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Election 2000: What Will U.S. Supreme Court Decide?

Aired December 10, 2000 - 9:00 p.m. ET


ANNOUNCER: This is a CNN Election 2000 special report. And now from our New York studios, here's CNN senior analyst Jeff Greenfield.

JEFF GREENFIELD, CNN ANCHOR: So, as of this moment, Al Gore leads George W. Bush in the national popular vote by about three- tenths of one percent of the vote. In Florida, where the presidency will be decided, Governor Bush now leads the vice president by a margin of about, by my count, two-and-a-half-one-thousandths of one percent of the vote.

Yesterday, by a one-vote margin, the United States Supreme Court put Governor Bush a giant step closer to the presidency, a prize he won would as of now in the Electoral College with one vote to spare, unless of course one of those justices who stayed the Florida recount changes his or her mind after tomorrow morning's oral argument.

Whoever said close only counts in horseshoes and hand grenades never imagined this political story, a story whose ending the Supreme Court could write in the next 48 hours. In fact, in about 14 hours the nation's highest court will hear lawyers for Bush and Gore argue why the manual recount in Florida should or should not proceed.

Attorneys for both men submitted written arguments to the Supreme Court today. And here are their cases in a small nutshell.

The brief filed on the vice president's behalf said stopping the recount of the so-called undervotes would risk tainting the election results. The Bush briefs argued the Florida Supreme Court overstepped its authority when it ordered that recount and that holding the recount before the Supreme Court decides the whole issue would taint the election result.

Earlier, official court papers from Tallahassee arrived in Washington. Oral arguments in this case are set for tomorrow at 11:00 a.m. Eastern time. Both teams will each have 45 minutes to present their cases.

Now this case before the high court comes after nearly five weeks of continuous, sometimes frantic legal motions and appeals. Joining us from the court with a preview of tomorrow's hearing, the unfrantic but probably exhausted senior Washington correspondent, Charles Bierbauer -- Charles.

CHARLES BIERBAUER, CNN CORRESPONDENT: Jeff, if my voice is not the only one you hear out here, it's because there's a very small, very partisan, and sometimes very loud debate going on by a handful of protesters representing either side. And if you went around the corner of the court, you'd find several dozen people at least, some of whom have been camping out since yesterday to get the few seats available to the public out of the 400 roughly in the court that won't be taken up by lawyers and reporters.

The significant thing that happened at the Supreme Court today was the arrival of legal briefs from both the Bush and Gore attorneys and a whole host of amicus briefs from interested parties. Let me just take you through a couple of points from those briefs because basically what the justices have to decide is whether to allow the vote counting to resume or to continue to hold -- to have halted it, as they did yesterday.

In the briefs filed by Governor Bush's attorneys, they contend that the Florida Supreme Court's vote counting method, as prescribed in their ruling, would be conducted according to varying and unspecified standards by officials unspecified in Florida's election law, and according to an ambiguous and apparently unknowable timetable.

Not so, Gore's attorneys contend in their brief. They say the Florida court did not make law or establish any new legal standards that conflict with legislative enactments.

One of the other issues that this court here in Washington asked the Florida Supreme Court to explain was whether the laws down there and the rulings down there trampled on the U.S. Constitution, specifically such concerns about the question of the Equal Protection Clause of that Constitution.

And to that, the Bush briefs say that the voters who cast identical ballots in different counties will likely have their ballots counted differently. But the Gore briefs counter saying the Florida Supreme Court expressly granted petitioners, meaning Bushes, the relief that they sought with respect to a statewide recount.

So for the second time, we will hear the justices address this. Did the Florida courts make law or interpret law? Did it defer to the state legislature, as the state court suggested it should have? And did all of this violate the U.S. Constitution?

We will see tomorrow if the justices -- and they indicated a certain divide in granting the hearing for this -- we will see tomorrow if they are as divided as the rest of this country seems to be -- Jeff.

GREENFIELD: Charles, just very quickly, is there any reason to think that that earlier Supreme Court decision vacating what the Florida Supreme Court did in extending the time for certification is going to overhang these arguments?

BIERBAUER: Well, it certainly overhangs. It is addressed in part in the ruling that the Florida Supreme Court made. But the Bush attorneys contend that it's insufficiently addressed, that the Supreme Court in Florida did not pay specific attention to the requests made by this court.

It all overhangs, to use your word. It all blends together. Even though the law may be distinct in precise, in these circumstances it's very hard to separate some of these matters that have now been stirred through one court after another and find their way back here for a second time -- Jeff.

GREENFIELD: Charles, thank you. I hope they let you go home and sleep before you have to show up tomorrow morning back at the court.

But joining us now from Washington to talk about tomorrow's argument is Neal Katyal. He is a former Supreme Court clerk to Justice Stephen Breyer.

Mr. Kayal, and I hope I'm pronouncing your name correctly, is a former member of the legal team advising Vice President Gore. He's currently an associate professor at Georgetown University School of Law.

I should mention we'd hoped to be joined by John Hughes (ph), another former Supreme Court clerk, who predicted what the Supreme Court would do. Weekend logistics prevented that.

So, first of all, have I got your name butchered, or is that right?

