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Capital Gang

Will the U.S. Supreme Court Choose the Next President?

Aired November 25, 2000 - 7:00 p.m. ET

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

ANNOUNCER: Live, from Washington. THE CAPITAL GANG.

MARK SHIELDS, HOST: Welcome to a special one-hour edition of CAPITAL GANG.

I'm Mark Shields with the full CAPITAL GANG: Al Hunt, Robert Novak, Kate O'Beirne and Margaret Carlson.

Al Gore got good news from the Florida Supreme Court, which barred the Secretary of State Katherine Harris from certifying George W. Bush's election and set a Sunday 5:00 p.m. deadline for finishing the manual recount.

(BEGIN VIDEO CLIP)

AL GORE, VICE PRESIDENT OF THE UNITED STATES: I firmly believe that the will of the people should prevail, and I am gratified that the court's decision will allow us to honor that simple constitutional principle.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I'm disappointed with last night's ruling by the Florida Supreme Court. We believe the justices have used the bench to change Florida's election laws and usurped the authority of Florida's election officials.

(END VIDEO CLIP)

SHIELDS: But three days later, the U.S. Supreme Court agreed to consider the Bush campaign's appeal, charging that the Florida court had gone too far.

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I believe that it is right for the United States Supreme Court to hear this appeal because it's a serious question that has been presented for its review. But I believe that the law is clear. And I believe that the Supreme Court will not reverse the Florida Supreme Court.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: Many, if not most, of the cases that arrive the Supreme Court arrive from the high courts of the states, and the Supreme Court reverses them on a regular basis.

(END VIDEO CLIP)

SHIELDS: Kate O'Beirne, is the U.S. Supreme Court going to choose our new president?

KATE O'BEIRNE, "THE NATIONAL REVIEW": Mark, it's unfortunate, I think, to see any court involved in selecting a president. The Constitution clearly left this up to the most political branch of the government, the state legislatures and Congress.

But I don't believe -- I found it hard to believe the court would have taken the case just to affirm the Florida court. They could have done that by denying review and I can see now that they might well find the Florida court violated federal law. The Title Three of the U.S. Code that demands the president be picked pursuant to a procedure in place before the election because they've now changed the rules, the Florida court, and Article Two of the Constitution that prescribes state legislatures direct how electors are picked.

And of course it's unprecedented on the part of the Supreme Court, but we've never seen the likes of Al Gore before either and he went to court in order to win himself the presidency and George Bush went to the Supreme Court to try to stop him.

SHIELDS: The embarrassing little secret of THE CAPITAL GANG is the only two people that know anything about the law are the two women, both of whom are lawyers.

MARGARET CARLSON, "TIME": Why is that embarrassing? Girls aren't supposed to know the law.

(CROSSTALK)

SHIELDS: Quite frankly, Bob looks like a deposed federal judge, but go ahead -- Margaret Carlson.

CARLSON: Where's your robe, Bob.

ROBERT NOVAK, "THE CHICAGO TRIBUNE": Impeached, maybe.

CARLSON: This is a good thing that could be happening if George Bush ever becomes president because he spent the last couple weeks having his people trash the courts as if they have no role in society. And the role of the courts is to interpret the law and when you need judgment, judges come in to judge and what they did was reconcile two pieces of the Florida statute.

One which said there should be hand counts and one which had a deadline and when there's a constitutional right about voting, it gives way slightly to -- the deadline gives way to that. I think they will affirm it, but the good thing is is that George Bush will have to show respect for a court where his father named two of the justices, five other Republicans are there and there are only two Democrats.

SHIELDS: Bob Novak, they said the charge was that the Florida Supreme Court was a Democratic Supreme Court. Is this Republican Supreme Court in the U.S.?

NOVAK: It's not my kind of Republican Supreme Court, I guarantee you that. You've got a couple Republicans on, a couple Democrats, couple you can't tell what they are. You know, with all due respect, Margaret, you're the kind of lawyer that is wrecking this country.

(CROSSTALK)

SHIELDS: All due respect?

CARLSON: By not practicing?

NOVAK: This is just a wonderful, wonderful story that we have that the Florida Supreme Court, which got tremendous praise here last week, I didn't really -- had not done enough of my home work to find out about them, but they're dreadful. They've been overruling the legislature. It's a straight Democratic court. They're very liberal, very partisan. They care nothing for the legislature and they shouldn't have any -- they should have never overruled the secretary of state.

