We had bailiffs, and we have real experienced bailiffs. The bailiffs really had to
be with us almost every minute, it was just unrelenting. I remember one time I
was in this suite of offices that you're in with me now and we didn't have a
bathroom back here. We've since gotten one based in large part on what
happened then, but for me to go to the ladies' room I'd have to go across the hall.
The media attention got so frenzied, there were cameras that tried to follow me
into the damn bathroom. That's how intense it was. My bailiff was with me the
entire time from when I got out of the car until the time to go home. In fact, they
took me home a couple of nights because of some phone calls that I had gotten,
but they were very good, very professional. They made sure that the media had
access to the courts, but they also worked very, very hard to make sure that the
media did not have access to those part of the courthouse where they shouldn't
P: Did FDLE [Florida Department of Law Enforcement] or anybody follow you home
at night or did you have any police patrols in your neighborhood?
C: The sheriffs deputies did a couple of times. The SWAT team guys walked me
out to the cars a couple of nights. Some nights I was up here in the Judicial
Center until twelve o'clock, one o'clock, and on those nights my bailiffs certainly
offered to stay with me, but I'd tell them go on home to your families, I'm alright
here. I remember one night in particular, it must have been about midnight when
I was leaving, and this courthouse can be pretty creepy at midnight I realized. I
was going to my car and the SWAT guys were over there watching the ballots at
our supervisory elections office, [and they] offered to walk me to the car, and they
did and everything was fine. For a couple of days though, sheriff deputies would
drive me home to make sure there weren't any protesters on my front lawn, or no
media on my front lawn, and to make sure everything was okay. They offered to
just sit somebody out there around the clock. I didn't want to do that. So, the
compromise was they'd have somebody drive around every twenty minutes or so
just to make sure I wasn't being hassled.
P: Did you get specific threats?
C: I got threats and I got just some of the most incredibly nasty phone calls and
notes ever. I think that was the most shocking thing. That was just the most
shocking thing to me. Because it was controversial, I expected people to
disagree with me, I mean that's part of it, but I did not expect people to write
nasty, nasty notes to me or to make horrible, horrible phone calls to my home. I
had been on the bench at that point, I guess seven or eight years, and had even
been on the criminal bench for a few years, and I always had my number
published, it just wasn't a big deal. But during the midst of that case, I had my
number changed because of the phone calls I got.
P: Were there specifically death threats?
C: I did not get any death threats. I got some threats [by] people [who] wanted to do
some pretty horrible things to me.
P: Was this during the trial and after as well?
C: [This is] during the trial and maybe a for a couple of days after the trial. After the
trial things pretty much calmed down. I continued to get letters, mostly very
positive letters, some ugly letters, but it was really only that week or so that I was
actively involved in this case that things got ugly.
P: Harry Jacobs told me that the Democrats made a proposal that they could do
some sort of scientific study, about how the absentee ballots might have broken
down. They argued that somehow a certain percentage of votes would have
gone to Gore and a certain percentage would have gone to Bush. What was
your reaction to that proposal?
C: That is was unacceptable. Again, the primary concern for me was the sanctity of
the ballot. I wasn't about to be in a position to negotiate away somebody's
franchise, so that was not acceptable.
P: Plus, it would be extremely difficult to determine that.
C: I don't know how they'd agree to it, because the results would still be the same.
One candidate wins and one loses, so I don't think they would get any kind of
agreement on it.
C: You know you can't negotiate away somebody's right to vote.
P: I know when Terry Lewis was talking with me, and I know it's in your decision as
well, he said you had to prove substantial non compliance with law and/or fraud
or malfeasance. These were ballot requests, so there is no indication of
deliberate tampering with the votes themselves, is that correct?
C: That's right. I mean there were certainly irregularities in allowing the requests to
be completed by somebody other than the person requesting the ballot, but there
was not substantial non-compliance with the voting laws.
P: I know Judge Lewis said, in reaction to what the Democrats were saying, that the
remedy was not to throw out the votes. He said, if you want to prosecute Sandra
Goard or Peggy Robbins [Elections Supervisor for Martin County] for doing these
things, you had a right to do that, but this was not the remedy for that problem.
