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U.S. Supreme Court Considering Bush Challenge of Manual RecountsAired December 11, 2000 - 5:00 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)
THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: They're aware of what the issues are, and they know how important it is to decide something soon.
DAVID BOIES, GORE CAMPAIGN ATTORNEY: I don't want to say that this would be the last argument, but I think this was an extremely important argument.
(END VIDEO CLIP)
BERNARD SHAW, CNN ANCHOR: The United States Supreme Court weighs Bush versus Gore: the legal appeal that could finally decide this race for the White House.
(BEGIN VIDEO CLIP)
GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL NOMINEE: I'd like to talk to some of our legal team, they are cautiously optimistic.
(END VIDEO CLIP)
JUDY WOODRUFF, CNN ANCHOR: We'll gauge the mood within the Bush and Gore camps and get an update on their game plans.
SHAW: From the sideshows to the main event, presidential politics returns to the doorstep of the nation's highest court.
ANNOUNCER: From Washington, this is INSIDE POLITICS, with Bernard Shaw and Judy Woodruff.
WOODRUFF: Thank you for joining us.
Some of the novelty may have worn off, as the United States Supreme Court deliberates arguments in the presidential standoff for a second time. But at this stage of the dispute, the high court's role in resolving the Florida vote count seems more crucial than ever.
CNN's Charles Bierbauer reports on the give and take inside the courtroom this morning.
(BEGIN VIDEOTAPE) CHARLES BIERBAUER, CNN CORRESPONDENT (voice-over): The justices looked for a reason the federal court should be involved and seemed to find it in the Constitution's guarantee of equal protection to all citizens.
JUSTICE ANTHONY N. KENNEDY, U.S. SUPREME COURT: You would say that from the standpoint of the equal protection clause, each -- could each county give their own interpretation to what intent means so long as they are in good faith and with some reasonable basis, finding intent?
BOIES: I think...
KENNEDY: Could that vary from county to county?
BOIES: I think it can vary from individual to individual.
BIERBAUER: The equal protection issue, which Bush attorneys wanted before the court, troubled the court's conservatives and liberals alike as they considered Florida's vote-counting procedure.
JUSTICE DAVID H. SOUTER, U.S. SUPREME COURT: Why shouldn't there be one objective rule for all counties, and if there isn't, why isn't it an equal protection violation?
BIERBAUER: Justice Ginsburg suggested that might not be practical.
JUSTICE RUTH BADER GINSBURG, U.S. SUPREME COURT: When there are different ballots from county to county, too, Mr. Olson, that's part of the argument that I don't understand.
OLSON: You are certainly going to have to look at a ballot that you mark one way different than these punch-card ballots. Our point is with respect to the punch-card ballots is that there are different standards for evaluating those ballots from county to county.
BIERBAUER: Justice Breyer repeatedly asked what would be a fair way to count.
JUSTICE STEPHEN G. BREYER, U.S. SUPREME COURT: I would hold that you have to punch the chad through on a ballot. The only problem that we have here is created by people who did not follow instructions.
BIERBAUER: Attorneys for Vice President Gore argued that Florida has historically stretched the rules to accommodate the will of the voter. This question of how the ballots should be counted and whether that's a real issue for the federal constitutional matter of equal protection, it was central to the arguments today. If there was a seconds theme, it was the role of the Florida court, whether there is room for judicial review of laws set down by the legislatures in the states. That was an argument which the Gore people wanted most on the table. At the close of the day, there was one question posed by Justice Souter to the attorney for Vice President Gore saying, what should we inform the courts in Florida, to which the attorney for Vice President Gore said, it's a tough question. And Justice Scalia chimed in, you should say count all the votes. Justice Scalia helping perhaps answer the question, though not necessarily the way he will position himself when it's time for this court to rule -- Judy.
WOODRUFF: Charles, based on what you know about the court, the justices, what do we assume they have done through the balance of this day, in terms of meeting, making a decision and also in terms of when we expect to see a ruling?
BIERBAUER: Well, I can't answer the last one, I don't know when and we probably won't get a whole lot of notification. The standard procedure, and this is anything but a standard kind of situation, is for the justices to confer, to make an assessment of where they stand on this case, what the division might be, and then assign someone in the majority to write an opinion, circulate a draft and get people to sign onto it. One would expect that they did precisely that to gain a sense of are they divided, is there a point of unanimity, and that they will move things as expeditiously as possible.
Repeatedly, there were questions and concerns voiced about the impending December 12 date, which we know is not a hard and fast date, but a realization that things cannot wait very long, particularly if they are going to tell the Florida courts how to recount and how they might continue the recount, which is a possibility -- Judy.
WOODRUFF: Indeed, and today being December 11.
Charles Bierbauer, thanks -- Bernie.
SHAW: And we're joined now by our legal analysts Greta Van Susteren and Roger Cossack, who were inside the high court during this day's arguments.
Greta, starting first with you, and Roger, the same question, basically, what two or three questions went to the heart of the justices' concerns?
GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Bernie, I think the first question is, why are we here? Is this a matter for the United States Supreme Court to get involved in? The United States Supreme Court doesn't get involved in certain cases, doesn't get involved in dog- bite cases, for instance, it must be a constitutional question. Ted Olson said it was, David Boies said it was not.
The second thing that surprised me was the suggestion by one of the justices that what if hypothetically -- and he underlined the word "hypothetically" in his speech -- is that what if we send this back down to the trial court in Tallahassee and ask that judge to send essentially a note to the secretary of state and say, please, give me a standard about how we should look at these ballots when we count them. He said, would that be a problem? Doesn't that make it standard then? And it seemed like Ted Olson conceded that it did, that did not mean that Ted Olson agreed that the Florida Supreme Court should be upheld, but he certainly agreed with that.
ROGER COSSACK, CNN LEGAL ANALYST: Well, that was an interesting point that Greta just picked up on, because it was -- I always sensed it was a trap, because one of their arguments was that the court should not be involved because they are rewriting the law, but if they started talking about setting standards and doing things like that, then they are involved, and Olson in some ways tried to sidestep that question.
But to me, I thought the most impressive part of it was their zeroing in on the issue of equal protection, this notion of 67 counties with 67 votes -- 67 different voting standards. The question I suppose is, as I understood it was not that there had to be the same standard for each of the 67 counties, but that whatever standard was adopted would have to be a reasonable standard.
I think this is what troubled the justices, whether or not that would be the OK, if it was 67 different ones and they were reasonable, or you had to have one that was for the whole state.
VAN SUSTEREN: But you know, Roger, you know what's so interesting about that, that would seem to me to disqualify any hand count any place across the country as being different under the equal protection clause, and that's the one that I never quite understood by the justices. If you are going to say that it has to be standard in Florida under the equal protection clause, it has to be identical in essence, what are we going to do about when you compare it to the rest of the United States, because there are lots of different standards in different places.
