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U.S. Supreme Court Considering Bush Challenge of Manual Recounts

Aired December 11, 2000 - 10:00 p.m. ET


ANNOUNCER: High-stakes, questions and answers...


JUSTICE DAVID SOUTER: What would you tell them to do about it?

DAVID BOIES, GORE CAMPAIGN ATTORNEY: Well, I think that's a very hard question.

JUSTICE ANTONIN SCALIA: You'd tell them to count every vote.


BOIES: Well...

SCALIA: You'd tell them to count every vote...

BOIES: I would tell them to count every vote.


ANNOUNCER: In what could be the final stop on the road to the White House, the U.S. Supreme Court hears the case of George W. Bush versus Albert Gore.

The arguments and emotions of a remarkable day, inside and outside the high court.


PROTESTERS: President Bush, President Bush!



PROTESTERS: Count every vote! Count every vote!


ANNOUNCER: And on a day one Governor Bush makes it to the White House, Florida's lawmakers watch, waiting to make sure another Bush moves in. (BEGIN VIDEO CLIP)

TOM FEENEY (R), FLORIDA HOUSE SPEAKER: I think it is our duty, based on the best advice we could get, to move forward, and it's been suggested that we should act sooner rather than later.


ANNOUNCER: To our viewers in the United States and around the world, welcome to this CNN Election 2000 special report. From New York, CNN senior analyst Jeff Greenfield.

JEFF GREENFIELD, CNN SENIOR ANALYST: There's a reason why courtroom dramas have been so popular for so long. No matter how contrived the plot, no matter how cardboard the characters, there seems to be something inherently dramatic about waiting for a decision. Well, when that decision could tell us who the next president of the United States would be, well, that is a storyline we have never seen before, which is why we're all dragging out the dictionary to find the words weighty enough to describe what happened today.

We'll look at what happened in the courtroom and in the political arena, and later, we'll ask two of my favorite journalists whether anyone will come out of this looking better than when they went in.

But let's begin with today's news. I have a hunch you know what the headlines are.

U.S. Supreme Court justices wasted no time today as they waded into the key legal arguments offered by attorneys for Al Gore and George W. Bush. They interrupted early and often as the lawyers tried to present their cases. One of the journalists in the courtroom was CNN's senior Washington correspondent Charles Bierbauer.


CHARLES BIERBAUER, CNN CORRESPONDENT (voice-over): The justices looked for a reason the federal court should be involved and seemed to find it in the Constitution's guarantee of equal protection to all citizens.

JUSTICE ANTHONY KENNEDY: You would say that from the standpoint of the equal protection clause, each -- could each county give their own interpretation to what intent means so long as they are in good faith and with some reasonable basis finding intent?


KENNEDY: Could that vary from county to county?

BOIES: I think it can vary from individual to individual.

BIERBAUER: The equal protection issue, which Bush attorneys wanted before the court, troubled the court's conservatives and liberals alike as they considered Florida's vote-counting procedure. JUSTICE DAVID SOUTER: Why shouldn't there be one objective rule for all counties, and if there isn't, why isn't it an equal protection violation?

BIERBAUER: Justice Ginsburg suggested that might not be practical.

JUSTICE RUTH BADER GINSBURG: When there are different ballots from county to county, too, Mr. Olson, that's part of the argument that I don't understand.

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: You're certainly going to have to look at a ballot that you mark one way different than these punch-card ballots. Our point is with respect to the punch-card ballots is that there are different standards for evaluating those ballots from county to county.

BIERBAUER: Justice Breyer repeatedly asked what would be a fair way to count.

JUSTICE STEPHEN G. BREYER: I would hold that you have to punch the chad through on a ballot. The only problem that we have here is created by people who did not follow instructions.

BIERBAUER: Attorneys for Vice President Gore argued Florida has historically stretched rules to accommodate the will of the voter.

BOIES: 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.

BIERBAUER: The justices were troubled by the Florida Supreme Court defining the time and manner for recounts, but they seemed to feel state courts might play a role in the process.

JUSTICE ANTONIN SCALIA: Is your point that even in close calls we have to revisit the Florida Supreme Court's opinion?

OLSON: No, I think that it is, particularly in this case, where there's been two wholesale revisions...

BIERBAUER: In taking a second look at the Florida recount, the justices have forced themselves to play a role.

SOUTER: I think we would have a responsibility to tell the Florida courts what to do about it. On that assumption, what would you tell them to do about it?

BOIES: I think that's a very hard question.

