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Bush v. Gore: U.S. Supreme Court Hearing Arguments on Florida RecountAired December 11, 2000 - 12:01 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
DARYN KAGAN, CNN ANCHOR: It is noon in Washington, D.C., and on the East Coast of the U.S., 9:00 a.m. on the West Coast, and we are an hour into U.S. Supreme Court arguments on the Florida recount, another 30 minutes to go. In the balance: Florida's 25 electoral votes and the presidency of the United States.
From CNN Center in Atlanta, I'm Daryn Kagan. And joined in our coverage by Washington bureau chief Frank Sesno, our own Greta Van Susteren, who was just inside the Supreme Court, and Jeff Greenfield standing by, in New York city.
To all three in a just a moment. First a recap of what we know so far. The case of Bush v. Gore is being argued before a divided court. By now, the justices have heard the Bush side, and they are listening to the Gore arguments. Over the weekend, the justices issued a stay halting any hand recounts in Florida. However, that decision came on a five to four vote as the justices consider their next move.
You can make up your own mind about which side presented a better argument: CNN will be airing the complete audiotape of the proceedings as soon as it becomes available, and by our watch, that should be just over 30 minutes from now.
Now to Frank, in Washington.
FRANK SESNO, CNN ANCHOR: Daryn, thanks a lot.
For our viewers just joining us, Greta Van Susteren was in the court through the first half of the arguments, hearing the arguments as presented and parried from the side of George W. Bush, Theodore Olson the lead attorney there.
Greta, to you now -- and again, for those who may just be joining us, why don't you recap what you heard, how the questions went, tone, that kind of thing.
GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, let me start as the court started, as it always does: a gavel hit, the justices stepped out, the gavel hit again, and the argument began -- Ted Olson on behalf of Governor Bush, and he's very effective on his feet, he used a lot of experience arguing cases before the United States Supreme Court, and he showed his experience today. The two big issues in lawyers' minds are how will -- who will justices Kennedy and O'Connor vote? Most people think -- and I understand think -- we have no idea how these justices will vote, but most people think that the swing votes are likely to be O'Connor and Kennedy. And both those justices, true to form, gave us some hint: The thing that bothered them most of all, by their questions, is why are we here?
Governor Bush must establish that this is a federal question. Not all cases can automatically go to the United States Supreme Court -- can't take a dog-bite case -- it has to have, for instance, a federal question.
What Ted Olson says is yes, there's a federal question here. What happened here was that the Florida Supreme Court, on Friday, stepped too far. It violated the U.S. Constitution when it -- when it overhauled the election laws in the state of Florida and when it stepped into the power of the legislature by get nothing into the business about how you choose electors. Article Two of the Constitution says it's legislature that's supposed to select the electors.
Now, what the Gore people are going to stand up and say is: Not true, what happened here is the Florida Supreme Court was simply interpreting the law -- that that's their right to do, that's their obligation.
That's what I expect David Boies is arguing right now behind me, and colleague Roger Cossack will bring that out to you as soon as it's over.
Secondly, another big point is this: The justices were all interested in this issue of standard -- does there have to be a standard in a hand count or not. Is it enough that the statute says the intent of the voter, or does it have to have more of a blueprint, for instance, three dimples versus two dimples. What is needed or necessary?
Justice Breyer posed a question: He said, hypothetically -- and he said hypothetically, he didn't say he would -- he said what if this court remands this case back down to the circuit court in Tallahassee to the Leon county circuit court, and has that judge there determine what the standard is by going to the secretary of state, Katherine Harris, and saying what standard should we apply, and having her tell what's the standard. Then, would you have a problem with that?
And Ted Olson basically said nobody could have no problem with that because there would be a standard.
Interesting, though, Justice Stevens back into questioning: Well, says isn't there already a standard?
And Ted Olson said no, there is not.
And Justice Stephen said: Well, has the secretary of state issued an opinion as to standard. Ted Olson said no.
Justice Steven said doesn't that show she's satisfied with what the Florida legislature has said: that the standard is in the intent of the voter, and, in essence to be determined by whoever has the obligation to look at the ballots.
So there are questions and answers back and forth. Ted Olson, a great advocate on his feet, was fielding the questions. But I only saw 1/2 of this, and I am confident that David Boies is getting an equal grilling from a Supreme Court that was, clearly, well prepared and ready for these lawyers.
