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Supreme Court, Bush V. Gore: Court Hearing Oral Arguments Over Hand Counting Florida Ballots

Aired December 11, 2000 - 11:01 a.m. ET

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

DARYN KAGAN, CNN ANCHOR: The long, drawn-out battle over the presidency may have reached its final legal venue. And with the nation and the world watching, the U.S. Supreme Court may hold the key to the Oval Office. The court right now, as we understand it, is starting to hear oral arguments over hand counting Florida ballots. The nine justices will determine whether so-called undervotes will be tallied in Florida. What's at stake here? Florida's 25 electoral votes and the presidency of the United States.

And for more on this, let's bring in our Frank Sesno in Washington.

FRANK SESNO, CNN WASHINGTON BUREAU CHIEF: Daryn, thanks very much.

Well, as you say, the surroundings couldn't be more auspicious, the stakes couldn't be higher -- virtually the presidency of the United States. The hearings -- or rather the arguments under way at this very hour if, as normally happens, the United States Supreme Court is operating on schedule.

We turn now to CNN national correspondent Bob Franken. He's outside the court keeping track of events outside the court and in -- Bob.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, Frank, outside, just like the last arguments 10 days ago, there is what amounts to a big street party. The large contingents here in support of Al Gore and George W. Bush are trying to out-shout each other as inside there is the quiet dignity associated with the Supreme Court as the arguments swirl around the constitutionality and around the very legitimacy of the election and the institution of the Supreme Court itself.

Inside the courtroom is CNN senior Washington correspondent Charles Bierbauer.

(BEGIN VIDEOTAPE)

CHARLES BIERBAUER, CNN SR. WASHINGTON CORRESPONDENT (voice-over): The justices must decide if Florida's recount should be permanently halted or allowed to resume. Gov. Bush's attorneys say the Florida Supreme Court's vote counting regime "... 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."

JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: You don't do it in effect by changing the rules after the game has been played.

BIERBAUER: Not so, Gore's attorneys contend: "The Florida court did not 'make law' or establish any new legal standards that conflict with legislative enactments."

WARREN CHRISTOPHER, OBSERVER FOR GORE CAMPAIGN: There's a long tradition in the Supreme Court of giving deference to the supreme court of the various states in interpreting state law.

BIERBAUER: Bush contends the Florida ruling violates the equal protection clause of the Constitution: "Voters who cast identical ballots in different counties will likely have their ballots counted differently." Gore counters: "The Florida Supreme Court expressly granted petitioners, (meaning Bush), the relief they sought with respect to a statewide recount."

MARTIN FLAHERTY, FORDHAM LAW SCHOOL: The court well may send the case back to the Florida Supreme Court with the direction that a recount can continue but only if there are uniform, state-wide standards.

BIERBAUER: The court was unanimous when it first told the Florida court to better explain its rulings. Saturday's 5-4 order to halt the recount showed the court divided, perhaps on ideological lines.

AKHIL AMAR, YALE LAW SCHOOL: It's very important, if they're 5- 4, that the five have really good reasons.

RICHARD SEMIATIN, AMERICAN UNIVERSITY: I think that, you know, they're caught in this cauldron of political events, this tempest that we're seeing today in our political system.

(END VIDEOTAPE)

FRANKEN: Now, one of the things that is constantly asked is, one -- what side is the one that is more likely to win? And Justice Antonin Scalia pointed out that the -- it took a five-member majority of the Supreme Court to even come up with the temporary stay. And he took the very unusual step of explaining in a concurring opinion that the Bush campaign has a, quote, "substantial probably of success" because of the fact that the majority is already starting with that premise.

The one think to remember, of course, Frank, is that one can never, ever predict the Supreme Court.

