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Supreme Court Considers Case of Bush Versus Gore

Aired December 11, 2000 - 8:30 p.m. ET


ANNOUNCER: It could be the defining moment, the Supreme Court case of George W. Bush versus Albert Gore.


JOSEPH KLOCK, ATTORNEY FOR FLORIDA SECRETARY OF STATE: I would respectfully suggest that a ballot that is not properly punched is not a legal ballot.


ANNOUNCER: Trying to read the intent of the voters -- and the intent of the justices.


DAVID BOIES, GORE CAMPAIGN ATTORNEY: I don't want to say that this would be the last argument, but I think this was an extremely important argument.


ANNOUNCER: The witnesses to history.


UNIDENTIFIED MALE: A packed house, to say the least.

UNIDENTIFIED MALE: Being in the presence of those great legal minds, it was high drama.


ANNOUNCER: And Greta's own insider's look at what happened in the courtroom.

This is a CNN election 2000 special report: "The Florida Vote."

From Washington, CNN legal analyst Greta Van Susteren.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Good evening from the U.S. Supreme Court, where the lights are still on, meaning the justices at this very minute could be working on the question the whole country wants answered. I was lucky enough to be in court today, and a little later I'll give you some firsthand impressions. But first, it's been another day for the history books.

There's only one legal challenge tonight: the big one.

CNN's David Mattingly walks us through yet another remarkable day of high stakes questions and answers.


DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): Two possible swing votes: Justices Sandra Day O'Connor and Anthony M. Kennedy. And immediately both justices weighed in with the day's most persistent questioning.

Justice Kennedy to Bush attorney Theodore Olson: Should the high court be hearing the case at all.

ANTHONY KENNEDY, ASSOCIATE JUSTICE OF THE UNITED STATES: On the first, it seems to me essential to the Republican theory of government that the Constitutions of the United States and the states are the basic charter. And to say that the legislature of the state is unmoored from its own Constitution and it can't use its courts and it can't use its executive agency -- even you, your side, concedes it can use its state agency -- seems to me a holding which has a grave implications for our republican theory of government.

MATTINGLY: Justice Kennedy clearly concerned, did the state high court act improperly?

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures. Legislatures, of course, can use the executive branch in a state and it may use in its discretion the judicial branch.

KENNEDY: Then why didn't it do that here?

MATTINGLY: After 45 minutes, David Boies, attorney for Vice President Gore, Justice Kennedy, again digging for a standard to evaluate hand-counted ballots. Then Justice O'Connor pointed to the instructions that Florida voters are given to punch through their paper ballots completely and double check them before putting them in the ballot box.

SANDRA DAY O'CONNOR, ASSOCIATE JUSTICE OF THE SUPREME COURT: Well, why isn't the standard the one that voters are instructed to follow for goodness sakes? I mean, it couldn't be clearer. I mean why don't we go to that standard.

MATTINGLY: Then Boies argues that a standard has been in place for nearly a century, dating back to a Florida case in 1917.

BOIES: Well, Your Honor, because Florida law since 1917, Darby against State (ph), the Florida Supreme Court has held that where a voter's intent can be discerned, even if they don't do what they're told, that's supposed to be counted.

MATTINGLY: Boies later called his portion of the hearing a 45- minute interrogation, much of its intensity from the justices to both sides hinging on how to determine the intent of the voter.

Justice Souter to Bush attorney Olson:

DAVID SOUTER, CHIEF JUSTICE OF THE UNITED STATES: If this were remanded to the Leon County Circuit Court, and the judge of that court addressed the secretary of state, who either is or could be made a party, and said, please tell us what the standard ought to be, we will be advised by your opinion, that would be feasible, wouldn't it?

MATTINGLY: Olson agreed. Later, Justice Souter to David Boies, concerned the interpretation of hand counting standards by individual counties could lead to unequal protection under the Constitution.

SOUTER: But I think what's bothering Justice Kennedy -- and it's bothering a lot of us here -- is why shouldn't there be one objective rule for all counties? And if there isn't, why isn't it an equal protection violation?

BOIES: Because I think there are a lot of times in the law where there can be those variations from jury to jury, from public official to public official...

SOUTER: Yes, but in...

OLSON: They're very concerned about the fact that no one can identify what the standards are. And counting and evaluating ballots should be pursuant to uniform, consistent standards so that individuals looking at ballots know how they're supposed to decide and other people can conclude that they're doing it fairly.

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.

MATTINGLY: For everyone now, time to wait, to wonder, when will there be a ruling? And could it be the defining moment in an election that has eluded the nation since November 7th?

David Mattingly, CNN, reporting.


VAN SUSTEREN: Joining me now from our Miami bureau is attorney and constitutional scholar Laurence Tribe. He argued the Gore campaign's case the first time it came before the U.S. Supreme Court back on December 1st.