NEAL KATYAL, FORMER Supreme Court CLERK: Oh, it's pretty good. It's Katyal. But good enough for government work.


GREENFIELD: And you did government work. We saw that five justices said, "OK, no recount." And four justices, including the guy you used to work for, said, "Bad idea."

How reliable a guide is that to what the court will actually decide on the merits?

KATYAL: It's not that reliable in that there is only one justice who has sided so far with the Governor Bush position. And that's Justice Scalia. The other four have simply stopped the recounts for right now from going forward.

That's not really a sense on the merits of how they're likely to rule. And my sense is after they read the briefs today that were filed by both sides, they'll look and search really deeply into their souls and say, "Do we really want to put this court and this nation on a collision course that's really going to undermine the rule of law in this country?"

And my sense is no. So it's one thing to read some papers on Saturday asking for a temporary delay, quite another to actually rule on the merits on Monday.

GREENFIELD: But, Mr. Katyal, the justices must have realized that in stopping the recount, they were making it almost impossible for a recount to be concluded by that December 12 date. These fellows don't live completely divorced from the real world.

So it would seem to me that those five justices must have said, "You know, we've got a pretty good chance of knowing what we're going to do." Otherwise, they would have said, "Let the recount go on while we figure this out."

KATYAL: Well, Jeff, this December 12 is not a deadline by any stretch. At most, it's what we could consider a safe harbor that says, "If you make a decision, Florida, by December 12, then your decision will be entitled to some special respect when the U.S. Congress in January opens and counts the votes."

But here's the important point. The U.S. Supreme Court can easily when they hear this case tomorrow say that December 12 date should be stretched forward, either to the 14th, 15th, or further into December. They certainly have the equitable power to do so, and thus allow the counts to go forward. So it's not as if this decision made yesterday to temporarily stop the counts will be the end of the matter for Vice President Gore.

GREENFIELD: No, but you raise an interesting point here. And I realize that you did work for the vice president. But I'm asking you now to put on your detached observer legal scholar hat.

If the court were to side with Al Gore that the recounts should go on, what you seem to be suggesting is it would almost also have to tell the state legislature, "Back off, don't certify the Bush slate of electors until we know what the count said," right?

KATYAL: I'm not going that far. What I'm saying is if the United States Supreme Court tomorrow after reading the papers decides that the position put forth by Governor Bush isn't strong, they might say to themselves, "Boy, we've really undermined two days of counting by stopping these things temporarily, and isn't this an unwanted federal interference into a local election dispute? If so, let's try and give those two days back to the recounts."

And remember, these are recounts not just that help Vice President Gore but ones that Governor Bush himself has asked for, a statewide recount in various places as well.

GREENFIELD: Just -- I'm sorry.

KATYAL: Let all those counts go forward.

GREENFIELD: But just to be clear about this, the Supreme Court has made it very clear I think that the state legislature in this scheme of electors is the big dog, the ultimate authority. They could -- are you suggesting they could actually tell the state legislature to wait two days before certifying a Bush slate of electors?

KATYAL: I'm saying that -- I'm not saying that. I'm saying rather that this December 12 deadline could be pushed back to December 14 or 15 by the U.S. Supreme Court, and thereby remove the pressure on the state legislature...


KATYAL: ... to move forward. Now the question of whether they will go farther than that and say to the state legislature, "Hold off," I think is a more complicated and tougher question.

GREENFIELD: We've got a few seconds left. So I apologize for throwing you this curve. But a lot of people I think looked at the lineup of how the court stayed the recount, all the conservatives on one side, all the liberals on the other, and said, "You know, if there was one institution we thought might go beyond ideology, it's the court." They seem to be lining up the way you would have predicted it from the beginning. Is that a fair way to look at what the court has done so far?

KATYAL: So far in this decision yesterday, yes. And it's a real disservice to America if this court announces a five-to-four partisan decision. I think it may very well be -- and I don't mean to over- exaggerate here -- but it may very well be the end of this Supreme Court as we know it.

That is to say if they do announce a partisan decision, I can see the Senate not confirming future Supreme Court justices. I can see lower court judges saying, "We're not going to respect the decisions of this United States Supreme Court because it's infected with partisanship." And it would be a real sad day for our country if that's the way the decision comes down.

GREENFIELD: Well, on that semi-apocalyptic note, we're going to have to leave it there. Thank you very much for joining us.

And I apologize for distorting or butchering the name at the beginning, Mr. Katyal. But thanks a lot for being with us.

And I should say that you can count on CNN for complete coverage of tomorrow's proceedings beginning at 10:00 a.m. Eastern time. That is one hour before arguments are set to begin.

And stay right here at CNN because you will hear the audio recording of that oral argument as soon as it ends. That's roughly at 12:30 Eastern time.

Now, do Americans think the Supreme Court will be impartial whatever they decide? We'll tell you the results of our brand new CNN poll when we come back. Stay with us, please.


GREENFIELD: A just-released CNN/"USA Today" Gallup poll spotlights Americans' comfort level with the role of the Supreme Court in election 2000. When asked if justices should allow the ballot counts to continue, 47 percent said yes, 49 percent of those responding said no.