SESNO: Greta, briefly, is there any sense that you got when you heard that Ted Olson's response to that hypothetical from Justice Souter about remanding this back to the circuit court for Leon county and asking the secretary of state for a standard -- and apparently, Olson said no, wouldn't have a problem with that -- raise your eyebrows there when you heard that?
VAN SUSTEREN: Obviously, I'm being very sort of short-handed in giving you the shorthand description of the conversation exchanged between them, Frank, but when the question answered -- when the question was posed to Ted Olson, I felt a little bit like if I were in Ted Olson's shoes, I'd wanted to slide under the table. But he very effectively answered the question. He in no way conceded they shouldn't be there and that the Florida Supreme Court, in his view, overstepped.
So, I mean, it's an uncomfortable question for Ted Olson, but by no means does it tell us exactly how the court's going to rule. But it was an uncomfortable question. When Ted Olson, on behalf of Governor Bush, complained to the Supreme Court, in his briefs, as advocate would, that there were no standards -- if, of course -- if the United States Supreme Court offers you a standard, you're then a little bit between a rock and a hard place to complain about it.
However, he had other issues with the Florida Supreme Court's decision, and he, certainly, did not fold art that point or give up. He simply argued his position.
SESNO: OK, Greta, stay with us.
To Jeff Greenfield now, in New York.
Jeff, what we're hearing here, of course, is a rich tradition of this kind of thrust in parry, but totally unprecedented territory in the end.
JEFF GREENFIELD, CNN SENIOR ANALYST: You know, my dim memory of law school days brings to mind a quotation -- I think it's Justice Holmes who once said hard cases make bad law. And I think we can amend that to say razor-thin presidential elections may make a whole host of very uncomfortable decisions -- and I think what were seeing, broadly, wherever you stand or sit in this matter, and however it comes out is that our constitutional machinery, our electoral machinery -- indeed some of the machinery in the media -- simply, they have not been built to handle what is, essentially, a tie election nationally and in the state where the electoral majority will be decided.
Whether you're talking about how we count votes, whether you're talking about the introduction of the judiciary into a political process, whether you're talking about political institutions that, however they decide, will incur the wrath of roughly half of the American electorate -- this is a case where -- I'm not suggesting, by the way, that we're talking about some long-term, disastrous consequences, but -- the fact that the institutions that we are now asking to decide this matter all are on the line, in my view, are simply not built to withstand the impact of an election that was fundamentally a tie and whose outcome will never be known.
SESNO: You raise a very important and very interesting point, because in other countries there are mechanisms and that is called a run-off election, if somebody doesn't get more than 50 percent of the vote.
GREENFIELD: Indeed, but, you know what, Frank, one of the reasons I thought of -- I think -- Justice Holmes' quote is that every solution proposed brings with it its own problem. For instance, you're quite right: In many countries -- in fact, in the state of Georgia, when it comes to statewide elections -- don't get 50 percent of the vote, you have a runoff.
But if we were running a presidential election with an electoral vote system, would we have runoff nationally and recount the electoral votes? Would we only have a runoff in states where no one got 50 percent? I'm not suggesting there aren't answers, but you can begin to see that the system that was built 200 years ago -- a very complicated federal system with power, basically, lodging in the state legislatures; that's how the framers did it, without it they probably wouldn't have had a Constitution ratified anyway -- that this machinery under a select set of circumstances, which really we've seen that once every 100 years, thank God, buckles under the weight. And I think there'll be enough seminars to provide full employment for every constitutional lawyer and professor about what to do about it, but you can begin to see that, as you start thinking it through, every solution has its own dilemmas.
SESNO: And the seminar, in some ways, is under way in that courtroom, Jeff, where those nine men and women have said and, presumably, are saying, again, in various ways, you know, we don't want to be a part of this, we're not supposed to be a part of picking the president of the United States, we're supposed to interpret law.
GREENFIELD: Except, of course, that at least five of the justices thought they might have to be involved, thought enough of it to stay that manual recount and step in and say we at least have to hear the case. And just look at this institution. The Supreme Court right now in the public opinion polls, a great majority of people saying, yes, they ought to settle it. I think that might be by default because they can't figure out who else ought to settle it. But if the Supreme Court were to break down as -- at least that initial stay, that initial order was 5-4 -- in which you could almost say, yes, all the people we think of as liberals are on one side, all the people we think of as conservatives are on the other, we once again pay a price. And the price is the price of thinking of the Supreme Court as an institution that is beyond the kind of ordinary ideological political controversies.