Larry, what was the toughest question that Bush attorney Ted Olson got today? LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: I think the toughest, really, was a series of questions right at the beginning challenging his theory his that under Article II of the Constitution, which says state legislatures are supposed to determine the method of selecting electors, that that is somehow ripped out of the context of the entire body of state law so that the state Constitution can't play any role in the process, and so that in fact the state's highest court doesn't even have jurisdiction to consider matters because its jurisdiction was mentioned in the Constitution rather than in a statute. And I don't think he had a satisfactory answer to any of that.

VAN SUSTEREN: What about David Boies for Vice President Al Gore? What was the toughest question he faced and from what justice?

TRIBE: I think David, too, faced a tough series of questions, not from any one justice but from all of the justices who were concerned about the possible unfairness, not so much of having subjectivity enter the process of figuring out a voter's intent but of having different objective rules in different counties.

The justices were fascinated by the fact that there might be a rule about dimples in Palm Beach and a rule about hanging chads in Volusia County and that somehow unless we find a way to make those objective rules all mesh with one another we had may have unequal protection.

And that almost suggested that several justices were looking for a compromise position of, believe it or not, sending the case back again to Florida so that it can conduct a count throughout the state under more uniform objective standards.

VAN SUSTEREN: In your wildest dreams, Larry, on Saturday, did you ever think the Supreme Court would issue a stay in this case or would hear this case?

TRIBE: I certainly thought that there was a good chance that this one would be heard. I was surprised they heard the case originally back on December 1. But this one looked like a case where certioraris would be granted.

As far as a stay is concerned, I thought since all the irreparable harm would flow from deciding to stop the counting -- there would be no real harm from counting -- that they probably would not grant a stay. But I wasn't at all willing to bet on it. So although it was terribly disappointing when that stay was issued, I can't say it was a shock.

VAN SUSTEREN: Take me behind the scenes. You got the information on Saturday a stay was issued. How many lawyers descended upon the, you know, Washington to write the brief? What did it take? Did you sleep? I mean, tell me about it.

TRIBE: Well I certainly didn't sleep. That's par for the course throughout the last 34 days. There are quite a few sleepless nights. I had maybe eight or nine different people helping me, some in Washington, where I was holed up in a hotel, others in other parts of the country, primarily in Florida. And we managed somehow to put together a brief that I was reasonably proud of, although it was a brief that, I guess, showed the marks of being put together a little hastily.

The chief justice, in a rather gracious gesture, congratulated all of the parties on what he said was an exemplary job of briefing in unusual circumstances. That's something from him. He doesn't usually have that kind of remark.

VAN SUSTEREN: And I don't think that most Americans know that being a lawyer is like going back to college. You pull all-nighters so often.

TRIBE: That's right, that's right.

VAN SUSTEREN: My thanks to Gore campaign attorney Laurence Tribe.

Now the view from the other side. I'm joined here in Washington by Bush campaign attorney Michael Carvin.

Michael, let me start right with you. Take me behind the scenes on the writing of the bush brief for this case. What was the pressure like?

MICHAEL CARVIN, BUSH CAMPAIGN ATTORNEY: It was pretty similar to what professor Tribe just described. We were working very hard. Ted Olson's team at Gibson Dunn did a superb job, and I helps them a little bit.

But it wasn't a whole lot of sleep, but we got it done on time.

VAN SUSTEREN: Is there a problem, Mike -- I want to talk about this equal protection problem. It was raised by many justices today, and it was always in the context of the state of Florida, that there were different standards in different counties that applied and even from table to table.

What do we do about the fact that across the country there are hand counts done and by different standards. Isn't there a larger equal protection problem?

CARVIN: Not really, unless it's a close election where the outcome doesn't much matter you don't really care about this. But obviously you don't want a situation where if you choose the dimpled- ballot standard one candidate wins and if you choose the hanging-chad standard another candidate wins. So, yes, it's a problem, but I don't think really people focus on it unless it's outcome determinative, which it may well be here.

And I think the justices were quite concerned that, for example, even within the same county, Dade County, you used different standards for predominantly Jewish and Black precincts than you would use for predominately Republican and Hispanic precincts. And that raises very serious questions under the Voting Rights Act and the equal protection clause. VAN SUSTEREN: Michael, as you may know, I've got lots of people behind me on both sides demonstrating for Gore and demonstrating for Bush. But the people who are demonstrating for Gore are saying count the vote, count every vote. What's your answer to doing that? Why shouldn't a hand count go forward and count every vote in that state?