COSSACK: Well, but you see, that's the problem, we're not dealing with the rest of the United States. As for this case, we are only dealing with here. Now, it may be someday that there should be some national standard, but as you know, Greta, that has to do with each state having their ability to set their own election laws and votes and how they recount, so...
VAN SUSTEREN: But -- and the other sort of interesting aspect on that standard was the question by Justice Stevens posed to Ted Olson, when he asked Ted Olson whether or not the secretary of state had ever issued any statement as to what should be the standard, and he said no, and then Justice Stevens said, well, wasn't it in essence saying that she accepted as a standard the voter's intent as written in the law, and of course, that was a question that...
COSSACK: And that is the law in Florida. They -- when they recount the votes...
VAN SUSTEREN: Which may be a standard.
COSSACK: That -- which is exactly the standard. The standard is they look to the intent of the voter, whatever that means.
SHAW: Well, to both of you, if differing standards comprise the basic rub for all nine justices in the 90 minutes of oral presentations, do you sense that these justices in a very unprecedented way might be moving toward a remedy?
VAN SUSTEREN: Well, either that or, Bernie, they're sure used to sending the case back for clarification, I mean, they sent the last one back to the Florida Supreme Court. Maybe they'll send this one back, you know, who knows what they'll do.
COSSACK: You know, I agree. I don't know what they do. I -- it's my sense, and you know, I -- boy, it seems like I'm 0-100 on this one. But it's my sense that this is not going back for them to come up with a standard. I think that this case will be decided here and now, however it may be.
SHAW: Given the paramount nature of the case, does your instinct tell you that quite likely the United States Supreme Court could issue a ruling before midnight tonight?
VAN SUSTEREN: I don't know, I'd like to see them probably wait a little bit longer, because Roger is staying outside until they do issue it. I sort of like the concept of watching him outside freezing, so I'm rooting for Friday.
COSSACK: You know, Bernie, what's wrong with this picture? I'm from southern California and frozen, and she's from Wisconsin and inside. There is something wrong here. I couldn't agree with her more, please hurry up Supreme Court.
SHAW: Roger Cossack, Greta Van Susteren, thanks very much -- Judy.
WOODRUFF: Roger, come on in where it's warm.
Well, now to Al Gore's strategy as his attorney argued his case to resume the Florida recount.
As CNN's Jonathan Karl reports, the vice president offered no public comment, and he tried to keep a lid on Democratic criticism of the high court.
JONATHAN KARL, CNN CORRESPONDENT (voice-over): Behind closed doors at the vice presidential residence, Al Gore, with his wife, daughter Kristen and running mate Joe Lieberman, listened to his lawyers make his case to the Supreme Court. As he awaits a decision, everything is on hold.
DAVID BOIES, GORE CAMPAIGN ATTORNEY: If the Supreme Court agrees that the votes need to be counted, we'll go back to Tallahassee and count those votes.
QUESTION: And if they (OFF-MIKE) not to be counted, is that the end? BOIES: If the Supreme Court rules those votes are not going to be counted, then the votes are not going to be counted.
KARL: Boies wouldn't predict the outcome, but reflected on the historic nature of the case he just argued.
BOIES: This is the first time that the United States Supreme Court has ever taken a case that would decide the future president of the United States.
KARL: The Gore team was infuriated that the Supreme Court stopped the counting over the weekend, but Gore's aides say the vice president directed his staff not to criticize the justices. The official line is that Gore will respect the court's ruling whether he wins or loses.
As if to emphasize that, the top Democrat on the Senate Judiciary Committee came to the microphones with the top Republican after oral arguments ended.
SEN. PATRICK LEAHY (D), VERMONT: Whether I agree or disagree with the opinion of the Supreme Court, it will be the ultimate law of the land and I will work to uphold it.
KARL: But other Democrats warned that the Supreme Court would go down in infamy if it rules against Gore.
SEN. TOM HARKIN (D), IOWA: If this Supreme Court decides to stop those counts right now and if the truth comes out next year that in fact Al Gore did win Florida -- and he did win the popular vote in the country -- and he is not president of the United States, what is that going to do to the esteem and the respect of the Supreme Court of the United States?
KARL: The vice president has directed his Democratic recount monitors and much of his legal team to stay in Florida to be prepared in the event he wins before the Supreme Court, but there is also clear indication that the Gore team has made preparations for a loss.
Joe Lieberman recently revealed on a radio interview with a Connecticut radio station that he has written not one but two concession speeches: the first one on election night and the second one just this past Friday as he awaited decision from the Florida Supreme Court.
As for the vice president himself, he has just left his residence to go down to the White House. The official line there is he's going down to do some work -- Judy.
WOODRUFF: Jonathan, this acknowledgment that there may be a concession, is this something that's come on them very suddenly or has this been building over time, do you think?
KARL: Well, it's been building, and every time they've gotten to the point where they thought they were on the verge of concession, at least the Gore team, Gore's top advisers, they've had some form of a victory that's given them some added life. So they've gotten a little bit used to this up and down. But clearly, they've been thinking a long time -- I mean, they've been thinking going back to election night about what happens if they lose, how do they concede in a way that preserves the vice president's viability.
It's not clear necessarily that the vice president himself has put much thought into this, but clearly those around him have.
WOODRUFF: All right, Jonathan Karl, thanks very much -- Bernie.
SHAW: In Texas, George W. Bush expressed guarded optimism that the Supreme Court would rule in favor of his appeal. But here in Washington, the other Governor Bush tried not to get dragged into a discussion of the case.
CNN's Candy Crowley is covering the Bush camp.
CANDY CROWLEY, CNN CORRESPONDENT (voice-over): In this world of weirdness, it seems just about normal that the first Bush brother to arrive at the White House in the post-election period was Jeb.
GOV. JEB BUSH (R), FLORIDA: We're here to talk about something that is going to be long-lasting way past counting votes. This is the restoration of a treasure for our country.
CROWLEY: As the governor of Florida watched over the signing of an Everglades restoration bill in Washington, the governor of Texas was in Austin watching over events in Florida, which now depend on a ruling from the U.S. Supreme Court back in Washington.
GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I talked to some of our legal team. They're cautiously optimistic.
QUESTION: Have you talked to your brother, Governor?
QUESTION: When do you expect a ruling?
G. BUSH: I don't know. I don't think anybody knows yet.
QUESTION: Are you nervous?
G. BUSH: I'm feeling pretty calm about life.
CROWLEY: As audiotape of the Supreme Court proceedings was being released, Bush headed for the gym after getting a first-hand fill from his legal team and his campaign chairman, who called from the steps of the Supreme Court and later popped up at transition headquarters in Virginia.
DON EVANS, BUSH CAMPAIGN CHAIRMAN: We felt very good about our argument, very good about our presentation this morning. And I think that it was an opportunity for all of us to understand once again that the rule of law is the cornerstone of this great democracy. And we'll await the outcome.
CROWLEY: Also on the post-campaign travel tour, Bush strategist Karl Rove, who found within the legal arguments the answer to the political question of whether a Supreme Court decision for Bush would be seen as a fair-and-square win.