Fifty-one percent said, yes, Supreme Court justices are influenced by their political views. Forty-two percent said they are not. As for who Americans trust the most to make a final decision on who wins the White House if it comes to that, fully 61 percent say they trust the Supreme Court, 17 percent said Congress, nine percent named the Florida Supreme Court, seven percent said the Florida legislature.

If the high court makes the final call, 73 percent, almost three in four respondents, said the election outcome would be legitimate. Nineteen percent said it would not.

Well, one of those who might agree the U.S. Supreme Court is the right place for all of this to be settled once and for all in Bush's favor is Republican Congressman John Shadegg. He joins us tonight from his home district in Phoenix, Arizona.

Congressman, I can't forbear from asking this. You are the second generation in a family at least of stalwart conservatives. Does the idea of embracing the idea of the federal U.S. Supreme overturning a state Supreme Court give you any pause, even though obviously it would help your guy win?

REP. JOHN SHADEGG (R), ARIZONA: It really doesn't, provided there is a federal issue involved. And here, I think there clearly is a federal issue involved.

I think states' rights are appropriate to a certain limit. Here, I think this is a federal issue.

GREENFIELD: You understand I will ask our other guests later the same question on the other side. But taking off your rooting cap for a second, is it not fair to say that we have seen in general a kind of reversal of what we would normally expect to see from liberal Democrats on the one hand and conservative Republicans on the other?

SHADEGG: You mean in the fact that we're arguing that this does belong in the U.S. Supreme Court, in the federal court?

GREENFIELD: Yeah. Just as a matter of historical interest, it usually doesn't come out this way.

SHADEGG: Well, I suppose you can make that argument. I mean, here it is the Bush campaign that is saying equal protection of the laws is being violated. It's being violated in that we're only looking at the undercount. It's being violated that in Miami-Dade County we're using two different standards. It's being violated that in the various counties we're all using different standards.

So I guess in that sense, yes. Conservatives are relying on a U.S. constitutional principle that usually liberals rely on.

GREENFIELD: Well, let me offer you something a couple of people have just raised with me just in the course of today because this is on a lot of people's minds. And it goes like this. Look, if Governor Bush's campaign let the recount go forward, and as some statisticians have already argued, it might well likely show that Governor Bush won after all, wouldn't that be a much more legitimate, no-more-argument question that he deserves and has earned the White House rather than a potentially one vote Supreme Court decision to say we're not even going to look at those ballots?

SHADEGG: Well, first of all, we've looked at those ballots. We've looked at those ballots in the same way we looked at them in all 50 other states.

Second, the way it is being proposed to look at them now is not fair, as I just outlined in the earlier answer. And everybody says, "Well, why shouldn't we have a count of all legally cast ballots?"

But Justice Scalia made it very clear. First of all, we don't know this recount is legal under Florida law. Second, it looks to us like it's being conducted illegally in violation of the Equal Protection Clause.

And third, we do not know that they're just looking at legal votes because we have real evidence that in at least the recounts up to now, the manual recounts up to now, they were subjective. They were not fair. They were biased by the canvassing boards themselves.

So, sure. Theoretically if we had a totally fair count, for example, if right now we weren't just counting the undervote, but also the overvote, that is all the votes, and applying the same standard to dimpled chad in the one instance as in the other, you bet. Theoretically I'd much rather prefer that result.

But that isn't what has happened up to now. And it isn't what started to happen yesterday.

GREENFIELD: Down to our last question and answer, Congressman. The Democrats today have been saying, "You know, we don't really like the Supreme Court did, but whatever they do, we're going to be OK with them."

If one of those or two of those justices switches and the U.S. Supreme Court says let the recount continue, will the Republicans' affection for the U.S. Supreme Court remain, or can we expect to hear some of the kind of language we heard about the Florida Supreme Court? Are you with them one way or the other?

SHADEGG: I think we are with them one way or the other. I think that is all Governor Bush asks. I think it is in fact the right court to make this decision, as the poll data you just cited reveals.

The American people turn to this court for very, very tough decisions. Look at abortion. Look at the death penalty. You pick it. Tough issues are resolved in this court, and Americans accept those answers.

GREENFIELD: Congressman Shadegg, you're very good to join us on this Sunday night.

SHADEGG: You bet.

GREENFIELD: I appreciate it. And now with what possibly might be a different point of view, we're going to turn to Eleanor Holmes Norton. She is a former law professor. She represents Washington, D.C., the District of Columbia, in the House of Representatives.

Thank you for joining us.

Let me put the shoe on the other foot. Democrats traditionally have embraced the U.S. Supreme Court as a beacon of reasoning and right thinking against the deprivations of various states. Now you find yourself arguing, "No, the state Supreme Court should be the real authority here." Are you comfortable with that?

HOUSE DELEGATE ELEANOR HOLMES NORTON (D), DISTRICT OF COLUMBIA: I'm comfortable with it in this sense, Jeff. I spent the early part of my career doing nothing but writing cert (ph) petitions, jurisdictional petitions, to the Supreme Court of the United States.

