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Larry King Live

What Will the U.S. Supreme Court Have to Say About the Florida Vote?

Aired November 30, 2000 - 9:00 p.m. ET


ROGER COSSACK, GUEST HOST: Tonight, Election Day plus 23, as two would-be presidents present a contrast in styles. The ballot recount fight keeps on trucking. Florida's legislature moves toward an electoral intervention, and a U.S. Supreme Court showdown looms.

Now joining us from Tallahassee, Gore legal adviser Ron Klain, and in Washington, Senator John Ashcroft, Republican of Missouri; followed by a partisan square-off with the general chairman of the DNC, Ed Rendell, and the co-chairman of the RNC, Pat Harrison; then the majority leader of the Florida state House, Mike Fasano, goes head-to-head with the minority leader of that chamber, Lois Frankel.

All that, and another roundtable discussion, next on LARRY KING LIVE.

Hi, I'm Roger Cossack, sitting in for Larry King.

Joining us first from Tallahassee is Ron Klain, Gore legal adviser.

Ron, your case goes before the Supreme Court tomorrow, you can argue, what's the -- what is the sum and substance of your case, what's your best argument?

RON KLAIN, GORE LEGAL ADVISER: Well, the sum and substance of our case is very simply this: What the Florida Supreme Court did here was interpret Florida law and set -- help determine the rules for counting the ballots here in Florida. That's a state law question, and the Bush campaign is trying to make it into a federal issue, a federal case, it's not, and I think that's what the Supreme Court will conclude after they hear this case tomorrow.

COSSACK: Now, one of your arguments is that the Supreme Court shouldn't even hear this case, you're claiming because it's a Florida state issue. How do you intend to make that argument?

KLAIN: Well, as you very well know, Roger, the Supreme Court, though it is the highest court in land, is there to hear federal issues about federal law and the U.S. Constitution. In this case, what happened was there was some confusing Florida statutes about how the ballot tabulation should be timed and what legal procedures should come in what order. The Florida Supreme Court set down some rules for dealing with that. That isn't a matter of federal law, it isn't a matter of the federal Constitution, it's a matter of state law, and on that the Florida Supreme Court is -- should be and is the final word.

COSSACK: Ron, what do you attempt -- what do you think you are going to get out of this Supreme Court decision? You know, in a sense, no matter what the Supreme Court rules, Governor Bush wins. If they say that Katherine Harris should have certified the votes on November 14, Governor Bush wins. If they say that she should have certified the votes a week later, Governor Bush wins.

What do you expect to get?

KLAIN: Well, I do think you have got a point, Roger, and that's why the important thing for us really isn't what's happening in Washington tomorrow, but what's happening in Tallahassee. We're here before the Florida Supreme Court asking them to issue an order to start the counting of votes. And, you know, all the legal procedures have a way of obscuring what this is really about.

What's it really about is something that's very simple: there are 13,000 ballots in the state that either have never been counted by humans, or been counted incorrectly; we want those votes counted the right way, we want them counted by people who can look at them and see that they are votes on them. And once that tally is done, we will know which one of these two candidates is president. And when you wipe away the lawyers and the lawsuits, and the supreme courts, and all this business, that's really what it's all about.

COSSACK: Well, I understand and I agree with you that it's about votes and it's about people, but you keep talking about counting votes and the other side keeps saying exactly how do we count these votes that the machine can't figure out, how do we figure them out, and you know, is this the dimpled chad argument all over again. What are the standards, if any?

KLAIN: Well, Roger, I think the standards are very straightforward. You look at the ballot, you see if the voter had an intent. You know, one ballot in Palm Beach County had the word "Gore" written on it, and the board ruled that, that wasn't a legal vote. I think that voter's intent was pretty clear. And if these ballots have indentations, punctures, dents on them -- you know, the wind didn't make them, people came to the polls and people made those marks on those ballots.

To believe the Republican position, what you would have to believe is that on Election Day, thousands and thousands of people got into their cars, drove to polls and decided not to vote for president after they had begun to make a mark on their ballot.

COSSACK: No, no, no. Ron, it's not...

KLAIN: And I don't think that's really true, Roger.

COSSACK: And I -- well, let me just suggest this to you, that it's not the idea that they went to the ballot and didn't want to vote, it's the idea of how do you figure out what they voted for?

KLAIN: Well, I think again, you look at the ballot and you see if there are marks on it. And, Roger, again, this is not that complicated. Courts in other states, courts in this state have done it before. It's a pretty straightforward thing. If there is a mark on the ballot, a dent, an indication that someone intended to cast a vote, that's a legal vote and it should be counted.

You know, when they did this in Broward County, when they did this in Miami-Dade County before the rent-a-mob stopped them from counting votes, they found that one out of every four ballots, there was a discernible vote. That means there are thousands of votes, literally thousands of votes in those ballot boxes that have yet to be tabulated. Now, I don't know in the end if those are votes for Al Gore, or votes for George Bush, probably some votes for both of them, but I think the American people have a right to know how those ballots count up and which of these two candidates for president got the most votes.

