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Crossfire

U.S. Supreme Court Asks, 'Why Can't Florida Count?'

Aired December 11, 2000 - 7:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

BILL PRESS, CO-HOST: Tonight, Bush versus Gore in the U.S. Supreme Court. Will the highest court in the land decide which candidate takes over the nation's highest office?

ANNOUNCER: Live from Washington, CROSSFIRE. On the left, Bill Press; on the right, Mary Matalin. In the crossfire, Senate Democratic Whip Harry Reid of Nevada, a Gore supporter, and Senator Arlen Specter of Pennsylvania, a Bush supporter.

PRESS: Good evening. Welcome to CROSSFIRE. Another day for the history books and still another day with no president-elect, but maybe one step closer. Action on two fronts today. Two committees of the Republican-controlled Florida legislature approved resolutions to send their own pro-Bush slate of electors to Washington. The full House and Senate vote later this week.

But most eyes and ears were on the U.S. Supreme Court where David Boies for Al Gore argued to finish the count in Florida. Ted Olson, for George Bush, argued to call it a day. And justices kept demanding, "Yes, but what's the standard?"

Senators Arlen Specter and Harry Reid were in the court this morning. They're going to be here -- they are here, rather, to continue the debate on CROSSFIRE.

CNN's Roger Cossack was also there. He's still outside the court. He refuses to go home. He joins us first.

Hey, Roger, I listened to all one and a half hours, but only you, you know, could translate it for us. Give us the blow by blow. What happened?

ROGER COSSACK, CNN LEGAL ANALYST: Well, Bill, it was a magnificent day in the Supreme Court today. It was a day that you knew that history was being done. If you didn't, you just had to look around and see who was there.

Two of your guests were there. But it was filled with other senators, other representatives, noted lawyers. You knew that this was a day that law students forever will be reading and discussing the case that was argued before the Supreme Court today.

And the two combatants, Ted Olson and David Boies, well, it was only fitting that these were the two that finally stood before the United States Supreme Court and argued their particular case, because those are the two that perhaps we identify the most with their side.

First of all, Ted Olson right away, the Supreme Court -- Mr. Justice Kennedy came right out and he said: Why are we here? Where's the federal question? Tell us the federal question.

And as everyone knows, it's Justice Kennedy and Justice O'Connor that we look for in terms of who, you know, may be them being the "swing votes."

Then, of course, it was onto Boies, and David Boies, it was the standard argument: What are the standards? Could we have 67 different counties having 67 different ways of counting the ballots with perhaps a different count at each table?

And those are the kinds of questions that David Boies had to answer. Where are the standards? What are the standards? So it was only fitting that today was the day that both of these lawyers had to face the Supreme Court. It was a wonderful day and we're all awaiting the decision.

PRESS: Indeed, we are. Roger, thank you very, very much, and for all of you at home, if you have anymore questions for Roger -- and you've got to have them -- you can just log onto cnn.com/crossfire. Roger is going to be joining our chatroom in just a few minutes. He'll be there throughout the show. So you can watch us and talk to Roger at the same time.

And tonight, we have a very special guest co-host on the right, sitting in on the right tonight, former Supreme Court clerk Laura Ingraham, now a contributing editor at Voter.com.

Laura, it's good to have you here.

LAURA INGRAHAM, GUEST HOST: It's great to be here, Bill.

Senator Reid, let's start with you. You have been known to be the "king of recounts," the "king of close elections," at least that's what we call you at CROSSFIRE.

You won one, 1998, your Senate seat against John Ensign, by 428 votes back in 1974. Weren't so lucky, lost that recount in that close election.

But today, as Roger Cossack was saying, the issue of standards really ruled the day. Everyone was talking about what can the standard be in recounts. And at one point Justice Kennedy pressed Gore lawyer David Boies to articulate a standard and what would it be.

Let's listen to what he said.

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I think there must be a uniform standard. I think there is a uniform standard. The question is whether that standard is the too general or not.

The standard is whether or not the intent of the voter is reflected by the ballot. That is the uniform standard throughout...

