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Nation Awaits U.S. Supreme Court's Ruling on Manual Recounts; Florida Legislature Poised to Select Bush Slate of Electors

Aired December 12, 2000 - 8:00 p.m. ET

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

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: One, two, three.

(END VIDEO CLIP)

WOLF BLITZER, CNN ANCHOR: As the national Christmas tree lights up the front of the Capitol, the Supreme court remains in the spotlight behind. While the nation awaits word from the high court, Florida's legislature takes decisive action.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: To allow legal briefs and appeals to play substitute for Florida's votes and electors would demonstrate a complete lack of stewardship on our part as elected officials.

(END VIDEO CLIP)

BLITZER: And Florida's Supreme Court weighs in on those challenged absentee ballots from Seminole and Martin counties.

(BEGIN VIDEO CLIP)

CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: These irregularities do not require the voiding of all absentee ballots.

(END VIDEO CLIP)

BLITZER: We'll try to chip away at the veneer of silence from the Supreme Court and find out what the wait has done for the public perception of George W. Bush and Al Gore next on this special edition of THE WORLD TODAY: THE FLORIDA VOTE.

Good evening. I'm Wolf Blitzer reporting tonight from Washington. As we've been doing all day, we're standing by awaiting word from the U.S. Supreme court on the case Bush versus Gore. The veil of secrecy that is the Supreme Court prevents us from knowing just how much progress the nine justices have made or whether they're even still inside deliberating. The main question: Whether the Florida Supreme Court ruling authorizing manual recounts should be allowed to stand or be overruled. And in other developments today, the Florida Supreme Court let stand those lower court rulings on the controversial Seminole and Martin County absentee ballot applications.

And the Republican-dominated Florida House voted to appoint a slate of presidential electors supporting Bush. The state Senate could vote on that tomorrow.

We'll have more on that later, but we begin tonight at the U.S. Supreme Court where a ruling could bring an end to the election battle once and for all.

Joining us from just outside the high court with the latest, CNN senior Washington correspondent Charles Bierbauer. Charles, what do we know right now?

CHARLES BIERBAUER, CNN CORRESPONDENT: Right now we don't know any more than we knew last night at this time. Although last night, well, right about now we've been told that a ruling last night was unlikely. We have not gotten that word this evening, but that doesn't mean that we're going to get a ruling from the Supreme Court this evening. The word comes when the justices are ready to send it forth, just as the ruling will come.

On wintry night like this, temptation to use images that are glacial, but despite that wintry illusion, this is not glacial. Bear in mind these are complex matters and the Supreme Court usually takes weeks and months to come to conclusions on the cases that it hears.

It only heard this case yesterday, and the fact that they have not signaled an end to the evening means that they're continuing to work to try to resolve the questions of what to do about the Florida recounts, whether to let them start, whether to keep them halted, whether to arrive at some kind of compromise -- Wolf.

BLITZER: Charles, I know there's a lot of tradition at the Supreme Court. You and I have both covered the White House. Usually when they're done for the day, they give us what they call a lid, saying don't expect any more news. If they were not expecting to come up with an opinion tonight, wouldn't you expect some public affairs' officer come out and say go home, I'm going home?

BIERBAUER: Well, a lid is not a Supreme Court tradition. It doesn't work the same way as the White House does, but we've raised that question with the public affairs office, and that's the reason why they gave us signal yesterday that it was unlikely, that described by one public affairs officer here as "lidish," and we haven't gotten that signal tonight. But I cannot make anything more of that. It could come later or the opinion could come, too, Wolf. We're just going to have to wait it out.

BLITZER: Charles Bierbauer at the Supreme Court. Thank you very much.

And joining us now for some legal insight on the case and the high court, our CNN legal analyst Roger Cossack. He's live at the Supreme Court as well.

Roger, tell us about all this speculation that we're hearing all day that the justices are deliberating, they're so anxious to avoid a 5-4 decision.

ROGER COSSACK, CNN LEGAL ANALYST: Well, I think that's true, Wolf. Look, you don't find a subject that could be any more important than this one than what's being deciding right now. Look, they very easily could be deciding who's the next president of the United States of America. In making that decision it would be in country's best interest, and I know that the court feels this way, too, if they could come as close to having a unanimous opinion on whichever decision they make.