KARL ROVE, BUSH CAMPAIGN CHIEF STRATEGIST: I would worry about the legitimacy of a presidency that counted upon contrived votes and rules that got changed after the election. That would be far more damaging, far more distressing to the country than confirming someone who won on election day, won in the first recount, won in the second recount, won in the third recount. And now is facing a fourth, fifth and sixth recount depending on the county that you're in and under evolving standards.
CROWLEY: At Bush campaign headquarters in Austin, the staff gathered around the television set to listen to every word of the Supreme Court replay. Said one staffer, we're just watching and waiting -- Judy.
SHAW: Candy, this question to jog your memory back and probably send you to the back end of your reporter's notebook: I'm wondering, is there any ill feeling between the Texas governor and the governor he refers to as "my little brother," unquote, for not decisively delivering Florida?
CROWLEY: I can't imagine there is, Bernie. We -- you know, they have known what the dynamic was all along here. They knew how important Florida was. I don't think they thought we would come quite to this precipice in importance. But they seem very close. It seems like a close family. There's a lot of kidding around about, well, you know, maybe his turkey will be cold on Thanksgiving Day.
But in the end, they both are realists and they're both family. And so they're dealing with that appropriately. But as far as any great schism in the Bush family, I don't think you're going to see it.
SHAW: Thank you, Candy Crowley -- Judy.
WOODRUFF: All right. And now, let's bring in CNN senior analyst Jeff Greenfield.
Jeff, this may be, I guess, the closest the United States Supreme Court has ever gotten to at least playing a role in figuring out who the president is going to be. How troubling should or should that not be for all of us?
JEFF GREENFIELD, CNN SENIOR ANALYST: I think it should be a matter of concern. The last time the Supreme Court, not as an institution, but as individuals were involved was in the 1876 election, where Congress appointed a special commission. Five Supreme Court justices were put on that commission. It didn't work out. They were seen as partisan, by one vote. All the electoral votes went to Rutherford B. Hayes, and that helped convince the Supreme Court that they should very rarely get involved in political matters. And almost every time they have, it's been controversial.
The last time was probably when Earl Warren served as head of the Warren commission, and that certainly left a cloud of suspicion around the Kennedy assassination that didn't do Earl Warren or the court any good.
But here's a case where this bizarre election seems to have dragged in all kinds of forces that we never thought would be involved. I mean, we'll be watching the electors next week when they meet on December 18th to see how they vote. We still are wondering whether Congress on January 6th is going to get into a brawl about whether the electoral votes should be counted one way or the other. So I guess we shouldn't be surprised that this -- quote -- "apolitical institution" now finds itself for the first time officially smack in the middle of the decision.
WOODRUFF: But Jeff, in the last analysis, how political is it? Of course, we don't know what the ruling is going to be, but how political is it? Of course, they are looking at constitutional questions, federal questions, due process, equal protection. One could argue it isn't politics.
GREENFIELD: You could except, to use one of those cliches, at the end of the day what they will be doing is deciding whether or not in effect George W. Bush gets those electoral votes or whether Al Gore still has a chance. Felix Frankfurter in one famous dissent warned the court about entering into what he called the political thicket. It's something that the Supreme Court doesn't like to do generally, because the mystique of an institution that is somehow beyond politics has helped it win institutional support.
Now, you're absolutely right. Quite apart from the standards they use now, the court often finds itself in what are political arguments: about the rights of criminal suspects, abortion, privacy, school segregation. But in a larger sense, they've never been in the midst of a political campaign. What's the name of this case? I believe it is Bush et al v. Gore et al.
You've never seen a court case, a Supreme Court case like this. And that's part of the problem they're going to face no matter what they decide.
WOODRUFF: All right, Jeff Greenfield in New York, thanks very much -- Bernie.
SHAW: Still ahead on INSIDE POLITICS, today's Supreme Court arguments from the attorneys' perspectives. Judy will interview David Boies and Ted Olson.
WOODRUFF: The focus of the presidential contest today is centered on the United States Supreme Court and the arguments of two attorneys. They join us now: Gore campaign attorney David Boies, and in a moment, we will hear from Bush campaign attorney Ted Olson.
But we're going to begin with you David Boies.
I know you've argued that -- is it just one other case before the Supreme Court, is that correct?
DAVID BOIES, GORE CAMPAIGN ATTORNEY: Yes, yes.
WOODRUFF: All right. On a scale of difficulty, how tough was today's?
BOIES: Well, the bench was very well-prepared. They asked a lot of very good questions. It was, from a lawyer's standpoint, a good argument. You had very fine lawyers on the other side. You had a very well-prepared bench. You had a lot of questions and you had very important issues at stake.
WOODRUFF: How much headway do you think you made, David Boies, on this whole equal protection question, the question about whether there are different standards in different counties from one table to another in discerning the intent of the voter? It seemed to be that took up a fair amount of the questions from the justices.
BOIES: I don't think anybody other than the justices individually can really answer the question as to how much headway we made. I think there were a number of questions about that subject. I hope that we were able to point out that there was a uniform standard. It was a general standard, but it's been a general standard that the legislature in Florida picked and has been enforced by the courts for 100 years.
This is not a situation in which there is anything knew. This is a situation in which going back to 1917 the Florida Supreme Court has repeatedly said the standard is the intent of the voter, and that is left up to individual decision-making with respect to individual ballots. And it almost has to be, because if you look at the ballots, what you see is a series of marks, and what you've got to do is you've got to take into account the entire ballot.
For example, if something is indented all the way through, that is some indication that the voter was not making an indentation that dislodged the chad. If you see something that's indented in some races, on one race, for example, but not in other races, that gives you different information.
You've got to look at the ballot and you've got to be guided by what the intent of the voter is. That's the legislative standard.
WOODRUFF: And this whole question of standards clearly suffused the entire argument there for an hour and a half.
When you were asked what standard would you recommend if the recount were to start again, you at first said, I don't know, but then you said the Texas standard. You're comfortable with that?
BOIES: Well, what I said was that I thought the right standard was the standard that is in effect now, which is a general standard, a uniform but general standard, in which you look for the intent of the voters and you look at the entire ballot. Now if what you wanted to do was to be specific, to give more specific guidelines on a uniform basis, then I think the Texas standard is a fine standard. I think the Massachusetts standard is a fine standard. I think you can find a number of standards that would express the intent of the voter in more specific ways.
I think one of the things that's interesting, though, is that the petitioner, Governor Bush's lawyers, argue that the legislative mandate has to be strictly enforced, and of course, the legislature is the one that has left it at a general standard of the intent of the voters.
WOODRUFF: I notice that with Justice O'Connor in several of her comments clearly troubled by her perception that the Florida Supreme Court had not responded adequately to the U.S. Supreme Court's concerns. Is that going to hurt you?
