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Larry King Live

U.S. Supreme Court Steps into Florida Fight Over 43rd President

Aired November 24, 2000 - 9:00 p.m. ET


ROGER COSSACK, GUEST HOST: Tonight, 17 days and still counting. Stepping into the Florida fight over the 43rd president: the U.S. Supreme Court.

Joining us from Tallahassee, lead attorney for the Gore campaign David Boies. And in Miami, the Bush team's head counsel for Florida litigation, Barry Richard. In West Palm Beach, Republican Congressman Asa Hutchinson, a Bush count observer. And in New York, former Democratic Governor of the Empire State Mario Cuomo. Plus, a roundtable discussion with Bob Woodward of "The Washington Post," longtime political journalist Sander Vanocur, and CNN's senior political analyst Bill Schneider. All that and much more, including your calls, next on LARRY KING LIVE.

Hi, I'm Roger Cossack sitting in for Larry King, who's off tonight. Joining me first of all, the lead counsel for the Gore campaign, David Boies.

David, are you surprised that the Supreme Court took this case? I know you thought that this would never happen.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: Well, I didn't think that the taking of the case would never happen. What I've said before is I don't think the Supreme Court is going to reverse the Supreme Court of Florida. I think it's not unnatural for the Supreme Court to take this case, but I would be very surprised if the Supreme Court of the United States would reverse the Supreme Court of Florida on an issue of Florida law.

COSSACK: Well earlier I heard you say, David, that you were glad that the Supreme Court was taking this case, in essence perhaps to put some finality to the matter, although in your brief your very first argument that I saw was that the Supreme Court should not get near this matter. Which one is it? Are you glad or do you think they shouldn't be taking it?

BOIES: Well, I think we've said two things. I think when you were talking about what I said before today, I said there was an advantage and a disadvantage of the Supreme Court taking it. I think the disadvantage is the extent to which it may prolong matters and it may add to the uncertainty.

I think the advantage of it is that once the Supreme Court rules, we will have certainty and we will have something that hopefully both sides will accept. I know that if the United States Supreme Court rules against Vice President Gore's position, we will accept that position. And I hope that if the United States Supreme Court rules against Governor Bush's position, they will accept that, and the controversy can be brought to an end.

COSSACK: All right, well let's talk about what it means if the Supreme Court does rule against Vice President Gore. Does that mean that it's all over? That Katherine Harris then certifies the votes, or should have certified the votes, and this has all come to an end?

BOIES: I think it obviously depends a little bit on how they rule. But if, for example, the United States Supreme Court were to give Governor Bush everything Governor Bush is asking for, then what that would essentially say is that manual recounts are precluded, as a matter of constitutional law, somehow some way. And as a result, those votes can't be counted. If the United States Supreme Court were to rule that -- and I really don't think there's much chance that it will -- but if the United States Supreme Court would rule that, that would rule out the recounts, and Governor Bush would be declared the winner in the state of Florida.

COSSACK: David, now you know as well I do that it takes four counts -- four votes for the Supreme Court to hear a case and five votes for it to hear a case on an expedited method, which is what it's decided to do now. Now, it only takes five votes for a decision. Doesn't that worry you a little bit?

BOIES: No, because as we both know, lots of times the Supreme Court takes a case because it raises an important issue of law. And it's not the case that most of the cases that are taken are decided with at least four votes to reverse. Many cases are taken and unanimously affirmed or affirmed eight to one.

Many times justices vote to take a case so that it will resolve an important question of law, regardless of whether they think the lower court was right or not. In fact, most cases that are taken on appeal from state Supreme Courts end up being affirmed.

COSSACK: I know that, but it's very unusual, particularly in a case like this, wouldn't you agree, that the United States Supreme Court would take a case where presumptively you know and I know that it should be in middle -- it should stay within the Florida Supreme Court. I mean it's very unusual for the United States Supreme Court to be reviewing what a state Supreme Court unanimously has decided, regarding things that are presumptively within their own jurisdiction.

BOIES: Right, and the very fact that both of us know that this is something that ordinarily...


... within the Florida Supreme Court leads me to believe that that's what the United States Supreme Court is ultimately going to decide. This is a very important question in probably the most important presidential election we've had maybe in history, certainly in the last 125 years. And I think it's quite understandable that the United States Supreme Court would want to hear the case, give Governor Bush his day in court, and thoughtfully consider the arguments that Governor Bush makes. That doesn't mean that the United States Supreme Court is going to do what both you and I don't expect them to do, which is to jump in and change Florida law in the face of a unanimous Florida Supreme Court decision.

COSSACK: Well listen, I'm going to agree that you don't expect them to do it. I'm not so sure what I expect. I must tell you that I was shocked that they took it. But it seems to me that when the United States Supreme Court takes this case they may not have taken it just to congratulate the Florida Supreme Court on what a wonderful job they've done.

