Interview with David Boies, Power Attorney

David Boies, an attorney and chairman of Boies, Schiller & Flexner LLP, is no stranger to controversy and high-profile lawsuits. Over the course of his career, he’s defended IBM against antitrust charges—and then represented the United States in similar litigation against Microsoft. He’s represented New York Yankees owner George Steinbrenner against Major League Baseball and NASCAR against a plaintiff who alleged his client had a monopoly on championship auto racing.

But of all his illustrious cases, none has dominated headlines or impacted our nation’s history like Bush v. Gore, the Supreme Court case that ultimately decided the 2000 presidential election.

Boies represented Al Gore as George W. Bush, represented by Theodore Olson, argued before the Supreme Court that the Florida Supreme Court’s method for recounting ballots was unconstitutional. The court’s decision (5-4 in favor of Bush) stopped the recount and effectively handed the presidency to the Republicans. It was a rare defeat for Boies and an extremely controversial decision.

Eight years later, as the primaries drag on with both Democratic candidates nearly deadlocked, Florida once again looms as a Democratic quagmire. Should the party ignore its own rules and seat the Florida delegates at the convention in Denver? Should there be a primary do-over? And after the dust finally settles, will the nominee ever shake questions about his or her legitimacy? Already, the signs are ominous. Like the first robin of spring from hell, the first lawsuit has already made its appearance: Florida voters have sued alleging that the rules of the Democratic National Committee have disenfranchised voters in the nominating process (as of this writing, the case is pending in the 11th U.S. Circuit Court of Appeals).

Although Boies is not in the legal fray this time around (the current case was brought by Florida voters, not by the Democratic Party or either candidate), we asked the Armonk resident and longtime supporter of Hillary Clinton for insight into the current political melodrama.

Why is Florida such a mess? Is there something about that state that makes it a disaster for Democrats?
Florida is a key election state, so everything that happens there gets particular scrutiny. Also, strange things seem to happen there. I don’t know whether it’s sunspots or whatever, but you do tend to get a certain number of odd things happening there and because of its importance, every odd thing that happens gets extraordinary scrutiny. There already is a legal challenge in the courts. In addition, there may very well be a battle at the Democratic Convention in Denver over whether or not the Florida delegation elected in the primary should or should not be seated.

How would you like to see this issue resolved?
In my view, there are two unacceptable results: One would be if the Democratic Party does not seat a delegation from Florida. It’s a critical state for the Democratic Party not only in presidential, but also congressional, elections. It’s a key state and to say in effect, ‘We don’t care about your views’ or alternatively, ‘We don’t care enough about your views to treat you as well as we’re going to treat Iowa and New Hampshire, and indeed what we’re going to do is exclude your delegation from any participation in the convention,’ seems madness. The second unacceptable result is to seat the people that were elected in the original primary because that was held when everybody accepted that delegates from Florida selected in that primary would not be seated. Whether that was a wise rule or not, it was the rule at the time. In the view of many people, the Republican Party stole the 2000 election by getting the Supreme Court to change the rules in the middle of the election. I and a number of other people have been very critical of that. We should be equally critical of changing the rules in the middle of a primary election.

Of course, you just said both of those solutions are unacceptable. Got any other ideas?
There was a way out—which was the way I thought this true dilemma should have been resolved—and that was by having another primary. This would have been a primary that no one could have argued was outside the rules. It would have been fair and open, both sides would have been able to participate, and the elected delegates would clearly have been entitled to be seated in Denver. Unfortunately, while the Clinton campaign favored that, the Obama campaign, which in general has run a very effective campaign, made what I believe was a misguided tactical decision of refusing to support a revote. That has left the Democratic Party with the dilemma of do they disenfranchise Florida voters entirely or do they change the rules in the middle of the game? If I had to choose, I would choose to change the rules and allow the Florida delegation to be seated if that’s the only way that we can respect the votes of the citizens of Florida. I am concerned that any other decision would damage who-ever gets the nomination for president, as well as the congressional delegation from Florida. They’re two bad choices, but I think we have to take the least bad, and that’s to seat the delegates from the original primary.

Have you compared notes with Al Gore on the election?
I’ve remained in touch with Gore occasionally but I don’t feel I’m at liberty to comment on those discussions.

Since you’re not professionally involved in this election, what are you working on?
I have just finished a case where I was representing NASCAR. They were sued in an antitrust case where the plaintiff alleged they’d monopolized the market for championship auto racing. We won. I’m currently representing Team New Zealand in its attempt to get the America’s Cup race back on track. I’m also representing American Express where they’re the plaintiff suing Visa and MasterCard. We recently settled the claim against Visa. They agreed to pay $2.25 billion dollars, which was twice the largest prior antitrust recovery by any company in history. We’re still pursuing MasterCard.

With so many high-profile cases in your dossier, are there any in particular that stand out as personally meaningful to you?
That’s a little like asking which of my kids or grandchildren I like the best! Among the most important and enjoyable would have been the United States’ antitrust suit against Microsoft and Bush v. Gore—even though the ultimate result was disappointing, it was an exciting case. Also, there was the libel case brought by General Westmoreland against CBS—whom I represented—for a documentary critical of the conduct of the Vietnam War.

With all your professional demands, you’re still very involved in local causes, particularly Northern Westchester Hospital.
I’ve been a supporter of Northern Westchester Hospital for a number of years. In the last few years, my wife, Mary, has been on the board. It became apparent there was a real need to upgrade the emergency room, which is one of the most important aspects of the hospital. It’s not the kind of thing that gets the attention of a high-tech cancer treatment or heart treatment department, but it’s the place where the average citizen goes when they’ve got trouble. I thought it was something desirable to help out.