JUSTICE ANTHONY KENNEDY: That's very general. It runs throughout the law. Even a dog knows the difference of being stumbled over and being kicked.

(END VIDEO CLIP)

INGRAHAM: But the point is, isn't that sort of begging the question on the part of David Boies? I mean, the intent of the voter is what we're here arguing about. The fact is we can't discern the intent of the voter. How's this going to be resolved?

SEN. HARRY REID (D), NEVADA: I think Boies did a good job of answering the question. The same question was asked in a different manner to Olson and he didn't answer the question. In fact, there was some laughter that came from the audience when he stumbled answering the question.

And you're right, I've had two recounts, both of them decided by less than a thousand votes put together. One 524 and one 428. So I know what close elections are all about.

The one two years ago, we had a similar situation to what they had in Florida. The registrar of voters in an effort to save money printed some ballots. They were a sixteenth of an inch off. The machines wouldn't pick up those votes. Those all had to be hand- counted. Every one of those...

INGRAHAM: Right. There's no allegation of that problem in this election.

REID: But you had to look -- you had to look at the voter's intent. I think there's been a lot made about voter's intent that really shouldn't be made. I think they should have just counted and gone onto something else.

INGRAHAM: But at one point, you know, in oral arguments before the Supreme Court -- and you both esteemed senators know this just as well as I do -- there are moments where common sense just seems to shine through. And we all love those moments at the Supreme Court.

Justice O'Connor at one point just seemed to sit back and give her own view about what the standards should be. Let's listen.

(BEGIN VIDEO CLIP)

JUSTICE SANDRA DAY O'CONNOR: Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes? I mean it couldn't be clearer. Then why don't we go to that standard?

(END VIDEO CLIP)

INGRAHAM: In my hand, I have an actual Florida puch-card ballot. You didn't say I could use props on CROSSFIRE; I'm going to use it anyway. Poke it through! Poke it through!

PRESS: You can get away with anything on CROSSFIRE.

INGRAHAM: Look at how easy it is: Poke it through. You know how easy it is to dimple? Hold it, hold it up to the light, it's dimpled. There's a dimple on it. It's a vote.

I mean, come on, use the standards that are in the voting booths. That's simple, isn't it? Then you don't have to have judges -- who some people say are partisan, some not -- as the final arbiters in this case.

Just use the rules in the polling stations.

REID: I think the most important question we need to ask is, "Have votes been counted that should have been counted?" That's what all this controversy is all about. And the Florida Supreme Court today, as they did last Friday, indicated that they had interpreted the Florida law. It was a 6-1 decision today, but I think it speaks volumes. And based upon the questions from the court today, I think they will take that into consideration.

Laura, I think the most important thing that I said today, as I left the hearing that was so dynamic, is that my next 24 hours is going to be a lot easier than any of those nine justices.

PRESS: Senator Specter, I want to back up just a little bit to Saturday afternoon, when I think even the Bush people were surprised that the Supreme Court not only took this case, but that Justice Scalia made the unusual step of putting word out there basically saying, "Hey, this case has already been decided before we even hear it."

Justice Scalia said -- and I quote -- "It suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success."

You're a fair man, Senator Specter. Wasn't Justice Scalia way out of line there? I mean, wasn't he really showing his partisan stripes?

SEN. ARLEN SPECTER (R), PENNSYLVANIA: No, because he was specifically articulating the standard for granting a stay. A stay is not granted unless the applicant can show a substantial probability of success and irreparable harm. So he a was merely saying what the law is.

PRESS: Well, senator, I talked to a lot of attorneys over the weekend -- Republican and Democrat -- who think that the court this time really jumping into this thing with such a split has really done a lot of damage to itself. And one of your colleagues who was with you at the court today, Senator Leahy, had this to say. Let me just get your reaction.

Senator Leahy said -- quote -- "This is very bad for the Supreme Court, because their credibility is so diminished and their moral posture is so diminished that it could take years to pull them back from that."

Isn't this in fact judicial activism at its worst?

SPECTER: Well, judicial activism is in the eye of the beholder, just like beauty. Justice Scalia was very...