BOIES: It's hard to tell. I think she did have a number of questions about that. I would hope that the answers that we gave her, which is essentially that the issue before the court now is not an issue of timing, which was the issue that was before the court before, but is an issue with respect to the contest statute as to what ballots ought to be counted and what the standard ought to be -- whether it's the intent of the voter standard or some other standard -- would convince her that the fact that the Supreme Court of Florida has not yet responded to the issue on remand really ought not to affect this particular decision.
I would hope that she would not let that affect her judgment in this particular case, but obviously, I can't know what is in the mind of any justice.
WOODRUFF: But you sound a little surprised yourself that that wasn't done.
BOIES: No, I think that...
WOODRUFF: This morning.
BOIES: I think that one of the things you have to keep in mind is how many different matters the Florida Supreme Court has had in front of it over the last few day. The issue that was there on remand, because it related to a timing issue that has now passed, may very well not be the highest priority on the Florida Supreme Court's agenda.
WOODRUFF: David Boies, thank you very much for joining us.
BOIES: Thank you.
WOODRUFF: And I'm sure we'll be talking to you again.
And now I want to go to Ted Olson, who argued on behalf of George W. Bush. Same question I posed to David Boies. You've argued -- what? -- 14 or 15 times now before the Supreme Court. The toughest one or not? THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: Well, I think every one seems like it's the toughest one. I think that from the standpoint of the amount at stake and what everybody is concerned about, this was certainly a very, very important case, and I'm honored to have been able to participate in it.
WOODRUFF: Governor Bush quoted his legal team in saying they were cautiously optimistic. Is that what you told him?
OLSON: Well, we -- I was cautiously optimistic after we finished with the Supreme Court. It doesn't mean that we'll be vindicated by what happens from the Supreme Court, but I will say this: I agree with David Boies, who is an outstanding lawyer, I must say, that the court was exceedingly well-prepared. They had read the briefs. They asked very good, tough, penetrating questions of both of us. It's an intellectual thrill to be there.
This court is very well-prepared to render a decision. We don't know when that will be, but I think anybody who listened to the argument will be proud of the institution of the Supreme Court. They take their responsibility, the justices take their responsibilities very seriously, and they will look at this very carefully.
WOODRUFF: Ted Olson, some people said they were surprised, some of our legal experts I've noticed today, said they were surprised when you said -- when you told Justice Breyer in answer to his question you thought it would be feasible if the Supreme Court remanded this back to the judge in Leon County -- I assume that would be Judge Sauls -- for him to seek a standard for considering the ballots from the Florida secretary of state.
OLSON: I don't -- I don't think I said that. I think that under -- I said that under normal circumstances, not in this case -- the time limits are such that we really don't -- can't afford that luxury. In a normal case, if the secretary of state, who is the chief election official of the state of Florida, is asked an opinion with respect to what the standard ought to be in evaluating those ballots, she would have the authority to do that.
The problem, to make it clear -- and I think everybody ought to be able to understand this -- is that ballots ought to be evaluated according to a consistent standard that's determined before the election, so that each of the ballots throughout the state of Florida will be evaluated the same way.
The problem that we've had in Florida is that the standard has changed and the standard differs from county to county from day to day, and that's totally intolerable.
WOODRUFF: Well, on another point -- and I can't remember which justice this was -- you said that the Palm Beach standard. You were asked what standard would be acceptable to you if they were to start up the recounting of ballots again, and you said the Palm Beach standard would be acceptable.
OLSON: Well, the Palm Beach -- that's one way to put it, but the Palm Beach standard has changed three or four or maybe five times since this election.
WOODRUFF: Well then what did you mean by that?
OLSON: What I meant by that is that there was a written standard that Palm Beach had in effect before the election. It said you must unambiguously express your intention as to how you're going to vote by punching the point of the needle through the card and creating a hole. And if you did that, then everybody would understand what you intended to do.
Now the problem was when they started to recount these ballots they weren't getting enough votes for Vice President Gore, so they decided to change the standard and they said, well an indentation or a mark on the ballot, not punched through but a mark on the ballot, would be something that could be evaluated as a vote.
Now Mr. Boies talks about the intent of the voter. You can imagine these people looking at these ballot cards and seeing marks on the ballot and saying, how am I going to determine what the Internet of the voter was? That standard was changed after the election. We've said all along, the standards have to be consistent and they have to be the standards in place before the election.
WOODRUFF: What do you say to the, Ted Olson, to the majority of the people at least in some of the polls that we've seen coming out today and yesterday, people saying they're not entirely comfortable with the idea of the highest court in the land playing such a big role in deciding who the next president is?
OLSON: Well, the fact is that the Florida Supreme Court stepped into this and decided on a very close vote to change twice now the standards in Florida. The first time, the United States Supreme Court, just a week ago, one weeks ago today, vacated the Florida Supreme Court's decision, saying you didn't have a basis for doing that. There are federal legal questions, please explain to us what you meant.
Now the Florida Supreme Court unaccountably has not to this day explained what it was talking about the first time.
The on Friday they came up with a completely new system, something no one had ever thought about before, so it's the second version of an amendment to the Florida election law that the Florida Supreme Court has come up with.
And so this -- on Saturday, one day later, the United States Supreme Court decided to look at the issue again. The United States Supreme Court has no choice but when federal constitutional questions are involved and when an election of a president is involved, that's a very important thing nationally. They have a responsibility to the public. Who else is going to decide these things?
WOODRUFF: All right, Ted Olson we appreciate your being with us.
OLSON: Thank you.
WOODRUFF: Thanks very much to you and to David Boies.
And INSIDE POLITICS will be right back.
SHAW: And there is much, much more ahead on this expanded edition of INSIDE POLITICS.
Still to come, the court of public opinion meets the nation's highest court. Our Bill Schneider on what Americans are saying.
Plus, Florida lawmakers move toward naming a slate of electors. But will the Supreme Court give them reason to pause?
(BEGIN VIDEO CLIP)
CHRIS BLACK, CNN CONGRESSIONAL CORRESPONDENT (voice-over): Pragmatists from both parties are openly worried that the presidential race will come to Congress, ripping open wounds barely heeled since impeachment.
(END VIDEO CLIP)
SHAW: Chris Black looking at the political concerns on the Hill.
WOODRUFF: Lawyers for George W. Bush and Al Gore presented arguments to the U.S. Supreme Court today in a session that could determine the winner of the disputed presidential election. The main focus of the 90-minute hearing was whether Florida officials should resume the recount of thousands of disputed ballots. At one point, Justice John Paul Stevens raised the issue of voting standards with Bush lawyer Ted Olson.
(BEGIN VIDEO CLIP)
JUSTICE JOHN PAUL STEVENS: Can we possibly infer from the failure of the secretary of state to promulgate a statewide standard that she might have inferred that the intent of the voter is an adequate standard?
OLSON: No, I don't think it's a fair inference either way. Remember in response to the question from -- I think it was Justice Scalia the last time we were here -- this is the last time we've had a manual recount for anything other than arithmetic tabulation error. This is something that's unprecedented in the state of Florida.