SESNO: One thing we can predict today, Bob -- and I'd like for you to give us the timeline -- is that we will be hearing these arguments again, though somewhat delayed. FRANKEN: We will be hearing them within a few minutes, if it works like last time. The justices have decided that they, once again, will allow audiotapes of the arguments to be released as opposed to waiting months before they go to the national archives. And, again, the world will be treated to the actual arguments as we wait for the justices to decide whether, in effect, they want to end this election dilemma.

SESNO: OK, Bob Franken, thanks very much.

The arguments scheduled to end around 12:30 p.m. Eastern time. And within a few minutes, as Bob says, after that we should hear those audiotapes.

Over to Carl Rochelle now, who's in and among the protesters -- Carl.

CARL ROCHELLE, CNN CORRESPONDENT: OK, Frank. Well, we have a number of people out here. The crowd is up by several hundred people, particularly with an infusion of labor people.

Now, let me explain where I am standing is on the Gore-Lieberman side of the court. The authorities here, the police authorities, have divided, split this crowd. And over behind me on the other side are the supporters of George Bush and Dick Cheney. So there's a division there.

Having said that, we have Mike Wallace (ph), who is actually a Bush supporter.

You feel like in hostile territory over here?

UNIDENTIFIED MALE: No, they're Americans too.

ROCHELLE: OK, now why are you here today?

UNIDENTIFIED MALE: I'm here to protest. And I'd like to thank Al Gore for making me a Republican activist. After 20 years in the military, I'm making my voice count and I'm not going to sit back and remain silent any longer.

ROCHELLE: And your point? The courts should...?

UNIDENTIFIED MALE: I don't believe any court should decide who is president of the United States. There's no disputing that the votes should count, that every vote should count.

ROCHELLE: OK, thank you.

UNIDENTIFIED MALE: The issue is to what standard, and is it fair and objective?

ROCHELLE: And on the side of the fence, Cecil Jones (ph). And you are a Gore supporter.

UNIDENTIFIED MALE: Yes, I am. I want to say, I love you, Al, Tipper. You've done a great thing in bringing America together.

Now, as far as the election is concerned, I just want them to count the votes. If you win or lose, we're behind the next president of the United States, but I want it to be fair. And that's what this is about. America, count the votes.

ROCHELLE: All right, what happens if the court rules against Al Gore today?

UNIDENTIFIED MALE: This would be a slap against due process for all Americans, actually. Al Gore was sent to the back of the bus, and now everybody sees what it feels like. So give him due process by counting the votes.

ROCHELLE: But if the court says no, you're willing to go home, or what do you do?

UNIDENTIFIED MALE: Absolutely have to live with it. But the next election, you never know what's going to happen.

ROCHELLE: OK.

So, Frank, you see there is a lot of passion, a lot of fury outside, a lot of very strong feelings and a lot of emotion outside of the courtroom now, demonstrators, accentuated by a number of leaders, union leaders, civil rights leaders, political leaders, all out rallying this crowd, trying to send a message inside the court. Don't know how successful they'll be, but they sure are trying, Frank.

SESNO: OK, Carl Rochelle, thanks very much, outside the court.

We're reminding you once again, inside the court, those arguments should be under way with the Bush side, Theodore Olson, going first. And then for 45 minutes altogether from the Bush side, and then 45 minutes from the Gore side, to conclude, as we told you a little while ago, at 12:30 Eastern time. And if last time is an indication of what's going to happen this time round, we should be starting to hear the audiotapes about 10, 15 minutes after the arguments conclude.

To Ken Gross now, our election specialist.

As you were listening to Carl Rochelle talking to the crowd, I heard you mutter under your breath, wow. What struck you as you heard those Americans speaking their minds?

KEN GROSS, CNN ELECTION LAW ANALYST: Well, it's a great display. It's rare that you see that kind of assembly before the court and with that passion. I think the only time I can recall it is during the abortion cases where you had two sides so evenly split and passionately protesting like that.