SCALIA: You'd tell them to count every vote.


BOIES: Well...

SCALIA: You'd tell them to count every vote, Mr. Boies.

BOIES: I would tell them to count every vote.

BIERBAUER (on camera): After arguments, the attorney for Vice President's Gore said Justice Scalia had promised to keep an open mind, even though Scalia had signaled there were five justices who felt Governor Bush had a reasonable probability of prevailing.

Charles Bierbauer, CNN, the Supreme Court.


GREENFIELD: After time for arguments expired, the justices, we presume, went straight to work. As CNN national correspondent Bob Franken reports, we don't know when they might rule, but their choices are limited.


BOB FRANKEN, CNN CORRESPONDENT (voice-over): Fundamentally, the justices seemed to have three options: a total victory for George W. Bush, a ruling that the Florida recounts must end, that the state supreme court acted inappropriately by ordering them. That would probably mean Bush would win the presidency. Or the Gore team would prevail in the court. The majority would decide the recount was legally proper, and the statewide recount would resume. Then the outcome of the election will continue to be an unknown.

But there is a third possibility, which would probably also be good news for Gore. The justices could decide to go ahead with the recount and come up with their own rules on how to conduct it. But what rules? A perplexing question for them.

KENNEDY: Do you think that in the contest phase there must be a uniform standard for counting the ballots?

BOIES: I do, Your Honor. I think there must be a uniform standard. I think there is a uniform standard. The question is whether that standard is too general or not.

FRANKEN: The fact they imposed the stay in the first place, as the Bush lawyers requested, telegraphed the justices preliminary thinking that they were seriously considering a ruling for Bush.

SUSAN LOW BLOCH, GEORGETOWN UNIVERSITY LAW CENTER: I am quite confident the courts will rule for Bush. I think the rationale might be divided, but I think this equal protection rationale that sort of got floated today more is likely to garner the most votes.

FRANKEN: But a former Supreme Court clerk warns it is always dangerous to try and read the justice's minds.

CHRISTOPHER LANDAU, FORMER SUPREME COURT CLERK: It's always hard to say. It's always hard to guess from the questioning where the court is going. FRANKEN (on camera): Before what the ruling is, we'll need to know when the justices will rule. In a few urgent cases, the court has decided the day after arguments, and one thing all sides agree on is this is an urgent case.

Bob Franken, CNN, the Supreme Court.


GREENFIELD: Now, one footnote. You'll remember that this election first landed at the U.S. Supreme Court some 10 days ago. The high court sent it back to Florida, asking in effect what was the basis for that ruling.

Today, the Florida Supreme Court tried to explain, saying that it simply interpreted state law last month when it gave counties more time to recount their presidential ballots. The U.S. high court had expressed some concern that the Florida justices were creating, rather than simply interpreting, the law.

When we come back, we'll talk to two former insiders at the U.S. Supreme Court. And later, watching and waiting. We'll get reaction to today's high court hearing from the Bush and the Gore camps.

And also, Christmas cheer from the man who currently resides in the White House. Please stay with us.



ROGER COSSACK, CNN LEGAL ANALYST: The question, I suppose, as I understood it, was not that there had to be the same standard for each of the 67 counties, but that whatever standard was adopted would have to be a reasonable standard. I think this is what troubled the justices, whether or not that would be OK. If it was 67 different ones, that they were reasonable, or you had to have one that was for the whole state.


GREENFIELD: That was Roger Cossack, who will soon be arguing that hypothermia constitutes cruel and unusual punishment under the Eight Amendment.

Now, does either legal team today have any special reason to feel encouraged or discouraged by what they heard of today's oral arguments? Our next two guests know the U.S. Supreme Court literally from the inside out.

Joining us from Cambridge is Heather Gerken of Harvard Law School. She's a former clerk to Justice David Souter -- you've met her here before -- and joining us from Berkeley, California, another familiar face, John Yoo of the University of California Law School, a former clerk for Clarence Thomas, who predicted on this air Friday night the Supreme Court would stay the hand of the Florida Supreme Court.

OK, John, let's make it two for two then. Based on what you heard today, where's the Supreme Court going?

JOHN YOO, U.C. BERKELEY LAW SCHOOL: I didn't see a lot of movement between the 5 and 4 votes in terms of granting stay. So I would bet that if you had to put money on it, that the court tomorrow is going to reverse the Florida Supreme Court, and it'll be the same lineup as with the stay.