PRESS: But this is it, isn't it?

SPECTER: ... candid when he said that if the votes were counted, once the American people knew what the tally was, that it would be too late for the court to step in. And that I thought was a rather -- a rather blunt concession.

But people were outraged at the Supreme Court of Florida, 4-3, deciding for Vice President Gore. People are outraged that the Supreme Court of...

(AUDIO GAP)

... some of the voters coming over. It may be 6-3, may be 7-2. I think it unlikely that it will be 8-1. But that could happen to maintain the institutional credibility of the court.

But the court really had no choice, in my opinion, but to get into it, and now they'll have to do the best they can.

INGRAHAM: Back on the issue of whether one of the supposed swing justices -- although I wouldn't call David Souter a swing justice. He's a liberal justice.

(CROSSTALK)

Didn't you just say swing justices? I mean, O'Connor and Kennedy...

(CROSSTALK)

O'Connor and Kennedy are both going, it looks like from the argument, pretty strongly for Bush. They both came out of the box pretty strongly, with tough questioning of David Boies.

REID: Kennedy and who? I'm sorry....

INGRAHAM: Kennedy and O'Connor. But this issue of whether the case should be remanded instead of just reversed, if indeed that's what ends up happening, if it's remanded back to the Florida Supreme Court, or indeed to Judge Sauls -- and Senator Specter can talk about that -- but if it's remanded, the question is who comes up with a standard. If indeed the court comes up with a standard, aren't we running afoul of Article II, Section 1: i.e. the courts coming up with standards that the legislature is supposed to come up with itself? And what's the other choice, go to Katherine Harris, the secretary of state, and have her, you know, decide the standard? Would that be acceptable to you?

REID: Well, I think David Boies answered that adequately today. I don't think that we need to focus on a standard. I think that the way they counted the votes is the way they should count the voted. I don't think that we have to have exact similarly every...

INGRAHAM: But senator, you saw that at least five justices were very uncomfortable with that idea of county-by-county, table-by-table differing standards. Even Justice Souter raised equal protection concerns over the varying standards issue.

REID: I don't think they're going to decide this case on the standards issue. I think they have a lot of other issues that they might decide on. I would agree with Orrin -- I'm sorry. I was with Orrin Hatch earlier today -- with Arlen. I think that the question may be decided -- I think the court will be hard-pressed to come up with a 5-4 decision. I don't think that would be good for anyone, and I would hope a couple of the justices swing around and they decide to go on with the Florida Supreme Court. I think with what the Florida Supreme Court opined today, it will be possible to do that.

SPECTER: Laura, may I interject here? This is CROSSFIRE. May I interject?

INGRAHAM: Sure.

SPECTER: You're a Supreme Court ex-clerk -- justice ex-clerk. I don't think you can tell very much at all from the questions. And you say that Justice Kennedy and Justice O'Connor were tough on Boies. Olson barely got a word out before Kennedy was after him, and then O'Connor jumped in. They were both challenging him. It was...

INGRAHAM: Maybe I had the benefit of sitting next to a former Kennedy clerk and other two Kennedy clerks who are pretty good at reading the justices face. So maybe we have some inside scoop on that.

SPECTER: Now, you have the disadvantage of sitting next to Harry Reid and Arlen Specter.

INGRAHAM: Yes, exactly. Well, exactly. And you know, coming from a liberal Republican that means something. Coming up after CROSSFIRE, Senator Harry Reid...

SPECTER: Harry's not a Republican! Harry's not a Republican!

(LAUGHTER)

INGRAHAM: Harry Reid and I will be burning up cyberspace in an online chat, which you can join at cnn.com/crossfire, and then when we come back, some Democratic activists are anticipating an adverse ruling from the Supremes and are now vowing that they're never going to surrender. So are we in for four more years of war-room politics?

(COMMERCIAL BREAK)

INGRAHAM: And welcome back to CROSSFIRE as we sit on pins and needles waiting for the Supreme Court of the United States to rule in Bush v. Gore, the sequel. I'm Laura Ingraham, sitting in on the right, and Bill Press and our Senator Harry Reid, Democrat from Nevada, and Pennsylvania Senator Arlen Specter -- Bill.