(END VIDEO CLIP)
WOODRUFF: At another point, Justice Anthony Kennedy quizzed Gore lawyer David Boies on the variation of ballot standards and the intent of voters.
(BEGIN VIDEO CLIP)
JUSTICE ANTHONY KENNEDY: Do you think that in the contest phase there must be a uniform standard for counting the ballots?
BOIES: I do, Your Honor. I think there must be a uniform standard. I think there is a uniform standard. The question is whether that standard is 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 the...
KENNEDY: That's very general. It runs throughout the law. Even a dog knows the difference of being stumbled over and being kicked.
Now, in this case, in this case, what we're concerned with is -- is an intent that focuses on this little piece of paper called a ballot.
(END VIDEO CLIP)
WOODRUFF: In another development today, House and Senate committees in the Florida state legislature approved measures to name presidential electors loyal to George W. Bush. The resolutions now go to the full House and Senate of the Republican-dominated legislature.
SHAW: Joining us now, senior political analyst Bill Schneider.
Question one for you: Will the public accept as legitimate a decision by the highest court in this land?
WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Oh, Bernie, actually they will, even though people are not under any illusions about the Supreme Court. Now, according to "The Wall Street Journal"/NBC poll this weekend, most Americans believe the Supreme Court's decision to stop that recount on Saturday was based mostly on politics, not on the law. In our own CNN/"USA Today"/Gallup poll, three-quarters of Americans say they expect the court to rule in favor of George W. Bush. But that does not make the court's decision illegitimate. To the contrary, nearly three-quarters say they would accept the court's ruling. In fact, almost two-thirds of Gore's supporters say they'll accept the court's ruling as legitimate.
SCHNEIDER: Because they want closure, and the Supreme Court is seen as the only institution that can provide it.
When we asked people, "Who do you trust to make the final decision about the selection of the next president?" the U.S. Supreme Court is far and away the most trusted, 61 percent. You can see it here. Only 17 percent say they trust Congress with that decision, and fewer than 10 percent would trust either the Florida legislature or the Florida Supreme Court.
Even among Gore supporters, the U.S. Supreme Court is favored over the Florida Supreme Court by almost four to one. The Supreme Court isn't perfect and it's certainly not seen as apolitical, but it's the best way we've got to settle this matter.
SHAW: Well, has this post-election fight worked to the advantage of either candidate?
SCHNEIDER: Yes, it has, and interestingly not Gore. The public agrees with Gore that every vote should be counted and they know that Gore won the national popular vote. More than 60 percent know that according to the CBS News poll. But in that same poll, more people believe Bush legitimately won the election than Gore.
Now, what is Gore's problem? Look at the difference between the way the public thinks the Bush campaign and the Gore campaign are handling this situation: 56 percent say Bush is handling it well. Only 37 percent say that about Gore.
Fairly or unfairly, most Americans do not see Gore as a fighter. They see him as a sore loser. That means now, in the CBS News poll, Bush is now 10 points ahead of Gore as the man people would rather see as president.
Bush leads Gore by eight points in "The Washington Post" poll and five points in our own poll. Two weeks ago, all three of those polls showed this race too close to call, just as it was on election day. Public sentiment has not been moving in Mr. Gore's direction.
SHAW: Well, that makes me want to ask you at least eight other questions, but I won't be greedy.
SHAW: Bill Schneider -- Judy?
WOODRUFF: All right. Well, coming up next on INSIDE POLITICS, the Florida legislature card. Mike Boettcher joins us live on the latest on the legislature's move to name its own electors pledged to George W. Bush.
SHAW: The nation is waiting to see how the United States Supreme Court rules on the contested presidential election. For that matter, the world is waiting. But the Florida legislature still may have a voice in this process, which also could possibly wind up in the United States Congress.
Joining us to talk about that, national correspondent Mike Boettcher in Tallahassee and congressional correspondent Chris Black on Capitol Hill.
Mike, let begin with you.
MIKE BOETTCHER, CNN CORRESPONDENT: Well, Bernie, while all of that argument was going on before the Supreme Court, the House of Representatives and the Senate committees here were plodding right along. And in the end, after five hours of testimony and debate, they voted to endorse that resolution here that would name the legislature's 25 electors for George W. Bush.
Now, the schedule moves to the House tomorrow where the full house will vote on this matter and then the full Senate on Wednesday. There will be a debate both days. But if the timetable goes as scheduled, it should be all over here by Wednesday.
But during these committee hearings, there was debate from both sides. They heard from experts who argued about, and sharply disagreed, about the legislature's authority to intervene.
(BEGIN VIDEO CLIP)
PROFESSOR MICHAEL PAULSON, YALE UNIVERSITY: This day, 34 days after the election occurred, the result of Florida's presidential election for electors has failed to result in a single, definite, clear, uncontested choice. With all due respect, it's a mess.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
PROFESSOR BRUCE ACKERMAN, YALE UNIVERSITY: Legislative intervention will not do anything to eliminate the risk that Congress will refuse to count Florida's votes. To the contrary, it will, for the first time, create this risk and make the problem worse.
(END VIDEO CLIP)
BOETTCHER: Now, will a Supreme Court decision delay the movement of the House and Senate? Well, House Speaker Tom Feeney appeared late this afternoon and said, they'll be keeping an eye on it. If during their debate a decision does come, they will adjourn for a while to see what that decision says. But if it does not produce finality, according to Speaker Feeney, they will go ahead and proceed: finality being all court cases have been decided, no other appeals can be heard, and in the words of the Republicans, there's no uncertainty about the slate of electors for Florida -- Bernie.
SHAW: Well, that anticipates my only question to you, Mike Boettcher. After the full House and Senate of the Florida legislature vote this week, what happens next?
BOETTCHER: Well, there are some interesting scenarios up here about what happens. I mean, you know, of course, December 18th, the 25 electors -- and there may be a couple of slates that might show up depending on how the Supreme Court rules -- are supposed to be here at the Senate. Also what happens with the slate of electors that's already been certified? Does secretary of state here and the election canvassing commission have to come back and recertify a whole new slate?
These are questions boiling up here. At least from the legislature's viewpoint, they'll all be finished with this when they vote for this resolution, and they want to guarantee, Bernie, at least one slate for George W. Bush.
SHAW: Mike Boettcher, it seems like there are as many questions now as there were two weeks ago. Thank you.
Now to Washington and Capitol Hill, and congressional correspondent Chris Black -- Chris.
CHRIS BLACK, CNN CORRESPONDENT: Democrats and Republicans say the ongoing dispute over the presidential election could make partisanship on Capitol Hill even worse than it is now, particularly if the race comes to Congress to be decided. So some lawmakers are trying to calm the partisan passions.
BLACK (voice-over): Orrin Hatch, a conservative Republican, and Patrick Leahy, a liberal Democrat, made a bipartisan show of walking together to the Supreme Court.
SEN. PATRICK LEAHY (D), VERMONT: ... Judiciary Committee that ultimately, whatever the Supreme Court says, is the final word.
SEN. ORRIN HATCH (R), UTAH: Well, and we respect...
