Photo: Duke Law

Republican attorney Ben Ginsberg is helping usher Norm Coleman’s equal-protection claims to a high court (Minnesota’s), just as he did with another client, George W. Bush, and another high court (the United States’) eight years ago. Indeed, Coleman’s yet-to-be submitted brief is expected to cite Bush vs. Gore, as have his earlier briefs presented (unsuccessfully) to the state Supreme Court and the election-contest court. Maybe there’s a reason for that. In 2006, Ginsberg admitted to a law school audience:

Just like, really, with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection.

I dipped into the video of Ginsberg’s hourlong talk in 2006 at Duke University School of Law, and found a few other snippets of interest.

Like Al Gore, Ginsberg was a reporter before going to law school and getting involved in politics and government (at the 6:15 mark):

My first job out of college was an internship on the Boston Globe in the summer of 1974, which was noteworthy not only for Watergate which was completely immaterial to my life, but for the summer that they started forced busing in Boston — an interesting notion of a government example of a program applied to real life. … I had red hair and so the guys who ran the Boston Globe assumed I was Irish and stuck me on the streets of South Boston to cover the riots in the neighborhoods. And that was kind of an eye-opening experience, in terms of government and people and well-intentioned programs that maybe don’t work quite exactly right. Which provided sort of an analytical tool for the rest of — I mean, I got searing memories of things from watching an experience like that take place.

About his first recount, in Indiana in 1984 (11:31):

Republicans lost that recount. The Democrats in the House of Representatives decided that they just had to have one more seat to try and put Republicans in their place. I remain convinced to this day it was a stolen election. It turned out being by four votes. It was in restrospect the event that galvanized a very sleepy Republican minority in the House of Representatives into taking a slightly more militant approach to politics in the House of Representatives. One of the people who at the time in 1984 was just a back bencher but was thoroughly outraged by all this was one Newt Gingrich, who took that feeling that Republicans in the House had and pressed it into a real change of attitude that ultimately I think led to the Republican takeover in the House in 1994.

As counsel to the National Republican Congressional Committee, Ginsberg came to Minnesota for the 1986 recount between incumbent Republican U.S. Rep. Arlan Stangeland and his DFL challenger (then unsuccessful, now U.S. Rep.) Collin Peterson (13:54):

After two years there was another recount — and recounts really do change lives — there was another recount, in Minnesota, that I participated in. Low and behold, the Minnesota senator [Rudy Boschwitz] who put a lot of people into that House recount to help his colleague was taking over as the head of the National Republican Senatorial Committee. They asked me if I wanted to do that job … so I went over to the Senate for two years.

Ginsberg on his successful 1989 interview to work for the Republican National Committee (15:25):

There is the great Lee Atwater with his feet propped up on a desk, with a book of Great Grade B Movies of Our Time that he’s reading. And he goes, “Well, I kinda know you. What I really want to know is what you think of Pia Zadora.” … So Atwater and I spent 20 minutes talking about Pia Zadora and John Waters movies.

At the time Ginsberg made this speech, the fact that courts hadn’t yet cited Bush vs. Gore as precedent was a point of pride, and proof that the ruling hadn’t done damage (39:50):

Of course Bush vs. Gore is probably the most notorious election-law cases that’s ever gone up to the (U.S.) Supreme Court. We did include equal protection as one of the core arguments in that case, and it was somewhat contentious as an issue as the justices talked about it. … At the time, people were —  the commentators were very adamant that it would set a terrible precedent for the future and really did harmful things to the Supreme Court as an institution. At the end of the day, Bush vs. Gore has not been cited as precedent, or binding precedent, in any case in the four years since then. And I don’t think you can credibly make the argument that the U.S. Supreme Court has lost any of its moral force because of that case. And so George Bush became president and that indeed becomes kind of the mother of all cases.

Photo: The UpTake

Joe Friedberg, the star attorney who gave the closing arguments for Norm Coleman last week in Minnesota’s Senate trial, predicts his client won’t prevail in the election contest without appealing to the state Supreme Court. When the current three-judge panel rules, Friedberg told a local radio audience, ”Franken will still be ahead and probably by a little bit more (than his 225-vote margin in the recount).”

Friedberg was interviewed Wednesday by Ron Rosenbaum on “The Dan Barreiro Show” on KFAN-AM (mp3, starts at 22:22). A partial excerpt:

ROSENBAUM: Joe, are you done?

FRIEDBERG: Yes (laughing), I’m done.

ROSENBAUM: Let me ask you in a different way. Is Norm done?

FRIEDBERG: Well, I think that we’ve been trying this case with the appeal record in mind, and that’s where we’re going, and it’s going to be a very quick appeal, and then I’ll know whether or not it worked.

ROSENBAUM: Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

FRIEDBERG: I think that’s probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was a constitutional argument, and it’s an argument suitable for the Minnesota Supreme Court, not for the trial court. So we’ll see whether we were right or not.

The dialogue then veered into the background of the equal-protection argument Coleman’s side has asserted, from its past application in elections that featured racial and ethnic discrimination to the Bush v. Gore case in 2000.

Friedberg said the U.S. Supreme Court didn’t expect that case’s circumstances to recur, “where different standards were applying in different electoral precincts … The court didn’t think they’d ever look at another one. Well, hi. We’re here.”

Later:

ROSENBAUM: In point of fact, our system isn’t capable of handling it, right?

FRIEDBERG: No, because frankly, no matter what happens, nobody will ever know who got the — quote — most votes. Nobody will ever know that. …

ROSENBAUM: So we could still be awhile before this thing gets decided?

FRIEDBERG: Yeah, I think that’s clearly true.

Hat tip: Hotline On Call (via MnPublius).