George Bush should have been certified by the secretary of state without the federal -- the Supreme Court of Florida getting involved and you say, well, gee, isn't it ironic, Margaret that Bush has to go to the courts?

In self defense they go the courts because the Florida Supreme Court had no business being there and if, I don't know what the U.S. Supreme Court's going to do, but if they rule against them, they will be ruling on the grounds that this was an untoward intervention by the state judiciary.

CARLSON: Mark, let me just say one thing here, before we go on to others. If George Bush becomes president because the Supreme Court had interpreted the law, he's a lot better off than if the co-chair of his campaign called the election for him.

NOVAK: That's nonsense.

SHIELDS: Al Hunt.

AL HUNT, "THE WALL STREET JOURNAL": Mark, I must confess, I was very surprise the Supreme Court took up this case. I had talked to the most knowledgeable court watchers. They were very surprised. But I would be stunned if the court overturns the Florida Supreme Court.

Look, what courts are supposed to do and this goes back to Marbury versus Madison, are that they are supposed to resolve ambiguities in conflicting statutes, as Margaret said. That's what this court did. You can disagree with the way they did it. You can say they should have chosen the other side, but the idea that they wrote new law I just think is a non-starter.

But I think for the Supreme Court of the United States, Mark, it seems to me that it's going to be extremely difficult for justices like Sandra Day O'Connor, a former justice on the Arizona Supreme Court, to just capriciously ignore what happened in the state court overturn this. I think there's a real question of is there really a federal issue here?

SHIELDS: Why would -- just a question out of curiosity. Why would the court take it if there weren't at least a working group?

CARLSON: Read the headlines. I think as they say, the Supreme Court reads the headlines and the election results or non-results in this case and it's a huge, historic matter.

O'BEIRNE: To take cert, though and then affirm the court.

(CROSSTALK)

SHIELDS: Certiorari.

O'BEIRNE: To review the court and then uphold the court, they have the effect of upholding the court by refusing review, which they do very often, in fact, they most often do that. So, I would anticipate there is, of course, federal law at issues -- directly at issue and the Constitution is directly at issue and this is what the Florida Supreme Court reconciled. The Florida law says that the secretary of state may ignore late returns and the other section says she must ignore late returns and what the Supreme Court said is she can't ignore late returns. That is not reconciling those two parts of the statute.

(CROSSTALK)

NOVAK: You know, Al, I would say that people who were very wrong as a lot of these so-called experts were about the court intervening ought to be a little humble in predicting what the court is going to.

I think that would be, you know, advisable, but the thing that amuses tremendously is all these liberals who hate the states, who want to have this a centralized federal state. People like David Boies, who suddenly is talking about states rights', he talks about the Supreme Court, the possibility of the Supreme Court overturning the state government. That's not the state government. That's the state judiciary. The state government if it was given it's proper prerogatives, would have certified George Bush's election.

(CROSSTALK)

SHIELDS: When it comes to hypocrisy, I also hope that the Federalist Society and all those right-wing legal types who talk about the sanctity of what happens in states will just be quiet for a couple years now because they clearly have shown their hypocrisy.

(CROSSTALK)

O'BEIRNE: States are not free to violate the U.S. Constitution and the claim the Bush people are making is the Florida Supreme Court violated Article Two of the Constitution. That, states are not permitted to do.

HUNT: That's a frivolous argument.

NOVAK: Why do you say that.

(CROSSTALK)

HUNT: Because the same reason, I suppose that you said last week you said you had faith and hope in the Florida Supreme Court.

(CROSSTALK)

NOVAK: But I said I'm a foolish person. The thing is, Al, this is a matter of opinion and it breaks down to like many other things in this country, the people who want judges to run our lives, to legislate for us, to show invisible writing about abortion and other issues in the Constitution and want to use their power against the legislative branch. They naturally are saying that you cannot overrule this hack bunch of lawyers.

HUNT: You like judges to get involved when they rule your way. And you don't like judges to get involved when they don't rule your way. It's not a matter of principle.