So, I am sure that right now there is a lot of horse trading going on. There is a whole lot of negotiating, if you will, going on; drafts being put back and forth in an attempt and a hope to get the most number of justices to sign on one opinion, whether that be five, which we certainly hope is more than that or a unanimous nine. We know this is a divided court merely by the way they issued the stay with a majority and dissent.

BLITZER: But on a historic decision like this, even a difference between a 5-4 vote versus a 6-3 vote, that could be significant.

COSSACK: Well, it could be. Look, this is a case that will be taught in law schools for as long as there's such thing as law schools, and the notion of who votes and in which way the justices are very sure and understand that they will go down in history as how they vote on this particular case, and history, of course, will be the final judge of this case.

So, it's just not surprising that we don't have decision so quickly although we expect one, I wish I knew more than Charles or could offer a better suggestion, but I really, too, am at a lost at when we'll see the opinion. I would suspect that it will be as quickly as they can come to some type of consensus.

BLITZER: We know that some legal supporters of Al Gore believe the longer the deliberations continue the more likely news is going to be bad for Al Gore given the time constraints of a recount -- to get recount started. Today was supposedly one deadline, December 12th. Next Monday, December 18th is another deadline.

COSSACK: Well, yes, but, you know, I just don't think you can read into that. I don't just think that you can read into the fact that this is taking -- that we haven't had a decision one day after the oral arguments were held and like two days after the briefs were put in that it's favoring one person or the other.

I'm absolutely convinced that I am right when I say that they are furiously and fiercely trying to get together some group that can come down and sign as close to unanimous as possible on an opinion and this may be very difficult given the fact that there was split of authority on whether or not there should have even been a stay and the Supreme Court to take this case. So, I just think that there's just lot of divisiveness and they're working very, very hard.

BLITZER: We only have few seconds, Roger, but on this notion of remanding the case back to the Florida Supreme Court, sending it back with instructions come up with better standard to count ballots, how likely do most experts think that option is?

COSSACK: I don't know about most experts, but I will tell you that for whatever I am, I don't think that is an option. And of course, watch it turn out that I'm wrong. I just think that what the Supreme Court has to do is in a sense do what Harry Truman said. The buck stops here, write the opinion and we move on.

BLITZER: Roger Cossack, as always, you look warm and bundled over there outside the Supreme Court. Thanks for joining us.

And in another blow to the Gore campaign today, Florida's Supreme Court refused to throw out 25,000 absentee ballots contested in Seminole and Martin Counties. In a pair of 6-0 opinions, the justices upheld two lower court decisions that rejected calls from Democrats to void the ballots.

(BEGIN VIDEO CLIP)

WATERS: The trial court in this case found that the evidence does not support a finding of fraud, gross negligence or intentional wrongdoing in connection with any absentee ballots. Today, the Supreme Court affirms this finding. In doing so, the court does not in any sense condone the irregularities noted by the trial court in the way applications for absentee ballots were handled. However, these irregularities do not require the voiding of all absentee ballots.

(END VIDEO CLIP)

BLITZER: While Al Gore was not a party to either lawsuit, a decision to invalidate the ballots would have erased Bush's lead in the state.

Now to the Republican-controlled Florida legislature. A bitterly divided House today intervened on behalf of George W. Bush. Republicans say they were forced to act to make sure their state has a say in the election. Democrats say they're simply trying assure that Bush lands in the Oval Office.

Here's national correspondent Mike Boettcher.

(BEGIN VIDEOTAPE)

MIKE BOETTCHER, CNN CORRESPONDENT (voice-over): This was one historic Florida vote that didn't take long to count.

UNIDENTIFIED MALE: Seventy-nine yeas, 41 nays, Mr. Speaker.

TOM FEENEY (R), FLORIDA HOUSE SPEAKER: And so by your vote, the resolution passes. BOETTCHER: The Florida House, half of them freshmen, became the first legislative body in modern American history to select its own slate of electors, 25 for George W. Bush. But Republican house speaker Tom Feeney told the body that he hoped the U.S. Supreme Court would step in before their vote is officially enacted.