P: It is also interesting here that both you and Judge Lewis talked about this case as
you got it. Let me just give you his version. As soon as he got the case, he went
to you and he said, look we've got very, very similar cases. What was your
reaction to his initial statement to you?
C: I don't really remember what my initial reaction was, but we had similar cases
and surely what we did was talk about the existing body of law. At that point
what we both had was allegations of some pretty serious wrongdoing. None of
us had had any fact finding sessions yet, we hadn't had a trial. In fact, at that
point we probably hadn't even had any answers and certainly no affirmative
defenses, so we didn't know the other side's story. We didn't know what the other
P: You were just discussing the applicable law in this case.
P: Explain to me how you carried out the trials, because you used the same court
room so Barry Richard, defense attorney for George Bush, could do both trials.
How did you organize that?
C: Actually, I'm going to have to give that credit to my judicial assistant, Doris
Hayes. I just showed up. They would figure out what courtroom and the times.
[It was figured out] probably between my JA [judicial assistant] and Terry's JA,
and I'm sure the court administrator was involved in it also, but I did not really
concern myself with which courtroom at which time. I mean I was concentrating
on the legal aspects and I let the other folks concentrate on the administrative
aspects. As long as I had a courtroom, then I could work.
P: Were you aware that the process needed to be expedited?
C: Absolutely. Everything got set aside. It was very, very clear that we had to work
real quickly. We had some constitutional deadlines looming. We were very
aware that whatever decisions we rendered had to be appealed. It wasn't like we
could take up until the last day and say okay, that's it, that's a decision, live with
it. We all wanted to make sure that whatever decisions we rendered had time to
be appealed so they could be final.
P: You knew they'd be appealed by whichever side lost.
C: Absolutely, I mean that was part of the case. In fact, part of the case was getting
the case not just decided but to make sure the record was good and clean so
that when it went up for appeal the appellate judges were ready for it.
P: In this case did you expedite testimony?
C: [I] expedited everything. [I] expedited testimony, expedited discovery, expedited
the time for the defendant to answer. Normally, even a case that you kind of
hurry would take a year. Even in a case [where] there is not much dispute would
take six months. We had like two weeks to make sure everything was done and
up to the Supreme Court, and we did it in much less than two weeks. I think we
did it in like a week, but that was very much a part of our consideration.
P: When you made your decision, as I understand it from Judge Lewis, you wrote
your decisions separately, but you showed that to him or you discussed it.
C: I don't really remember if I discussed it with him or not. I'm thinking [I did] not.
We wrote our decisions independent of each other. We have very different
styles. We have different styles of writing, we have different styles of judging,
[but we had] that same body of law. You know the Boardman case, the Leach
case, the recent legislation that was enacted maybe three years before that;
[these] were the cases that both of us were going to preside on. I'm sure, without
a doubt, we talked about those cases ad nauseam, but we didn't really compare
drafts or notes. It wasn't necessary, we weren't trying to mirror each other. We
weren't even trying to make sure we were consistent. I mean this is the way I'm
ruling, however you rule, however you see it, go for it. But we certainly talked
and said this is how I'm seeing it.
[End of side Al]
P: You did make the announcements at the same time.
C: Actually, we did not make the announcements. We got done and gave the
orders to the court administrator. The court administrator, who just died. Did you
hear she just died? She died about three weeks ago of cancer. The court
administrator was the one directly involved with working with the press. She
would have press conferences at certain pre-determined hours. I think it was like
noon and two and four, but certain predetermined hours. I was not concerned at
all about what those hours were. I was not releasing my order until I was
releasing my order. I didn't care what CNN thought. I didn't care what CNBC
thought. I didn't care what their time frame was, I wasn't releasing my order until
I was completely satisfied with it. I also wasn't going to rush my order to
accommodate the media. They were here, they were doing their job, but I was in
my chambers doing my job.