(CROSSTALK)

CARLSON: As far as David Boies bringing up state's rights, there's a lot of cross-dressing going on here because the Bush people you wouldn't think would be running to federal court and asking for federal help when they usually want everything done on the local level. I hang on your every word, Bob.

(CROSSTALK)

SHIELDS: It does seem Bob, and I know that you're humble and really are quite self-effacing to the point where it's embarrassing for me, but it does seem that they're trying to deck their arguments in rather high-faluting moral language and ornamentation. I mean, the first person to go to federal court was Jim Baker. The first person to go to the court of appeals was Jim Baker. That didn't seem to me...

O'BEIRNE: Defensively, to stop what Al Gore was trying to do.

NOVAK: Because they had gone...

SHIELDS: Al Gore was trying to get a recount under Florida law, I thought.

NOVAK: Because they had gone to court to overrule an elected official and the legislature -- it was the legislative power and the state government power against judges. That's what is was.

CARLSON: But wait, before we leave this, the one thing we haven't mentioned is that Florida code also gives a right to a hand count. It was in conflict with the deadline. It was -- but the other side is delaying so you cannot have a hand count.

O'BEIRNE: The Florida Supreme Court's deadline is also in conflict with the hand count. Miami-Dade couldn't complete this. That's the problem with deadlines.

SHIELDS: Deadline, and we have one right now, but the gang will be back with the long recount.

(COMMERCIAL BREAK)

SHIELDS: Welcome back.

Of the three counties manually counting ballots, Miami-Dade dropped out on grounds it could not meet the Sunday night deadline.

(BEGIN VIDEO CLIP)

RON KLAIN, GORE CAMPAIGN ADVISER: We will certainly contest if indeed, as they've said they're going to, the Miami-Dade board files a return of votes that's incomplete, that leaves out thousands and thousands of ballots of people who went to polls and voted and have a right to have their votes counted.

(END VIDEO CLIP)

SHIELDS: The Miami-Dade decision followed a demonstration of Bush supporters seeking entrance to the counting room.

(BEGIN VIDEO CLIP)

SEN. JOE LIEBERMAN (D-CT), VICE PRESIDENTIAL CANDIDATE: This is a time to honor the rule of law, not surrender to the rule of the mob.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

ROBERT DOLE (R), FMR. PRESIDENTIAL CANDIDATE: This what America's all about. Nobody's being hurt. They're expressing themselves. They have a right to express themselves.

(END VIDEO CLIP)

SHIELDS: Counting continued painstakingly in Broward and Palm Beach counties.

(BEGIN VIDEO CLIP)

JUDGE CHARLES BURTON, PALM BEACH COUNTY CANVASSING BOARD: We're dealing with marks that are barely identifiable to the human eye, all the way up to pinholes to what is now known as a dimpled or pregnant chad. To say it's been easy is certainly not correct.

(END VIDEO CLIP)

SHIELDS: Al Hunt, will these ballots show a Gore victory by Sunday night?

HUNT: Unlikely, Mark. It is more likely to show a small Bush lead and there's an irony because I think if that's the case, there would have been tremendous pressure, including within his own party, for Gore get out except for two actions by the Republicans.

One was the aforementioned Supreme Court appeal which kind of makes it hard to say we want to shut this thing down before we even go before the court next Friday and the second being what happened in Dade County when the Republicans orchestrated an effort to bring pressure on that board with demonstrators and the board member, Mr. Leahy said three or four days ago that was factor in us closing down the vote.

Now he's trying to backtrack on that, but I just think that makes it very difficult for Democrats to say, I'm sorry this is the way we're going to, you know, let the process take place -- a bunch of people coming in to try to shut down a vote count.

SHIELDS: Al Hunt makes a good point, Bob, that the pressure was building.

NOVAK: Go ahead.

SHIELDS: You pulled an Al Gore on me. I don't need sighs from you, Bob. I need some good thinking, all right. Let's get a little. That Al Gore was facing some pressure Sunday night from Democrats, but now the Supreme Court hearing next Friday, that pressure's relieved.

NOVAK: Oh, that's so phony, Mark. I've never taken this pressure seriously. John Breaux is always the good guy. I think he is just a token. He's a good guy on Medicare. He's a good guy on Social Security. He's a good guy on everything but he never stands up and really shouts about it.