FEENEY: I would hope that the United States Supreme Court may render moot what we did today.

BOETTCHER: Debate was pointed. Democrats argued that the will of Florida's voters was being bypassed.

LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: Are we protecting our electors or are we protecting certain electors of a certain candidate? It appears, I believe, that we're running around, right around, our voters.

BOETTCHER: Republicans contended that they were merely affirming that last official Florida vote count that showed George W. Bush in the lead.

JOHNNIE BYRD (R), FLORIDA HOUSE MAJORITY LEADER: Some people would say that we have a constitutional crisis, most notably the chief justice of our Supreme Court. Others would say that we are simply experiencing the healthy tension between the various branches of government. I think each of us has to decide in our own heart where we are in that spectrum.

BOETTCHER (on camera): The Senate takes up the bill tomorrow, but there could be changes to the concurrent resolution. If there are, the House must come back Thursday, and then the matter would be settled.

Mike Boettcher, CNN, Tallahassee.

(END VIDEOTAPE)

BLITZER: Much has been made of the December 12th deadline for states to pick their slate of electors, but is it a drop-dead deadline? Not necessarily. According to an Electoral College expert at The National Archives, December 12 is the -- quote -- "deadline for states to make final deliberations of any controversies or contests, but missing the deadline does not disqualify the electors or their votes." And a constitutional law professor says the real deadline is the first week of January, when Congress meets to count the ballots.

Ahead at the half hour, Greta Van Susteren examines the election law pondered by the Supreme Court.

But up next, a peek into the workings of the Supreme Court. Former clerks for Justices Kennedy and Ginsburg discuss the high court's process.

And later, Bill Schneider on the wait's weight on Al Gore's popularity.

You are watching a special edition of THE WORLD TODAY.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. TRENT LOTT (R-MS), MAJORITY LEADER: Coach Lombardi used to say, they never lost a game, time just ran out. Well, in an election, I mean, I guess you could never lose an election if you had enough time to keep counting, you know, round and square and all these different things, and maybe someday you could get a different result, but at some point the game is over.

(END VIDEO CLIP)

BLITZER: Of the three branches of government, the judiciary, and in particular the U.S. Supreme Court, is perhaps the most enigmatic. With no television cameras allowed to show us the proceedings, the court takes on an air of mystery.

But tonight, we have the insights of two former law clerks. Kelly Klaus worked for Justice Anthony Kennedy, and joins us from San Francisco. And Sam Bagenstos, former clerk for Justice Ruth Bader Ginsburg, joins us from Boston. Thanks for joining us.

And I want to get right to something that Roger Cossack just said, he said he is speculating that there is a lot of horse trading going on among these nine justices.

I'll start with you, Kelly. What does he mean by that?

KELLY KLAUS, FORMER CLERK FOR JUSTICE KENNEDY: I'm not sure exactly what he means. I don't think there is actually a lot of horse trading, although there isn't a perfect precedent for the kind of case that the court has today and has had for exactly 24 hours. Most of the time the justices are making decisions over the course of weeks and months, and here you have an opinion that at least some majority of the court is trying to put together and trying to come up with it in very short order.

BLITZER: Sam, take us behind the scenes, you've been there. How do they do this? It's now been more than 24 hours, 36 hours or so since they heard the arguments. Do they sit in a conference room, they talk about it, what do they do?

SAM BAGENSTOS, FORMER CLERK FOR JUSTICE GINSBURG: Well, this is an incredibly unusual case, right, so ordinarily they sit in a conference room a couple of days after the case gets argued and take a preliminary vote on what they think the outcome should be, and then the assigned justice retires to writing an opinion, which usually takes in the easiest cases a month to come out. And so, here we have something very truncated, they probably had a conference right after the argument, someone is probably working on the opinion, may have circulated an opinion, other justices may be working on opinions. But it's really -- this is not the usual situation for the court, so it's very hard to know. BLITZER: And, Kelly, are there -- the clerks, are they allowed to participate in these deliberations, or are you guys, when you were a clerk, kept outside the room?