I think what you heard from oral arguments today, though, in terms of this discussion of should there be an objective voting standard that's sent back down to the Florida courts, you saw some of the justices on the left part of the court trying to reach out and suggest a compromise that might attract some of the more conservative justices. But I didn't really see any of the conservative justices really biting on that compromise.

And I might note that Mr. Boies didn't really help out much when Justice Souter was asking him, what do you think about an objective standard, what would it be? Mr. Boies simply responded, well, that's a really tough question.

GREENFIELD: But in fairness, John, that seemed to me to come out of I guess right field, if we're talking about, or middle field or center left field. That is I don't remember in the whole first round of this discussion much conversation about whether the U.S. Supreme Court should impose a recount standard on Florida. Isn't that a little bit unusual? Didn't that come out of sort of nowhere today?

YOO: I think that's right. I Think in terms of this particular case, coming out of the state courts in Florida. This was a new case, a new issue. But it has been an argument that's being made in the 11th Circuit in the Federal Court of Appeals, which is rising up on the other side of the federal judicial system. That is part of the discussion: Are the standards that are being used to conduct these recounts really fair and comport with equal protection?

But it's a completely novel and new constitutional claim that's being raised here. I think that's right.

GREENFIELD: Now, Heather Gerken, what you heard today, when you heard some of the justices seeming to play with the idea, let's get it back to Florida and let's tell them how to count -- now, I assume that you -- I don't assume; I know, because you've told us. You're more sympathetic to the Gore side of things than the Bush side of things politically. But is that even a realistic possibility the night of December 11th?

HEATHER GERKEN, HARVARD LAW SCHOOL: Well, I have to say I was surprised that that was the argument that seemed to have legs, because I actually thought that Bush's equal protection claim was among his weakest claims and the one least likely to garner support. So it's always difficult to make predictions based on arguments. But that was certainly where the more junior justices were heading. They were talking to the justices in the middle and they were talking to them about this equal protection claim.

So if there is going to be a decision that's going to help Gore out, it seems to me that that's the most likely one we'll see.

GREENFIELD: Which suggests, Ms. Gerken, that the justices sympathetic to the Gore claims may realize that they have no chance to simply get the U.S. Supreme Court to affirm what the Florida Supreme Court did, and they're looking for some kind of middle ground?

GERKEN: I think that what happened on Saturday when the Supreme Court stayed the recount gave them a strong indication that in fact was true, and so they're now into new terrain, trying to find another way to bring the court together on an issue so that they can render if not a unanimous opinion, at least something better than a 5-4 decision.

GREENFIELD: John Yoo, in terms of future possibilities, I heard one of my colleagues, Ron Brownstein, make a point that if you're going to argue that voting standards have to be objectively the same -- and you look at the situation not only in Florida but many states where the more affluent communities have optical scanners, they have laptop computers connecting them to the election board; poorer communities have outmoded systems and rotary telephones that often don't work -- doesn't this argument about objective standards lay the groundwork for enough litigation to make every election law lawyer fully employable for the next decade?

YOO: I think they're all going to be fully employed anyway after this whole case, but I think that's exactly right, and I think in the end the five conservative justices may not buy into the idea that there have to be objective standards in counting votes, because, as you said, it's going to open up a whole bunch of litigation.

Every election essentially is going to result in some kind of potential challenge, asking for recounts and requiring that it be conducted according to federal constitutional due process equal protection standards, which has not really been the case before.

And this has been a court, mind you, that's been quite reluctant to expand the idea that there should be new rights that can be sued upon in federal court under the equal protection due process clauses.

GREENFIELD: Ms. Gerken, the other -- one thing that puzzled me -- again, my dim memory from law school -- there are many places where -- quote -- standards aren't objectives. We have ask juries to decide whether somebody's guilty beyond a reasonable doubt, whether somebody's proven a case with a preponderance of evidence, you know, what's a reasonable man standard. So, Ms. Gerken, isn't this a little bit odd that suddenly we'd be hearing a demand for an objective standard? Why couldn't it vary from county board to county board?

GERKEN: Well, actually, what we're seeing is the oldest debate in law school, which is the debate between rules, which are clear, easily applied and very straightforward -- they're not flexible -- and standards, which have the benefit of being more flexible, but also not as clearly and easily applied as a rule. So this is what you learn in your first year of law school, and it's actually kind of fun to watch it played out at this high a level in the Supreme Court.

GREENFIELD: Now, one last point for both of you -- and I'll start with you, John. I have to believe that the last place in the world the United States Supreme Court wanted to find itself was hearing a case entitled Bush v. Gore. I mean, this has got to be in some ways the worst nightmare of a court that's trying to stay out of the political thicket.