CARVIN: That's been their mantra for a month now, and we'll give the same answer we've been giving for a month, which is every vote has been counted. And there's nothing in the Constitution or in Florida law that says you need to manually count everything. Indeed, their manual recounts are subject to very strict deadlines, which the Florida courts rewrote when they issued their opinion. They weren't interpreting whet the Florida legislature did, they were rewriting it. And that, as you know, is a constitutional violation, as the Supreme Court indicated very strongly about a week ago.

VAN SUSTEREN: What about the undercounts, though, the undervotes, the ones that are never counted? What do we do about those?

CARVIN: Well those people didn't vote. They didn't, as Justice O'Connor put it, follow the instructions that were on the ballot. And a lot of people -- it's not at all unusual -- don't vote for every presidential contest or don't vote for every office.

Now you're going to do some kind of Carnac routine where people with no standards and indeed different standards decide to hold a ballot up and figure out who this person wanted to vote for president. That guarantees inaccuracy, it guarantees different results, and it violates the Constitution.

VAN SUSTEREN: Do you really think, though, people will go to the polls in a presidential year and will vote for everybody but the president of the United States?

CARVIN: Happens every election, and we -- the point is we don't know now. You're not going to be able to look at a piece of cardboard and say, yes, this person voted for Vice President Gore but, no, this person didn't.

Look, voting's a responsibility as well as a right. It's not that tough to put a piece of metal through a piece of cardboard. If you want to do it, do it. But the main problem is that you can't solve the problem now. We've got six days until the Electoral College is going to meet, so it's absolutely absurd to think you can manually recount 6 million votes in the state of Florida and not disenfranchise all of Florida by missing the Electoral College.

And so you need to look at all of those ballots if you're going to do it in an equal, fair way and not change the rules after the game. And there simply isn't time. So, look, the Gore people shouldn't have delayed the election contest deadline. We could have gotten this done on time if they hadn't constantly brought these lawsuits to move the certification back. They put themselves in this pickle, and they really can't blame anybody else for the problem.

VAN SUSTEREN: All right, well many thanks to Bush campaign attorney Michael Carvin.

Next, we broaden our view to look at the political as well as the legal fallout from today's Supreme Court hearing.

And I'll be joined by two members of Congress who were inside the court chambers for today's historic arguments.


VAN SUSTEREN: Once again, a seat inside the U.S. Supreme Court was the hottest ticket in town.

Two members of Congress who got in: Democratic Representative Sheila Jackson Lee of Texas and Republican Representative Harold Rogers of Kentucky, a former district attorney who has actually argued a case before the Supreme Court.

Representative Rogers, to you, it's been a while since you've been in the Supreme Court. What surprised you today, if anything, that the viewers didn't get to see who didn't have cameras?

REP. HAROLD ROGERS (R), KENTUCKY: Well, I don't know that there was anything different about this case except that it was a solemn occasion for the most part. There was some levity from time to time, but everyone there I think understood that we were witnessing something historic and that we had were in the middle of the maelstrom, if you will.

VAN SUSTEREN: Representative Jackson Lee, were you satisfied with the court, or did you think the court could have done more in questioning?

REP. SHEILA JACKSON LEE (D), TEXAS: Well, I was enthusiastic about today. First of all, it was standing room only. I thought the court was appropriately inquisitive. I think the questions were very strong, and there was a slight bit of humor when one of the counsel called, I think on more than one occasion, one or two of the justices incorrect names. And, of course, in the good humor that they take it, one of the judges before asking his question made sure that he announced his name. We needed that, of course, because this is a very serious time.

And, you know, Greta I'd just like to say I'm profoundly dumbfounded about the statement, just vote, just cast your vote, just punch the hole. When we realize how important the vote is and people of all different levels vote across the country, we should worry more about the fact that we should make it comfortable and easy for them to vote as opposed to critiquing the fact that they had difficulty in voting.

VAN SUSTEREN: Representative Rogers, do you think that after listening to the court, they issued that stay 5-4, do you think that 5-4 is what we're going to see when the decision is issued on the ultimate matter at hand?

ROGERS: I was inclined to think that before the arguments. However, Greta, during the arguments today, I was a little bit surprised at a couple of the other justices other than the five who granted the stay seemed to express a good deal of interest in the equal protection clause of the Constitution as it is involved in the case. And I'm beginning to think that perhaps that very well may be the hook upon which a decision might be rendered and could attract more than just the five votes who voted to stop the manual recount.

I think...

VAN SUSTEREN: Do you it matters, Representative Rogers, whether it's 5-4 or 6-3 or 9-0? Does it really matter?

ROGERS: Well, yes, I think it does. I think the country needs to have as much reinforcement of the decision, whatever it is, as we can have in order to more legitimatize the winner. That's a very, very important question here is how much legitimacy will the people view the new president as having.