SESNO: Let me talk about the court with you for just a moment here. Much hand wringing over the last several days when first Republicans were attacking the judiciary in Florida because they didn't like what the liberal -- their term -- the liberal Florida state Supreme Court was doing. Then over the weekend, some Democrats criticizing the United States Supreme Court because they didn't like the stay and what had happened there, and the discussion that, you know, we shouldn't be attacking the judicial branch, that it's somehow separate and apart. And yet as you point out on abortion and a number of other cases, the judiciary is often in the crosshairs.

GROSS: Well, we'll get through this. They'll be the bad guys to 50 percent of the country and the good guys to 50 percent of the country, depending on where we end up with this, but we'll get through it. And the court's reputation, I think, will be intact after the dust settles.

SESNO: Our CNN/"USA Today"/Gallup poll shows roughly three- quarters of Americans say they would accept what the United States Supreme Court would do.

Let's talk about the briefs here for a moment. The Bush side saying that the Florida Supreme Court's, quote, "sweeping and novel procedures for recounting selected Florida ballots steps on the United States Constitution's equal protection clause and due process provisions." Talk about that.

GROSS: Well, it's interesting because the last time this case was before the court on Dec. 1, this is not exactly a replay, this is a new issue. The 14th Amendment issue had not made it to the Supreme Court at that point. In fact, they rejected that issue. They said, let that be decided by a lower court. And that may, in fact, be the most important issue that's discussed here today. Even some of the senators on the weekend shows were talking about that.

And, you know, I actually think it's hard to make a case that the equal protection provision requires uniformity among all the counties and the states and the government. I mean, the history of this country is to leave that to the local level. We have a lot of disparate methods of counting votes.

SESNO: Give me 10 seconds. What are you listening for most closely today?

GROSS: I'm listening to that argument. I'm listening to the questions on equal protection to see -- because that's something new, as I mentioned. And also, of course, we're very focused on the swing justices of O'Connor and Kennedy, so we're going to be listening very careful there; and also the chief judge, because his legacy here is an issue as well, and I would like to hear him, of course.

SESNO: I think there are a few issues of legacy here today and beyond. This is all about legacy and history -- Daryn.

KAGAN: Frank, thank you very much.

Want to check in now on what each of the candidates is doing today. We know that George W. Bush had a little bit of time at least to stop and talk to cameras in Austin, Texas.

And with more on that, let's go to Jeanne Meserve in Austin.

Jeanne, good morning.

JEANNE MESERVE, CNN CORRESPONDENT: Good morning, Daryn.

Gov. Bush carrying on with state and transition business today as if this was a day like any other. He did arrive at the state capitol a short time ago after having a national security briefing this morning and meeting with Andrew Card, his designee for White House chief of staff. When he did arrive at the capitol, he was asked if later he'd have any comments about the Supreme Court's deliberations.

(BEGIN VIDEO CLIP)

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I'm making a statement once we've determine what the outcome of the Supreme Court decision is, and we'll see what happens.

QUESTION: Are you optimistic?

BUSH: Pardon me?

QUESTION: Are you optimistic?

BUSH: I'm keeping my emotions in check and we'll see what happens.

(END VIDEO CLIP)

MESERVE: The governor did have a phone conversation this morning with James Baker about the legal maneuverings. We do not know if he is going to be watching the tape playback of today's proceedings. We are told that he is patient, more so than his staff. The description of headquarters is cautious rather than optimistic. They are well aware of the twists and turns this has taken and that the Supreme Court could take any number of options today that have as yet been unpredicted.

We are told if the governor does win in court today, he wins Florida and he wins this election. There hasn't been a great deal of thought given to that. We are told the governor has not seen any drafts of anything like an acceptance speech and that no plans for a celebration have been finalized, all of that still considered premature more than a month after the election -- Daryn.

KAGAN: Jeanne Meserve in Austin, Texas, thank you very much.

While Jeanne was giving us that report, we were able to confirm that oral arguments have indeed started before the United States Supreme Court in the case of Bush vs. Gore. So keeping to the timetable, 90 minutes from now, we should be able to have the audiotape to play for you, if not before that.