Again, me and Terry didn't coordinate on it, but we were certainly both working
on the time schedule and not the hourly schedule that CNN was working on, but
the schedule in terms of making sure that it got to the appellate court and to the
Supreme Court, in time for a decision. When I got done with my [decision], my
JA gave it to the court administrator. Apparently, when Terry got done with his,
DH 1 May2004
his JA also gave it to the court administrator. She chose to release those at the
P: It would be convenient for the press to do them both at the same time.
C: Yes, absolutely. She had asked at one point that I give her a very brief summary
so when she announced it she could announce what that ruling was and I did do
that. I gave her a brief summary saying exactly what that ruling was.
P: This was appealed to the Florida Supreme Court and they ruled very quickly, and
in their decision, they uphold your ruling. So, it's pretty clear that they had the
same view of the law that you did.
C: It didn't take them very long at all. In fact, I'll tell you what they did. In their nine
page opinion they quoted extensively from my order. Page three through page
seven or eight is a direct quote from my order. So, what they essentially did was
say yes, what Clark said was right. This is what she said, and then [the Florida
Supreme Court] took several pages to say it, and basically said we agree.
P: Once this is completed, and I don't want to get in too much detail here because
it's really beyond what you were responsible for, but by the time the case gets to
the United States Supreme Court they're going to overrule the Florida Supreme
Court and they're going to halt the recount. At that point, the recount, when it
was to begin, comes back to Leon County. So, when the Florida Supreme Court
ruled four to three to count all the under-votes, that responsibility fell to a judge in
P: The first person up according to the rotation was Sanders Sauls, as I understand
it. For obvious reasons, since he'd been overturned by the Florida Supreme
Court, I think he turned it down. As I understand it, you were next on the rotation
and you chose not to take it.
C: I don't think I was next on the rotation. I got a call at home asking would I take
that case. I asked was I next on the rotation and I was not, so I volunteered not
to take the case.
[Break in the tape]
P: Could you give me an example of some of the interesting letters you received,
both pro and con? If you want to, you can read a couple of them in the record or
just give me a broad consensus of what it was about.
C: Do you want me to kind of take a few minutes to find some interesting [things].
I've got hundreds of letters, hundreds of emails. Doris was fielding hundreds of
P: What percentage would you say were favorable as opposed to unfavorable?
C: I'd say 85 to 90 percent were favorable. A lot of people wrote even before I
made a decision. A lot of people wrote, and I really accepted this warmly, a lot of
people wrote sharing their prayers with me. One lady even called Doris and said,
"I see your judge is coughing, tell her to try some lemon and honey and
P: She had a home remedy.
C: Exactly, she had a home remedy for me because she could tell I wasn't feeling
well. I got lots of letters thanking me for the way that I ran the court, thanking me
for my courage to stand up and take the case and not be nervous. I got a couple
of notes from judges from across the country, judges that I don't know. I mean
here is one, for example, from Judge McGuire who is a judge in Kentucky. It's a
very pleasant letter, very complimentary. He says, "I'm thinking of you, you really
distinguish yourself in how you've run your court." He says, "you clearly
distinguish yourself and the independence of the judiciary in rendering your
decision." It's a very complimentary letter. It goes on, "I honor your character
and your integrity. You, madame, and Judge Lewis are to me shining examples
of what all judges should be."
P: Let me follow up a little bit on that. I remember reading at one point, one of the
Democratic lawyers in the hearing said you needed to send a message. Your
reply was "I'm not here to send a message, I'm here to do justice." I think that
resonated with people who were watching this on television. They saw a judge
who was not going to fall prey to all of this media hype and pressure.
C: A few of the letters I got mention that exact phrase and said they were glad that I
had said it.
P: I wanted to read, while you're looking for those, an editorial. I can't remember
what newspaper it was in. They praised you for reaffirming the "belief that judges
can be objective and follow their professional responsibilities instead of yielding
to pressure exerted by various special interests." That may be, as much as
anything else, the importance of this case in the long run, isn't it? People all over
the world watched this case, watched you and judge Lewis. Both of your judged
on the law, not on the basis of your personal political affiliations or emotions.