And I have to tell you, when we had this kind of state law question, we probably wouldn't even have asked the Supreme Court to take cert because -- and that was the time of the Warren court. It was such settled law that if we are talking about a matter of state law, the Supreme Court, even a liberal Supreme Court, did not intervene into state law questions. Nothing is more state law than how a state election should be run.

GREENFIELD: Except, of course, that both Article II of the Constitution and the section of the Federal Election Count Act of 1887 specifically grant the power over electoral vote contests to the state legislature. That is a matter of federal law and federal Constitution. And it would seem that at least five justices of the court right now think there's a substantial federal question involved.

NORTON: Well, what the state legislature has done here is to transfer that right to the voters. And then the state legislature in great detail has indicated how the election should be resolved in the case of a protest and in the case of a contest.

And what the Supreme Court has done here is cite to the last jot and piddle section by section how it has followed the mandate of the Supreme Court of Florida to count every vote. Indeed, the legislature in Florida has essentially said bend over backwards to count every vote.

GREENFIELD: Ms. Norton, you have a reputation for candor. And I may be pushing things to the limit here. But is there any doubt in your mind that if Al Gore were leading by a few hundred votes under the same circumstances, you and Congressman Shadegg would be arguing precisely the reverse points on this question?

NORTON: You know, let me just say this. I think this is a partisan dispute. And it is true that you have probably not found a single Democrat as a matter of law at least on the other side, and for that matter a single Republican on the other side.

GREENFIELD: That's right. NORTON: But that is not to say that the law is partisan in this matter. And it does seem to me we have the better part of the legal argument.

GREENFIELD: I'm just thinking of a famous line from the late Supreme Court Justice William Douglas who once said in a moment of candor, "You know, there are enough precedents to go around." And I guess I've never seen a lawyer who was at a loss for words arguing whatever side of the argument he wanted to argue.

NORTON: Jeff, the problem with this is that the only precedents here are in Florida law. And there are not enough of those precedents to go around to the Supreme Court of the United States.

GREENFIELD: OK, that's a fair point. And on that, since you got the better of me on that, Congresswoman, it's probably a good time for me to end it.

Thank you very much, Eleanor Holmes Norton, for joining us on this Sunday night. Appreciate it.

And in a moment, we're going to head south to Florida for the very latest on the state legislature's moves to name its own slate of presidential electors. Please stay with us.


GREENFIELD: While most eyes on the presidential contest understandably are turning toward Washington and the Supreme Court, there is a chance that the Florida legislature could still play a pivotal role in this contest.

For more, let's turn to CNN national correspondent Mike Boettcher, who has established permanent residence I believe in Tallahassee. He's there with us live -- Mike.

MIKE BOETTCHER, CNN CORRESPONDENT: Absolutely, Jeff. I've been looking for a home today. But I did come back in time for the session, as many legislators are.

It was relatively quiet this weekend. There were a few of the legislators, senators, and representatives here. But their staffs were working trying to prepare for this. And most of them will arrive tonight for this session tomorrow.

Let's take a look at the schedule and see what happens. On Monday, the committees from the Senate and the House, the elections committees, will sit down and discuss this matter. They will have expert witnesses.

And then there will be debate. We're told that both of the committees will take most of the day.

Then on Tuesday, the full House meets in session to have the second reading of this resolution, concurrent resolution. There will be debate. And presumably, the Republican-dominated House will pass it.

Then on Wednesday, it will go to the Senate. They will also have their second reading. And they will presumably concur with the House and pass this resolution.

Now if you're wondering if the Supreme Court decision will have an effect, if the Senate or House will wait to see what the U.S. Supreme Court does, I am told late tonight by senior legislative sources that it will not have an effect, that they will carry on, that their keyword here is finality, that there are other cases out there, pending appeals perhaps to the Florida Supreme Court with those two absentee ballot cases from Martin and Seminole Counties, and that judging by the two previous judgments from the state Supreme Court, the Republican-dominated legislature here doesn't trust what this court will do and will go ahead and act -- Jeff.

GREENFIELD: Mike, very quickly, if the U.S. Supreme Court sides with Gore, that means the state legislature will be certifying a Bush slate of electors even as the U.S. Supreme Court tells Florida go ahead with those recounts.

BOETTCHER: Absolutely. They, there is not a snowball's chance in you know where that they will certify here a Gore slate of electors at all. They will no matter what go with a Bush slate of electors.

And the way the resolution is worded, they will go by what they believe was the will of the people on November 7, as certified on November 14 by Katherine Harris, and then sent up about 12 days later by Governor Jeb Bush up to Washington. They're going to stick with that.

They believe, the Republicans in the legislature believe, that is the proper course. The Democrats say they don't need to be here, that the legislature doesn't have the right to do this. And the rhetoric, judging by what's happened here over the weekend with these various court decisions, is really going to heat up on Monday -- Jeff.

GREENFIELD: Well, so the plot could thicken yet again. Thank you, Mike.

So, how are Governor Bush and Vice President Gore spending their evening before the big Supreme Court proceedings? We'll go live to Austin, Texas, and Washington, D.C. And then we have a terrific panel of journalists. Please do not go away.


GREENFIELD: I'm Jeff Greenfield. Welcome back to this CNN special report on -- you know what it's about.