YOO: I think that's right. On the other hand, I think what they've done is they've realized they're probably going to take some kind of hit in terms of legitimacy over the short term. And I think some of the justices in the majority just made the calculation that it might by better for the country in the long run to have this decided tomorrow, and that it's better for the Supreme Court to intervene perhaps and decide the case than for having this going into Congress, where -- then I think -- I mean, I think this is all child's play compared to what would happen if Congress had to vote and elect the next president.

GREENFIELD: But Ms. Gerken, at least the Congress, if it has to elect the next president, is acting under the specific charter of a document called the U.S. Constitution. I mean, wouldn't it in terms of the court's future health be better for them to make sure that a political body decides the ultimate political question in America, namely who gets to be president?

GERKEN: I not only think that it's in the courts own political interest, but I also just have trouble imagining why it is that the Supreme Court should fall on its sword here in order to save the country from following the processes which the Constitution established. I just don't think that that's the way the court is thinking about it.

I think that it certainly is considering its long-term viability and its ability to sort of sway the American people and maintain its legitimacy. I have a lot of trouble imagining that they envision this as a short-term sacrifice for a long-term gain for the American people. It's just not the way the justices usually think as far as I can tell.

GREENFIELD: OK, Heather Gerken and John Yoo, as I said before to both of you -- and I'll say it again, probably -- two legal academics who speak clear, plain English. Will wonders never cease? I thank you for joining us.

Still ahead, two of my favorite political journalists are going to talk about what happened today, what may happen tomorrow, and the political climate in Washington through this weird month-plus. And then, guess who was President Clinton's guest at the White House today? Governor Bush, Governor Jeb Bush. We'll explain all this and more as this CNN special report continues.


GREENFIELD: I'm Jeff Greenfield. Welcome back to this CNN special report. If you think you're anxious to hear what the Supreme Court will say, how would you like to be Al Gore or George W. Bush waiting this one out? Well, something to think about. Al Gore offered no public comments today, but Bush told reporters he's trying to keep his emotions in check.

We have more on the Bush camp with senior political correspondent Candy Crowley in a moment. First, though, congressional correspondent Jonathan Karl wraps up the day for the gore team in Washington.


JONATHAN KARL, CNN CORRESPONDENT (voice-over): Behind closed doors at the vice presidential residence, Al Gore, with his wife, two of his daughters, and his running mate, Joe Lieberman, listened to his lawyers make his case to the Supreme Court. As he awaits a decision, everything is on hold.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: 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 (OFF-MIKE) not to be counted, is that 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.

KARL: Boies wouldn't predict the outcome, but reflected on the historic nature of the case he just argued.

BOIES: 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.

KARL: The Gore team was infuriated that the Supreme Court stopped the counting over the weekend, but Gore's aides say the vice president directed his staff not to criticize the justices. The official line is that Gore will respect the court's ruling whether he wins or loses.

As if to emphasize that, the top Democrat on the Senate Judiciary Committee came to the microphones with the top Republican after oral arguments ended.

SEN. PATRICK LEAHY (D), VERMONT: Whether I agree or disagree with the opinion of the Supreme Court, it will be the ultimate law of the land and I will work to uphold it.

KARL: But other Democrats warned that the Supreme Court would go down in infamy if it rules against Gore.

SEN. TOM HARKIN (D), IOWA: If this Supreme Court decides to stop those counts right now and if the truth comes out next year that in fact Al Gore did win Florida -- and he did win the popular vote in the country -- and he is not president of the United States, what is that going to do to the esteem and the respect of the Supreme Court of the United States? KARL: The vice president has asked his Democrat recount monitors and much of his legal team to stay in Florida and be prepared to get to work once again if he gets a favorable ruling from the Supreme Court.

(on camera): There are also signs the Gore team has prepared for a loss. In an interview with a Connecticut radio station, Joe Lieberman revealed that he has already written two concession speeches: the first on election night and the second just this past Friday as he awaited a decision from the Florida Supreme Court.

Jonathan Karl, CNN, Washington.



CANDY CROWLEY, CNN CORRESPONDENT (voice-over): This is Candy Crowley in Austin.

In this world of weirdness, it seems just about normal that the first Bush brother to arrive at the White House in the post-election period was Jeb.

GOV. JEB BUSH (R), FLORIDA: We're here to talk about something that is going to be long-lasting way past counting votes. This is the restoration of a treasure for our country.