COSSACK: All right, Ron Klain, thanks once again for joining us tonight from Tallahassee. I hope you get home pretty soon to see your family. Thanks again.

And now joining me, Senator John Ashcroft.

Senator Ashcroft, thank you very much for joining us.

I want to go right to the immediate question, you were defeated in your race for Senate by a person that was unfortunately -- Mel Carnahan -- who was deceased. Now, you are a lawyer and I am a lawyer, and I know and you know that you had a clear right to bring a challenge to that election under law. That -- whether you would have won or whether you wouldn't have won, I don't know, but clearly you had a colorable lawsuit to challenge that election on a couple of different grounds -- you chose not to. Why?

SEN. JOHN ASHCROFT (R), MISSOURI: Well, I think there are some things more than personal political ambition and personal politics. And the people of my state, I think they spoke with compassion and they spoke clearly. And for me to try and respond to the lawyers -- and there were many of them who said, you have rights here, you can vindicate them -- would have resulted in the public interest being denied by my private interests, perhaps for some maybe being sustained. But that's not why I'm in politics.

And two great values of the people of Missouri really, I think were exhibited in their vote: one, a value of compassion for the family of the deceased governor, who died in a tragic plane wreck along with his son just a couple weeks before the election, and frankly, I want to live in a culture that has compassion; and the second value they expressed was the value of not speaking ill of a deceased person, and frankly, the outpouring of effusive support which changed the polls around and resulted in the election, that supported the deceased governor, that's another good value that I find in the culture of Missouri.

I want to live in a culture that respects the deceased and that also has compassion. And frankly, I didn't think trying to exercise my legal rights was important. I'm in government to do what's right for my state, and to bog the state down would have been wrong.

COSSACK: Let me follow up then. Many would say that, you know, you received a great many votes, you didn't lose by that much, you had a great many supporters who, you know, went all the way for you. Some would say that perhaps you have a responsibility to those people, the ones that believed in you and supported you, and voted for you, and helped you financially, to go ahead and take that extra step. Why not?

ASHCROFT: Well, I think if -- it was just going to result in confusion and not having the kind of representation that the state needed in neither of us being seated in the United States Senate, in acrimony. The will of people obviously was expressed -- now, there were voting irregularities and -- including courts that meddled in the election to keep polls open unduly -- but I didn't think those controlled the election. The voice of the people, I think was clearly expressed, and my effort in government has always been to respond to the voice of the people.

There are things more important than politics. And if we just pursue all of our legal rights to the bitter end, we are going to disrupt over and over again a very important process in our communities. And my own view was that the well-being and the public interests of Missouri would be well served if I would accept with grace this expression of the people that really was a compassionate expression that respected the deceased governor and his son, who died in the tragedy.

COSSACK: All right, Senator Ashcroft, I know you are here, among other reasons, to attend the argument before the United States Supreme Court tomorrow, and I also know that you at one time shared an office with Supreme Court Justice Clarence Thomas.

Tell us about that, tell us what kind of a person he is. He is known for not asking questions from the bench. Why not? What do you know?

ASHCROFT: Well, I think first of all, Clarence and I -- pardon me -- Supreme Court Justice Clarence Thomas and I, we shared an office back in the mid-'70s. For a little over a year, we were in the same room together. He is a person of great insight. He is not insecure about his understanding. He knows and reads very aggressively. He doesn't have to ask a lot of questions. He relies on the written work very intensively. It's going to be a wonderful thing in the court tomorrow.

I remember my own argument in the United States Supreme Court, when the court is announced and everyone rises, something important is there and there is a federal right here. This is a federal election. We wouldn't -- any -- have any denial of the federal election, of the federal interest here if, say, certain people were discriminated against based on race, those are federal constitutional rights. Well, the right of the Florida legislature to set the procedure for determining membership in the electoral -- votes in the Electoral College and the like is something that the federal Constitution specifically grants. And when the Supreme Court of Florida changes that framework, the question is when the court in Florida changes the rules in the middle of the game, is that a violation of the U.S. Constitution? So we are going to have the United States Supreme Court decide...

COSSACK: That's what the Supreme Court perhaps will tell us tomorrow.

ASHCROFT: Yes. Does the court have the right to do what the Constitution assigned to the legislature and to change the rules in the middle of the game?

COSSACK: Senator John Ashcroft, thank you for joining us, a fine gentleman and a fine representative from the state of Missouri.

When we come back, Ed Rendell and Pat Harrison are going to duke it out. Stay with us.


COSSACK: We're back with Ed Rendell, Democratic National Committee chairman, and Pat Harrison the co-chairman -- person of the Republican National Committee.