And here's a quick update on where we stand ahead of tomorrow's oral arguments before the United States Supreme Court. That hearing begins at 11:00 AM Eastern time. It is scheduled to last 90 minutes, divided equally. Just like before, people began lining up today for a chance to witness the historic arguments in person. Both legal teams made their case today on paper, in legal briefs filed with the Court. In short, the Bush brief argued that the plan to recount votes in Florida is, in its words "arbitrary and capricious." The Gore legal brief argues that the right to have all the votes counted "dwarfs" -- their word -- any possible objections by the Bush campaign.

In Austin, Texas, tonight, Governor Bush is hosting a holiday party for supporters and staff. A lot of those who've been invited to the party had to send regrets because they're in Florida, looking out for the governor's interests.

Looking out for our interests in Austin, CNN's national correspondent Tony Clark.


You know, that party was supposed to be a big deal for a lot of the campaign workers, but as you say, Friday night they flew off to Florida. That was at the time when the recount looked like it was going to get started and they were going to be on hand for the recount. They've decided to stay there in Florida because, as we've seen over the last month, you never can tell what's going to happen.

Listening to Mike Boettcher's report just a minute ago about the Florida legislature -- the Bush campaign would just as soon it did not go to the Florida legislature, that it would be settled by the Supreme Court because they say that would be politically bad, and it is, in the words of one campaign aide, "an ugly way to win." They instead want to win before the U.S. Supreme Court. The lawyers for the Bush campaign said to be tired but focused on their arguments, ready to go tomorrow.

As for the governor, when he returned from the ranch today, he looked upbeat. He was smiling and waving. He came out from the mansion, walked across the street, greeted some of the cheering supporters that were there. It was obvious that he was in a much better mood than he most likely was Saturday, when he left for the ranch, when the recount was underway.

So things, at this point, the Bush campaign believes, are going their way. But they've learned not to take anything for granted. As one aide out in Florida said, their emotions have just been drained dry, and they don't take anything for granted. The Bush campaign -- Governor Bush and running mate Dick Cheney working on transition, going through the names of possible cabinet appointees, the White House staff already pretty much lined up. He's ready to announce that as soon as this legal battle is over with. But as we've seen, who knows when that legal battle will be over with -- Jeff.

GREENFIELD: Tony Clark, thank you very much.

And Al Gore stayed out of the spotlight most of this day. He did venture out of the vice president's residence to attend church, but that was about it.

Standing by for us in Washington tonight for any sign of life, CNN's Patty Davis -- Patty.

PATTY DAVIS, CNN CORRESPONDENT: Well, Jeff, the pastor at that service called in a prayer for the voices of the people to be heard. Now, as far as the Gore campaign is concerned, that means that all the votes should be counted, and that is what they will be arguing tomorrow in front of the U.S. Supreme Court.

Gore team's central argument is that the Florida Supreme Court was right. It interpreted state law. It didn't create any new laws when it said to go ahead with the manual recount.

The Bush campaign is claiming that different standards were used by different Florida counties, and that that is unconstitutional in terms of those manual recounts. The Gore campaign says that it is not unconstitutional. Here's what they had to say.


DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: It is perfectly appropriate for people to be looking at the ballots to determine what the people of Florida intended to do when they turned out to vote on election day, that that's perfectly constitutional. The Bush campaign's saying that's somehow unconstitutional to count people's votes. We think that's absolutely wrong.

And also, I think we'll be making the point that the Supreme Court should not step in to stop the counting of people's votes here in Florida. This is a matter of Florida election law, and the Florida Supreme Court...


DAVIS: Now, Gore's lawyer, David Boies, who's been doing the arguments in Florida so far, will argue before the U.S. Supreme Court tomorrow. He says that he has a hill to climb tomorrow in front of the U.S. Supreme Court. And just how well he does climbing that hill could make a difference as to whether the vice president packs his bags for the White House or a job somewhere else -- Jeff.

GREENFIELD: Thank you, Patty Davis.

Now, just after the Florida Supreme Court handed down its ruling Friday, I mentioned on the air that if this were a thrill ride in an amusement park, they would shut it down for fear of inducing cardiac arrest. And that was before yesterday's order from the U.S. Supreme Court. So in the interests of all our health, let's take a deep breath and talk calmly about where we go from here with a quartet of first-rate political journalists.

Tamala Edwards of "Time" magazine is here in New York, David Broder of "The Washington Post" and CNN Washington bureau chief Frank Sesno join us from the nation's capital. That would be Washington. And Ron Brownstein of the "Los Angeles Times" joins us from Tallahassee.

Welcome, one and all. First, Ron, I -- I have to wonder. Here everybody thought the action was going to be in Tallahassee, counting all these votes. Everything's in suspended animation now, waiting to see what the Supreme Court does. From the Gore campaign's point of view, are they now back in the depths of despair, waiting for the final blow to fall?

RON BROWNSTEIN, "LOS ANGELES TIMES": I think we're on metaphor alert here, Jeff. You know, it's totally fogged in tonight in Tallahassee, which seems entirely appropriate for an entire city just sort of wondering and waiting what comes next.