CROWLEY: As the governor of Florida watched over the signing of an Everglades restoration bill in Washington, the governor of Texas was in Austin watching over events in Florida, which now depend on a ruling from the U.S. Supreme Court back in Washington.

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I talked to some of our legal team. They're cautiously optimistic.

QUESTION: Have you talked to your brother, Governor?

QUESTION: When do you expect a ruling?

G. BUSH: I don't know. I don't think anybody knows yet.

QUESTION: Are you nervous?

G. BUSH: I'm feeling pretty calm about life.

CROWLEY: As audiotape of the Supreme Court proceedings was being released, Bush headed for the gym after getting a first-hand fill from his legal team and his campaign chairman, who called from the steps of the Supreme Court and later popped up at transition headquarters in Virginia.

DON EVANS, BUSH CAMPAIGN CHAIRMAN: We felt very good about our argument, very good about our presentation this morning. And I think that it was an opportunity for all of us to understand once again that the rule of law is the cornerstone of this great democracy. And we'll await the outcome.

CROWLEY: Also on the post-campaign travel tour, Bush strategist Karl Rove, who found within the legal arguments the answer to the political question of whether a Supreme Court decision for Bush would be seen as a fair-and-square win.

KARL ROVE, BUSH CAMPAIGN CHIEF STRATEGIST: I would worry about the legitimacy of a presidency that counted upon contrived votes and rules that got changed after the election. That would be far more damaging, far more distressing to the country than confirming someone who won on election day, won in the first recount, won in the second recount, won in the third recount. And now is facing a fourth, fifth and sixth recount depending on the county that you're in and under evolving standards.

CROWLEY (on camera): Back in Texas at campaign headquarters, the staff did gather around the television set to listen to the Supreme Court arguments in a now familiar position. "We are," explained an aide, "watching and waiting."

Candy Crowley, CNN, Austin.


GREENFIELD: As for President Clinton, he is off on one of his final international trips as president. He's en route to Ireland, Northern Ireland and Britain to try and salvage the peace process. But before he left, Mr. Clinton lit the National Christmas Tree on the Ellipse between the White House and the Washington Monument. Each of the high-tech ornaments on the 48 foot blue spruce is hand-made and built to withstand the roughest weather.

Still ahead on this CNN special report, were there any "Ah-hah" moments today at the Supreme Court? We'll ask two reporters for their view and beyond that Supreme Court decision yet to come. But first, the Florida legislature: It may yet have its stay in the presidential dispute.

And later, having to say in a vociferous way the highly oral arguments outside the United States Supreme Court, but is anybody inside really listening?


GREENFIELD: Welcome back to our CNN special report on election 2000. I'm Jeff Greenfield in New York.

In case you're just joining us, you're late, but we'll provide you this quick news update anyway because we're nice guys.

Attorneys for George Bush and Al Gore argued their respective cases for 90 minutes today before the U.S. Supreme Court. The justices could issue their decision at any time. If the court rules for Bush and ends the manual recounts in Florida, Al Gore's White House hopes are pretty much toast. But if the court rules for Gore or at least orders the recount to resume in some form, the vice president still has a chance to become the nation's 43rd president.

Overshadowed today, but still very much a key player the Florida state legislature. CNN's Mike Boettcher reports the lawmakers moved another step closer to intervening in election 2000.


MIKE BOETTCHER, CNN CORRESPONDENT (voice-over): They plodded along for more than five hours, House and Senate committees of the Florida legislature, the spotlight away from them and on the U.S. Supreme Court. But three hours after the nation's highest court adjourned, so did they, with a vote that turns that spotlight back on Tallahassee.

Those two committees of the Florida legislature voted to endorse a plan sponsored by the Republican majority to name 25 presidential electors for George W. Bush.

UNIDENTIFIED MALE: Concurrent resolution 1(a) will be reported favorably.

BOETTCHER: The full House will next consider the controversial resolution, but the U.S. Supreme Court will not be far from its thoughts.

TOM FEENEY (R), FLORIDA HOUSE SPEAKER: We did hear something in the middle of our session that my hope would be to take a short recess so that I could, if possible, get my hands on a copy of whatever decision was rendered.

BOETTCHER: But during the debate on the presidential elector resolution, constitutional experts brought in by both the Republicans and Democrats clashed about whether Florida's voice in the electoral college is in doubt, forcing the legislature to act.

PROFESSOR MICHAEL PAULSON, YALE UNIVERSITY: This day, 34 days after the elections occurred, the result of Florida's presidential election for electors has failed to result in a single, definite, clear, uncontested choice. With all due respect, it's a mess.