There's no question that this was a carefully calculated plan from even before the election to have this recount going. They were prepared and the Republicans were not and the idea that they were going back off when they couldn't get the votes is ridiculous. The idea also that this little demonstration of a hundred people there was a reason they didn't count the ballots is absurd and Mr. Leahy. Al, as you know, he told CNN today in a long interview. He was cross examined on it that that was not the reason they shut down. They shut down because they can't finish the counting.

I don't know if they're going to be able to finish the counting in Palm Beach to meet the Florida Supreme Court deadline. This is a -- the idea, however, that you're going to pick a president of the United States with people looking at pin holes, you know, with a magnifying glass to get the intent of voters, you really have to be a Gore partisan to think that's any way to elect a president. CARLSON: Now, in Texas last week -- in Tyler, Texas, I think it's Smith County, they did a hand count in the election there for state legislature and they counted, guess what, dimpled chads, and they found out that the Republican won. That's how they do it. It is not some radical thing to do. Hand counts are what happens when you have to go look at ballots that where -- that aren't clear and machines aren't perfect and a hand count is what you get. Republicans have done everything they can to delay the hand count, to run out the clock and keep that early 300 vote lead. That's what they've done and by the way, it wasn't just shouting. They chased some poor guy down the stairs, kicking and punching him,

SHIELDS: Joe Gallagher, the state chair -- the county chairman.

CARLSON: Out of the building.

NOVAK: He was a politician, wasn't he? That's what I thought.

CARLSON: Do you get to kick and punch people? It's like the Miami relatives, screaming.

O'BEIRNE: I surprised at you. We don't copy Texas. You know what a hellhole Texas is. Their criminal justice system, their education system, the environment. We don't want to copy anything Texas does.

SHIELDS: Least of all chief executives.

O'BEIRNE: I hope I'm wrong, I'd be delighted to be wrong, but I disagree with Al. I think Al Gore is going to have enough votes by tomorrow night. I mean, why steal votes if you're not going steal enough, for gosh sakes, and I think the Palm Beach Canvassing Board has plenty of votes to troll and I think they'll know tomorrow how many they need and they're going find them. That's the whole point of the whole exercise.

SHIELDS: How -- you know, it just strikes me that our good friends on the conservative side are a little bit -- disingenuous is a nice word. It's euphemistic. Let's be very blunt about it. The Democrats were charged with stealing the election. How is it George Bush picked up about 14 votes in Palm Beach County? How does that work?

NOVAK: Come on. You want an answer?

SHIELDS: Yes, I'd like an answer.

NOVAK: That was a temporary count. He's picking up a lot of votes in Palm Beach County. He's going to have a net gain in Palm Beach County. The only thing that went wrong in their planning in this whole elaborate way of stealing the presidency was what happened in Dade County, that they couldn't have time to count the vote and the precious Florida Supreme Court, which did so much for them, screwed it up because they put what they thought was a reasonable deadline and one that couldn't be made. HUNT: Can I just jump in here? If they were going to steal it, you'd steal it in Dade. And as for Mr. Leahy, let's just get the record straight. He belongs in the coward's hall of fame. This is a guy who for two straight days was saying this was a factor. The heat got on, and now all of a sudden he's saying, oh, no, it wasn't a factor. Well, of course, he's going to say that. If they were going to steal and election this is the gang that couldn't shoot straight because they could've stolen it a couple of weeks ago, but there's no stealing going on here, Mark.

(CROSSTALK)

NOVAK: You mean because they failed the crime means their not a criminal?

HUNT: There's been no stealing.

(CROSSTALK)

SHIELDS: Wait a minute. If the fix is in with the Florida Supreme Court, then why didn't the Florida Supreme Court order Miami- Dade to count? I mean, but Al Gore requested them to. Second thing is, I know you're in the Pacific doing reporting so you missed the Florida story.

NOVAK: I didn't miss it at all. I was watching CNN.

SHIELDS: Well, I'll you the truth, I have done reporting I've talked to Chuck Campion who's been down there and lived through.

NOVAK: Campion, he's a Democratic pol.

CARLSON: He's the most honest guy in politics.

SHIELDS: He's a very honest guy and he said in 23 years in the business, he had never seen anything like it. I'm telling you the truth.