And so, once again, here's an institution that may be forced to play a decisive role in picking the president, which has never happened in American history. And, again, what's the fallout going to be? I think the fallout's going to be a much more de-mystified view of the Supreme Court, and maybe even an inaccurate view as just another political player.
So this election, whatever it's going to do, is going to produce enough head scratching and questions to keep people at it, I think, for years to come.
SESNO: Dangerous place.
Ken Gross, our election law specialist, your thoughts?
KEN GROSS, CNN ELECTION LAW ANALYST: Well, Chief Justice Rehnquist is, I think, going to make a special effort to see if he can get a decision from this court that is not a 5-4 split, as was indicated in the granting of the stay on Saturday, because that is divisive. And he is the chief justice and has special responsibilities in that regard.
And, you know, when Greta was reporting what questions were being asked from the court, one that I thought was very interesting was this issue about standards. That's the issue that we did not hear last time. And if it's true that they can get around some issue -- I mean, even the lawyer for Gov. Bush said, if you send it back to the circuit court with some kind of clear direction as to what gets punched and what doesn't get counted, then perhaps that would be OK, or the circuit court would go to the Secretary of State Harris and ask for a standard. And we would be counting again, which, of course, is what the Gore people want, although it's by no means certain that Vice President Gore would win if it went forward.
But that is something that maybe seven, maybe nine justices could coalesce around. And I think Chief Justice Rehnquist would like that very much. I think it would serve the court well.
SESNO: Well, as we observe and contemplate what's going on inside that courtroom, we would observe that life is filled with paradoxes and ironies. So a piece of tape to show you right now of the governor of Florida, Jeb Bush, arriving at the White House not very long ago for the signing of an Everglades protection bill by the president of the United States, Bill Clinton.
Jeb Bush the brother of the candidate who is arguing his case before the Supreme Court, as you see there, stepping out of the limousine, or in this particular case, perhaps the minivan, in the street between the White House and the Old Executive Office building next door, if my recollection serves me here, to go into the White House and just be part of the traditional and ceremonial signing.
Usually a governor comes to the White House when his state is being recognized. Well, maybe not usually, but in this case nothing's usual, so we move on.
To Bill Schneider now for just a moment.
Bill, we were talking a moment ago about the role of the Supreme Court and the role of this particular institution in this particular day deciding or weighing in on this very dramatic issue.
WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: Well, I think the court has to grapple with a fundamental, mathematical reality that was cited in the Florida Supreme Court in the dissenting decision by the chief justice of the Florida Supreme Court. He quoted a mathematician who stated a simple fact, that no matter how you count the ballots, whether you do it by machine or by hand, there's going to be a certain amount of error involved. And because this election was so very close, the margin of error in any count is always going to be greater than the margin of victory. The margin of error is always going to be greater than the margin of victory. That is a simple reality.
Machines aren't perfect, human beings aren't perfect, so the court has to grapple with that and they have to decide, is there a method of counting, a standard they can use that is broadly acceptable? Inevitably, it will involve some error, but it's broadly acceptable that would pass muster.
SESNO: All right, Bill, we'll come back.
Back to Daryn now in Atlanta.
KAGAN: Frank, thank you very much.
As we check the clock, it looks like maybe about 16 minutes left in oral arguments. Again, that's just a guestimation, but as soon as those arguments are over and the tapes, the audiotapes are released, you'll hear them here on CNN. Those oral arguments taking place on the inside the Supreme Court right now. Outside the Supreme Court, you have the beginning of a gathering of journalists. Of course, there's some inside and some outside. They are gathering around a podium and a microphone area. This is where we expect the attorneys for both sides to come out immediately after the arguments and have comments. We'll have that for you followed by the audiotapes.
Right now, a quick break.
KAGAN: Showing a live picture right now from inside of a news van that is parked just at the U.S. Supreme Court. This is where the audiotapes of the oral arguments currently taking place will be headed and where they will push the play button. You might see the stickers advertising ABC News. ABC simply working as the pool that we call it around here. And that means that they'll play the button, they'll play the tape and we'll all be able to hear here at CNN, so just stay with us. We expect those oral arguments to not last longer than 12 minutes.