Now, we've checked in with the Bush campaign, let's check in with the Gore campaign.

And Patty Davis is taking care of that for us in Washington, D.C.

Patty, good morning.

PATTY DAVIS, CNN CORRESPONDENT: Vice President Al Gore is here at his official residence. He is waiting for word on those arguments before the nation's high court. Inside the court, we are told, his campaign chairman, Bill Daley, as well as Warren Christopher. They will give the vice president a fill on exactly what -- how those arguments went. Afterwards, Joe Lieberman, his running mate, is expected to come here to the official residence, aides say, and they will listen together to the audiotapes of those arguments before the Supreme Court.

Now, aides describe Mr. Gore as resilient, determined and resolute on this potentially make-or-break day. Gore's argument before the high court that the Florida Supreme Court did act within its purview using Florida election law to guide it. Number two, that the counties were using voter intent and that is constitutional to look at those ballots.

David Boies making those arguments for the Gore campaign. He was chosen to do that by Warren Christopher because he has covered the Florida election situation in Tallahassee for weeks and weeks and they expect questions on that front. They expect the arguments to go that direction -- Daryn.

KAGAN: Patty Davis in Washington, D.C., thank you very much.

This issue, of course, what Americans are talking about. And we have some new poll numbers to share with you from CNN and "USA Today" and the Gallup organization.

To help us look at those numbers, let's bring in our senior political analyst Bill Schneider once again in Washington.

Bill, good to see you once again.

WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: Good to be here.

KAGAN: One thing that happened over -- the big thing that happened over the weekend was the Supreme Court agreeing to take the case, which is why we're in oral arguments right now. But they also put a stay to stop recounts. What do Americans think about that stay?

SCHNEIDER: Well, when we asked them yesterday how they felt about -- what they thought the court should do right now -- should they go back and allow the recounts or should they halt the recounts, you know what we found? People are split right down the middle; 47 percent...

KAGAN: Surprise, surprise.

SCHNEIDER: Surprise. Americans say -- 47 percent say the court should go ahead and allow the recounts to continue; 49 percent say, no, they shouldn't. So there you see it. The voters are as divided on this as the politicians are. And apparently the court was narrowly divided by 5-4. They put a stay on those recounts, at least temporarily.

KAGAN: Much has been made, kind of a new aspect of the coverage here and the criticism we've seen as the story has gone on of what the political leanings might be of certain judges. What does America think about that?

SCHNEIDER: Well, we asked people, do you think that the political views of the justices of the Supreme Court influence -- of the court of the United States influence their decision in this case? And, yes, you see a bare majority, 51 percent, say the justices are being influenced by their political views.

KAGAN: Are these Supreme Court justices?

SCHNEIDER: U.S. Supreme Court justices...

KAGAN: OK.

SCHNEIDER: ... are influenced by their personal, political views in this matter. So the idea that somehow the Supreme Court is above politics doesn't really hold with most Americans. There's an even older saying, the Supreme Court follows the election returns. But in this case, the Supreme Court is creating the election returns.

KAGAN: Well, if there's some doubt with that, who does America trust to bring a final conclusion to all of this?

SCHNEIDER: Well, this is where I think the trump card is held by the Supreme Court. Because we asked people, who do you think -- who would you trust to make a final decision about the outcome of this case? And there are four possibilities. By far, people say the United States Supreme Court, 61 percent; just 17 percent say they want Congress to decide the outcome; and even fewer than 10 percent, 9 percent, say the Florida Supreme Court; 7 percent say the Florida legislature.

Americans want closure in this. And the U.S. Supreme Court, they feel, more than any of those other institutions is positioned to bring this matter to a close.

And I would argue that the court's legitimacy in this case is not driven by any naive perception that the Supreme Court is above politics or even puts politics aside, it's driven by the need for closure and the court's position as the one institution that can do that.