(CROSSTALK)

O'BEIRNE: It's a Democratic county. The cops all work for the Democrats. Nobody was arrested. Anybody afraid of rampaging Republicans with pocket protectors, you really have to wonder should they be in public office.

HUNT: But why bring in outsiders? Why bring in people from Arkansas to protest in Dade County?

(CROSSTALK)

O'BEIRNE: The Cuban-Americans are furious. When Dade County first said we're only going to count a small number of ballots, Cuban- Americans were furious. They went overwhelmingly for Bush this time, and so the local constituency for that canvassing board was not going to let Miami-Dade get away with a partial count.

(CROSSTALK)

NOVAK: Can I say one thing? Let me agree with Al. I think, and I'm not sure but I'm guessing, that Bush will be ahead tomorrow night.

O'BEIRNE: I hope so.

CARLSON: Some of those people who showed up are paid for in houses and hotels and fed by the Bush campaign. Some of them are from South Carolina, the same people that helped Bush defeat McCain.

(CROSSTALK)

NOVAK: Boy, oh, boy.

SHIELDS: I'm glad you pointed that out, Margaret. Next on CAPITAL GANG, Dick Cheney's heart attack.

(COMMERCIAL BREAK)

SHIELDS: Welcome back. Republican vice presidential candidate Dick Cheney entered a Washington hospital early Wednesday.

(BEGIN VIDEO CLIP)

BUSH: He is feeling chest pains and turns out that subsequent tests, blood tests and the initial EKG showed that he had no heart attack.

(END VIDEO CLIP)

SHIELDS: But it was revealed that Cheney had in fact suffered a mild attack. He was released from the hospital Friday.

(BEGIN VIDEO CLIP)

RICHARD CHENEY (R), VICE PRESIDENTIAL CANDIDATE: In terms of work, in terms of kind of activities I can engage in professionally there are no restrictions.

(END VIDEO CLIP)

SHIELDS: Did the stress of the recount affect Cheney?

(BEGIN VIDEO CLIP)

CHENEY: I've been in much more stressful situations in my public career. I mentioned the Gulf War, for example, as sort of the ultimate stress for a public official and I have not found this situation to be nearly as stressful as that was.

(END VIDEO CLIP)

SHIELDS: Margaret, will Dick Cheney really be able to perform the duties of a vice president if in fact he is elected?

CARLSON: If I should ever have four heart attacks I hope somebody will tell me to take a breather from the stress of this panel. Seems to me that that's not what you would be wanting to do, but you know, he's free to do that. What happened last week that is the problem is it reminds us that Dick Cheney was never really vetted.

He vetted himself and while these other candidates were dragging huge boxes of medical records and getting prostate exams for their vice presidential audition, Dick Cheney was not doing any of that and just kind of sailed through and told George that his health was fine.

And what wasn't presidential last week was when the candidate for president came out without the right information and said, oh, it's fine. He's great. Don't worry about it. He didn't have a heart attack. What you should do, because the public is very interested and there is this right to know, is wait until you know, because it looks like you're fudging it.

SHIELDS: Kate, actually Dick Cheney was not chosen because he carried a constituency. He was not chosen because he carried a state. he was going to carry the state anyway. He was chosen in large part and the political role he played is he made people more comfortable with George W. Bush. He was an experienced Washington hand, Cabinet, all the rest of it, Congress and it kind of took off a little bit of the edge that George W. Bush wasn't ready. The loss of Dick Cheney would be really significant.

O'BEIRNE: Well, I think in choosing Dick Cheney, George Bush trusted him. I think in the course of running his vice presidential selection effort, he got working with Dick Cheney and he came to rely on his good judgment, and he proved himself to be utterly trustworthy and I think that's why George Bush tapped him as the kind of man he wants down the hall.

I think this could have been a problem, any kind of a little Cheney setback as minor as this was, during the campaign. Had he been candidate Cheney three weeks ago, it might have just created enough uncertainty in a close race to have been a problem.

But I think a Vice President-Elect Cheney, which as we all know he now is, he looked perfectly vigorous and it seems to me the kind of people who didn't want to vote for George Bush because he was not up for the job, were not reassured enough by the presence of Dick Cheney on the ticket, those people probably didn't vote for George Bush.

SHIELDS: Now that Katherine Harris O'Beirne has already named the winner, Al Hunt, I mean, what about Dick Cheney? Is this a problem medically?