So we'll have the tapes, also have comments for you coming up from the attorneys arguing before the U.S. Supreme Court right now. As soon as they come out of the courthouse, we'll hear from them.
Now, we heard Greta Van Susteren tell us, report a little bit earlier on that there are a number of senators and dignitaries and journalists inside that courthouse; also a limited number of seats for members of the public, people who stood in line a long time for that privilege to watch the high court in action. One of those people, David Ratke from Herndon, Virginia, stood in line and had his time inside the Supreme Court. And he's joining us now from Washington from just outside the Supreme Court.
Mr. Ratke, good morning. Thanks for joining -- or actually, good afternoon. Thanks for joining us.
DAVID RATKE, SUPREME COURT SPECTATOR: Good afternoon. It's a pleasure to be here.
KAGAN: Tell us what you heard inside that courtroom.
RATKE: We got a very short time in the court, approximately three to five minutes. When we first came in, Justice Scalia was questioning the Bush attorneys, Mr. Olson, with regard to whether he thought that a partially punched ballot would indeed constitute a vote and whether it was the Bush attorney's position that it did not constitute a vote, which is what they said it did not. And then they talked for a short bit of time about whether Article III of the Constitution applied to this and how it applied. And then we got a very short amount of time with Mr. Klock being questioned again by Justice Scalia.
KAGAN: And as you mentioned, you were in there just a short amount of time, three to five minutes. They move people through as to give more people the opportunity to have this same experience that you had. But what was your general impression?
RATKE: General impression was that it was very serious and everybody in the courtroom was paying great attention to the arguments, and what the justices were saying, and that's it. Serious.
KAGAN: And how long did you have to wait in line just to get that chance at three to five minutes?
RATKE: We were unfortunate enough to get here about 3:45 yesterday afternoon. If we had gotten here at about 3:30, we would have been able to witness the entire arguments. But as it was, we were the first ones to go through what they call the three-minute line.
KAGAN: Just missed that. But did you stay overnight then in line?
RATKE: Yes, we spent the night in a tent, every couple of hours, they would have a roll call for everybody in line, and we had a good time with all the other people that were out on line.
KAGAN: If you don't mind my asking, what do you do when you are not standing in line to see the Supreme Court?
RATKE: I am a network security engineer at a small company based in Herndon, Virginia.
KAGAN: Was it worth your time?
RATKE: Sure, I think so. I think we are witnessing history here, and something that I brought my two daughters so they can tell their kids and their grandkids about.
KAGAN: Very good. Well, David Ratke from Herndon, Virginia, thanks for sharing your experience and asking as an impromptu reporter for us here on CNN, appreciate it.
RATKE: Thank you.
KAGAN: Now let's go up to Jeff Greenfield in New York -- Jeff.
GREENFIELD: Hi, Daryn.
KAGAN: Hi, Jeff. Your impression -- there was just a little bit more information that we got from Mr. Ratke, acting as an impromptu reporter for us. He had a little bit more information, when Greta had left, she hadn't heard any questions from Justice Scalia to the Bush attorneys.
GREENFIELD: I don't know that a three to five minute glimpse of an oral argument is going to give us a major clue as to what is going on, but I do think that it highlights one potentially sunny consequence of all of this, and I was talking earlier that I thought there would be some fallout that not particularly welcome.
But I do believe that for a lot of people civics has become something...
GREENFIELD: ... central to their lives again. The idea that this man would bring his two daughters to witness history I think is being reflected elsewhere around the country that I've heard people tell me that their kids are being given assignments to study the history of the Constitution. Even at health clubs, the television has been turned off the stock market every day on to news channels like this one.
KAGAN: Which is good for us.
GREENFIELD: Well, it is good for us, but I was thinking a little more beyond that, that people are arguing in fact: Does my vote really count? On the one hand, this is the closest election I can remember; on the other, look at all the votes that were never counted, because of normal spillage, and spoilage, and maybe we need a better way to count votes. So there is that kind of consequence that maybe people will start taking seriously again that this of self-government.
KAGAN: And to take it a step past that, Jeff, I was at dinner last night, there were two people there from England. So it is not just Americans that are getting fascinated with the civics process of the U.S., but the whole world is watching as well. I think the discussion then went on to compare it to their own system.