LEAHY: On the law, and we respect that.
LEAHY: We may not agree with it, but we respect it.
HATCH: That's right.
BLACK: But despite such friendly agreement, pragmatists from both parties are openly worried the presidential race will come to Congress, ripping open wounds barely healed since impeachment.
Republicans welcome the Supreme Court intervention, seeing the court as an ally.
REP. HENRY HYDE (R), ILLINOIS: I think this institution has the respect of the country and of the Congress, and I'm glad it ended here, because it gives it a legitimate finality that's essential.
BLACK: Democrats say they will abide by the court ruling no matter what, but some say it will be difficult for Democrats to swallow if there is a perception of a partisan decision.
DEL. ELEANOR HOLMES NORTON (D), DISTRICT OF COLUMBIA: Look, I think that if a divided Supreme Court comes to the conclusion that it is unlawful or unconstitutional to count the votes to decide who will be president of the United States, that is either an oxymoron or it's a tragedy.
BLACK: Republican lawmakers tell CNN they intend to challenge any slate of Gore electors from Florida if the Republican-controlled Florida legislature certifies a competing slate of Bush electors.
SEN. TIM HUTCHINSON (R), ARKANSAS: Should it come to Congress, Republicans I think feel very strongly that George W. Bush is the certified legal winner of the Florida electors and should be the next president of the United States, and I expect that they're going to stick together on that position.
BLACK: But Republicans privately worry about the perception of George W. Bush winning because of the votes of politicians rather than people.
UNIDENTIFIED MALE: Federal law says that when there is a division between the houses in Congress, the set of electors that is certified by the governor of the state is the one that counts, and with the governor of Florida being George W. Bush's brother, that's going to set off a firestorm of controversy.
BLACK: If Republicans see Congress as a Bush firewall, then Democrats say, even with a 50/50 split in the Senate, Congress is still a stacked deck against Al Gore -- Judy.
WOODRUFF: Chris Black at the Capitol, thanks.
And there's still more INSIDE POLITICS ahead. In the next half hour, we will talk with Ron Brownstein about the Florida contest and today's arguments. Plus, more on the current legal issues and the political history of the nation's highest court.
INSIDE POLITICS will be right back.
ANNOUNCER: From Washington, this is INSIDE POLITICS, with Bernard Shaw and Judy Woodruff.
SHAW: And welcome back to this extended edition of INSIDE POLITICS.
After nearly five weeks of uncertainty and animosity, Americans are looking once again to the United States Supreme Court to help resolve this presidential stand-off. There is no indication when the justices will rule on George W. Bush's appeal of a new hand recount of disputed ballots in Florida, which was ordered by the state supreme court last week and then of course halted by the high court in oral arguments this day
Justice Anthony Kennedy wasted no time asking the Bush camp why the Supreme Court should get involved.
(BEGIN VIDEO CLIP)
JUSTICE ANTHONY KENNEDY: Can you begin by telling us our federal jurisdiction? Where's the federal question here? OLSON: The federal question arises out of the fact that the Florida Supreme Court was violating Article II Section 1 of the Constitution and it was conducting itself in violation of Section 5 of Title 3 of federal law.
KENNEDY: On the first, it seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution and it can't use its courts and it can't use its executive agency -- even you, your side concedes it can use a state agent -- it seems to me a holding which has grave implications for our republican theory of government.
(END VIDEO CLIP)
SHAW: Now in questioning Gore's attorney, Justice David Souter seemed to confirm that the high court needs to rule decisively.
(BEGIN VIDEO CLIP)
JUSTICE DAVID SOUTER: We can't send this thing back for more fact-finding. If we respond to this issue -- and we believe that the issue is at least sufficiently raised to require a response -- we've got to make the assumption, I think at this stage, that there may be such variation, and I think we would have a responsibility to tell the Florida courts what to do about it.
On that assumption, what would you tell them to do about it?
BOIES: Well, I think that's a very hard question.
SOUTER: You'd tell them to count every vote.
SOUTER: You'd tell them to count every vote, Mr. Boies.
BOIES: I would tell them to count every vote.
SOUTER: Let me ask you...
(END VIDEO CLIP)
SHAW: Now, in our continuing live coverage, we take you to Tallahassee, Florida and the spokesman for the Florida Supreme Court, Craig Waters.
(BEGIN VIDEO CLIP) CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: I have two matters to announce. First, the court has had a number of questions about the ballots being held here in the building. So let me reiterate and expand upon the remarks I made yesterday.
These are the ballots in evidence in the case now pending before the United States Supreme Court. Here inside this building, they are in a secure room under constant guard. They have been here since being returned Saturday evening. This is all the information available about the ballots at the present time.
Second, the court this afternoon has issued an opinion in the vote recount case previously remanded by the United States Supreme Court. Pursuant to the instructions of the United States Supreme Court, this court has clarified that its earlier decision is based on longstanding rules of statutory construction.
The vote on this opinion was 6-1. Chief Justice Charles T. Wells dissented. His dissent reads: "I dissent from issuing a new decision while the United States Supreme Court has under consideration Bush versus Gore, and I do not concur in the reissued opinion."
Paper copies of the opinion will be available here at the front door and copies will be posted on our duplicate Web sites as soon as possible.
SHAW: Florida Supreme Court spokesman Craig Waters in Tallahassee announcing very succinctly, the more important of the two announcements, of course, being finally Florida's highest court has responded to the remanded case of the United States Supreme Court, which acted, as you recall last week. And basically by a 6-1 ruling, the Florida Supreme Court says to the United States Supreme Court, in fact, its opinions were rooted in state law. That was a key concern of the nine justices on the United States Supreme Court -- Judy.
WOODRUFF: Pretty succinct and kind of an important announcement there from the Florida Supreme Court. We want to go quickly now to Florida, the Space Shuttle Endeavor scheduled to return to the Earth within this hour after an 11-day mission to the International Space Station.
Miles O'Brien joins us from Atlanta.
MILES O'BRIEN, CNN CORRESPONDENT: Judy, 30 seconds from touchdown. This is the view from inside Space Shuttle Endeavor. Commander Brent Jett at the controls. Let's listen into NASA.
UNIDENTIFIED MALE: Landing gear down and locked. Wheels have touched down.
O'BRIEN: Wheels have touched down, ending a journey of 4,476,000, miles, 11 days long. The 15th flight of the Space Shuttle Endeavor, the sixth to the International Space Station Alpha, a mission on which the five-man crew installed some huge solar arrays providing power for the crew currently up there now for more than a month. Three more months to go on their mission and beyond.
A 15-year mission plan for the $100 billion space station. This particular mission, the sixth to the space station, considered a success by NASA standards.
And I will send it back to Judy and we'll return our coverage of the Supreme Court's decision -- Judy.
WOODRUFF: All right, Miles O'Brien in Atlanta. We got there just in time to see that landing. Thanks very much -- Bernie.