HUNT: Well, first of all, I think we all are delighted that Dick Cheney went home after a couple days and hope he has a very, very quick recovery. But I do think there are more questions here. I think if you talk to cardiologists, and I've spoken to one of them, they privately will tell you there are questions that have to be raised here. He had a -- what's known as a heart ejection fraction, which I know nothing about until the other day, of 40 percent.

I think specialists will tell you when it gets below 50 percent, that's a concern. He has had four heart attacks. I think doctors rightfully think that their relationship with their patients and privacy is foremost. That's different for a would-be president or a would-be vice president. I think the press was terribly acquiescent in not asking the kinds of questions it should have been. Dick Cheney ought to -- right now, tell what's his cholesterol, what's his blood pressure, what's his weight, what's the results of any stress test. Those are very fair questions.

SHIELDS: Bob, we went through this in 1992 with Paul Tsongas. We took the word that Paul Tsongas was cured of cancer. He died two days short of what would have been the end of his term.

(CROSSTALK)

NOVAK: That's not even comparable. You know, I hate to be unpleasant to my colleagues because I really adore all of you, but I really do believe I take that the word of the spokesman of the George Washington University Hospital, not as private conversation over some cardiologist you ran into Al and happened to have a conversation with, you know, this he seems to be perfectly healthy.

We had a president named Eisenhower who had innumerable heart attacks -- some of which were reported and some of which were not, and he was a lot better president than our last couple of presidents, I would say, and then I would also say that as far as not being vetted, Dick Cheney had an EKG which was normal. He had an enzyme test which was normal in July when they were checking him for the vice presidency and nothing at all showed up.

SHIELDS: So you're not going worry about it.

NOVAK: Well, you always have something to worry about, but I just see a lot of liberal partisanship. This is a very strong guy. If there is a Bush administration he will be a major figure in it.

He would be a major figure in the transition and I just see more of this jumping on Bush by saying he should have known all about it. How the hell was he supposed to know? They told him he didn't have a heart attack. And they didn't know he had a heart attack.

(CROSSTALK)

SHIELDS: Bob, easy. I'm worried about your heart.

CARLSON: Bob, you're going to have heart attack.

SHIELDS; Bob, and some people say you have a good heart. I'm not one of them. The gang of five will be back to seek the source of this problem, whatever it is.

(COMMERCIAL BREAK)

SHIELDS: Welcome back.

What is the prime cause of deadlock now, nearly three weeks after the election. We go for our dispassionate Bob Novak. NOVAK: James Carville. It is the tone he put in winning the 1992 election after so many Democratic defeats. Because you don't give an inch, you fight all the way, and they said, when they saw this was a close race in Florida, we'll do anything to win. That's what the cause of the trouble.

SHIELDS: That's why Mr. Bennett conceded on election night.

Al Hunt.

HUNT: Well, I think the problem is that both Al Gore and George W. Bush are genuinely convinced that they won this election fair and square, Mark...

SHIELDS: In Florida.

HUNT: Both have a persuasive case; and this election in Florida, and nationally, was a tie; and no system can safeguard against turmoil in the case of a tie.

SHIELDS: Al's got a reasonable position there, Kate.

O'BEIRNE: I'd point to a quote recently reported that Al Gore was reportedly said to have told -- made last December, that he was not like Bush. If Bush loses, life goes on. That's not true of Al Gore. He recognizes that, so he will do anything to win. I think he's unlikely to be this party's nominee in 2004 if he doesn't make it this time, so this is it for him. And the system can't handle a ruthless challenger who's willing to send an army of lawyers to stretch it beyond it's capacity to deal with this close election.

SHIELDS: And Bob -- and George W. Bush is unilaterally disarmed, is that right?

CARLSON: Who jumped the gun to be gracious and concede, partly setting up, you know, the networks -- I mean, this is the Tom Brokaw- winner election. I mean, that's where the presumption that Bush won it all has come from. So he graciously concedes; he takes it back because, you know, in fact Jeb Bush can't deliver and say, I delivered Florida you, which is what George Bush said back to him. This is running out the clock. It's a deuce game. It should be -- everything should be counted to the extent it can be so that we all know who won.