GREENFIELD: I think, in fact, what I've heard from folks who have come here from abroad, and we talked to some of them on the air, is that there is certain amount of -- I don't know if gloating is the right word, yes probably is, that this superpower, the mightiest economic power in history, the one military superpower, can't figure out how to elect the president. And there have been, as you've probably seen on the Internet, all kinds of sort of joking e-mails about Her Majesty, The Queen thinks that we are not ready for self- government and wants the colonies back. There are comparison between the United States and what used to disparagingly called Banana Republics.
So I think that around the world there are two things -- there are three things actually, there is a bit of gloating, there is a bit of concern that the most powerful economic nation on Earth is uncertain, and also I think a certain amount of admiration that with all of this confusion, this country seems remarkably stable and calm, and probably focused more about Christmas shopping and the NFL playoffs, than whether or not there will be tanks in the streets. So I guess that's good.
KAGAN: That is good, depending on who your team.
Jeff, we will have you standby. Once again, we want to show the picture, once again, from inside this live television truck that is parked right outside the Supreme Court, waiting for those audiotapes to come out. Once again, mere minutes left in the oral arguments taking place before the Supreme Court in Bush versus Gore. Given last time, they turned these tapes around pretty quickly, and it comes out of the courthouse, and into this van, they push the play button, and then it is there for all of us to hear.
So as we stand by for that, let's bring back in Greta Van Susteren, who was inside the courtroom for some of the arguments, and some of the questioning of Ted Olson, the attorney who was there for George W. Bush.
Greta, I don't know, were you able to hear David Ratke, the man we just talked to from Herndon, Virginia, who was in the court after you were.
VAN SUSTEREN: Actually, Daryn, I was in there for the complete presentation by Ted Olson on behalf of Governor Bush. I was four feet from the justices, I got to be in the front row this time, I was not going to have anything but the best seat.
But let me give you a little bit of the local color that we got. About four seats down from Roger and me was a woman lawyer who came into the courtroom not wearing a jacket, a blazer, she was escorted out of the courtroom, taken to the marshal's office, where she was given a jacket to bring back into the courtroom because the decorum is very important in the court. Of course, I very carefully tucked my booted feet underneath my chair to make sure that I wouldn't be moved.
KAGAN: What were you supposed to be wearing?
VAN SUSTEREN: Well, who knows? This is the chief justice's courtroom, and no one else's, and he makes sure we all know it.
You have to understand, it is very crowded out here, we got here very early in the morning. We had people who stood in line from about 4:00 in the morning. I got here about 6:30. I stood in six different lines. I was in the lawyers' line with Roger, which is different from the media line, and even tempers flare a little bit in the lawyers' lines. For instance, if someone thinks that someone sort of steps in the way of someone else, cuts in line, the lawyers get a little bit on edge, and start making comments. So each this morning, as we lined up, this wasn't necessarily a happy group waiting to get into the courtroom.
But once we got into the courtroom, you know, we did exercise the appropriate decorum, there was no more of the sort of nudging and sort of insults about people cutting in line. And it was interesting, there we were, four feet from -- those of us who were lucky enough to be in the front row -- from all of these nine justices. I have to tell you that not one smile was cracked, it was business, the gavel came down, they walked in, we stood up, the gavel came down, and the arguments started.
Boy, they were ready with those questions, and this is very serious business. I heard you earlier say there was a divided court, I don't know if that's true. We had that 5-4 decision on Saturday, and so it is very -- you would think that would indicate they are divided, but they were divided on the issue of whether a stay should issue. We in no way know how they are going to vote on this. It could be 9-0 for Governor Bush, 9-0 for Vice President Al Gore, we don't know. We are expecting, based on that 5-4 decision on the stay, that there is some level of division. But that issue of stay was a different issue than what the justices face today.
The issue today is: Does this case belong here? Is it a federal question or not? And secondly, if it does, what standards, what can the court do about standards? Should it decide that a manual count should go forward? And it has not made that decision or indicated? Simply wanted to know: What about the standards?
KAGAN: Absolutely. Very good points, indeed, which is why we are all on pins and needles waiting to hear what the complete oral arguments were. As we mentioned, you were inside the courtroom for the Bush attorney, for Ted Olson, to be questioned; Roger Cossack still inside for the entire argument. We expect those to be wrapping up any minute. Greta Van Susteren, outside the U.S. Supreme Court.
Now back to Washington and Frank.