But let me love on to one other subject. How does this affect...

BOIES: Sure.

COSSACK: ... what Vice President Gore has said, that if these votes are certified Sunday night by Katherine Harris, he will file a lawsuit to contest the election? Is this still in play in light of the fact that the Supreme Court has taken this case?

BOIES: Yes, I don't think the Supreme Court taking this case has anything to do with the contest, in part because the contest has to be filed on Monday. The Florida Supreme Court has set up essentially a time period, from Monday until December 11, to get this all resolved. And we can't wait until the United States Supreme Court makes its decision in order to get the contest under way. So that contest has to be filed. If the contest is not filed, just as example, the Miami- Dade votes will never be counted.

COSSACK: But you will admit, though, that if the Supreme Court rules against you, the contest to the election becomes moot and really, pretty much it's all over.

BOIES: Well, it depends how they rule against us. There are a variety of ways they could rule against us, but there are ways that the United States Supreme Court could rule against us, if, for example, they gave Governor Bush everything Governor Bush is asking for, then that would be the end of the matter. And I think that we have to accept, I think we're all prepared to accept, certainly Vice President Gore is prepared to accept, what the United States Supreme Court rules.

COSSACK: All right, David Boies, lead counsel for the Gore campaign, thank you very much, the Gore legal team, thank you very much for joining us.

BOIES: Thank you.

COSSACK: Stay with us next. Barry Richard, who's the chief counsel for the bush campaign and the Bush legal team, and we'll hear what he has to say.

Stay with us.


COSSACK: Joining me now is Barry Richard, chief counsel for the Bush campaign.

Barry, your counterpart, David Boies, says that perhaps it's a very rare occasion when the Supreme Court overrules a state Supreme Court like we have here in Florida and thinks that probably the United States Supreme Court is just taking this case to review it and will affirm. What do you think?

BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: First of all, it's not so rare. Many, if not most, of the cases that arrive at the Supreme Court arrive there from the high courts of states, and the Supreme Court reverses them on a regular basis.

In the second place, I don't agree with the Mr. Boies's characterization of the basis upon which we sought Supreme Court review. He said that he does not anticipate the Supreme Court reversing the Florida Supreme Court on the basis of state law. And I would agree with him. I don't think the Supreme Court would ever reverse a state court on basis of state law, but that's not how we got there.

We got there by arguing to the United States Supreme Court that the Florida decision is inconsistent not with state law but with federal law, with the United States Constitution and with federal statutes, and I believe -- it doesn't mean that Supreme Court's going to reverse because four of the justices voted to take certiorari.

What it does mean is that at least four of the justices felt that there was substantial question of whether or not the Florida Supreme Court decision was inconsistent with United States Constitution or controlling federal statute.

COSSACK: Barry, let's talk about that a little bit because I think the most legal analysts, myself included, were a little surprised that the Supreme Court did take this case because as you know presumptively, these kinds of decisions, state elections or elections, even federal elections are handled in the Supreme Court and this was an unanimous Florida Supreme Court decision.

But you were able convince the Court that there was this federal question and basically what you convinced them was that somehow Florida had perhaps changed the rules after the election. That prior to Election Day the rules were one thing and that the Florida Supreme Court had the effect of changing rules. Tell us how that worked.

RICHARD: Well, actually there were three separate arguments that we advanced. We don't know which one or perhaps all of them interested the Supreme Court. One of them is the one that you referred to. There is a federal statute, and let me stop for just a minute and point out there's a big difference between this election and other elections, because in this instance, the United States Constitution expressly provides that the rules with respect to the election of presidential electors are to be passed by the state legislature, and it specifies the legislature.

It doesn't just say the states, it says legislature. And in addition, it enables federal -- the United States Congress to pass federal laws which preempt state laws in certain respects.

So one of the arguments, that we made which is the one that you referred to is that it violated a federal statute that said that the controlling law with respect to the selection of electors is the law that was adopted -- it must have been adopted prior to the appointment of the electors, which we believe means the in this instance the election date, and one of the arguments we made that is the Florida Supreme Court has formulated a new set of rules at the time that it announced its decision which occurred after the selection of the electors on November 7th. That is one argument.

COSSACK: All right, Barry, let me just interrupt for one second. And excuse my interruption. The other side is going to argue, look, historically, traditionally and every other way, the courts are supposed to reconcile statutes that seem to be at odds with one another and they're going say that there are a couple different statutes in the Florida election laws.

You know, one the one that you articulated. Another one giving a little more leeway and what the Florida Supreme Court did is what Supreme Courts are supposed to do, reconcile them and they're going say that didn't change anything. They just did what they're supposed to do.