Sure, the Gore people were, they thought, within hours of what had been one of their top political goals in all of this, which was to have a count that might have put him in the lead, even if it was unofficial, even if it was unclear whether those votes would ultimately be included in the final result. All throughout, they've tried to create what diplomats call "facts on the ground." I mean, their belief is that if they could ever go ahead, it would put a lot more pressure on the state legislature, and perhaps even the U.S. Supreme Court, to allow the votes that had been tallied to be included.

So yeah, I think they felt that the life raft was there. You know, they've been out on the ocean for 32 days. The life raft was there, and then it was just pulled away at the last moment. They're talking a good game today. They say they're optimistic that they can perhaps turn one judge. You've still got those two absentee ballot cases. But definitely, they were very disappointed.

GREENFIELD: Tamala Edwards, you don't have to throw another metaphor into this -- into this bag, although...

TAMALA EDWARDS, "TIME" MAGAZINE: I don't think I can keep up with all those metaphors!

GREENFIELD: So maybe we'll actually talk facts, Tamala, or more facts. Is there anybody you know in the Gore camp who now gives you a scenario under which he could win the presidency?

EDWARDS: Well, I mean, I think they all can imagine if, in some ways, the Court comes back and they took the case, but they weren't quite -- you know, that Sandra Day O'Connor or Justice Kennedy weren't as hard-line as Antonin Scalia in putting out there already, "Hey, guys, you got a tough case," and they manage to get swung back towards Gore.

But what was interesting to me towards the end of the week -- and you're right. I mean, I went out for a sandwich, and they're counting. I come back, and it's all been stopped. As you talked to people on Friday night, they were just -- the jubilation, the "Wow, it's going to happen. This count's going to go forward." And it would have been done, by this point, in many of these counties. And people who've been optimistic all week, even through Seminole and Martin and Judge Sauls, on Saturday you could hear it as they said, you know, "It's pretty grim. We know it's a long shot." GREENFIELD: So David Broder, up till this point, I think everybody had the same sense that the Republicans were more passionate or more indignant about what had happened than Democrats. Has this turn of events, where they seemed to be on the cusp of getting the count and now they may well not -- has it made Democrats more resigned or has it increased their anger or both? What do you think?

DAVID BRODER, "WASHINGTON POST": Jeff, there is so much physical and emotional exhaustion on both sides now that passion is hard to find. I think there is still a good deal of determination on the Democratic side to play out the game, even though, as everyone has said already, there is not gripping (ph) optimism that they are going to be able to prevail.

On the Republican side, what struck me talking to people today was the visible effort to tone down the rhetoric and to not say anything that's going to make it harder for Governor Bush to be accepted by Democrats if and when he becomes President-Elect Bush.

GREENFIELD: But pick up on that, Frank Sesno, because you were the one who was reporting on our air a while ago that Republicans were saying "This is bigger than impeachment." You know, "We're not going to let them take it away again." If the Supreme Court were to throw the Republicans a curve and say "Let the recount go on," do you suspect that this toned-down rhetoric of David Broder's description would survive, or do you think it will just ratchet right up again?

FRANK SESNO, CNN WASHINGTON BUREAU CHIEF: No, I think it'll -- you know, it'll probably ratchet up again. I mean, I -- it's very hard to find anybody here in town right now who wants to ratchet it up again, but it's impossible to find anybody in town who would have predicted the events of the last 48 hours. And based on the experience I've had, anyway -- and you know, I don't know -- I'm sure David's experience probably parallels it, or I would think so, anyway -- the degree of anger at times in this from Republicans and Democrats alike has been remarkable. And then there's this sense of exhaustion that sets in, almost resignation. They feel they're right at the end. And then something -- whoosh! -- comes along and it starts all over again.

The expectation, Jeff, in this town from just about everybody is that the Court tomorrow will hear these arguments for 90 minutes. They'll go away for a day or two, and they'll come back and say "That's that." That's certainly the expectation.

GREENFIELD: And Ron Brownstein, if that's that, is it -- was it better or worse for George W. Bush to have won with a -- on assumes, a divided Supreme Court, or do you think, in political terms, he should have rolled the dice and said, based on the advice of some statisticians, "Let that recount go on. We think you're going to win it anyway"?

BROWNSTEIN: Yeah, Jeff, they've never accepted that, partially because I think 47 of the 67 county canvassing boards in Florida are Democratic majority. And they felt that even if these were -- he won most counties in the state, as he won most counties in the country, but they felt that the county boards might manipulate the process in a way that benefited Gore.

Also, Miami-Dade, where we've had probably the best computer analysis of this, was a county that was pretty close on election day, but the actual undervote came more heavily from Democratic than Republican precincts. And I think they worried about that being a pattern elsewhere.

You know, just a quick point about the exhaustion and the passion. I think somewhere beyond anger and resignation is a kind of wisdom that a lot of people on both side have that will acknowledge there is really no way to ever know who won Florida, at this point. All we need -- all we can hope for is a socially and politically accepted way of resolving this, fully aware that the true winner is almost an existential question, at this point.