PRESS: Laura, thank you. Senator Specter, there's a central issue here that I think is so basic, and I still haven't heard an answer -- at least an acceptable answer to me from anybody on the Bush team. I'm going to try you. There are 45,000 votes sitting there in Florida that have not been counted yet. Two questions. Why -- what's wrong with counting those votes and how can you declare a winner until those votes have been counted?

SPECTER: Well, I don't know that anybody is going to qualify as giving you an acceptable answer.

PRESS: That happens to be true, but give it a try.

(LAUGHTER)

SPECTER: But let me -- let me give it an effort. The votes have been counted, but they haven't been tabulated. They didn't score. In Palm Beach County, for example, there are 4,000 votes, which after they went through machine counts, were hand-counted, and the officials could not make a determination as to who the voter was for, because they -- there weren't sufficient indicators with the chads and the dimples and the works.

So the votes have been counted and recounted, and even many have been hand counted, but not tabulated, because nobody could tell.

PRESS: OK. I don't want to -- that's a very honest answer and I don't want to get into a semantic argument here. So let's use your phrase, tabulated. They've been counted but they have not been tabulated, which means that those votes really haven't registered.

Now, here's how "The Wall Street Journal" defined it today. I mean, I go to these conservative papers for my definitions. "The Wall Street" calls them undervotes and here's what they say. These are "ballots which have never been counted," they say, "for either Mr. Bush or Mr. Gore, because they registered no vote for president when tallied by the machine."

So I come back. Now that we agree on what they are, how can you say the election's over when we have not tallied or tabulated those votes?

SPECTER: Because, Bill, there is no way to tally or to tabulate them, because you can't even by looking at those votes manually with your eyes make a determination as to what the vote means.

PRESS: Sure, you can. They did it in one county already. They came up with 154 votes for Gore. They may come up with more votes for Bush.

SPECTER: I'm just telling you, they went through 4,000 of these in Palm Beach County and none were tabulated. None were scored.

INGRAHAM: I'm just going to hold onto my ballot and I have a hanging chad, I just want to announce right now. Senator Reid, there's been a lot of talk about the need to come together after this is finally settled, and we hope before the holidays. And everyone talks about the need to, you know, come together at the end of this process, but there are a lot of GOPers out there who are very concerned that Gore is only still in this, after the stay was issued this weekend, to bloody up George Bush, to attempt to delegitimize as much as possible a future Bush presidency.

And lo and behold today at the Supreme Court of the United States, Jesse Jackson had this to say.

(BEGIN VIDEO CLIP)

REV. JESSE JACKSON, RAINBOW/PUSH COALITION: Even if this court rules against counting our votes, it would simply create a civil rights explosion. People will not surrender to this tyranny.

(END VIDEO CLIP)

INGRAHAM: Now, Senator Reid, imagine Pat Robertson at the Supreme Court saying something like that.

REID: Do I have to?

INGRAHAM: Democrats would be outraged. Democrats would be on this show tonight speaking against him, saying, how could you be so disloyal to America. Do you associate the comments -- with the comment of Jesse Jackson?

REID: Let me say this about Al Gore. First of all, understand Al Gore won the popular vote by a quarter of a million votes. A quarter of a million votes.

INGRAHAM: But do you associate yourself with the...

REID: We have a situation in Florida where it is not easy to determine who the winner is. If the votes were counted, there's no question that Gore would win. Legally, whether he's going to be able to get there is a question that we don't know.

I see this: No matter what Reverend Jackson says or Pat Robertson, we're a nation that's ruled by laws, not by men, and I may not like what the Supreme Court does and someone else may not like what they do, but I think whatever they do, we have to live by that. And I think that when this is over, when the Supreme Court has ruled -- I hope the Supreme Court makes a decision. I hope they don't leave it to politicians, and that includes Arlen Specter and Harry Reid. I hope the court makes a decision on this.

SPECTER: If they left it to you and me, we'd work it out.