PROFESSOR BRUCE ACKERMAN, YALE UNIVERSITY: Legislative intervention will not do anything to eliminate the risk that Congress will refuse to count Florida's votes. To the contrary, it will for the first time create this risk and make the problem worse.

BOETTCHER: And debate among senators and representatives continued to fall mostly along party lines.

MARIO DIAZ BALART (R), FLORIDA STATE HOUSE: We swore to protect and defend the Constitution of the United States of America, and now the people of this state are looking at us. Are we going to sit back and let not one single vote count for anything?

BETTY HOLZENDORF (D), FLORIDA STATE HOUSE: Because it's been contested does not mean that we didn't fulfill our constitutional obligation. I think we fulfilled our constitutional obligation when we set the procedure in place.

BOETTCHER (on camera): The full Florida House of Representatives takes up the matter next, then the Senate, and all the time they'll be keeping an ear out for word from Washington and the U.S. Supreme Court.

Mike Boettcher, CNN, Tallahassee.


GREENFIELD: Soon to be New York Senator Hillary Rodham Clinton today repeated her call for changes in how we elect our presidents. In an interview with CNN's Larry King, Mrs. Clinton also was asked if the next president's time in office will be tainted.


SEN.-ELECT HILLARY RODHAM CLINTON (D), NEW YORK: I really hope that however this is finally resolved that the country will really decide that we need to act in a bipartisan way, and we'll do so.

LARRY KING, HOST: If you could change the Constitution, would you make it a popular vote?

CLINTON: Well, I would, because I think that really is the intent of one person, one vote. But I have no illusions that that is not likely to occur, because it would take a constitutional amendment. That's why I favor doing everything we can to make our electoral systems as fair and accurate as possible.


GREENFIELD: As for her own presidential aspirations, if any, Mrs. Clinton told Larry King she has no plans to run for president four years from now. She said she is committed to serving her six- year term.

When we come back, Elizabeth Shogren of "The Los Angeles Times" and Andrew Sullivan of "The New Republic" will take us through the astonishing story of how Washington is coping or not through this 30- day trip through hell. Don't go away.


GREENFIELD: If you've been with us so far, you know our preference here is for conversation and observation rather than the kind of talking points that you could get out of sock puppets, which is why I'm delighted to welcome back Elizabeth Shogren of "The Los Angeles Times" and Andrew Sullivan of "The New Republic." He is also proprietor of

Andrew, I know that your sympathies run more to Bush than to Gore, but when you look at the prospect of him being effectively chosen by the Florida legislature and/or the U.S. Supreme Court, is that what we would call winning ugly? ANDREW SULLIVAN, "THE NEW REPUBLIC": I don't think it's winning ugly, but it's certainly winning in a fuzzy way. I'll say it's winning fuzzy.

I don't think anybody can be happy with where we are, and the question is how on Earth did we get here. And untangling the Florida Supreme Court's actions I think is where we have to go in figuring that out.

But no, I think that if Bush is elected tomorrow by essentially one swing vote on the Supreme Court, then one person will have decided this entire presidential election, and no one can feel happy about that.

GREENFIELD: But it is also, Andrew, a case in which nationally -- I tried to do the math -- 3/10 of 1 percent separate them. In Florida, it's something like 3/10,000 -- 3/1,000 of 1 percent separates them. If Bush wins, he will have one electoral vote to spare. I mean, isn't it just possible to say, it's a tie and it would be a mess no matter who won or under what circumstances?

SULLIVAN: Well, you can take that to two different extremes. You can say, because it's so close, we have to go to the nth degree to find out exactly who possibly dimpled something somewhere to put someone over the edge, or you can say, because it's so close, let's stick to the fundamental rules we started with. It's pretty arbitrary anyway. It is a tie. Let's stick with the firm rules before the election, which would give it, I think, to Bush.

So I think you can look at it both ways in a way.

GREENFIELD: Elizabeth, passing aside Andrew's invitation to dimple something to put somebody over the edge -- this show isn't on quite that late at night.


Is there any solace anyone in Washington right now is taking out of this, assuming that -- let's just assume it'll be over in a couple of days. Can anybody look at this and say, well, it was a great civics lesson, people learned about the electoral college?

ELIZABETH SHOGREN, "LOS ANGELES TIMES": Well, I was speaking with a deputy chief of staff Maria Echaveste earlier today, and she said she took a little bit of solace out of the fact that she's living through history, that here at this time she and her colleagues at the White House don't know yet where to pass on the keys to the place. And I guess that's a little bit, for her, just a little bit of solace, because she so much wants the vice president to win.