RICHARD: Well, I'm sure that will be their argument. Our argument that is the manner in which the Supreme Court went about reconciling them was inconsistent with the rules of construction that the Supreme Court has traditionally applied in this particular set of circumstances and that by doing that, they changed the rules and they did it after the election. that was one of the arguments that we made.

I can't tell you that that's the one that interested the court. But there were two others. One of them, as I mentioned, is the fact that it's the legislature that makes this decision, not the courts, and then there is a third one that Mr. Boies didn't mention which could be the one that interested them.

And that's because of the way that both Florida law operates and the manner in which it operated in this particular election, there was a violation of three separate, fundamental, federal constitutional rights, due process, equal protection and the First Amendment.

And the reason for that is that we have a situation here in which individual county canvassing boards with no sets of uniform standards at all can arbitrarily decide whether or not to have a manual recount and then can proceed to do the manual recount without any standards.

So, that one board can be doing it on the basis of one set of standards, and another one on the basis of another set. And, in fact, as has happened here, the same board can change its standards midstream. When that happens, you're not treating all voters alike. You're diluting the votes of some persons who are treated differently than others and you're completely disenfranchising other voters.

COSSACK: Barry, the argument is going to be heard next Friday at 10:00 a.m. Briefs are due almost immediately. Will you be arguing this case before the Supreme Court?

RICHARD: I don't know. We've got a number of lawyers who have worked on this case, and I'm not the one is that's going make that decision, and I'm sure that all of us will be pleased to support whoever does the argument.

We've also, by the way, that's not the only thing going on. We're anticipating that there's going to be a contest of the election in Tallahassee in the circuit court and there may be another effort to go back to the Florida Supreme Court, so there's a lot of litigating still to go on, and some lawyers are going to have to do one while other do the other and we haven't yet -- the persons are going to make decision, primarily Ben Ginsburg, who's the general counsel for the Bush campaign, to my knowledge hasn't made it yet or least I'm not aware of the decision if it has been made.

COSSACK: All right, Barry, I can tell you there'll be a lot midnight oil and full employment for all the lawyers in Florida perhaps even up here in Washington. Thank you for joining us, Barry Richard, the chief counsel for the Gore campaign. When we come back, Congressman Asa Hutchinson from Arkansas, and former governor Mario Cuomo of New York will weigh in on this. Stay with us.


COSSACK: We're back. I think when we just left I might have said that -- or I did that say that Barry Richard was chief counsel for the Gore campaign. And of course, it's for the Bush campaign. So please forgive me making that misstatement. Hopefully. it'll be the last one I make tonight. But now joining me is Congressman Asa Hutchinson from Arkansas and former governor Mario Cuomo of New York.

Congressman Hutchinson, I want to start with you. As you know the Republicans are well-known as defenders of states's rights, the champions of the states' rights. You are known as a champion of states' rights and yet they turned to United States Supreme Court -- federal, a federal court, to overlook and review the states' rights decision of Florida Supreme Court. How do you justify that?

REP. ASA HUTCHINSON (R), ARKANSAS: Well, I really see no inconsistency at all. Any time you have important federal constitutional rights at stake, you want to go to federal court, in this case, United States Supreme Court. So no inconsistency there. I think it is very good for our country that the Supreme Court has entered this case.

As it was pointed out earlier, it's critical for our nation to have finality, to have confidence in whatever is the final outcome and the Supreme Court would be able to put that stamp on it. I think that if Vice President Al Gore does do the election contest, then that ultimately would be able to be reviewed as well by the Supreme Court.

So I think that while I'm here engaged in the canvassers and the review of the ballots, the disputed ballots, that will give us a stamp of approval hopefully by Supreme Court that will give a confident conclusion to this election.

COSSACK: Governor Cuomo, we're now in the Supreme Court. First of all are you surprised that Supreme Court took this case and which was do you think they'll come down on it?

MARIO CUOMO (D), FORMER NEW YORK GOVERNOR: I'm trying to figure out which four judges -- justices gave permission. I am surprised that they took it, but I'm delighted that they took it. I think the congressman's absolutely right. The benefit of having the Supreme Court is we get that imprimture to whoever is selected eventually. And maybe that's one of the reasons they took it and took it so early is that they don't want somebody to be elected president with any kind of constitutional issue dangling out there that would threaten legitimacy.

Another thing it does, and I would think that the -- both Gore and Bush would be disappointed by this, if the vice president gets all the votes he wants in the next few days, which would surprise a lot of people but it's possible, he still couldn't be coronated on Sunday night, nor can George Bush, which is what they were planning to do using their secretary of state to declare the vote. That's now academic, because as the congressman says and Mr. Richard said, there are all sort of lawsuits still to be conducted. There is the Supreme Court. You wouldn't want to make them look foolish by saying, look, it's academic and you shouldn't have on Friday set a date a week from now.