REID: Well, we probably could.

INGRAHAM: Yes, you guys get along pretty well.

SPECTER: But I just think that we don't need any of this flamboyant speech. I think we -- so...

INGRAHAM: That's well-taken.

PRESS: I think that's -- I think that's Jesse's right. I think that there will be...

INGRAHAM: A civil rights explosion? You agree with that?

REID: I -- there will be -- I think it's going to help. If they decide this without counting the votes in Florida, I do believe it's going to help voter registration, things like that.

Jesse's not talking about rioting on the streets. He's talking about bringing out people...

(CROSSTALK)

INGRAHAM: Oh, he used words like tyranny and no surrender. I mean, this wasn't a walk in the park. I mean, this was an attempt to incite.

REID: It was a walk in the part for Jesse.

INGRAHAM: Oh, come on. That's just...

PRESS: Senator Specter, you alluded to this earlier, and I just want to make sure I understand exactly what you meant. Do you agree with me that the only reason the court, not only the Supreme Court, not only decided to hear this case but stopped the count on Saturday was because the last thing they wanted, those five justices, was to have an announcement Sunday afternoon, the votes have been counted and Al Gore won Florida?

That's why they stopped the count, isn't it?

SPECTER: Well, behind all of the decibel level, that is a fact in my opinion, and I think that Justice Scalia was forthright, perhaps a little too forthright. But every now and then, it's a very healthy thing when we really tell the whole thing. And I think that is true.

Listen, Bill, if -- whoever wins, there are going to be recounts and there are going to be books written about how the other fellow really had more votes. That is inevitable here. The conspiracy theories will come out of this more so than even the Warren Commission.

PRESS: Well, real quickly, because we're almost out of time: How is it healthy for a justice of the Supreme Court to make such a political -- what you admit is a purely political decision?

SPECTER: No, I don't admit it's a political decision. I say that it's a statement of candor. I think the fact is there that would have been irreparable harm to Governor Bush had those votes been tallied...

PRESS: Because he would have lost? INGRAHAM: (UNINTELLIGIBLE) no standard.

SPECTER: Because -- because time was up. Time was out. No standards.

PRESS: Time is up. Time is up. Thank you for telling us that.

SPECTER: Bush is the winner.

PRESS: senator Specter, good to have you here. Senator Harry Reid...

SPECTER: Nice to be here.

INGRAHAM: Thanks, senator.

PRESS: ... good to have you here, too. And Laura Ingraham and I, we'll wrap it up with our closing comments coming up, and don't forget that Laura is going to be in the chat room with Senator Reid right after the show. We'll be right back with closing comments.

(COMMERCIAL BREAK)

PRESS: And one more time, don't miss your chance to debate online tonight, first with Laura Ingraham, former clerk for Justice Clarence Thomas, and then Gore supporter Senator Harry Reid. You can join them at cnn.com/crossfire right after the show.

Laura, I never want to hear another Republican complaint about judicial activism. I think Justice Scalia this weekend took off his black robes and put on his RNC blazer.

INGRAHAM: Well, you know, you have to distinguish, Bill, between judicial activism, which is making up law, with judicial restraint in interpretation, which means you actually step in and say, whoa, you can't violate the Constitution and a federal statute at the same time and expect to withstand Supreme Court scrutiny. That's not -- that's doing their job. That's not judicial activism.

PRESS: That's the point...

INGRAHAM: At least not where I went to law school.

PRESS: This is the lack of restraint, the total lack of restraint on Scalia's part. They're just partisan judges, is what they proved.

INGRAHAM: My question is, is this ever going to end?

(LAUGHTER)

I mean, Judge -- not just this, but the rancor. I mean, Judge Bork's failed nomination was 13 years ago.

PRESS: Oh, this is revenge for Bork. I don't know. Good to have you here, Laura. INGRAHAM: Nice to be here.

PRESS: From the left, I'm Bill Press. Good night for CROSSFIRE.

INGRAHAM: And sitting in on the right, I'm Laura Ingraham. Join us again tomorrow for another edition of CROSSFIRE.

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