Pat, let me go right to you. This is now become law layered with politics layered with law. Somewhere down the line, the voters are going to say eventually whether it's two years or four years from now we either like, we didn't like, we blamed somebody, we don't blame somebody. Who pays the piper?

PAT HARRISON, RNC CO-CHAIR: Well, before we can pay the piper, I think what the voters are saying and the American people are saying -- no mas, no more. Sixty percent of Americans are saying it's time for Al Gore to take a page out of Senator Ashcroft's book, do the courageous thing, do what they used to say in my hometown of Brooklyn, New York be a mensch and let's get this transition on the way. Be Americans together, again.

So what -- in terms of paying the piper, I'm so far from paying the piper, tell you what will happen. Governor Bush is going to be the president and he is going to do what he said he would do, when he campaigned. He is going to bring us together, so all the prophets of doom and the pundits saying whoever wins this is loser -- that's not true. He's going to do everything he can to reach out to people on both sides of the aisle.

COSSACK: Ed Rendell, you know what polls say, and that indicates that the people seem to be getting tired of this, and in some ways they're saying that perhaps Vice President Gore should step down. Is there going to be a price to pay for carrying this thing on so long?

ED RENDELL, DNC CHAIRMAN: No, I agree with Pat. I think whoever wins, whoever emerges as the victor here will have ample opportunity by what he does, by forming bipartisan coalitions. by attacking he right issues, to turn this thing round and after a successful first year for either President Bush or President Gore, this will be wiped away.

COSSACK: But Ed, what I'm suggesting is, is that there's going to come an election in a couple years or four years, are the American people going to say, you know, somebody's got to pay for dragging us through all of this, perhaps -- you know what polls say that Gore should step -- Vice President Gore perhaps should not be carrying on. Is there going to be a price to pay? Are the Democrats going to pay a price?

RENDELL: No, I don't think so because I think although the polls show 60 percent now, it's been up and down and I think when people think about what's at stake here, and Ron Klain said it very well. 13,000 Floridians have not had their votes counted in a election that was decided currently has a 537 vote margin.

That's what we're fighting for and I think that's proper and appropriate. And if it takes an extra 10 or 12 days from now, I don't think that's so bad. I think if you were one of those 13,000 Floridians -- and I ask the American people to think about that - and they were telling you, no, we're not going to count your vote because the American people are tired and they want to move on, you'd be pretty mad about it. You'd want your vote counted.

COSSACK: Let's talk a little bit about counting the vote. One of the things we've heard and we know is that the Florida legislature is sort of flexing their muscles making sounds like they might hold -- in fact they've called for special session and perhaps are going to exercise what they feel is their right to go ahead and set up and say, listen, let's forget all this. We're just going to name 25 electors for Governor Bush -- for Governor Bush. Why do that? Governor Bush is winner so far? Why should they get involved?

HARRISON: Well, it's interesting hearing Ed repeat this mantra. I think we could all get up in middle of the night and say the same thing in our sleep. The fact is these votes have been counted and recounted. What Vice President Gore's trying to do is super size the vote, is divine what vote is.

Now, I heard Ron Klain earlier say you're telling me that people are going into the voting booth and they're driving all the way over there not voting. Yes, two million people have done that. Right now there's no law against not voting. That's your right. You can vote for part of the ticket, all of the ticket. These are the undervotes. What the Florida state legislature is doing is really exercising what the people of Florida invested in them.

Now, who are these people? These are people legislators that were voted for by people in Florida. What is happening here is that the Gore team is moving this deadline, leaving Florida perhaps in a very precarious position where they don't have the electors in place. Their mentioning the deadline December 12th, maybe December 18th. I mean, if we follow their thought maybe Christmas could be the 26th, 27th. Time for this -- we have ballot fatigue, Roger.

COSSACK: Ballot fatigue. All right, let's take a break. Ed, I promise you that you'll be able to come back and fight back when we come back. Stay with us.


COSSACK: All right, what you see now that famous Ryder truck on its way up Florida, on its way To Tallahassee delivering hundreds of thousands of votes. We know it arrived safely and the votes are safely in hands of the court in Leon County.

Ed Rendell, I know I want to give you a chance to respond to what Pat said. Go ahead.

RENDELL: Well, Pat's at a disadvantage, because she didn't see Brooks Jackson's report on CNN. Brooks took a look at this Republican claim that people didn't come to the polls and vote for president, and he found that really it's the punch-ballot counties that had the most significant undervote.

In the 18 punch-ballot counties that use the punch-ballot vote, the undervote was 1.5 percent. In 36 counties that don't use it, that the use optical scanner, the undervote was 0.3 percent: so 50 times greater undervote with the punch cards. And that clearly indicates the problem that the manufacturers of the punch-card machines say: that you cannot tell a significant portion of these votes without a hand count where human beings look at the vote to determine the intention of a voter. And that's all we're trying to do here.