So we have go to the Supreme Court. We have to get the Miami- Dade case settled. We have to get all that litigation settled. And that's what we should do. Count every single ballot that you can, hear from every court, make sure that whoever is elected president does it with dignity and with full legitimacy, which, from the Latin word, means full legality. And let's get all these lawsuits done and let's do it by December 12th.

COSSACK: Governor Cuomo, both you and Congressman Hutchinson are astute politicians, do you get this feeling -- let's sort of get away from the law for a minute, but do you get this feeling that perhaps the people of the country are tired of the politics, are tired of going to courts, in many ways wish one or the other of these two gentlemen would concede?

CUOMO: May I address this first?


CUOMO: I think Bill Schneider, one of my favorite analysts, and Wolf Blitzer is one of my favorite people, but I disagreed with both of them, I think, in the general direction of their comments, which were there is going to be tremendous pressure on Al Gore to get out if the numbers are against him on Sunday. Pressure from whom? From the American people? Sure they're anxious. We're Americans. We want to do everything yesterday, and we'd like get rid of all of this. But that doesn't matter. That pressure doesn't count at all.

The only real pressure that would make either of these people or should make either of these people think about retiring from the battle is, am I threatening the United States of America with my conduct? Am I threatening the constitutional scheme? Am I threatening to do something terrible with the Electoral College? Of course not. Everything is going to get done on time for the Electoral College. There will be a president on January 20th, so what pressure is there?

The only pressure they should feel is the pressure of 50 million people who told Al Gore, we're with you because we like your agenda.

COSSACK: All right, let me get Congressman...

CUOMO: He doesn't have the right -- he doesn't have the right not to run. And I would guess Bush would feel the same way.

COSSACK: Let me give Congressman Hutchinson a chance to respond.

As a politician, sir, do you feel that the -- your constituents and the people of America have reached that point where they're just tired of legal battles and they just want this thing ended and perhaps someone should do the statesmanlike thing and step down?

HUTCHINSON: Well, I do believe they feel that way. But just because they're weary, just because the counters in the Palm Beach Canvassing Board are weary does not mean they stop. They have to do their duty and their responsibility. But I do think that there is more at stake than just simply weariness. I think it has to do with the credibility and the ability to govern of our next president and be able to move on and start the transition, as well as the institution of the presidency, I think, could be diminished if not resolved in a final, a clear fashion.

For example, I think that it's very important for the integrity of the process that the military oversees ballots be counted. I think that Governor Bush did the right thing, and I think that by calling for the counting of those ballots Joe Lieberman indicated that that ought to be done. But it still hasn't been resolved. It's my understanding that there have been opposition in the court filing today trying to get the counting of the overseas ballots. But for it to have credibility, that will have to be done.

I think that it's not going to be a comfortable margin for the people of America just by what happens in Florida. With the lax standards that I've seen today with it looks like they're looking at a ballot but they're really reading tea leaves trying to determine the voters intent, I think they would like to have the Supreme Court review it, so I think ought to be done quick. But I hope that Vice President Gore will not continue to fight this if it is clear after the Supreme Court rules that what happens with the certification in Florida should be final.

COSSACK: All right, let's take a break.

Congressman Hutchinson, Governor Mario Cuomo will stay with us. We'll have more with them when we return.

Stick around.


COSSACK: We're back with Congress Asa Hutchinson of Arkansas and former Governor Mario Cuomo of New York.

Congressman Hutchinson, before we went to break, you were talking about the fact that these overseas ballots were not being counted and you were objecting that they weren't being counted. But yet your party has made -- has actually fought and fought the other side to keep other ballots from being counted. Seems to me that's -- you have one on one side that you like and the other one the other side that you don't like. How do you justify that?

HUTCHINSON: Well, let me tell you what we're going through today and what's at issue here. You know, when I'm sitting in Arkansas watching the TV, and they talk about, well, a manual recount is the best way to proceed, well, you know, that makes some sense. But I've been an election commissioner, and I come here to Florida, and I see what they're going through, good people on this canvassing board are going through, trying to count a ballot and trying to divine the voters's intent whenever you've got a pimple on one, whenever you've got a hanging chad on another one.

And it's designed -- this card is designed for a machine to read, and it's designed to be done properly. And so whenever you're looking at that standard, and our position is that the manual recount in trying to determine the voters' intent is not -- is too subjective and is not going lead to a good result.

On the other side, you're talking about the military ballots, and we're speaking of ones that through no fault of their own they mark the ballot, and yet because a postmark was smeared the Democrats objected to it and it was thrown out.

And so we're trying to say that the voter did nothing wrong in that instance and that that should be counted, and particularly when they do everything they can overseas to participate in our voting process for president.

COSSACK: Governor Cuomo, go ahead and respond to that.