VAN SUSTEREN: But let me raise something. I'll raise it with you Representative Jackson Lee. In terms of legitimacy, today a Gallup poll shows the country is equally divided on the question, should the U.S. Supreme Court allow the manual recount of votes to continue in Florida? Forty-seven percent say yes, 49 percent say no. If nine justices of the Supreme Court say one thing tomorrow or the next day, is that going to make any difference in terms of adding legitimacy, as we say, to this election?

JACKSON LEE: Greta, I think absolutely not. I think the American people have grasped at least one issue: that is it is paramount to vote in this country. Our very democracy is based upon people truly believing that their voice is heard, their vote is counted. And frankly, I think it is up to the ultimate winner to heal the country, to bring us together.

I think it's up to the Supreme Court to courageously do the right thing, and that is to reaffirm, if you will, the era of this country when people laid their lives on the line, particularly in the civil rights movement, to reinforce the right to vote, not for one segment of the population but for the entire country.

VAN SUSTEREN: Do you really believe that's going to happen, that it's going to go your way, so to speak, based on what you heard today?

JACKSON LEE: Well, I was very invigorated by the court's question, even the equal protection questions, because I think David Boies did a very excellent job of responding.

I'm concerned about equal protection of the law and due process, and I think Governor Bush was appropriate to bring the case. I'm sorry that the stay was granted. I think that irreparable harm has been done to the respondent.

But I truly believe that you can emphasize the importance of the vote and I think you can emphasize to the American people that we will allow this vote to continue, that it will finish in 24 hours, and we'll meet the deadline of December 18th and we'll make everyone comfortable about the fact that the person elected and taking office on January 20th is truly the person elected by the will of the people. I think that will be the best thing we could ever have happen.

VAN SUSTEREN: Representative Rogers, is it irrelevant that Vice President Al Gore and Senator Lieberman voted against the nomination of Clarence Thomas to the Supreme Court? Is that irrelevant here?

NORTH: He's not going to make his decision based on anything like that. Look, I think -- the American people, I think, are most troubled by seeing different standards applied to counting these ballots in Florida, one county, one table even within a county, voting a chad -- a dimpled chad, another at the next table not doing the same thing.

I think people sense a very deep unfairness about that, and, therefore, I think the equal protection of the law is part of the U.S. Constitution. If they base their decision on that, I think it would ring more true with the American people than any other basis for a decision. And I would hope that that's what happens with the Supreme Court.

VAN SUSTEREN: While we wait the decision from the court right behind me, my thanks to Representative Harold Rogers of Kentucky and Sheila Jackson Lee of Texas.

Next, my firsthand observation of what it was like to be inside the U.S. Supreme Court for today's historic arguments and some thoughts on why we should all get the chance.


VAN SUSTEREN: To most Americans, the Supreme Court is a mystery. They barely know the justices' names, if at all. They never see them at work, because TV cameras aren't allowed. Yet what goes on in the building behind me is of great significance.

And Today, along with a small group of lawyers, journalists and regular citizens, I was privileged to see the action.

Tonight's "Case Study": Witnessing History.

Before I tell you what I saw, here's what some other observers, people who either got in or were waiting to get in, had to say.


UNIDENTIFIED MALE: I brought my 11-year-old son with me, took him out of school today, just to participate, because this is going to be a historical moment.

UNIDENTIFIED MALE: I'm just so excited to be here this time of year. I'm one of the 50 to go in there and bring that memory -- I mean, talk about that the rest of your life.

UNIDENTIFIED MALE: Being in the presence of those great legal minds and listening to the banter between justices and the lawyers and the questions of law was -- it was high drama.


VAN SUSTEREN: If you were not inside, you never saw the facial expressions of annoyance when lawyers didn't answer the justices' questions.

Justice Breyer asked Ted Olson three times in a polite voice what standard should be used to count undervotes. Upon the third dodge, Breyer showed a mild annoyance and gave up.

Four seats down from me in the front row of the lawyers' section, a woman attorney was seated who was not wearing a blazer or suit jacket. Before the arguments started, a court marshal removed her from the area saying she was dressed inappropriately. Luckily for her, she borrowed a blazer from someone in the building and was able to return before the arguments started.

Then the gavel sounded, and all nine appeared. We stood, the gavel hit again, we sat down and watched as the attorneys made arguments that will be reviewed and dissected for decades to come.

I only wish that you weren't seeing it though my eyes. I want you to see it through your own eyes, through cameras in the courtroom. You should be there. You belong there. Mr. President, whoever you may be on January 21, when you nominate the next Supreme Court justice, please make cameras in the Supreme Court your litmus test. We all want to be there.

Let me know what you think. Send an e-mail to -- that's one word: askgreta.

That's all for now.

Next on "LARRY KING LIVE," the new senator-elect from New York, first lady Hillary Rodham Clinton.

I'm Greta Van Susteren at the United States Supreme Court -- see you tomorrow.



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