COSSACK: All right, Ed. Let me -- let me agree with you for the purposes of this discussion and say that it's all the fault of the punch ballot. But having said that, you know, we keep talking about standards, and everyone seems to have this ability to be able to tell what these voters who really intended to vote, what they had in mind. What are the standards?

RENDELL: Well, I think the standards are try to ascertain the intention of the voter. I regret that Florida doesn't have as detailed a statute as Texas does. The one that Governor Bush signed not only says that you count hanging chads, but it says you count dimpled chads if -- it actually says where there's an indentation with the stylus that doesn't perforate, if it clearly shows the intention of the voter, you count it.

Now, that's the Texas statute that the governor signed. How hypocritical are these folks for coming in an attacking dimpled chads when the Texas statute allows dimpled chads to be counted?

COSSACK: See, Pat, see all these wonderful things he says about your candidate.

HARRISON: I'm shocked.

COSSACK: He immediately praises him for that wonderful statute that he has in Texas.

RENDELL: It was a great statute.

HARRISON: I'm shocked and disappointed but... COSSACK: So should Florida adopt the Texas statute, Pat?

HARRISON: No. What Florida has in place, despite the Florida Supreme Court, are Florida rules, and what is going on here -- and Ed said it so well -- you have to somehow ascertain the will of the voter. I wish we could have a chad on this program. You would need a magnifying glass of 10x. These are -- it's impossible practically to determine if something's dimpled, pimpled, bent. And this is becoming so ludicrous.

The fact is it is time for Al Gore to really be a patriot, to understand he lost. You know what, losing happens. And there may be life for him afterwards -- if he doesn't really stop the ordinary process of ordinary people voting and expressing their opinion -- he'll have a footnote next to his name in history I think he should be concerned about.

RENDELL: I don't understand...

COSSACK: All right. Let me get a response from Ed on that. Go ahead, Ed.

RENDELL: I don't understand why Pat is afraid of having these 13,000 votes counted, if we can count them. I want to point out that in Broward County, where people saw the board, all three of them, do a very good and fine job, the board found more no votes that they couldn't ascertain the intention of the voter than they found Gore votes or Bush votes.

Why don't we let human beings -- the Republicans always say, trust people. We trust the local people. Why don't we trust the local people to rather answer that question, Pat. The Florida statute -- the Florida statute...

COSSACK: You know, Ed, I knew we were in trouble the minute you used the word Pat being afraid. You know, calling somebody from Brooklyn afraid is not a good thing to do.

HARRISON: And he's Italian to boot.

COSSACK: Yes, and that's all the time we're going to have in this segment. I want to thank both of you. And when we come back, we're going to have Mike Fasano and Lois Frankel from Florida to talk about what the Florida legislature is going to do. What are they going to do? Stay with us.


COSSACK: We're back on LARRY KING LIVE. I'm Roger Cossack, sitting in for Larry King tonight.

Joining me is Mike Fasano, the Florida House majority leader, and Lois Frankel, the Florida House minority leader. Thank you.

Mike, first let's go to you. Special session, the Florida legislature seems to be flexing its muscle, saying, you know, we're tired of this court fooling around, we're tired of all these lawyers, we're going to make the decision ourselves. Is that going to happen?

MIKE FASANO (R), FLORIDA HOUSE MAJORITY LEADER: Well the president of the Senate and the speaker of House have not determined that. We did have a joint committee that recommended today that a special session convene for the purpose of preserving and protecting the 6 million votes that were cast on November 7th and being sure that we have 25 electors representing the state of Florida on December the 18th.

COSSACK: Well, it's not just representing 25 electors, Mike. It's having -- that you have 25 electors that vote for Governor Bush. It's more than just having 25 electors, isn't that right?

FASANO: Well, we had a certification on Sunday. Al Gore, Vice President Gore, is trying to decertify those 25 electors, and it's very possible that we may not have 25 electors on December the 12th to represent this state of ours.

The legislature has the authority under the U.S. Constitution code to be the final say in selecting those electors if it's not done through an ordinary process.

COSSACK: Lois Frankel, why should they -- why should the legislature act now as opposed to December 11?

LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: You know, my Republican friends sound like Chicken Little, and I want to tell them, "The sky is not falling!" And it is unfortunate that right now we are being called thugs by editorial boards around this nation.

Look, there was a lawful election, 6 million Floridians came out to vote, and almost all the votes have been counted. Al Gore has been trying to get about 13,000 of those votes counted for the last three weeks.

He was first obstructed by George Bush's co-campaign manager, Katherine Harris. He was obstructed in Miami when a paid agitated mob stormed the canvassing board.

Now, he's gone to court, which is allowed under our Florida laws, and now that he's getting to court and getting his day in court, here comes the Republican-led legislature under the guidance of Jeb Bush, the brother of George Bush, and they are going to take matters in their own hand and just circumvent the will of the voters of Florida. And I think that's wrong.

COSSACK: Lois -- Lois, they have an overall lead of 77 to 43 in the House and 25 to 15 in the Senate. Is there much you can do about it to stop them, if anything?