GREENFIELD: In fact, I -- I'm not going there. It's late on a Sunday night. But I want to ask all of you -- and we have a whole other segment left to talk about politics. But a curious question, or a question about which I'm curious. Tamala, let me start with you. Have you heard even privately any Democrat or Republican sharply breaking from the public party line? That is, a Republican saying "You know, I think we really did lose this," and a Democrat saying, "You know, it's too late." You know, "Bush should be the winner." Anybody?

EDWARDS: No to the former and yes to the latter. You know, that would be quite a find, the Republican who says, you know, "I think we lost this." Maybe they are saying that, but I cover the Democrats in this particular election. More than a few of them have a feeling that a certain end is inevitable, that moments like Friday night grab them for a moment and say, "Hey, maybe we're wrong." But in general, they go back to this sense of resignation, that this isn't going to end the way that they would like.

And I think a lot of them deep down really believe, as do a lot of people, that Al Gore won Florida, that he not only won the popular vote, but he won that state. But you know, I've always said that we shouldn't teach little kids the word "fair" because life isn't fair. And if, indeed, he won, at this point there's almost this sense of "Well, that's just going to be too bad."

GREENFIELD: David, what about you? In the private moments that people have with you, are there folks who are stepping way across party lines and saying either "We deserve to lose this" or "I'm almost sorry we're winning it because we didn't deserve it"?

BRODER: No, there are not. But I was stuck by Tamala's reference to "We shouldn't teach the word `fair'" because talking this evening with Governor Tom Vilsack of Iowa, a very strong Gore supporter, he said -- quoted the famous John Kennedy line, "Life is not fair," and he said "Sometimes, even if we think that we're getting the wrong result, we just have to accept that there are unfair outcomes." GREENFIELD: Frank, I spoke earlier today with a Democratic congressman who was saying, you know, "If this happens, it's so unfair that we're going to -- we're going to -- we're not going to let it end. On January 6th, when the Congress meets, we're going to do everything we can to delegitimize" -- or that was his suggestion -- "We might" -- I should be fair -- "do everything we can to delegitimize George W. Bush and show that he didn't deserve it."

Is there -- is there much sentiment at all for that kind of, you know, last-ditch effort, or do you think people are just saying, "All right, already. Let's just get on with it," even the partisans?

SESNO: I think most -- yeah, I think most people are saying "All right, already. Let's just get on with it." I mean, thinking about what Tamala said a moment ago, I have talked to many Democrats, who at the time the Florida Supreme Court was about to rule, when they started that recount again, at that point, they were saying, "You know what? It would just be better" -- these are Democrats, Jeff, who are saying, "You know what? It would just be better for everybody if the Florida Supreme Court makes this a clean Bush victory." I spoke with...

GREENFIELD: The Florida Supreme Court?

SESNO: The Florida Supreme Court had said "Let them not have the recount start. Let them shut this down." Similarly, I'm running into some -- not universal, not even necessarily widespread, but still some rather important Democratic opinion -- tonight I was talking to one prominent Democrat who said, "You know, it will be better because the nightmare scenario is that the Supreme Court does the unexpected and it goes on, takes on more of a life. You end up with the Florida legislature competing with these courts, maybe this coming to Congress."

There are a number of Democrats who are most uncomfortable with that scenario, both politically -- a lot of them have to run in 2002 -- and, in a sense, civically because of what it -- for what it means for competing institutions and for the country at large. I think where you're seeing this play especially tough is in the congressional black caucus, Jeff, because there's a lot of very strong feeling in parts of the African-American community as to what did or did not go on down in Florida, and how they square that with putting the pieces back together and governing after this is a major question right now.

GREENFIELD: Which is an interesting point to pick up on. We've got more to talk about and a whole other segment to do it, so we'll be back with our roundtable discussion when we return.

Please stay with us.


GREENFIELD: I'm Jeff Greenfield. Welcome back to this CNN election 2000 special report.

We're talking about the latest turns in the presidential race. And in geographic order, north to south, we are joined by Tamala Edwards of "Time" magazine in New York, David Broder of "The Washington Post" and CNN Washington bureau chief Frank Sesno in Washington, Ron Brownstein of the "L.A. Times" in Tallahassee. And I was supposed to be somewhere in the Caribbean, but that's another story.


GREENFIELD: David Broder...

EDWARDS: Join the group!

SESNO: You may never get there, Jeff!

GREENFIELD: Thank you. David Broder, fast forward to January. George W. Bush, let assume for this hour, is the president, having lost the popular vote, having maybe won in Florida, or at least certifiably so, with a one-electoral-vote margin. Does -- does that mean that he will be regarded, if not as Rutherford B. Hayes was, "His Fraudulency," then at least as "His Presidentiality Maybe"? In other words, how weak does a president who comes into power under those circumstances become?

BRODER: He won't look weak on inauguration day because the ceremonial investiture will be everything that it would be under any circumstance, and most of the Democrats will be on their very best behavior, saying that they're prepared to work with him. Where you will find the true measure of what this has cost him is when he has his first tough vote on Capitol Hill and he has to try to whip some of his fellow Republicans to stay in line because he has no margin for error in either the House or the Senate.

GREENFIELD: Tamala, as you mentioned, you cover the Democrats.