SESNO: Daryn, thanks very much. We heard Jeff Greenfield comment a few moments ago that this has really become something of a national seminar, a national discussion on civics, and how the awesome wheels of this government, this 200- plus-year-old government work are are attempting to figure this out.
We can tell you, we've heard from any number of civics classes around the country, who have been watching this story and this process on this network and other news channels, and we certainly know that there are millions of people around the country in their homes and in their businesses who are tuning in as well.
We can tell you on cnn.com you will get the full text of this transcript, you will also see, if you go there now, the text of the briefs. So you can have as much information as you possibly can imagine.
As you mentioned just a moments, we are expecting the arguments to conclude inside the United States Supreme Court, and shortly thereafter, in just a few moments we will be getting these audiotapes, so you will be able to hear right here exactly the arguments and the questioning from the justices that took place over this hour and a half.
Listening to America as well is part of what we are doing here. John Zarrella is in Tallahassee, in Florida, this critical and pivotal state, in a coffee shop, talking to some folks there -- John.
JOHN ZARRELLA, CNN CORRESPONDENT: Frank, actually, we are down in North Miami, which is of course in the heart of where all of the activity has been, the 9,000 undervotes out of Dade County. I have tell you, like Jeff Greenfield said, lots of other issues on folk's minds, not surprisingly, football, holiday shopping, and the stock market. But they do have opinions, and lots of opinions about what is going on here in the courts today, and the big story of course the Supreme Court.
Joan Cotter (ph), Supreme Court wrapping up oral arguments right now in Washington. Do you believe the United States Supreme Court should be involved in this issue of ballots?
UNIDENTIFIED FEMALE: No, absolutely not. I think the states should absolutely count the ballots. I want my ballots counted, I am a voter for all these years, I'm an American citizen, I was born here, and I really think that this whole system was ridiculous, We are the laughingstock of the world.
ZARRELLA: So you believe they've got to count and the Supreme Court should stay out of it.
UNIDENTIFIED FEMALE: Absolutely, I think they have to be counted. I don't care how long it takes.
ZARRELLA: Joan, thanks so much.
Let me swing over here very quickly, and get Aaron Specter (ph). And Aaron, we've been asking folks: What do you think, U.S. Supreme Court should be involved in this, whether we should be counting ballots or not?
UNIDENTIFIED MALE: I think the Supreme Court should be involved in whether we count ballots or not, they are the supreme arbitrators of what is right and what is wrong for democracy, it should not be up to the Florida State Legislature whatsoever to do it. It will just be a political thing, and not the Supreme Court decision based on law.
ZARRELLA: Aaron, thanks so very much.
And, Frank, a lot of what folks here are telling us is that whatever it is, they do believe the United States Supreme Court is going to be the final arbiter in all of this, and they also are telling us in vast majorities that they are tired it all, and most people, no matter their political persuasion, want it to be over, so they can move on -- Frank.
SESNO: OK, John Zarrella, thanks very much for listening for us in Florida, and my apologies, not Tallahassee, put as you said, north of Miami.
We are going to show you the shot of this audio truck now. We are expecting the audiotapes in mere moments, last time right at the appointed moment, Chief Justice Rehnquist said basically that's it, down came the gavel, and it was over. If they stay to form this time that will happen again, then the audiotapes will be brought out, they will be rewound, put in the tapes there, and we will play them for you, as soon as we get them.
We also expect, and this may happen before that, some of the attorneys, as they did last time, the lawyers who argued for and against to step to this microphone at the base of those rather imposing steps, the United States Supreme Court, and we are likely get their point of view, some might say their spin on how things went in that courtroom.
To Greta Van Susteren now.
Greta, when we hear these tapes now, remember I want to point out to our audience again you heard the first portion, you heard the presentation and the response from the Bush side. What would you tell people to listen to and listen for most attentively?
VAN SUSTEREN: I think the most important thing are the questions by Justices Kennedy and O'Connor because those are the ones that people think are most likely to be swayed either way. Those are centrists on the court. Most people believe that Justices Scalia, Thomas and Rehnquist are more likely to go towards the Bush side of this dispute. And Justices Stevens, Souter, and Ginsburg and Breyer are leaning towards the Gore side.