That really reenforced the belief in the fairness of the judicial system.
C: When it's all said and done, I too think that's the importance of this case. I think
it gave people a chance to see, again, first hand what happens in a court. In
Florida we've got a very open system. If the press wants to come in, then come
on in and watch it from start to finish. I think [because] people [could] watch it
from start to finish, we really did reaffirm, or in some cases, affirm what the
justice system was about. So many people who don't know the justice system
think that you've got influential lawyers who come in and somehow influence the
judges in ways that are not [visible] in open court. I think a lot of people also
thought in the beginning that we were just there to agree or not agree with
whichever candidate we voted for in the election.
I really think the value of this case was the civics lesson that was shared, as to
how the court works. On the one hand, they were able to see all the
demonstrators. They would be able to see all the people having press
conferences; they'd be able to watch Jessie Jackson having a press conference,
anybody else having a press conference; and then, the cameras would come to
court. Hopefully, what they saw was a very orderly and dignified presentation of
the law and the facts. Hopefully, they saw judges who had obviously read the
law and knew what the law was. They were able to watch us actually deliberate
on that process through our whole Socratic method of asking questions and
getting additional information by asking those questions. They were able to
share with us our deliberative thoughts and see why we ruled the way that we
did. I really think that's the key to this case.
P: And that was done under the most intense pressure imaginable.
C: [It was] under the most intense pressure imaginable. Somebody else mentioned
to me too that this was the first nationally observed case since the O. J.
[Simpson] trial [Infamous trial involving O.J. Simpson, a former professional
football star accused of murdering his wife.]. Of course after O. J., people were
so disgusted with the system. They watched a judge that didn't really control his
courtroom. They watched lawyers who were totally out of control. I mean they
were actually watching lawyers having press conferences on the steps criticizing
the judges. Hopefully, what we did was to bring back that sense of decorum and
dignity to the court system that people were able to watch.
P: Plus, I think it's also important to know that people all over the world watched
that. They watched, if we can use this term, a democratic system at work.
C: I think you're right, you're absolutely right. The media was very fond of
portraying this situation as a Constitutional crisis. It never was a Constitutional
crisis. In fact that's the whole point of our judicial system. We have disputes and
we have methods of resolving those disputes. We didn't have a Constitutional
crisis, but that's what people all over the world were hearing. When they were
able to watch how this case was resolved, I think they felt more comfortable
about the way we resolve disputes in this country.
P: To some degree, when Jim Baker was saying the votes have been counted,
recounted, and counted again and this is a Constitutional crisis that can't go on;
all of that was political spin obviously, and that's what people saw and heard.
Can I ask you about some of the Supreme Court decisions?
P: What was your view of the first 7-0 Florida Supreme Court decision where they
stated that [Florida] Secretary of State, Katherine Harris, had to extend the
certification period? They picked a date, November 26, and said that she could
be open at five o'clock Sunday or nine o'clock Monday morning. The
Republicans would argue, in the Supreme Court ultimately, that in fact the Florida
Supreme Court was making the law. Did you see it that way?
C: No, not really, I didn't. I didn't see that they were making law, I saw that they
were trying to create a solution. As judges, we are sometimes in a position of
having to try to create solutions. Often times a law will give us a solution, but
often times it won't. Often times a law will just tell us what's acceptable and
what's not acceptable, what's allowed and what's not allowed. I mean that's why
judges have discretion about things, and that's why it's so important to make sure
that you've got good judges who have good sense, because we are often called
upon to create solutions.
P: When I talked to Justice Harding, the Florida Supreme Court said we need to
fashion a remedy, and of course a lot of people jumped on that statement and
said, well, now they are taking on the responsibility of the legislature, they are in
fact determining who's going to get elected. The state law says that the
certification date to be ten days after the vote and they were going to extend that.
Did you see that as an error in terms of their judicial decision making? In order
to fashion a remedy they had to do something correct.