KLAUS: Well, there is a longstanding tradition that no one is allowed inside of the conference room when the justices are actually deliberating. The tradition is that the junior justice, in this case, Justice Breyer passes messages back and forth to a courier who sits just outside of the door. But when the justices are actually meeting and deliberating with one another, it's in total seclusion, in private.

BLITZER: You know, Sam, you know Justice Ginsburg quite well, you worked for her, knowing this case as you do, what's going through her mind as she's trying to come up with some sort of an opinion?

BAGENSTOS: Well, you know, I wouldn't want to speculate about what's going through her mind. I mean, I think you've seen from her comments on the bench that she has a particular concern that's one of longstanding in many other cases with respecting the judgments of state courts in their interpretation of state law. That's obviously been a very significant concern for her both in the first argument and in this argument. I would say I think that's a concern that other justices share, have shown that they share in the arguments in this case and have shown in a lot of other cases.

BLITZER: Kelly, a lot of people are speculating that Justice Kennedy, the man you clerked for, is the swing vote, one of the swing votes on this Supreme Court. Same question to you, what's going through his mind, knowing these issues, knowing how important they are, what do you think he's trying to come up with?

KLAUS: Well, I think, like Sam, I'd be reluctant to speculate as to exactly what may be going through his mind. I do know that Justice Kennedy like all the justices of the Supreme Court is passionately committed to a faithful interpretation of the Constitution. And I think that he is trying to do his best and I think all nine of the justices are trying to do their best to be faithful to the design that the framers had when they wrote Article II and to be faithful to the spirit and purpose of Section 5 of Title III and to the equal protection clause as they work through these difficult issues.

BLITZER: Sam, if you had to look ahead when this opinion comes out, (a) when do you think it will come out and (b) what do you think it will be?

BAGENSTOS: Well, you know, you're not going to get an answer from Kelly or me about the latter question, I imagine. As to when -- you know, my guess is as soon as they can practicably get it out. I think everyone recognizes the time constraints in this situation. I mean, I have to say some of the time constraints were sort of created by the court itself by staying the lower court's judgment and creating this potential conflict with the various deadlines for counting the electors -- but I think as soon as they can get it done. As I said, this is not a very long time.

BLITZER: Kelly, when do think -- you have the last word. When are they going to make their -- come out with their opinion?

KLAUS: Well, I do agree with Sam. I think that they will try to get it out as soon as practicable and I think all of them recognize the incredible importance of getting a quick decision now, and I think you saw that with the incredibly expedited briefing schedule that they set for the case of about 24 hours.

BLITZER: So we continue to wait with the rest of the world. Thanks for joining us, Kelly Klaus and Sam Bagenstos, on THE WORLD TODAY.

KLAUS: Thank you.

BLITZER: Up next, some of the day's other news, and Washington bureau chief Frank Sesno on the Republicans' so-called "John McCain problem."

(COMMERCIAL BREAK)

BLITZER: Get all the legal documents, the Bush versus Gore timeline, and the inside scoop from our correspondents on our Web site, cnn.com.

More inside information for you now. Our Washington bureau chief Frank Sesno joins us.

Frank, Dick Cheney heads to Capitol Hill tomorrow to meet with Republicans. What are you hearing about what's going on there?

FRANK SESNO, CNN WASHINGTON BUREAU CHIEF: Well, what we're hearing about what's going on is that there's a big exercise of hand- holding, all across this town, Wolf. Talk to any Republican anyplace and they're expecting -- fully expecting that it's going to be President-elect George W. Bush soon enough. Who knows what the Supreme Court is going to do?

But up on the Hill, Republicans there are doing everything they can to throw out the rose petals in front of these two gentlemen. There was a policy lunch today at which senators were told, talked a lot about what they need to do to cooperate with a Bush administration if it takes place. It was pointed out that virtually no one here remembers -- certainly no one has worked with a Republican Senate, House and White House, even though the Senate may be 50/50.