SHIELDS: Everybody, as we said here, has to acknowledge two things: one, Al Gore has more popular votes in the country than does George W. Bush, has more electoral votes than George W. Bush -- and the truth is they didn't plan some strategy, Bob, because he was on his way, as Margaret points out, to concede.

Let's get this: Al Hunt made sense. They both think they won and they both can make a good case that they carried Florida. The fact of the matter is, we know who did and if you stay tuned you'll find out. We'll be back with a special one-hour edition of CAPITAL GANG, talking about the PR wars, the 50/50 U.S. Senate and our outrages of the week after a check of the hour's top stories.

(COMMERCIAL BREAK)

Welcome back to the second half of our very special CAPITAL GANG. I'm Mark Shields with Al Hunt, Robert Novak, Margaret Carlson and Kate O'Beirne.

While the lawyers went to court, the presidential campaigns sought the public relations high ground, led by the candidates themselves.

(BEGIN VIDEO CLIP)

GORE: I once again urge that Governor Bush and I meet to demonstrate the essential unity that keeps America strong and free.

BUSH: If Vice President Gore is seeking some common ground, I propose a good place to start. He should join me in calling upon all appropriate authorities in Florida to make sure that overseas military ballots that were signed and received on time count in this election.

(END VIDEO CLIP)

SHIELDS: Bob Novak, who is winning this really intense, high- quality PR war?

NOVAK: Well, I'll tell you; you know, most of the people -- this country is divided -- you said to me a couple weeks ago it wasn't polarized -- I think it's getting a little bit polarized on this issue. And people who like Gore, I guess they think he's doing OK; he's an acquired taste, but about half of America has acquired it. And a lot of people -- the other half think that Bush is doing OK.

But I really do believe that, after a slow start, the Republicans and Bush are doing better. I think that Gore looks oleaginous, I think he is a urea heap on how we should be nicer, and I think Bush looks like a genuine person and I think that the Republicans, in the last week, have been winning the PR war because it looks like the Democrats will stop at nothing.

SHIELDS: Al Hunt, do you agree with Bob Novak?

HUNT: No; I mean, at least Bob didn't do this -- pit this as a contest between Atilla the Hun, namely the mean Democrats and Saint Francis of Assisi, these wonderful, benevolent Republicans.

Let's not forget that Karl Rove is as tough and as mean a character as there is in American politics -- witness the South Carolina primary. I don't think either side is particularly winning this thing and I think, Mark, to me the best place to learn about the contrast between Gore and Bush is "Saturday Night Live." I think they both look like the caricatures on that show.

SHIELDS: Kate O'Beirne.

O'BEIRNE: I think the Republicans had been behind on PR score until last weekend with the military ballots. It was a huge mistake for the Democrats to be so heavy-handed throwing out those votes. The Democrats have been on the defense ever since. And whenever a Democrat -- most recently, Al Gore himself, asked Republicans to tone down the rhetoric it makes me think Republicans are winning the PR war. Jesse Jackson, of course, showed up within 48 hours, invoking both the Holocaust and Selma, but now it's Republicans who have to tone down the rhetoric because I think they're really scoring on military ballots.

SHIELDS: One difference, and there's no apologists for Jesse Jackson, was they were in the parking lot as opposed to the 19th floor of the building, seeing the people doing the count.

O'BEIRNE: So they should have kept him out of the building in a democratic county.

CARLSON: I agree that the military ballots hurt Democrats, and Republicans were on the right side of that; but what's happened is that they lost what they had gained with the, you know, kind of screaming Miami relatives on the 19th floor. I mean it was, we were back to the Elian Gonzalez thing.

NOVAK: You just don't like Cubans do you?

CARLSON: No, I really do like them, but I didn't like the way they behaved in the Elian Gonzalez thing and I didn't think that even the Republicans, most of them, were happy with that mob scene last week. And it served to unite Democrats who were getting a little wobbly because now, in a sense, the Republicans are the, you know, the house managers and Ken Starr all rolled into one, uniting Democrats over here behind Al Gore.

O'BEIRNE: When liberals take to the street it's an holy exercise under the First Amendment.

CARLSON: It's civil disobedience.

O'BEIRNE: It's just that liberals are unused to seeing conservatives finally becoming outraged enough -- this is a conscious...