CUOMO: Well, you know, with due -- with all due respect, there's simply no consistency there. The congressman is simply saying, look, on the facts we think the servicemen were right and everybody else is wrong. The Jewish people who say they didn't intend to vote for Buchanan, they're wrong. The African-Americans who think they were pushed around, they're wrong. We have to be consistent. My position is as follows: Let the law speak on all of these situations. Of course the people who do by-hand recounts have to ascertain intent, just like every jury has to ascertain intent. You don't describe all the indicia, all the evidence to a jury. You say the question is intent, please tell us whether you see it from this evidence. Let the court decide about the servicemen.

The judge said today, as I understand it, he didn't see any legal way to help them, which means that if they lost their right, it was done legally. They lost rights the way other people lost rights. I hear Republicans condemning some elderly people in Florida because they were too stupid to vote correctly. I have read those ugly signs.

OK, let a court decide whether it was their stupidity or clumsiness of a system that denied them their vote. But let's be consistent. Let's do -- everybody's asking for legitimacy. Again, legitimacy is a Latin word. We all know the root, and it means the law, in accordance with the law. I'm delighted with the Supreme Court, but let's be consistent. Let's find out what the courts say about Miami-Dade and about whether they were pushed out of their recount out of fear through intimidation. Let the law speak in all these areas.

COSSACK: Congressman Hutchinson, in fact -- and I want to give you a chance to respond, but let me ask you this question. Isn't the technicality that you speak of for these absentee, overseas ballots, isn't that the same kind of technicality that perhaps the Democrat would argue -- would argue would be the hanging chad, the dimpled, and all the other chad that we've talked about?

HUTCHINSON: Well, the good governor, who I have enormous respect for, argues consistency, and I do not see the consistency in their position that there ought to be a flexible approach to all the hanging chads in the world that's cast by the good citizens of Florida. But whenever it comes to the overseas ballots, if the judge says there's a legal technicality here, well, we ought to abide by that, and I see that as inconsistent.

What we're saying is in any election, in any election you have certain rules to follow. And whenever you have a machine count, the machine counts those in a faithful, unbiased way, not in a partisan way. And whenever I'm in here and the canvassing board, and I see them reviewing the dimpled chads, I see some of those dimpled chads for Governor Bush. And so it's not a matter of who it favors; it's a matter of whether that should be counted whenever it is not punched properly.

And I don't think it's a matter -- and I really take a little bit of offense that we're challenging the elderly. We -- some of these elderly districts we're carrying. So it's not an issue of that or whether they're Jewish. I'm a little bit offended by that.

I think it's a matter of following what I believe is designed for a machine vote, which is that computer card. That's what it's designed for to count, by machine, and not manually.

CUOMO: Isn't...

COSSACK: Governor Cuomo, we have about 15, 20 seconds. Please respond.

CUOMO: Doesn't consistency require that we apply the law to all these situations, to these servicemen, to the people who voted for Buchanan and say that it was a mistake? That's all I'm saying.

HUTCHINSON: Absolutely, absolutely. Let's apply the federal law that over -- on the overseas ballot. The federal law would allow them all to vote.

CUOMO: Well, let the judge tell us what the law is. So far he's indicated he disagrees with you. .

COSSACK: All right, there you are, at least some kind of agreement -- well, hopefully some kind of agreement between Mario Cuomo of New York, Asa Hutchinson of Arkansas. Thank you for joining us. When we come back, we have a top-notch crack legal panel to discuss this and try to make sense of what the Supreme Court is doing today. Stay with us.


COSSACK: We're back.

Joining us now is our panel of legal scholars, including, first, Floyd Abrams, a constitutional lawyer well-known for his arguments on the First Amendment, Viet Dinh, a professor of law at Georgetown Law School, and of course, Norm Ornstein, the resident scholar of the American Enterprise Institute. Have I got that right?


COSSACK: All right, thank you.

Floyd, let's first start with you. I know -- well, let me ask you. Are you surprised that the Supreme Court took this case? We lawyers usually think that these are the kinds of things that stay within a state. And if you are surprised, I'm going to ask you another follow-up question that says, argue this for me.

FLOYD ABRAMS, CONSTITUTIONAL ATTORNEY: Yes, I am surprised. It seems to me that according to the usual rules that seem to govern in situations analogous to this, the court wouldn't have taken it. However, you phrase it, you still come back to the fact that we're talking about state law and that this court, as all its predecessors, have always looked to the state Supreme Court to decide what state law was.

I'll tell you one of the things that troubles me the most about this, Roger, is that I think we already have a situation where we have put in place by virtue of the closeness of the election a situation where both candidates for president are potentially diminished if they are president, the Congress itself may be hurt if it winds up substituting electors that weren't voted for. And now with the Supreme Court there, the worst thing that could happen is if having had Republicans already denounce the Florida Supreme Court -- it's just seven Democrats -- we wind up with Democrats denouncing the U.S. Supreme Court as just seven Republicans.