But what they were told is, you've got to realize, ladies and gentlemen, that your agenda has to be set to the side, it's got to be George W. Bush's agenda, and if your John McCain and you want to do campaign finance reform, somebody's got to get the word to him -- and it's going to be Trent Lott; they're supposed to meet again soon -- that it's got to be set to the side. Schedule a time, but don't make the divisive -- within the Republican Party -- the divisive issues the ones that Bush tries to start with.

He's got to start, we're told, with some easy victories, Wolf. Some easy victories that not only Republicans but Democrats, too, can coalesce around. BLITZER: So how are these Republicans, Frank, reacting to this admonition?

SESNO: Well, some are reacting OK and rather enthusiastically, but not John McCain. A close aide to John McCain tells me tonight that John McCain will be totally unpersuaded by this, that he doesn't care if most Republicans don't like his version of campaign finance reform, if George W. Bush doesn't like his version of campaign finance reform.

You don't lead with layups, says this aide close to McCain, you lead by tackling the tough issues, and if they don't like campaign finance reform, too bad. That's what McCain's pledged to do.

BLITZER: Frank Sesno, our Washington bureau chief, thank you very much.

And in other news, one of the men convicted in the worst act of terrorism on U.S. soil now says he's ready to die. Timothy McVeigh asked a federal judge to stop all appeals and set an execution date within 120 days. McVeigh was convicted in the 1995 Oklahoma City bombing that killed 168 people. He's offered to undergo a psychological evaluation, but refuses to explain his decision.

Four Marines are dead following the crash of a V-22 Osprey in North Carolina. Among the dead, the Marine Corps' most experienced Osprey pilot.

The tilt-rotor aircraft has been grounded and full-scale production postponed. The multibillion-dollar program has been troubled from the beginning. Eight months ago, the crash of a V-22 in Arizona killed all 19 Marines onboard.

A mixed day on Wall Street. At the closing bell, the Dow industrials gained 42 points to close at 10,768. On the Nasdaq, the composite index dropped back below the key 3,000 mark, ending down 83 points at 2,931.

The wait and presidential popularity, Bill Schneider's political analysis when we come back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

GOV. JEB BUSH (R), FLORIDA: In a close election like this, I think it's important for people to have confidence that their vote did count. My belief is that their vote surely did count.

(END VIDEO CLIP)

BLITZER: Joining us now, our senior political analyst Bill Schneider.

Bill, as this wait continues, the politics of all of this delay -- what's the fallout that you're seeing in the polls right now? WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Well, what we're seeing, Wolf, is that it is taking a toll on Al Gore. In several network polls, including our own taken over the weekend, Bush moved considerably ahead of Gore as the person that voters across the country, the public as a whole, would rather see as president: 10 points ahead of Gore in the CBS News poll, five points in our own CNN poll, eight points in the ABC News poll

Just two weeks ago, Americans were split, just as they were on election day. I think what's happening is Americans don't see Gore really as a fighter, the way he'd like to be seen. I think a lot of people see him as a sore head.

BLITZER: And interestingly enough, there's also been an impact on President Clinton. He's in Ireland right now. But what's been the fallout as far as he's concerned?

SCHNEIDER: You know, it's odd, President Clinton's approval ratings have hit a new high. They're higher than they've been ever since he was acquitted a couple of years ago.

Maybe it's because he's out of the news and people already feel nostalgia for him, or maybe it's because he really has not been part of this story. You know, he hasn't been in any position to help Al Gore. Not only is he unable to forge a consensus in the country, but he really can't rally the country and speak for national unity, because Republicans really don't respect him. That's why people are looking to the Supreme Court to make that statement.

BLITZER: Bill Schneider, our senior political analyst, thanks once again for joining us.

And please stay with CNN throughout the evening for complete coverage of the Supreme Court's deliberations on the Florida vote. Senators John Warner and Dianne Feinstein are among the guests on "LARRY KING LIVE" at the top of the hour. Jeff Greenfield hosts a special report at 10:00 p.m. Eastern. And "THE SPIN ROOM" opens after that.

For now, thanks very much for watching. I'm Wolf Blitzer in Washington. Greta Van Susteren and a CNN special report begins right now.

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