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Special Event

Gore Campaign Attorney David Boies Holds News Briefing Following Oral Arguments Before U.S. Supreme Court

Aired December 11, 2000 - 12:37 p.m. ET

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

FRANK SESNO, CNN ANCHOR: I'm told David Boies, the attorney for Gore and company, coming to the microphones.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I feel tired. It was a very good argument. The justices were obviously extremely well- prepared. They asked a lot of very probing questions. They required a review of the cases and the trial record. And it was a very satisfying argument, but one that required a lot of work.

QUESTION: Do you assume this is the last one you're going to be making in this case?

BOIES: I'm not sure. Every time I've made a prediction about what the last argument was, I've been proven wrong. So I don't want to say that this will be the last argument, but I think this was an extremely important argument.

QUESTION: Any questions that surprised you at all?

BOIES: I'm sure there were questions that I was prepared entirely for. I think there were a lot of questions that I was prepared for. What you had was a 45-minute interrogation, and it was a very, very good bench; everybody was very well-prepared.

QUESTION: Which questions were you not anticipating?

BOIES: I don't think there was any particular question that I was not anticipating.

QUESTION: No line of attack?

BOIES: I don't think there was -- there was certainly no subject matter that had not been raised before.

(CROSSTALK)

QUESTION: ... questions about the unequal standards?

BOIES: I think one of the issues that the court clearly has in mind is whether a standard of the intent of the voter is too general or not.

It is, of course, a standard that is applied not only in Florida, but in many, many other states in the country. Some states provide by statute how to define the intent of the voter, although even those states, as for example Texas, also has a catchall phrase that says if you find the intent of the voter from any other source you're to give the intent of the voter weight.

BOIES: What you have in Florida is a consistent line of authority that goes back for almost 100 years, that the primary consideration is the intent of the voter and that there is no specific identification of what that means, other than that it has to be determined on a case-by-case basis.

QUESTION: Much has been made of the notion that you would have to try to sway Justices O'Connor and/or Kennedy. Did you direct any of your comments at them? Were you sort of looking at them more?

BOIES: When they asked me questions, I looked at them. And when other justices asked me questions, I looked at them.

QUESTION: Is there any justice who asked you more questions than others?

BOIES: I think they all asked a lot of questions, or almost all of them asked a lot of questions.

QUESTION: Did Justice Thomas ask any questions this time?

BOIES: Justice Thomas did not ask any questions this time.

QUESTION: Justice O'Connor seemed to say that the voters should have followed the instructions. She seemed quite emphatic on that point.

BOIES: I think that Justice O'Connor did ask about that. I also think that Justice O'Connor was aware of the Beckstrom case that both sides discussed in which the Florida Supreme Court reaffirmed two years ago that voter error was not a rationale for disregarding a vote.

And this, of course, goes all the way back to 1917 and State v. Darby, in which the Florida Supreme Court said, even though the voter's told to make an X in a particular place, if the voter makes the X someplace else, but you can tell what the voter's intent was, that vote has to be counted.

QUESTION: How did you feel you did? Can you make any predictions?

BOIES: I wouldn't make predict about that. The judges will decide what the right decision is. Their job is to decide the case. My job is to make the arguments.

(CROSSTALK)

QUESTION: ... positive or negative toward your argument?

BOIES: Again, I don't think that you can read into the court's questions what they're going to decide. What they're doing is, they're probing both sides; they're trying to figure out what the right way is to decide this case. And they're going to decide that; I'm not going to decide that.

(CROSSTALK)

QUESTION: ... from the way the stay was written, that it implies that they're already favoring Bush's argument coming into this discussion?

BOIES: Well, certainly the fact that the stay was granted, as Justice Scalia noted, means that a majority -- five justices -- found that there was at least a reasonable probability that Governor Bush's side would prevail.

However, as Justice Scalia also indicated, he would come into the argument with an open mind, he would listen to the arguments, as I'm sure they all did.

They all asked question and I think that while it's an uphill battle with respect to somebody that has a point-of-view, I think they will make an effort to listen to the arguments and make a decision based on the arguments.

QUESTION: Were you surprised, sir, that Justice Thomas didn't ask you any questions at all, since so many minority voters feel as though they've been disenfranchised?

BOIES: I wasn't particularly thinking about who was asking questions. I was just trying to answer the questions as they came.

QUESTION: Do you divine anything from the questions that Justice O'Connor and Justice Kennedy in particular asked?

BOIES: Not other than that they were very interested in the issues that both sides had raised, and that they had obviously read the cases. Justice O'Connor had a number of Florida cases that she was interested in.

QUESTION: Is it true that this is the first time in history that the Supreme Court has ever taken a case involving an election, in over 100 years?

BOIES: Yes. I think this is the first time that the United States Supreme Court has ever taken a case that would decide the future president of the United States in its history.

QUESTION: Mr. Boies, can you envision a scenario in which this is not the final decision, what comes out of this?

BOIES: Well, we still don't have the votes counted. And those votes, from our position, need to be counted. If the Supreme Court agrees that the votes need to be counted, we'll go back to Tallahassee and count those votes.

QUESTION: And if they say they're not to be counted, this is the end?

BOIES: If the Supreme Court rules those votes are not going to be counted, then the votes are not going to be counted.

(CROSSTALK)

QUESTION: Mr. Boies, why do you believe that there is more time, that there is enough time left to do what you are asking than some of the justices seem to be suggesting there is?

BOIES: Well, first of all, we know that the count was proceeding very, very rapidly, and could have been completed in about a day or a day and a half. Whether we can now get in completed in a day or not I think is open to question.

Thank you very much.

SESNO: David Boies, the Gore attorney, who was speaking at the microphones very, very quickly, and just in a couple of minutes remaining over to Charles Bierbauer at our microphone. He was inside the courtroom.

Charles, tell us about you overall sense and what you heard?

CHARLES BIERBAUER, CNN CORRESPONDENT: Frank, very much more grappling with the intricacies and the mechanics of the Florida voting process down to the dimples and the chads and the process of counting the votes and the protests and the contest, and how that should be judged. And the justices seeming far less informed about the mechanics, and somewhat concerned about two elements of the law.

From what would favor the Gore perspective, a lot of questions about the need for judicial review, is there any reason why there should not be some form of judicial review in the Florida courts looking at the legislature? How it has defined the election laws?

And from the other side, a point which the Bush attorneys very much wanted to get into this case, and succeeded in this matter, is the matter of equal protection, the notion that votes were being counted in different ways and in different counties; that there is no uniform standard. Repeatedly, justices from all across the ideological spectrum that this court is purported to have, came to the question of equal protection. Justice O'Connor did, Justice Souter did, and just about every one of them.

SESNO: Charles, we have about 30 seconds before the tape rolls. Did you hear any questions or particulars from Justices O'Connor or Kennedy to suggest where they may be headed on this?

BIERBAUER: Well, Justice O'Connor and Justice Kennedy both very much concerned about the equal protection aspect, this notion of different ways of counting. And Justice O'Connor said: Wasn't there a red flag there?

SESNO: All right, Charles.

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