FRANKEL: Well, you can -- well, you can tell from my voice I've been trying. But look, we're going to go there next week, the Democrats, and we're going to try to be voices of reason. And I'm going to try hard to convince my Republican colleagues that this is not the right thing to do. It's not the right thing to do for our institution, it's not the right thing to do for Florida. There is -- it is wrong for the legislature to now become a political arm of the George Bush presidency.

COSSACK: All right. Let me talk to Mike Fasano. Mike, at the very best, you can describe the vote in Florida as 50-50. Is it with that in mind -- your action would immediately disenfranchise 50 percent of the people that voted? Now, I will agree with you that your position would be that it's a losing 50 percent, but nevertheless, it's very, very close.

In light of that, don't you think that you will be opened to criticism of acting too quickly if you move right now?

FASANO: Acting too quickly, Roger? We've had 3 1/2 weeks of court battle after court battle. If we don't act soon, we won't be represented on December 18th. There's only -- what? -- 12 days left, and like I said, we have had 3 1/2 weeks of court battles where Vice President Gore has -- has gone with legal maneuver after legal maneuver. And yet we have no finality.

It's the legislature, a legislature, an elected body -- elected by the millions of people in this state, representing them, we have a responsibility to make certain, a constitutional responsibility, to make sure those 6 million votes count on December the 18th.

COSSACK: But Mike, as it stands right now, Governor Bush, under any scenario that the Supreme Court decides tomorrow, would be the winner in Florida. If the question is whether he wins by the -- by 530 or 540 more votes than he would without the other decision. So why go ahead and move?

FASANO: Well, that's probably more important that the legislature should move to protect those 25 electors. Remember, it's Vice President Gore and his attorneys are trying to decertify those electors. And if they continue to pursue that, Florida won't be represented on December the 18th...

COSSACK: Lois...

FASANO: It's won't just be Broward -- Broward, Miami and Dade and Palm Beach. It'll be every vote in the state of Florida...

COSSACK: Lois, Mike says that the legislature has to go ahead and move to protect those voters. Is it necessary to protect those voters? Is it necessary to move right now to protect Governor Bush getting those 25 votes?

FRANKEL: Well, listen, my good friend Mike Fasano, I think what we're looking is the legislature is looking to protect George Bush. George Bush has now been certified the winner of Florida's election, and his -- the names of his electors have been certified to the archives in Washington. Only if -- only if a court determines after all the votes are counted that Al Gore is winner, will then Al Gore's name and his electors will be certified instead.

And so one way or the other, we'll have our electors. It's not right for legislature now to come in and say no matter what if Al Gore wins fair and square when the votes are counted, that they're going to give an insurance policy to George Bush.

COSSACK: All right, let me got to Mike on that.

FRANKEL: That's wrong.

COSSACK: Mike, that's the argument that I hear many people making that what you're doing is making an insurance policy to make sure that Bush wins. Look, if Gore gets the most number of votes, shouldn't he win?

FASANO: Well, first of all, if you think we're going to count -- hand count a million ballots between now and December 12th, you know, that's totally impossible for that to have happen. The concern I have, Roger, is that apparently the vice president only wants certain votes to count. If he was concerned about every vote in the state of Florida, why is he fighting to have 15,000 votes thrown out of Seminole County? 15,000 votes that were cast properly. Why didn't he want 67 counties manually counted? He only chose four -- four popular Democratic...

COSSACK: All right, Mike Fasano and Lois Frankel, thanks once again for joining us tonight and when we come back we're going to have a constitutional law discussion with Professor Viet Dinh from Georgetown and Floyd Abrams. Stay with us.


COSSACK: We're back with more of LARRY KING LIVE, and of course, there's a beautiful, beautiful shot of an institution all Americans should be proud of, the United States Supreme Court. Joining me now is Professor Viet Dinh from Georgetown Law School and a constitutional scholar and a man who's argued many, many times before the United States Supreme Court, Floyd Abrams.

Floyd, what should we be listening for tomorrow? We're going to have an audio tape of the United States Supreme Court. It's going to be released shortly after the arguments are finished. When we hear that audio tape, what clues should we be listening for?

FLOYD ABRAMS, CONSTITUTIONAL ATTORNEY: Well, first we should understand that a lot of the questions that the members of the court ask are not signs to what they do. Sometimes they ask it to persuade other people on the court. Sometimes they're testing the thesis, the approach of the lawyer, but I guess I would listen particularly hard to questions of Justice Kennedy and Justice O'Connor because although this is a gross oversimplification, that they are so to speak in the center of the court, and it is hard to conceive of an opinion of the court which they would not be on the winning side of. So, I would listen especially hard to what they ask.

COSSACK: All right, and Floyd, now when you talk about being in the center of the court and we're going to be listening to Justice O'Connor and Justice Kennedy, what does the center of the court mean particularly in the framework of what the arguments are going to be tomorrow?