KAGAN: Well, but can they do that if they come out with a decision like the one that we saw -- the ruling we saw over the weekend, 5-4; and not only 5-4, but some very bitter division and finger-pointing in all of that?

SCHNEIDER: That's why I think what the court has to do is struggle to reach a broader consensus on this matter; a 5-4 decision will always be controversial. The kind of partisan backbiting we saw in the written decisions issued on Saturday I think were -- created a political maelstrom that the court wants to avoid. The court speaks here as the voice of the Constitution. And when it does that and really intrudes into the political arena, it should do so with greater authority if not unanimity, and with at least some consensus on the principles involved so it doesn't really feed the perception that the court is stepping in, the fix is in, it's determining the outcome of the election, it's usurping the will of the electorate. People are willing to let the Supreme Court decide this, but it has to be at least a decision that appears to be on principle.

KAGAN: Bill Schneider in Washington, thanks. Good to see you once again.

SCHNEIDER: OK.

(COMMERCIAL BREAK)

KAGAN: A live picture for you from the U.S. Supreme Court, where we have confirmed that oral arguments are under way in the case of Bush versus Gore, 45 minutes for each side. When it is all done, we'll have audiotape of the arguments, and play it for you as soon as possible right here on CNN.

While we await that audio tape, let's check in on the Internet and the interactive aspect of the story, and for that we go to CNN's Rick Lockridge -- Rick.

RICK LOCKRIDGE, CNN CORRESPONDENT: We have talked before, Daryn, about how the Internet is a great medium for stories where there's a lot of documents, in this case a lot of briefs. There are more briefs strewn about in this story than you would find on a fraternity house floor.

How do you deal with that? We will show you. First of all, you go to the CNN.com main page, and then there is a very important link you have to look for, and it is right here in the upper-right-hand corner, it is in red here, this hyperlink: U.S. Supreme Court reviewing the vote.

You find that link and you click on it, and it will take you to our law page. On that page, you will see all the briefs listed, here they are, you can click on anyone of these. Now you have to have a piece of software called Adobe Acrobat Reader to read these briefs. If you don't have it, there is a link down here at the bottom -- can you see this here -- where you can click on that and you can easily download the software.

And if you scroll down on this page, you see a lot of other things you can do, there is a lot of content on this page, there is background, analysis, discussion, and video, you can watch video clips of stories that have been covered here on CNN, and later on, you will be able to click on the audiotape link, to hear the audiotapes from today's hearing. However, you will also find a link for that, undoubtedly on CNN's main page later on.

Now one thing that partisans, and pretty much everybody have shown they really love to do during the story is argue about it. There's a facility for that on this page as well, you scroll down to the bottom, and you can see that there's a message board, you can click on this link right down here at the bottom, and that will get you into the message board area, and you can say whatever you think.

I looked over some of those comments early on, and some of them are very juicy. Just remember, keep it clean.

Daryn, there is one more thing I want to show, and that is the U.S. Supreme Court's official home page. This might well be overwhelmed later with people wanting to get on it. But notice the icons here? What do those look like to you?

KAGAN: Little cameras.

LOCKRIDGE: Little TV cameras, isn't that ironic, because the court of course has so far refused to let cameras into that courtroom.

KAGAN: But that might just be us, we might just have TV cameras on the brain.

Rick, you talked about partisan, there is also people who say wake me up when this whole thing is over. I understand cnn.com has a special service where we will be able to do just that.

LOCKRIDGE: That's right, we will send you an e-mail the moment the issue is decided, so long as we are all still living, and we will just check on that.

Back to the home page now. Here is the home page. Scroll down about halfway, and you will see this red box, and right here you want to sign up, click on that right there, and you will be able to sign up to get that e-mail notification the minute the whole thing is over, and for all of us, I guess, we can say that can't come any too soon.

KAGAN: Absolutely not. It will be a great Christmas present. Rick Lockridge, thank you very much for that report.

We want to now go from CNN.com up to D.C. -- to Washington, D.C. and Frank Sesno.