SHAW: And we got down to Tallahassee just to hear the Florida Supreme Court announce its response to the United States Supreme Court. Let's call in our correspondent here in Washington at the high court, Charles Bierbauer.
Charles, let's go to this late-breaking news. I assume -- and perhaps you do -- that the members of the Florida Supreme Court were following the oral arguments for an hour and a half before the high court in that building behind you, and we all know that one of the justices indicated that the Florida Supreme Court had not responded to the case the high court in Washington had remanded.
And then we just had, moments ago on CNN, the Supreme Court spokesman, Craig Waters, saying, in effect, in announcing the opinion of the Florida Supreme Court, essentially saying, that this court has clarified its earlier position on opinions issued, and the Florida Supreme Court said those opinions were rooted in Florida state law.
It was a 6-1 decision, with the Chief Justice Charles T. Wells dissenting, who said basically, you know, we really shouldn't be issuing a ruling while the nation's highest court is still deciding.
CHARLES BIERBAUER, CNN CORRESPONDENT: Well, Bernie, from this court's perspective, they should have issued that ruling before the U.S. Supreme Court met this morning to hear arguments, because Justice Sandra Day O'Connor, in the course of those arguments, demonstrated a certain amount of pique about the Florida Supreme Court having not done what it has now done, perhaps not in the way that it has done it.
But had this been done yesterday, we wouldn't have had a little snit about it at the U.S. Supreme Court, but we might have had some dispute over the fact that the Florida Supreme Court has now said, we don't care what you think in Washington, our ruling was good because it was based on Florida law and we're going to stick with it.
This court, a week ago, sent that ruling back, saying take another look at it, see if you comply with both Florida regulations and the U.S. Constitution, which sort of segues to where we were here today, Bernie. And I think the essence of the arguments here today was, is there a federal issue? You played that little snip from Justice Kennedy, saying, what's our jurisdiction here? Well, it seemed to me that most of the justices felt that their jurisdiction was very well-grounded in the U.S. Constitution, in both Article 2 and in that now much-noted section -- 3 section 5 of the U.S. Code, but also in the equal protection clause. And this was the element which the Bush attorneys really wanted before this court, the notion that all votes and voters had to be treated equally.
And there was just an extensive amount of questioning as to how that could possibly be when two people looking at the same ballot might rule very differently on whether it was legal or not, from table to table and county to county, as Justice Kennedy put it -- Bernie.
SHAW: Charles, those oral arguments ended at 12:30 Eastern Time. In that building behind you, are the nine justices of the Supreme Court still working on the case, literally, right now, at this moment?
BIERBAUER: I'd like to they are, Bernie. I'm certain that they are cognizant -- they indicated they were -- of the timetable that they are facing. Today is December 11th. We know that December 12th is the date by which electors are supposed to be chosen to take advantage of that so-called "safe harbor."
We also know that that's not a hard and fast matter and not one that absolutely has to be adhered to.
There's certainly every indication that the justices are going to work quickly. One attorney for Vice President Gore I talked to thought that they could even rule as quickly as this evening and send it back to Florida. But we don't know precisely. This is not a court that tells you a whole lot in advance. It's that old notion, we'll know it when we see it, as one justice once said of an entirely different matter -- Bernie.
SHAW: Charles Bierbauer. Cold outside the United States Supreme Court in Washington. Thank you -- Judy.
WOODRUFF: And joining us now from Tallahassee, CNN election law analyst and former Florida state elections director David Cardwell. David, factoring in what we just heard from the Florida Supreme Court, thinking about what you heard in that 90 minutes before the United States Supreme Court today, what's your sense of what's going on here? What struck you about what happened before the court and factor in this announcement just now?
DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, Judy, we've just been handed a copy of the opinion from the Florida Supreme Court. It's 34 pages long, but it's basically a rewrite of their original opinion that they rendered December 1st. But it has added language and talks about the fact that they conclude their construction of the statutes results in the formation of no new rules of state law, but rather results simply in a narrow reading and clarification of those statutes, which were enacted long before the present election took place.
And then they throw it back to the legislature. What they have said -- they have responded to what the Supreme Court of the United States said to them when they remanded the case. I think you've got a couple of supreme courts here looking at each other, and timing their opinions and their orders accordingly.
WOODRUFF: David, you said December 1st. Did you mean December 8th, the Friday ruling?
CARDWELL: I'm sorry. I'm sorry. That was the latest one, but the original one was the one that was remanded.
WOODRUFF: David, a lot of discussion before the United States Supreme Court today about standards. If we were -- they're speculating with the attorneys -- if we were to send this back to Florida, what standards should we use? Did you pick up any sort of threat of agreement there? What did you hear that would be feasible? We heard them trying to pin Boies and even Ted Olson down in terms of a standard.
CARDWELL: Right. I think what happened, first of all, with the Florida Supreme Court issuing this, their clarified, their new opinion, I think what they were trying to do was to appeal to a couple of the justices of the U.S. Supreme Court who today seemed a bit irritated that the Florida Supreme Court had not responded to them. So they've taken that sort of off the table.
The other thing I heard in the questions that were presented to both Ted Olson and David Boies was a desire on the part of certain justices, particularly Breyer and Souter and Ginsburg, to try to find some common ground. Could they pull one or two justices that may have been over on that five side in favor of the stay over to their side in favor of upholding the Florida Supreme Court, but at the same time remanding it with some instructions on the standard?
So what I think they were trying to get out of the attorneys today is what is that standard. I don't think they got a whole lot of help on that point.
WOODRUFF: You don't?
CARDWELL: No, I don't.
WOODRUFF: Why not?
CARDWELL: Because I think they want something -- I think they want something more than just what's been stated over and over again, the clear intent of the voter. And that's what they kept hearing. I think they want something more.
So what they may do very well is remand it with some instructions, and that could drag out the process for a while.
WOODRUFF: What do you mean with some instructions? You mean the United States Supreme Court -- and again, we're speculating here -- might tell Florida how to count ballots?
CARDWELL: Could tell them not so much how to count ballots, but tell them to come up with a uniform method for doing so. That's something that's been going back and forth throughout all of the arguments on this case from the very beginning. It may be that the U.S. Supreme Court says: All right, Florida Supreme Court, we understand you're interpreting statutes; the statute says you determine the clear intent of the voter. But how do you do that, and how can you make sure that there's not some problem with one county doing it differently from an adjoining county, or even as was mentioned today, one counting table in one location being different from the counting table right next to it?
WOODRUFF: All right, David Cardwell, and we know that may be the case all over the country, much less in the state of Florida.
CARDWELL: That's right. That's right.
WOODRUFF: Thank you. David Cardwell, thanks very much.
When we return, Bush and Gore lawyers face tough questions from the justices of the U.S. Supreme Court. Ron Brownstein joins us with his assessment of today's hearing.
(BEGIN VIDEO CLIP, CNN "LARRY KING LIVE")
LARRY KING, HOST: If you could change the Constitution, would you make it a popular vote?