The question is, what are Justices O'Connor and Kennedy going to do? Now, those are the justices to watch. Now, the questions to watch are: Should this case be here? You're going to hear a lot about this issue about federal question. The reason you keep hearing these questions is that you can't bring any old case to the United States Supreme Court, quit must have what we call jurisdiction, it must be the type of case that belongs here, it has got to have a federal question. If it's a constitutional issue, it belongs right here.
Ted Olson said, on behalf of Bush, it's a constitutional question, the Florida Supreme Court went too far and stepped on the United States Constitution. The Gore side, which I did not hear, but what I expect to be argued is: No, it didn't. It was within the Constitution and Florida, by issuing its decision on Friday, it was simply interpreting its own state law. Very different views.
Now, here's the other thing that might tip you in watching these arguments is the issue of standards. If during the questioning of David Boies by the Supreme Court, if they're asking a lot of questions about the standard, there's a possibility that the Supreme Court is seriously considering sending the case back down for a hand count. Now I say seriously considering, I have no idea what the Supreme Court is going to do, and no one does who gets on television or who even was sitting inside for the whole argument. But at least it shows that they have an interest if they are asking questions.
And even during the argument that I heard, one of the justices was wondering whether to be sent down to the Florida circuit court, the trial court, to see whether or not that judge should ask the secretary of state, Katherine Harris, for a letter as to what should be the standard. So if there's a lot of attention on what should be the standard, that's sort of a hint and a nod that that might be good for the Gore side.
On the other hand, if they don't even address the issue with David Boies, it seems like that issue is over. But that's reading the tea leaves which we lawyers do all the time. But we have no idea ultimately what the court will do.
SESNO: Greta, thanks very much.
We are told the oral arguments are over inside the Supreme Court, therefore, we should be seeing some of those attorneys by the microphones very shortly, we should be seeing and hearing most particularly those audiotapes from inside that courtroom in mere moments from now.
If you are watching in your classroom, in your home, or in your office, we are just a few moments away, we believe, from listening to the audio of these very important, 90 minutes of oral arguments before the United States Supreme Court.
Karen Tumulty joins us now from "Time" magazine.
You have been covering this story, its seems like forever, but here is a very perhaps, perhaps the pivotal day in this entire thing. I'm curious as to how you feel the political game is going to play out. We have senators from both pictures -- from both sides inside here, you see pictures from the court itself as people begin to stream out, I'm told. Karen, let's hear from you here?
KAREN TUMULTY, "TIME" CORRESPONDENT: Well, it really does seem that the reality here is that if the court decides to decide in favor of the vice president, it's just the beginning, and if they decide with Governor Bush, we're talking about the end here. And what is going to be fascinating to watch, as we finally get these tape, is to hear the court struggling with the question of the legitimacy of the next president. And, in fact, if, as Greta was suggesting a minute ago, they're looking at what the standards for the count ought to be, they're really thinking of how can we assure that whoever is elected here is going to have a shot at starting his presidency with some degree of legitimacy?
SESNO: Bill Schneider, our political analyst, also joins us.
Bill, this is very much about legitimacy, legitimacy of the court, legitimacy of the institutions of government, and of course, and ultimately, legitimacy of the presidency itself.
Let me just say, Bill, before you jump in here, the picture that we're going to be showing you from time to time, is the shot outside the courtroom, right here, where these audiotapes are going to be coming, so if you see someone dash by, it's likely they are the person, the Paul Revere of the moment, carrying the tapes -- Bill.
SCHNEIDER: Well, the legitimacy issue is very much the center of the argument the court had within itself on Saturday when each side accused the other of threatening the legitimacy of the new president. That is where it really got to be bare-knuckled politics. The dissenting minority, the four justices, I think Justice Stevens wrote on their behalf, said that if you don't count the ballots, the legitimacy of the new president will be forever in doubt. And right now, Democrats are saying, you know those ballots are eventually going to be counted under the Freedom of Information Act or the Florida Sunshine Law and we will know who really won Florida.
I'm not sure we will, but that is what the Democrats are arguing, and therefore, it makes no sense not to count the ballots now.
On the other hand, Justice Scalia responded to the argument with a scathing argument of his own, counting the ballots when they are of dubious legitimacy, doesn't add legitimacy to anything.
SESNO: In fact, on what he said, if can steal Scalia's words, he said, "Count first and rule upon legality afterwards, he wrote, is not a recipe for producing election results that have public acceptance of the democratic stability requires."
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