ABRAMS: Well, it may mean nothing. I mean, this argument may start out with a lot of questions about why are we here? What are we doing here? How alive is this case? And I can see any or all of the members of the court asking questions like that.

But when we get down to the question which is at the core of this case, which is, did the Florida court make new law which could lead to a victory for Governor Bush or did the Florida court interpret law, which any constitutional law scholar would tell you is sometimes the same thing and sometimes how judges define different things, we want to be listening to how the judges ask those questions? What seems to persuade them? How tough the questions are?

Again, we've got to be very careful not to draw conclusions just from the fact that one or another member of the court asks a hard question. There'll be a lot of hard questions asked of both sides, but when we're in that area -- when we're in the key area of the case about law making on the one hand or law interpretation on the other, if anything we should listen especially carefully, because that's what this case is about.

COSSACK: All right, Viet Dinh, you clerked for Justice O'Connor. When we talk about the significance of this case tomorrow, what is the significance of what the Supreme Court decides tomorrow? Is it going end this?

VIET DINH, GEORGETOWN UNIVERSITY LAW CENTER: No, the Supreme Court will have the final say as to what the statute means and what the Constitution means, but it is by no means the dispositive voice on who becomes the president and I think Floyd is right to identify that that will concern the justices whether or not what they do here will have such a significant effect on the process at all.

If not, then they may very well consider that, gee, it would be unwise for us or improvident for us to issue an opinion and they may dismiss this case as improvidently granted. That's an option for the court, and I do think, to add to Floyd's Justice O'Connor and Justice Kennedy another critical to be heard tomorrow is Justice Souter because at the core of this case, as Floyd mentioned, is a question of interpretation versus legislation.

Which is it? Has the Supreme Court of Florida made law or has it simply interpreted law and Justice Souter is a very, very good person with respect to statutory interpretation. He disagrees a lot with Justice Scalia as to how to do it, but I think at the core they agree that courts should interpret rather than make law.

COSSACK: All right, let's talk about Justice Scalia and Chief Justice Renquist for a second. They are known as conservatives on the bench along with Justice Thomas. They are known has people who favor states rights, but yet they find themselves, I would suppose in a little bit of a difficult position because the states' rights arguments is the arguments the Democrats are making.

DINH: Right. I think the question being framed as a states' rights question is a little bit of a misleading characterization. That will be the attempt by Larry Tribe to describe this as the province solely of state law. By simply taking cert, the court has stated that implicitly that it is jurisdiction in this case, that is, this is a matter of federal law. The federal election law and the federal constitutional vesting discretion in the legislature. So, the question of breakdown between conservatives and liberals here will not be a states' rights versus federal power but really between judicial activism and judicial restraint.

COSSACK: All right, Floyd, you know, it can be argued that no matter what the Supreme Court decides in this case, it's really not going amount to much because under most scenarios -- in fact, all scenarios that I can think of Governor George Bush wins. So, why should the Supreme Court be involved in this case?

ABRAMS: Well, I wouldn't say under all scenarios Governor Bush wins. I agree with the premise of your question that at the end of the day, this case is going to be decided in Florida. That was true before and it will be true after this argument, but if Governor Bush were to win big in the argument tomorrow, if the Court were to say that the ruling of the Florida Supreme Court was unconstitutional or violated federal statute, that has significant impact on what will happen in Florida from a legal point of view and certainly from the point of view of the mood, the music as it were, of what's going to happen in this the Florida courts.

And the same is true of Vice President Gore. So, I wouldn't downgrade too much the meaning of this case and I don't think the court is likely to simply dismiss it or refuse to rule in it. If I had to guess, I think they will rule, and I think they'll rule on the merits.

But I think that it will not be, or if I may, should not be so much a matter of simple judicial philosophy. I think a good, serious question in this case is the degree to which the court should defer to the Florida court in deciding Florida law.

COSSACK: All right. Thank you, Floyd Abrams, Viet Dinh.

Let's take a break. When we come back, Walter Isaacson, Norm Ornstein and Sander Vanocur for a political roundtable. Stay with us.


COSSACK: We're back, and joining me on our panel discussion is Walter Isaacson, the managing editor of "TIME" magazine, as well as Norm Ornstein, the resident scholar from the American Enterprise Institute, and of course, Sander Vanocur, who's covered politics for NBC and ABC news, "The New York Times," and of course, "The Washington Post."

Let me go right to you, Walter Isaacson. With all of this that is going on with this, now seeing 23 days after the election, with late-night comics making fun of all of us, can either man really rule this country for the next four years? Can they lead? WALTER ISAACSON, "TIME": Oh, absolutely. I mean, this has been a real mess. It's been somewhat trying. But whoever's the president is going to be the president. And in fact, one thing this does is I think the president will have to govern in a somewhat centrist way.