SEN.-ELECT HILLARY CLINTON (D), NEW YORK: Well, I would, because I think that really is the intent of one person, one vote. But I have no illusions that that is not likely to occur, because it would take a constitutional amendment. That's why I favor doing everything we can to make our electoral systems as fair and accurate as possible.
(END VIDEO CLIP)
SHAW: You can see all of Senator-Elect Hillary Rodham Clinton's interview with Larry King tonight on "LARRY KING LIVE," starting at 9:00 p.m. Eastern.
Joining us now with his take on today's U.S. Supreme Court ruling, or hearing rather, hearing, Ron Brownstein of "The Los Angeles Times."
Ron, obviously, I am anticipating the ruling from the high court at some point. Before I ask you the first question I wanted to ask you about the concerns of the justices on the nation's highest court, do you see any influence on this late development out of Tallahassee, the Florida state Supreme Court finally responding to the remanded case from the United States Supreme Court? And I'll paraphrase the ruling tonight from the high court in Tallahassee, in effect, saying we wrote no new election law in our ruling.
RON BROWNSTEIN, "LOS ANGELES TIMES": Well, as David Cardwell said, they are trying to respond to what was a clear concern from some of the justices today, especially Sandra Day O'Connor. They're essentially arguing -- restating their argument from a few weeks ago, that they were fulfilling a traditional role of interpreting Florida law, not making new law, not making a new scheme, and the question is whether a majority of the Supreme Court will agree, in the first case, but more importantly in this current contest.
SHAW: And of course, had they written their opinion based on the Florida Constitution, then of course the United States Supreme Court would jump all over it?
BROWNSTEIN: Well, that's right. I mean, they basically, you know, Bernie, in the remand last week basically gave them the "Cliff Notes" of how to try to respond. I mean, they basically told them what they were looking for, and the Florida Supreme Court -- surprise -- has come back and told them that's in fact what we did.
SHAW: Now, let's go to the oral arguments today. I want to ask you, Ron Brownstein, based on the justices questions in the 90 minutes of oral arguments, what flaw in our national election system was exposed?
BROWNSTEIN: Well, I think it's fascinating, Bernie, that the core argument today, as you talked about several times on the show already, was the question of whether it would violate the equal protection clause of the Constitution to manually hand count the votes by different standards in different counties.
Now, I talked to a number of people today, a number of Democrats in particular, who say, look -- and David Boies brought this up at the end -- if counting a few hundred or a thousand ballots by hand in different counties by different standards violates the equal protection clause, why wouldn't it also be a violation to have punch- card systems used in some counties and optical scanners used in others, when the punch cards result in five times as many ballots being invalidated as not having a presidential preference.
And I was told by one person that if the court sides with Bush on this question, you can see within months lawsuits brought by civil rights groups and Democrats all around the country arguing that in effect it disenfranchises voters in low-income or minority communities, where the punch cards are more likely to be used, to have that equipment be used because it is a violation of equal protection under the same logic that the Bush team advanced today.
So, that could sort of boomerang in a way that Republicans may not have fully thought through.
SHAW: What do your instincts tell you about how these justices here in Washington might be moving?
BROWNSTEIN: You know, I can't predict, but I do think that the option -- one option that might be attractive is trying to find a way to resolve this that does not leave them in the position of effectively picking the president. If they overturn the Florida Supreme Court and that's it, they have effectively named Bush. If they sustain the Florida Supreme Court ruling as it is, they've most likely chosen Gore. But if they did send it back to the state and ordered that the entire recount of undervotes be reconducted under a common statewide standard, neither side could be sure who is going to win.
If you went back and you did that, for instance, Broward County would probably have to be reassessed under a tougher standard. Gore wouldn't get as many votes nor would he get as many votes as he received in the early stages of Miami-Dade. The justices could sleep at night knowing they did not in effect pick the president. They put it back in a process that, as I've talked to analysts on both sides today, would leave either side with a genuine chance of winning.
SHAW: And meantime, we wait.
BROWNSTEIN: Yes, we wait.
SHAW: Ron Brownstein of "The Los Angeles Times," thanks very much -- Judy.
WOODRUFF: And when we return, our Bruce Morton on why predicting the outcome in the high court is tricky business.
SHAW: Now our Bruce Morton looks back at some United States Supreme Court decisions and how the justices don't always reflect the views of the presidents who appointed them.
JUSTICE JOHN PAUL STEVENS: Is it your theory, in other words, that they voluntarily did not permit appellate review of the...
BRUCE MORTON, CNN CORRESPONDENT (voice-over): "The Supreme Court," a humorist wrote a couple of generations ago, "follows the election returns."
Does it? Well, that's hard to say. When the Supreme Court in 1954, in Brown v. Board of Education ruled that separate was "inherently unequal" in education and began the slow painful process of integrating American schools, the opinion was unanimous and was written by then chief justice Earl Warren, appointed by a Republican president, Dwight Eisenhower.
You could argue that the court then was leading public opinion, which did shift in the years that followed: Congress passed the Civil Rights Act of 1964, the Voting Rights Act of '65, and ended legalized segregation in the South.
In Roe v. Wade in 1973, Justice Harry Blackmun, also a Republican appointee, wrote the majority opinion legalizing abortion.
Since then, the court has twice approved restrictions -- a waiting period, parental notification -- but it has also upheld a woman's right to an abortion, putting it pretty close to where polls say public opinion is. The 8 to nothing 1974 decision ordering President Richard Nixon to hand over his Watergate tapes was written by then Chief Justice Warren Burger, a Nixon appointee.
Presidents see Supreme Court appointments as important, part of their legacies, so they try to appoint justices who think as they do. Republican presidents, in general, want to name justices with conservative views, Democrats, justices with more liberal ones, but it doesn't always work.
Earl Warren, whose court was active in many social issues, was, again, a Republican, though Eisenhower did later say the appointment was one of the worst mistakes he ever made.
Justice David Souter, on the current court, is a Bush appointee, who's now usually seen as part of the court's liberal bloc, and so on.
Philosophically divided? Yes, but not always the way the presidents who picked them expected. Partisan in party label terms?
ROBERT SCHAPIRO, CONSTITUTIONAL LAW PROFESSOR: These justices have great ideological divisions, not so much with regard to partisan politics, but with regard to their approach to the law.
RICHARD SHENKMAN, PRESIDENTIAL HISTORIAN: It's not these gods on Mt. Olympus who are ruling from (UNINTELLIGIBLE) and saying this is the law. The law's always subject to interpretation.
MORTON (on camera): The next president will surely try to bend the court toward his philosophy, but history shows the justices may surprise him.
Bruce Morton, CNN, Washington.
SHAW: That's all for this expanded edition of INSIDE POLITICS. I'm Bernard Shaw.
WOODRUFF: And I'm Judy Woodruff. The "MONEYLINE NEWS HOUR" is next, but first we want to leave you with pictures of the lighting of the national Christmas tree outside the White House earlier this hour.
(BEGIN VIDEO CLIP)
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: Ready, set, go!
(END VIDEO CLIP)
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