GREENFIELD: But once you get beyond -- you know, you can live through history -- and it can be, you know, living through World War II as history, and I guess...

SHOGREN: Exactly. GREENFIELD: ... it's exhilarating if you survive. But what I mean is -- is there a sense among the people you've talked to in Washington that we'll come out of this with, and then fill in the blank to make us optimistic?

SHOGREN: No, I hate to say that people at least at this stage are not thinking we'll come out of this with some kind of great renewal in our sense of civic pride or our democracy or who we are. I think more than anything they're exhausted and they want to come out of it and they want -- but they want to come out of it their way. And that's not just talking to the big political players in Washington.

One of the most interesting conversations I had today was talking to the folks who are the carpenters and crane operators who are actually building the stands where people will -- right in front of the White House, where there'll be the viewing of the inaugural parade. And a couple of the men I spoke to there had really interesting things to say, and you could tell that as deeply as the political players in Washington, they really want their guy to win and they feel this very intensely.

One of them told me he was enraged that the Supreme Court has taken this on and he said: "This is America. Nine people don't get to make this decision. The majority needs to make this decision."

SULLIVAN: Jeff, can I be an optimist for a second? I mean, just a second.

GREENFIELD: Sure. Well, that's all right. Yes, we can use some optimism. Go ahead.

SULLIVAN: It seems to me -- one of the things that sort of good government types have always tried to explain to people is what this issue of judicial activism is: why should we care if judges actually make the law, why should we leave decisions to legislatures rather than courts. I think we've had, to look on the bright side, a really fascinating example of the dangers of going the judicial route, because what you're going to have is a result that is decided by courts, not the people, not voters, if you're not careful.

And I think that, on the other hand, we can see that when the voters didn't quite make up their minds either, someone has to make the decision.

So I think we have a very fascinating case, rather the most fascinating since Roe v. Wade, of exactly what the role of the courts is and how the people in the legislatures can interact with them.

GREENFIELD: Well, OK. As I say, we certainly welcome optimistic notes. But Elizabeth, at least the folks you talked to who are building that inaugural platform and the parade platform, they know what they're doing, they know what their job is. Somebody's posteriors will be on that platform.

SHOGREN: They're not sure whose. GREENFIELD: But that's the point I'm getting at. You've been talking to a lot of people -- and I guess Andrew you must know the same sorts of people -- for whom this has been 30 days of pure hell, not knowing are they going to be in the public or private sector, who do they send they're resumes to, what's their life going to be like. And what has that done to that town, Elizabeth?

SHOGREN: Well, people really have a sense of incredibly anxious stagnation. They -- they're -- it's not stagnation. It's like a roller-coaster -- up and down, and up and down -- because this is the way this has turned out. One day it looks like their guy's up, one day it looks like he's down.

I was talking today to one of the senior advisers to the vice president, and he was saying that he didn't know whether tomorrow he would be back to his private business consulting with firms in the high-tech industry or whether he'd be on his way to Florida in order to fight against the state legislature to try to keep them from appointing pro-Bush electors.

So it's just -- it's an incredible time where people don't know where they're going to be tomorrow, where people have put off vacations and they've not taken jobs they thought they were going to take because they need to keep working on what they're doing now. So this has -- this has caught everyone by surprise...

SULLIVAN: On the other -- on the other hand, Jeff, I mean, it's good for us. I mean, this is the way most people live their lives. They don't know they have a job for the next four years.

The private sector is scary and difficult, and Washington is full of a lot of pampered types that are either in government or lobbying. And I think giving them a little bit of a fright before Christmas is probably good for them and good for the country as a whole.

We shouldn't -- we shouldn't waste our pity on -- on lobbyists and political appointees.

GREENFIELD: Those e-mails go to Andrew Sullivan...


But what occurs to me and what -- we've got about a minute or so left, or maybe a little more, but a woman named Blythe Babbiat (ph), a really neat writer, wrote years ago that "Washington was like a city where every week is final exams." She described it as a city where needing to know who's in power, who's out of power, who's up, who's down is a full-time obsession.

And I guess that's what I'm getting at, Elizabeth, that right now nobody even knows who's posterior to kiss. You don't know who's going to be wielding the power socially or politically, and that is unusual at this time in the cycle, isn't it?