The good thing about it is, yes, maybe we will get a sense of legitimacy out of the whole process. But it -- it's troubling.

COSSACK: But Floyd, isn't that -- isn't that sort of the rules of the game? You're never going to make everybody happy. One side is always going to denounce one court, the other side is going to denounce the other court.

In terms of, though, the Supreme Court taking this case, the argument that has been put forward is that yes, we always go along with, or most of the time we go along with a state court, but this is a case in which a federal question has been brought in. That is, have they changed the rules? Did the Florida State Supreme court allow the rules to be changed after the election? And if they did, that would of course go right to the heart of one vote, one person, and does it count.

ABRAMS: Well, Roger, the problem is there's a metaphysical aspect to this when you ask the question, "Did they change the rules?" There were two statutes, there are statutes. One has a fixed time limit. The other doesn't have a time limit of the same sort and allows manual recounts to occur.

It's the sort of decision that state courts make all the time by trying to reconcile the two state laws and to decide what they mean when they're taken together. So to argue seriously that what the SUPREME COURT of Florida has done is to make law or to change law is to disregard the reality that this is what judges do for a living. They put a statute next to another statute, and they say, how can we make sense of this? What did the legislature mean?

COSSACK: All right, let me go to Viet Dinh from Georgetown Law School. Floyd Adrams says, look, this is what judges do all the time, they reconcile statutes that don't seem reconcilable. And if they were held to a standard of not making law every time they reconciled statutes, we'd always be before the Supreme Court. And look, now the feds are taking over right from what the state should be doing. Answer.

VIET DINH, GEORGETOWN UNIVERSITY LAW CENTER: Floyd is right that the matter of interpretation is a task for judges, and they do that on a daily basis. The question becomes, however, how do you go about interpreting statutes?

The argument being made is that here is judicial activism being carried too far: That is, judges no longer are interpreting the law. In the guise of interpreting the law, they're actually making law or changing law, and thereby not only usurping the power of the legislature but also contradicting federal constitutional standards in the process.

COSSACK: But Viet, there's two -- there's two statutes. One apparently conflicted with the other statute. The Florida Supreme Court had to make a decision -- that's what they do -- and they made a decision, to reconcile these two statutes. If you say they're making law, then they would never be able to reconcile irreconcilable statutes.

DINH: There's no question that the Supreme Court of Florida has the final say on the meaning of Florida law, but there's no question also that the United States Supreme Court has the final say in the meaning of federal law, whether that clears Florida state and Florida law, whatever that may mean, under the guise of the Florida Supreme Court, actually conflicts with federal law: in this case, federal election law and federal constitutional law.

COSSACK: All right, Justice Ornstein, I've got one vote for one side, I've got one vote for the other. Come on, break the tie.

ORNSTEIN: Well, one thing I have to say, Roger, is I'm waiting for the next appeal to the International Court of Justice or maybe the War Crimes Tribunal is still to go.

You know, I'm surprised that the court got into this as well, and it may be that in the name of striking down judicial activism we'll see judicial activism, getting into a matter -- there are few areas that are more clearly reserved for the states and state law than the selection of electors.

But what we know is they focused on section 5 of the federal law that began after the 1876 election to try and iron out these problems with electors, and it was revised in 1947. There is a question about what the date is in which the electors were appointed. And what we do know is that in section 5 it basically says that if there is a controversy, that the -- by judicial or other means of procedures they'll make a determination, and it has to come six days before the actual meeting of the electors, which would be the December 12th date.

It's a pretty strong case here, in other words, that the judicial branch (UNINTELLIGIBLE) get involved.

COSSACK: Now, let's put this -- let's put this in a little bit of English here. So what you're saying is that the Florida Supreme Court was well within their rights to do what they did and that the United States Supreme Court would be, perhaps, engaging themselves in judicial activism by overriding or overruling the Florida Supreme Court.

ORNSTEIN: Well, they've got a couple of issues here. One issue is whether there's a violation of due process in what they did, whether they did change the rules by their by their interpretation of the statute, whether they went beyond what the Leon County judge said, namely that this is within the purview of the secretary of state.

The second question, though, is whether this is a federal -- the federal statute here has been in effect violated and my reading of federal statute would suggest that the court has every right to get involved at this point in making that determination.

COSSACK: Let me go back to Floyd for a second. Floyd, let me hear from you which way is court going to go on this?

I don't ask easy ones, Floyd, you know.

ABRAMS: Long pause.

ORNSTEIN: Floyd is divided five to four, it's clear.

COSSACK: OK, we're going to give Floyd a chance to think about this for a second.