SESNO: Thanks, Daryn.

Well, Florida lawmakers meet again today to talk about electors. Word from Tallahassee is the Republican-led Florida Legislature might delay a decision on appointing electors, presumably loyal to Bush, until the Supreme Court rules on the state's disputed ballots.

Bill Hemmer is in Tallahassee with that and much more -- Bill.

HEMMER: Frank, thank you.

Again, it is important to point out I guess the confluence of events that we are seeing right now, not only in Washington, but certainly here in Tallahassee. This time next week, on the 18th of December, the electors not only will be coming to Tallahassee, but every state capital across the country, and casting their votes in the Electoral College.

Certainly state lawmakers here, again, taking up this issue right now as we speak.

Let's get over to Mike Boettcher for more on this now.

Hey, Mike, good morning again.

MIKE BOETTCHER, CNN CORRESPONDENT: Well, good morning, bill. To what Frank specifically said, I've been checking with senior members on Republican side who are pushing this resolution. They say they are going to carry through, they are not going to delay or wait for the U.S. Supreme Court decision. They say, until there is finality, there is no more uncertainty, no more cases coming to the courts, they will continue to act. And, of course, there are two other appeals going to the Florida Supreme Court dealing with absentee ballot cases.

Now, right now, simultaneously, and we have a bank of monitors watching this, the House and Senate Committees on Ethics and Elections are meeting at the same time, hearing testimony from experts. Meeting right now in the Senate, they are hearing from Roger Maganison (ph), who is their counsel, who is telling them, quote, "the legislature has the power to do this, it can neither be taken away or abdicated," let's listen to him now.

(JOINED IN PROGRESS)

UNIDENTIFIED MALE: The point of the exercise of legislatures acting, according to Title III, Section II, would be defeated by contingencies, based on multiple imponderables of what courts will say, when they will say them, how they will say them, and what kind of standards they will use.

Because the point of the legislature, acting under Title III, Section II is conclusivity and finality. No one really knows what the United States Supreme Court is going to do, although we have that footnote, or that paragraph by Justice Scalia suggesting that five justices believe that the Florida Supreme Court's ruling is probably going to be tipped.

We don't know what will happen after that, and we don't know what standards might be employed by a court. What we do know, however, is that at the present time, we don't know. And as December 12th looms, a date which provides the safe harbor for Florida's voters and electors, as that date looms, it is important for the legislature to take steps that ensure finality and conclusivity. That's the most important obligation this legislature has.

In fact, if a decision happens after December 12th by a court that uses standards that weren't in effect prior to November 7th, in the nature of recounts or other decisions, it will be a decision that is other than the legislature has appointed as the way to do an election in preexisting standards to November 7th.

There is one other comment I would make, and that is, the Founding Fathers considered, during the Constitutional Convention, giving ultimate authority to the courts to appoint electors. And we know their judgment by the father of the Constitution James Madison in a record to the Federal Convention of 1787. He said, as a result of...

BOETTCHER: You've been listening to Roger Magidson (ph), who is the counsel for Senate Republicans in Florida, who was telling them they have the right to act when there is uncertainty in this election of electors, and certainly the Republicans feel that way, the Democrats do not. They are arguing against this, and they will have their own experts today, both the House and the Senate.

This should continue on through the morning, and then at 1:00, members of the public will be able to testify and give their opinions to both of these committees -- Bill.

HEMMER: All right, Mike, Mike Boettcher.

Once again to our viewers, a Tuesday vote in the House is expected, and a Wednesday vote in the Senate is expected at this time.

And again, oral arguments do continue at the high court, the U.S. Supreme Court in Washington. We do know they are under way at this time. Arguing for the vice president is David Boies; arguing for George W. Bush is Ted Olson; and then Joe Klock on behalf of Katherine Harris, the secretary of state here in Florida.

Our coverage continues not only from Tallahassee, but also Atlanta and the nation's capital after a short break here.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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