SHOGREN: It's extraordinarily unusual, and you have people in the White House not knowing who to transition to: if the people taking over their programs will be people who believe in the same programs or will they be people who want to destroy the programs that have been there already.

So it's an incredible topsy-turvy time, and just less than six weeks before the inauguration, it's just unprecedented for this to be...

SULLIVAN: You know what, Jeff: The posterior that they kiss will up to will be the posterior with dimples. I think that much we know at this point.

GREENFIELD: You know, Andrew, I think that's a fine place to leave it.


I don't think anybody can top or bottom that. So my thanks to Elizabeth Shogren, my thanks to Andrew Sullivan. They'll be with us again, because they're enjoyable folks to talk to and with. And when our special report continues, a final thought: Is that light at the end of the tunnel or is it just another tunnel? And the showdown outside the courtroom.


UNIDENTIFIED FEMALE: Bush doesn't have a mandate and he's going to be an illegitimate president once everybody finds out that Gore actually won.



UNIDENTIFIED MALE: I'm a Bush supporter. I want to see him become president, and I think he's won it multiple times and I think it's about time we make a decision.


GREENFIELD: The heated protests, each side hoping somehow to sway the high court this way.


GREENFIELD: For all the political pundits and legal experts weighing in on the high court today, perhaps the most passionate argument came from protesters facing off outside the Supreme Court.

CNN's Carl Rochelle now on the voice of those passionate people.


CARL ROCHELLE, CNN CORRESPONDENT (voice-over): Some of the protesters had been here before, a little over a week ago. And once again they tried, through willpower, to influence the justices inside the Supreme Court. The supporters of Al Gore were bolstered by a huge contingent from labor unions, megaphones at the ready.

Police set up barricades down the center, dividing the Gore supporters on one side of the court, Bush supporters on the other. But that didn't stop some spirited debate.

UNIDENTIFIED MALE: You don't listen, you just laugh and laugh.


UNIDENTIFIED MALE: You don't listen.


UNIDENTIFIED MALE: Why should I listen to nonsense?

UNIDENTIFIED MALE: You're just jealous.



UNIDENTIFIED MALE: No, I'm not jealous. No, I'm trying to protect your freedom, my friend.

UNIDENTIFIED MALE: Yeah, that's why I'm here..

ROCHELLE: Most who came had their minds made up. They knew what they wanted.

UNIDENTIFIED FEMALE: Bush doesn't have a mandate, and he's going to be an illegitimate president once everybody finds out Gore actually won.

UNIDENTIFIED MALE: I'm a bush supporter. I want to see him become president. I think he's won it multiple times and I think it's about time we make a decision.

ROCHELLE: One man brought a mule, perhaps a Democrat, someone said. But when police tried to move it along, he seemed no more willing to move than either presidential candidate was willing to give up.

(on camera): These demonstrators all said they felt it was important to be here to make their voice heard. And even though they were clearly divided on what they thought the Supreme Court should do, most said they would accept the court's decision as the final word in the case of Gore versus Bush.

Carl Rochelle, CNN, at the U.S. Supreme Court.


GREENFIELD: Speaking of arguments, after weeks of debate over hanging chads, manual recounts and continuous appeals, why don't the candidates just flip for it? In fact, that's how the race for supervisor of Five Lake Township (ph), Michigan, was decided today. The two candidates were tied at 297 votes each. To settle the matter, they flipped a coin. The winner drew from a box holding two slips of paper, one reading "elected," the other "not elected" -- not a lawyer in sight.

Finally, if the United States Supreme Court rules in favor of the Bush campaign, then it's over, right? Even David Boies, the lead lawyer for the vice president says so. So in that case, it will be over -- unless of course the Florida Supreme Court throws out those absentee ballots from Seminole or Martin counties. Then Al Gore would actually wind up leading the Florida count. Or unless something happens when those electors meet on December 18th. Because if three Bush electors wound up voting for Al Gore, he'd have 270 votes. Then the Congress would have to figure out if those votes were regularly given when it meets on January 6 to receive those votes.

If the Congress rejects those votes or if two of Bush's electors vote for someone else or abstain, then no one would have an electoral majority and the House of Representatives would have to choose the president. But of course nothing like that could possibly happen, could it? That would be as ridiculous as what we've been living through for 34 days. You know, on second thought, forget I even mentioned it.

Well, that's it for our special report on election 2000. I'm Jeff Greenfield in New York. Join me again tomorrow at 10 p.m. Eastern for the latest on the Florida vote.

But right now, "THE SPIN ROOM" is ready to rumble.



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