ABRAMS: All right, the answer is I think what the court will finally do is to say that at its core this is a decision which was made by the Florida Supreme Court and maybe they wouldn't have made it the same way, maybe it was activist, maybe it's questionable, but that it was for them to make it, and that in deciding what to do that in essence have to defer.


COSSACK: All right, OK.

ABRAMS: I think they will that say.

COSSACK: You say they go with the Florida Supreme Court. Viet Dinh, is the Supreme Court going to step in and overrule the Florida Supreme Court

DINH: I do not know whether they're going to overrule the Florida Supreme Court. I know what the Supreme Court has done just now is to give the country an insurance policy both in time and in certainty. That is, the Supreme Court, by deciding today to take the case a week hence gives a signal that it will be there to give the legal certainty.

COSSACK: Norm Ornstein, five seconds, yes or no, does the Supreme Court overrule or not?

ORNSTEIN: I don't think they're going to overrule. Remember, the clock is ticking and December 12th though, is still a very relevant date ahead.

COSSACK: Al right, you've heard it from our crack legal panel. Now, let's take a break. When we come back, we're going to have Bob Woodward, Sander Vanocur, and our own Bill Schneider.

Stay with us.


COSSACK: We're back.

Let's talk a little politics, perhaps even a little philosophy, too, with Bob Woodward, Bill Schneider and Sander Vanocur.

Bob, you have covered politics for a long time. You have covered the Supreme Court. You wrote a book about the Supreme Court. Talk to us about how this case compares to the Nixon case and if you want to tell us who deep throat was, that's OK, too.

BOB WOODWARD, "THE WASHINGTON POST": Well, first of all, I'm not surprised the Supreme Court took the case, though all the experts and the scholars who studied the law think that it's surprising. If you study the Supreme Court as a human institution where there are emotions, and where they sit up in that beautiful building there and what do they see?

They see a certain electoral chaos before them. They see the Republicans in even Governor Bush himself essentially attacking the legitimacy of the state Supreme Court in Florida. They see the Democrats and a lot of people like Laurence Tribe coming out and saying it's inconceivable that you could find a constitutional issue in this, and in a sense, everyone is kind of throwing red meat at them and saying, now, wait a minute.

We don't think you have the power. We don't think courts have the power. There is an immense self-consciousness that the justices of the Supreme Court all have that it is a common trait, and that is, gee it's our job to settle these big issues. I think as the debate this there is going to be tremendous pressure to come up with some sort of unanimous opinion.

COSSACK: Let me go to Bill Schneider. Bill, in terms of that politically, how does this play to the American public? Are they tired of this does and whoever wins this election, does this forebode a one term president?

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Big questions. For one thing, you know, there is no voice here really speaking for the public which wants a consensus. Speaking for the idea that this should be settled should be settled reasonably, all we hear is partisan voices.

I was rather distressed to see Bob Dole standing amidst the protesters today in Florida. The Supreme Court has that opportunity, and they'd better not shirk because people are looking to the Supreme Court to make final determination because they're the one voice that can hold the country together.

I think Democrats are looking with horror at what they're seeing as an effort by Republican party to intimidate the country and to intimidate Democratic Party. I think the idea that Republican calls went out calling on people to protest in Miami, against the recount which was perfectly legal, to go and protest that recount and they ended up in intimidating the count so that the canvassing board decided in end partly because of the protests that they could not proceed, that is scary. That is very scary and it's something you don't see very much in this country.

COSSACK: All right, let me go to Sander Vanocur for a second. Sander, the notion that the Supreme Court is going to rule on this, I know you feel personally that this has been a real constitutional crisis issue here and has done a lot of harm. Do you think this will be the soothing balm that will perhaps bring peace back to country if we have a Supreme Court decision? SANDER VANOCUR, JOURNALIST: You've got me mixed up with brother Bill. He said a couple weeks we may have a constitutional crisis. I said we have a mess. Look, when finally we separate the heat from the chad, what we're going to have is another wonderful demonstration of what a glorious democracy we live in.

I've heard time and again from Republicans, both politicos and their friends in the press, we've got a coup d'etat. A phrase thrown out as if this is a fancy dessert in a very expensive French restaurant. It's not a coup d'etat. George Orwell said in the end everything is political. What we've got is a political situation, and the Supreme Court will treat it as a political situation because they are appointed by politicians.

COSSACK: All right, Sander, let me interrupt you and let's just take a break right now. When we come back, more with Sander Vanocur, Bill Schneider, and Bob Woodward.

Stay with us.


COSSACK: We're back with Bob Woodward, Bill Schneider and Sander Vanocur.

And, Bob, I want you to talk a little bit about the Nixon tapes case and how -- and whether or not this crisis, or this case before the Supreme Court, compares to that tape case.