GREENFIELD: Do you think they will be disposed to give this new president a break, which everybody says they will, or are they disposed to take advantage of what, at least in political terms, is a pretty weak beginning?

EDWARDS: Well, I've got to go back to something David said. I think he's absolutely right. To steal another newsmagazine writer's line, you know, on -- in February, they'll -- January, they'll play "Hail to the Chief," and if it's George W. Bush or Al Gore, everybody will stand up, and we'll get used to that.

But as -- he was right. At some point, there will be some sort of crisis, and it'll -- every eye will turn to George Bush and how does he handle it? He can't have a Dick Cheney moment of "My veep has had a heart attack, and I'm the last one to know." I think it's also those sort of things that he'll need to avoid.

And as for the Democrats, you know, we've gotten to such a point of partisan wrangling, I think people will be a little ginger at first. They won't want to be seen as beating up on the other guy. But it's just a matter of time before they start carving into budgets and other things before they're back to business as usual.

GREENFIELD: Ron Brownstein, it seems to me you could at least make the case that the bar will be set so low in terms of what David Broder described as the sheer exhaustion that everybody's gone through, that a moderately good inaugural address calling for healing will be regarded as a really good speech, that gestures towards civility will be regarded as incredibly gracious. Do you think there's anything to that notion, that President-Elect Bush, if that's what it is, will actually have a chance to make some very strong points early with what normally would be kind of moderately OK gestures?

BROWNSTEIN: Absolutely. I think he'll have the sort of the Gerald Ford effect after Watergate, bringing the country together and so forth, for a short time. But Jeff, I think the post-election period has only sort of reinforced what was there on election day. The underlying reality -- Florida's wonderful symbol for it -- is the country is as closely divided between the parties as it's been at any time, really, since the late 19th century. This was the closest election to a national tie probably since 1880, and that is reflected in Congress.

I mean, you have these two coalitions right now, a Democratic and Republican coalition, that are the same size but utterly antithetical. It's kind of a polarized parody -- one urban, one rural, one men, one women, one secular, one religious. It's very hard to sort of find common ground for those two coalitions, which are reflected in Congress.

So I think that if Bush is going to be successful -- or Gore, for that matter -- it'd be much harder for Gore because of the Republican view that would be almost unanimous that he stole the election -- they're going to have to reach across party lines, as David said, and get things done with people from the other side. The problem is, each base of their own party doesn't really much like that idea, as we've seen in the last few years. So the hardest part may be keeping your own side in line while trying to court the other.

EDWARDS: You know what, Jeff?

GREENFIELD: Frank Sesno -- yes? Go ahead, Tamala.

EDWARDS: You know, it's sort of what I'm reminded of, something that's always said about academia, that the fights are so huge because the stakes are so small, which may be a weird thing to say in terms of politics, but when you look at the American public, with both sides moving so close to the middle, that of all times when you would think that, you know, we could be in agreement on so many social and political issues, to be here now, with everything evenly divided and this huge fight, with most of us in this little bit of space.

SESNO: I think that's a really...

GREENFIELD: Frank Sesno...

(CROSSTALK) GREENFIELD: Yeah, I want to let Frank Sesno in on here because we work together. Go ahead, Frank.

SESNO: I think that's a very important point. It was something -- today, just because I had nothing better to do, I went back and I read inaugural speeches of other crisis president. And if you look back at FDR or Abraham Lincoln and other presidents, even Richard Nixon in 1968, where they're trying to rally the nation, they're trying to accomplish some healing, they're doing so in the midst of some great national trauma that's generally issues-based, whether it's economic or it's foreign policy, war, what have you.

What is there now to rally people 'round? I mean, that's going to be a substantial challenge. The issues are smaller. The irony here, the paradox is that in some fashion, the nation was helped by the fact that this great national stand-off took place amid such relative peace and prosperity. Otherwise, you might have people out in the streets. But the down side to that is it's going to be harder, it seems, to rally people to a cause.

GREENFIELD: You all get one-word answers, yes or no. Does the Supreme Court end it? Brownstein?


GREENFIELD: OK, that's one word. Broder?

BRODER: I have no idea!

GREENFIELD: That's more than one word, but I'll accept it. Edwards?

EDWARDS: Not I. I'm not getting in the middle of that.


SESNO: Bureau chief. I got to say stay tuned. Watch tomorrow.


GREENFIELD: Always -- always with the bottom line.

Thank you all for joining us on a Sunday night. I really appreciate it.

And after the break, a final dramatic thought on one of the strangest presidential elections in U.S. history.

Stay with us, please.


GREENFIELD: Finally, listen to this dramatic reading.

"He should be here."

"He didn't say for sure he'd come."

"And if he doesn't come?"

"We'll come back tomorrow."

"And then the day after tomorrow?"


And so on. They might have been spoken by a couple of American citizens, or maybe the head of that still-empty official transition office, waiting for the president. But no, these are words from Samuel Beckett's classic half-century-old play, "Waiting for Godot."

Just who or what they are waiting for is never made clear -- God, salvation, death. But just for the record, folks, Godot never does show up at all.

That's our broadcast. I'm Jeff Greenfield. Good night. We'll see you tomorrow for the oral arguments.



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