If there's been any message out of all of this is that the country is pretty much not strongly on one side or strongly on the other of all the great issues of our time.

I happen to be somebody who feels that the country is governed best when it is governed from the center, and I think, you know, president -- if Bush becomes the president, he'll be able to forge some coalition, not get a lot of legislation passed perhaps, but he'll be the commander in chief and the same is true if Al Gore ends up there.

COSSACK: Norm, I suppose the argument there is if you're going to have someone who rules from a centrist position or leads from a centrist position -- and the word bipartisan clearly us going to have to attach -- one of the questions is, is anything ever going to get done?

NORM ORNSTEIN, AMERICAN ENTERPRISE INSTITUTE: Well, this was going to be challenging for the president even if had settled this cleanly and clearly on November the 7th. We have the smallest partisan margin in both houses of Congress really combined since 1931, '32.

And this is tough. Not only are the margins close, 50/50 in the Senate, but you've got dramatic ideological and partisan divisions. It makes it tougher, but Walter's right. The expectations for this president are going to be so low it'll be easy to exceed them, and we aren't going to be looking for sweeping legislation.

The wing of this president's party, whether it's the left for Gore or the right for Bush, are not going to be able to demand that he stick to the extravagant things promised during the campaign.

So there's an opportunity here to do some things at the margins, and that's probably what Americans like the most.

COSSACK: Sander, what does it say when the vote breaks down like it has broken down, 50/50, for each man? What does it say that the American people are saying? Don't do anything?

SANDER VANOCUR, JOURNALIST: I think they've listened to what Senator Pat Moynihan has said for years, that in politics you apply the Hippocratic Oath of medicine: "First do no harm."

The president's going to be a very strong person. You think the country wants to turn the management of its affairs over to us?

COSSACK: I don't think so at all.



COSSACK: Walter Isaacson, the Supreme Court, what's the significance of what the Supreme Court does? And I'm not talking necessarily from the legal decision, but from the decision of the Supreme Court -- from the viewpoint of the Supreme Court making a decision for the people and for the rest of the country.

ISAACSON: Well, unfortunately, I think we're all hoping that the Supreme Court is going to be like a magician and find some great way to untie all these knots. I sort of feel they're like Houdini or David Blaine or something, and they got themselves -- they put themselves into this big block of ice or something, and we're now waiting for them to say: Here's how to do it, here's the dimpled chad, whatever it may be.

I don't think they can do that. I don't think that that's what they've agreed to even rule upon. And as you say, as a matter of law, it's unclear how they resolve this, whether or not they say the Florida legislature overstepped its bounds, which is the main question they're ruling on.

However, I'll agree with Floyd and others, who have said there will be a pretty big symbolic public thing that happens, because if they rule resoundingly on the Bush side that the Florida legislature overstepped its bounds, that's going to be a body blow PR-wise to the Gore camp. And I think it'll be a lifeline to the Gore camp if they resoundingly rule on the Gore camp's side, even though that won't give him the election.

COSSACK: All right, Norm, so let's suppose that the Supreme Court decides for Governor Bush tomorrow, and after hearing the arguments, is Vice President Gore gone? Does he then resign? Or not resign, concede?

ORNSTEIN: It becomes much, much tougher. If the headline after the court rules is Bush wins, Gore loses, Florida Supreme Court rebuffed, it's very, very hard to continue.

I think then you'll start to get some Democrats saying it's time to hang it up. And remember, too, if the Florida Supreme Court has its basic credibility undercut, they're the ones you ultimately, even if Gore prevails in these challenges, who will have to order the Florida secretary of state to change the certification. They can't do that unless they have a credibility conferred upon them by the U.S. Supreme Court.

COSSACK: All right, let's take a break. More with our A panel when we come back. Stay with us.


COSSACK: And we're seeing down on the ranch, we're seeing Governor Bush's ranch. He was visited today by the vice president -- well, some would say vice president-elect, certainly Secretary Dick Cheney, as well as the possible perhaps secretary of state, General -- former General Colin Powell. All right, let me go to Sander Vanocur now. Sander, you have covered great political stories for a great period of time. How does this story rank with the great stories that you have covered?

VANOCUR: It's the best. I think it's wonderful.

Every once in a while, this country has to test itself, and we're testing ourselves now. In other countries, people would be shooting each other; we're going through the courts. And I think it all reminds me what President Kennedy used to say, quoting Lord Morley, a British statesman, "life in politics is one continuous choice between second best."

COSSACK: Sander, are you disappointed in our candidates today as opposed to candidates in the past? Do you think that perhaps they have acted -- not acted quite as statesmanlike as they should have?

VANOCUR: I don't think politicians at this level can act statesmanlike when you have us to deal with. We have a 24-hour-day news cycle now. It's an electronic tapeworm, it has to be fed. You don't say anything -- you're keeping something from us. You do something behind a closed door -- nefarious things are going on. They have to react to the electronic tapeworm who says, say something.