C: I agree with you that they had to do something. I didn't really see it that way, that
by extending the date they were creating something that the statute had not
DH 1 May2004
authorized. I still saw them as trying to create a remedy to a problem that was
brought to them. It wasn't like they looked for the issue. I see what you're
saying, and I've never really thought in terms of my review of what they did and
whether it was right or not. I saw the reason they had done that and, quite
frankly, I agree with the reason.
P: Part of it was, from their perspective, there were two conflicting statutes. That is
what the Florida Supreme Court does, they have to decided between shall and
may. They had to determine which took precedence. Now, their second
decision which was a much closer vote, a four to three vote on Gore v Harris. In
this particular case they asked to have all the under votes counted. They gave
Gore votes in Miami Dade, 9,000 votes in Miami Dade to be recounted, and he
gave him votes in Palm Beach County. What was your reaction to that decision?
Obviously, it was highly contested within the court.
C: You know I didn't really react to it one way or another quite frankly. I mean, I
really didn't read their opinions and say, oh boy, this is right and oh boy, this is
wrong. I had enough on my own plate. I was kind of keeping up with it in the
media, but I didn't analyze it in the way that you're asking me to analyze it now.
P: I was curious, and I asked Justice Harding this and he sort of skipped it, why they
only asked for the under votes. I know he dissented, and I know he and the
Chief Justice thought well, if we're going to count them we need to count them
all, but then you've got December 12 as a safe harbor. They were coming up on
the end of their time frame, so somebody argued they didn't have time to count
the under votes. What about the United States Supreme Court 5-4 decision in
Bush v Gore, what was your reaction to that?
C: As a judge, it's hard for me to criticize a U.S. Supreme Court. I mean they are
the US Supreme Court, so what they say is right. I can't really analyze their
decision. Do you understand what I'm saying? What they say is right, whether I
like it or not. They are the US Supreme Court. I think that what their decision
did, though, really took away from the confidence this country has in the US
P: Do you think they should have taken the case at all? They granted certiorari on
the first appeal.
C: They granted cert. I had doubts as to whether there was a fair question
P: In fact, Justice Ginsberg said that this was a state question that should have
been decided by the state courts.
DH 1 May2004
C: I still have doubts about what the federal question was, quite frankly.
P: Justice Bryer, in his dissent, argued that there was still time to recount the votes.
He believed that you could have sent this case back to the Florida Supreme
Court. They could have fashioned a remedy as it were, and still had time to
count all the votes. The question was, should the court have set a standard?
The standard is, as you know, the intent of the voter. Should they have set a
strict standard? For example, two corners of the chad attached, or whatever they
would decide on?
C: I think a fact finder would have to do that. I mean a fact finder, being the person
who actually sees the evidence and sees what's going on, [should do that]. You
can talk about chads all day long, whether they're pregnant or whether they're
whatever chads do, but until you actually have the evidence presented to you, it's
difficult to say precisely what standards should be set in each circumstance.
P: David Boise said the Supreme Court was in a Catch Twenty-Two. If they set a
standard they'd be making law, if they didn't set a standard they violated the
Fourteenth Amendment. So either way, he thought they were probably going to
lose 5-4. From the first remand when you read Justice Scalia's comments, it's
pretty clear where he stood. If he had four votes with him, I don't think anybody
was very surprised at the Bush v Gore decision. Do you think that undermined
the credibility of the United States Supreme Court? Justice Stevens said this
decision was wholly without merit, that's pretty strong.
C: I think it undermined it to a certain extent. It's recovered. I'm not even sure if
undermine is the right word. A lot of people were disappointed, but then a lot of
people were going to be disappointed no matter who that decision came out.
The Supreme Court was roundly criticized, as they would have been, no matter
what their decision was. I think whatever undermining there was, was short lived
because there is still the Supreme Court.
P: As Justice Harding said, it showed the system worked because they made the
decision, George Bush became President, there were no tanks in the street.
C: That's exactly right.
P: People were upset.