WOODWARD: Well, there are a number of similarities. Twenty-six years ago, the special prosecutor, Leon Jaworski, asked for an expedited hearing, and it's the last time a Supreme Court has ever granted that. Now that issue of the Nixon tapes case had been in the courts for months, so it was kind of ripe, and people -- it kind of worked itself through the process.

I think the problem here with the U.S. Supreme Court taking the case, there are lots issues still yet to be resolved, military ballots, the challenge in Seminole County, all of the contests that are liable to come from this. So it's hard to tell where this is going. But I think that there are three justices on the Supreme Court who are very anxious to strike a blow against judicial activists, like...

COSSACK: Even if they have to be activists themselves to do it.


COSSACK: Bill Schneider, I want you to articulate a little bit more on the notion of a one-term president, the idea that whoever becomes president may only serve for one term because the American people will somehow hold it against him.

SCHNEIDER: I don't think so. I think that, look, first of all it depends on the leadership skills of the new president, whether he can say the right words and make the right gestures that will unite the country. After an experience like this, Americans are desperate to be united. Either of these guys can do it, but they have to be able to do it. And any kind of crisis presents an opportunity for a strong leader to unify the count.

COSSACK: Sander Vanocur, will the country respond from this? Will they forgive either one of these gentlemen for what's happened and support them?

VANOCUR: My answer is yes. Look, I've covered politics in this country for 40 years. I was only certain of one thing: I got wise because I out lived my earlier mistakes. I think this country then and now is eternally grateful, as they should be, to Ronald Reagan for removing the toxicity that entered the political bloodstream of this country starting in 1963 with the assassination of John F. Kennedy and going through the hostage crisis in Iran.

Americans are very forgiving people, and more to the point they're a patient people.

COSSACK: All right, let's take a break.

More with Sander Vanocur, Bill Schneider and Bob Woodward when we return.


COSSACK: Bob, I want to ask you whether or not you are surprised. You mentioned earlier that -- you said that three of the Supreme Court justices may want to use this case to strike a blow against judicial activism. Now does that mean that your conclusion will be that there will be a reversal of the Florida Supreme Court in this case?

WOODWARD: No, I mean it could go any way. But what the court is going to have to do and what part of their debate necessarily is going to include is how do we come up with the definitive final ruling that will be accepted, that will kind of cool the waters, because a lot of waters are not cool in this. That's going to be tough.

COSSACK: And in talking about cooling the waters, one of the things that you -- I've heard you mention time and time again is in this election the electorate was polarized. The 50-50 was made up of very disparate groups. How do we bring them together?

SCHNEIDER: It's going to be very difficult. I mean, the Supreme Court can play a role. My view is if they took this case, they have become a political institution. And they better be able to resolve it in a way that's politically, not just legally but politically, acceptable. They've got to smooth the waters and bring the country together. That's the meaning of their willingness to take this case because they're a political institution.

How do you bring them together? Creative leadership, finding common ground -- that's going to be very difficult. It's a test of the court's leadership and of the new president's leadership.

COSSACK: Sander Vanocur, can new president lead after -- if it's the Supreme Court that puts him in office?

VANOCUR: Of course. When that president puts his hand on the Bible, he's the most powerful person in the world. And it's not just his authority that derives from that Oath of Office, it's events that may conspire to make him a great or a poor president. It is too difficult to prognosticate how powerful the president will or won't be. It's in the hands of the gods.

COSSACK: But, Sander, in light of the fact that the Congress -- maybe not the gods, but the Congress is going to be split so evenly, and in light of the fact that the president may be placed there by the Supreme Court, is there any hope for leadership?

VANOCUR: Always. Look, James McGregor Burns talked about it a book many years ago that there are two parties, Republicans and Democrats. But within those parties, there's a congressional party and a presidential party, and they all have their own fish to fry. It is called the separation of powers. It is not gridlock, it is checks and balances. And we ought to glorify it and not denigrate it.

COSSACK: Bill Schneider.

SCHNEIDER: I have one imbalance that I think troubles me, and that is if Gore were to become president, I think an awful lot of Republicans, including members of Congress, would regard him as illegitimate. They have already indicated they don't want to work with him. Some have said they would boycott the inauguration. It would be a bigger problem for Gore, I think, than for Bush, which is odd because Gore got more votes nationally than Bush did, Gore is ahead right now in the Electoral College, Gore argues that more people went to the polls in Florida to vote for him, they just had trouble casting that vote. But he somehow has been tainted as the sore loser in all this, and he would have a bigger problem than Bush would as president.

COSSACK: Well, I'm afraid that's all the time we have for tonight on LARRY KING LIVE. I want to thank all of my guests for joining us.

Don't forget, Larry will be back live Sunday night. Thank you for joining us, thanks to guests, and I'll see you tomorrow night.



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