COSSACK: All right, Walter Isaacson, we see now -- we see Governor Bush seemed to be going full speed ahead with his transition. We saw earlier pictures of Secretary Cheney, as well as former General Colin Powell. That is obviously symbolic.

Is it a good symbol?

ISAACSON: Yes, it's a good symbol. I don't think he is going full speed ahead, if I may say. I think that he considered this week, according to those who have talked to him, about whether they should make some announcements. I think General Powell probably made it clear that we shouldn't make announcements of appointments, that would be inappropriate. I think Governor Bush is trying hard to figure out what feels appropriate.

As Sandy just said, if you keep too low of a profile, people say, you're out of touch, where are you, we need you for our news cycle; if you get too much out there, you start testing the public's patience. I think at least what was happening down on the ranch in Crawford, Texas today was that Governor Bush was trying to figure out an appropriate balance of consulting with people like General Powell and Secretary Cheney, but without making any appointments that would seem presumptuous.

COSSACK: All right, let's take a break. More with our panel when we come back. Stay with us.


COSSACK: We are back with our panel.

Norm Ornstein, we talked -- we were talking a little bit about the transition process going on. Today, Janet Reno made a decision that should in some ways help the transition process.

ORNSTEIN: Yes, she made a very solid and good decision that the FBI could now go forward with background checks on potential nominees rather than wait until we actually have a firm winner. You know, I believe these transitions should have begun with a joint statement by both candidates right after the election that they were both going to go forward. This is a critical time. I'm delighted with what they are both doing now, and now the attorney general has made it easier for a president, when we get one, president-elect, to hit the ground running.

COSSACK: Sandy, is it time for Vice President Gore to step down and concede?

VANOCUR: That's up to the vice president. He has to speak to his wife. He has to speak to God. It's not up to me to tell him what to do. He's fought a very tough battle. Why should he throw in now?

COSSACK: Well...

VANOCUR: I didn't say that after tomorrow. I'm saying tonight, why should he concede?

COSSACK: Walter Isaacson, let me ask you the same question, is it time for Vice President Gore to concede?

ISAACSON: No. That's really his decision. I know Sandy just said that, but Sandy happens to be right. I think you've got the Supreme Court rulings and I think you've got a couple of rulings happening on whether they recount the votes, do a -- order a hand recount in Florida. I don't think we are in a real crisis now. I think by December 12 it has to be resolved. But he doesn't have to throw it in now, even if people are getting impatient. Let people get impatient.

COSSACK: All right, Norm, if you were going to advise the vice president, I see these -- my two other friends duck this issue -- if you were going to advise the vice president, what would you be telling him?

ORNSTEIN: If I were one of his advisers, and I am not, I would say, you have a little time here. If the Supreme Court pulls the plug it will be tough, but you have some time and you actually have a shot at this. Now, it might be a prize very badly tarnished if it happens, but it's still the prize, and I'm not surprised he's going forward. And the public opinion polls show that even though you have some real reluctance, it's not deep-seated except on the part of partisans on both sides. So there's some slack there. That's why the Democratic Party members, including the legislatures, continue to stick with him.

COSSACK: Sander, if Vice President Gore takes a beating in the United States Supreme Court tomorrow, will there be a time when the elders of the Democratic Party go up to see him and say, look, it's time to move on?

VANOCUR: I don't think this will be the same situation, when the elders of the party, including Barry Goldwater, went to Nixon and told him to stand down. I don't think anybody is going to have to tell Al Gore what to do. My sense is, and this applies to Governor Bush, either man, if it goes against him, will know the right time.

COSSACK: Walter Isaacson, in terms -- now, let's switch a little bit to Governor Bush. Governor Bush is going ahead with his transition. Is that the kind of thing, though, that may anger the American public? Is that the kind of thing that people would say, look, you know, why don't you wait and see what happens?

ISAACSON: No, it's absolutely necessary to start the process of talking to people who are going to be in your government, and Norm was right that it's absolutely good that Janet Reno has allowed background checks to happen. I don't see why this should be annoying.

I also think though, to go back to our earlier discussion, the public is not looking for any great sweeping legislation or sweeping move, so I don't think he's got to announce anything dramatic. I think that holding these consultations makes a lot of sense.

COSSACK: All right, Norman, 20 seconds, bipartisanship -- you know, bipartisanship means a lot, that everything kind of gets mushed together and nothing gets done. Is that what's going to happen?

ORNSTEIN: Well, there's good bipartisanship and there's bad bipartisanship. You can either get mushed together, or you can take the worst elements of both side and put them together into a kind of witch's brew. We're going to need leadership not just from a president who's going to have to hit the ground running, but from congressional leaders, and we haven't had much.

COSSACK: Norm -- all right, that's all the time we have for tonight. Thanks for watching LARRY KING LIVE. I'm Roger Cossack. Larry will be back tomorrow night, and he'll see you then.



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