C: The problem was resolved. You may not agree with it, but you have to agree
that we've to got a process in place that resolved disputes. Whether it's dispute
DH 1 May2004
between two neighbors and what their property line is or whether it's a dispute
about who should sit in the White House, we have a system in place and people
have confidence that we've got that system in place. They may be upset and
they may be angry, as they were with me some, as they were with [the Florida]
Supreme Court, as many were with the US Supreme Court. But I think any
undermining was short lived because people still appreciate the fact that we have
a system. Just because we have a staunch disagreement about something
incredibly important doesn't mean we're going to be out there shooting each
P: It's hard to imagine anything more important. I think some of the argument was
that this decision, according to some Democrats, was decided by one vote, not
537 votes. Of course, everything focused on Florida and it made us appear as
though we had a faulty voting system, when in fact, other states had more over-
votes and under-votes that we did, it's just because it was so close.
C: We got caught in the public eye, that's all.
P: Were you aware of, or did you read at all, the Civil Rights Commission Report?
C: I did not read it.
P: Were you aware of any discriminatory practices at all in any of the voting
C: I was certainly aware of those that were mentioned in the media. I was very
aware of those, I mean all across the state.
P: For an hour and a half the state highway patrol put up a traffic stop in some part
of Leon County, I'm not sure where.
C: Was it Leon County to Crawfordville?
P: My information said Leon County. Officers on Oakridge Road in Southern Leon
County stopped 150 vehicles in one and half hours. Of the sixteen citations, ten
were white, six were African American. Ed Jennings said, it didn't matter what
the numbers were, what happened here is a question of intimidation. If it's near
a polling place it can be construed as intimidation.
C: Was that near a polling place?
P: It was relatively near. It was a couple miles away, not right at a polling place, but
on the road. Someone would have passed that on the way to a polling place.
His argument was that that was "discrimination" because, although they might
not have stopped anybody from voting, it intimidated the voters. Do you see it
C: I don't know enough about those particular facts. I know that intersection you
said, Oakridge Road and [what road]?
P: I don't remember, it just says in Southern Leon County. I'm not sure exactly
where that is.
C: I know where Oakridge Road is, but I don't know enough about those facts to
know whether or not that would constitute discrimination. Just because there
were a lot of people stopped on voting day is not necessarily discrimination.
Additional facts may lend credence to the position that it was discrimination, but I
just don't know enough about those particular facts.
P: How did this experience effect you physically and emotionally?
C: I was sure tired by the end of that week, I can tell you that. I got real lucky that
week. One of my older sisters had come to visit me, and she made sure that we
ate well and she cooked for me and my daughter. She's a health nut anyway, so
she cooked good, healthy meals for us. That was an extreme help. Other than
that, I don't think it effected me physically. All I can say is I was tired, everybody
P: Are you glad you had a chance to participate in this event?
C: I sure am. I sure am. In the midst of it I wasn't necessarily glad I had one of
those cases or two of those cases, but having survived and made it through and
can look back at it I'm very glad I had a chance to participate in it. I mean that
was a once in a lifetime, hopefully. [laughing]
P: Yea, we don't want to see it again in 2004. [laughing]
C: Exactly, we don't want to do it again. We want it to be once in a lifetime.
P: Well it was, again, an event that will be discussed and talked about. Historians
will deal with it for hundreds of years. It's part of the essence of the history of this
country. There are people who argue that the world might be different today had
Al Gore been President instead of George Bush. We will never know that.
P: I just want to ask you one more question. I know this is sort of off the wall, but do
you have a sense of who actually won this election in Florida?
C: You're really putting me on the spot [laughing]. You're really putting me on the
P: Well, you don't have to answer that if you don't want to.
C: Actually, the only answer I can say is Bush won. I mean that's the answer. As to
exactly how many votes didn't get counted, or should have been counted, or
wouldn't, that doesn't even matter anymore. The fact is, Bush won.
P: We will, in my view, never know.
C: Bush won.
P: Exactly, yes.
C: What made that up, of whether all those factors should have allowed him to win,
we will never know. But the fact is, he won.
P: Is there anything we haven't talked about that you would like to talk about or you
would like to bring up?
P: Well on that note, I want to thank you for your time. I appreciate it.
C: Thank you.
[End of the interview.]