HUNT: I drive by the vice president's home every day because it's a couple blocks from where I live. There are demonstrators out there every day -- more Republicans than there are Democrats. That's great; that's fine. I have no problem with that -- you're right, that's First Amendment.

It's different when you try to shut down a process. That's what's different, that's what's objectionable. If Al Sharpton had brought a bunch of Democrats in to shut down a county, in Seminole County people would be justifiably outraged.

O'BEIRNE: Nothing illegal was done and they didn't shut it down.

NOVAK: They didn't shut it down. The guy said himself, you say he's a weak guy but, you know -- the thing, I just wonder, Al, you're an honest person, I think.

HUNT: Thank you Bob.

NOVAK: But the idea of part of the mantra of all the Democrats now is that they -- that we're taking votes away from Holocaust survivors. Doesn't that make you a little bit sick?

HUNT: Yes.

NOVAK: OK, thank you.

HUNT: It does. I have a basic view that I think that those military ballots -- I also agree, that was a huge mistake, I think we ought to have a very permissive attitude on counting those ballots unless they're really fraudulent, just as I think we ought to have a very permissive attitude on counting ballots -- so-called indented.

Let me tell you something. I went to the all-star game this week, Bob -- not the all-star game, I went to the NBA game here in Washington. This is an all-star ballot. My 14-year-old kid marked it. You know something, he's got three indentures right here. They ought to count, I say, Bob.

NOVAK: Let me explain to you what the difference is. The difference is a serviceperson overseas knows who he or she is voting for, and just by some technicality they throw it out -- how do you know who these people were voting for?

SHIELDS: Same way you do in Texas.

Did you ever vote absentee when you were in the service?

NOVAK: Yes, sure I did.

SHIELDS: Do you remember who you voted for clerk of courts (ph)? You don't know who you're voting for. You vote every...

NOVAK: I can give you his name. I voted for Hartley.

SHIELDS: All right, point: on the PR wars, two things happened this week that I thought made sense for each side. I thought -- I didn't think either side was -- I agree with Al -- was particularly impressive.

First of all, the Republicans finally got somebody who knew George W. Bush to speak for him, Governor Mark Racicot of Montana, who was a lot more effective than Ted Olson and Jim Baker and all those other retreads and George Terwilliger and everybody that ever worked for the old man. And he made the case far better than anybody else on the military ballots, and he's also an attorney general and he wasn't saying, they're stealing the election and making phony, false charges like we hear some places.

And today George Bush finally listened to Al Hunt's advice and had...

HUNT: Al Gore. SHIELDS: Al Gore, and had George Mitchell out speaking for him; and George Mitchell made such a case that the thing would be over if he had been doing it for two weeks.

Next on CAPITAL GANG, an evenly divided U.S. Senate.

That's it Bob. You're not talking.

(COMMERCIAL BREAK)

SHIELDS: Welcome back. After Republican Senator Slade Gordon had appeared to have been reelected in Washington state, absentee ballots gave the victory to Democrat Maria Cantwell by fewer than 2,000 votes.

(BEGIN VIDEO CLIP)

MARIA CANTWELL (D) WASHINGTON SENATOR-ELECT: I am confident that our state's exceptional process and our exceptional election workers have gotten the job done, and that the recount will show that we will be victorious.

(END VIDEO CLIP)

SHIELDS: Al Hunt, what is the significance of a tied, 50 to 50 U.S. Senate?

HUNT: Only in this election year. First time in a century, I guess it had to happen.

But the Democrats' posture, now is we want to have co-chairmen -- they don't really believe that, they're not looking for that. But what the Democrats in the Senate are going to demand is equal representation in all of those committees and all of those conference committees. If they don't get that it's going to be bloody.

I'll tell you something about Washington state: I will confess I was not upset at Slade Gordon's loss because I think he became a bully; but I'll tell you who really was was Trent Lott. They were very, very close and I think this election has been devastating for Trent Lott. He's got a shaky hold, even in his own caucus in the Senate. He will remain its leader, but I think it's really problematic. And he said something this week, someone said it'll be 50-50 and he said, well it may not be. And he said because, this is a quote to "U.S. News," "There are Democrats who are getting pretty old and others who need to watch their weight," end quote.

I wouldn't go there, Trent.

SHIELDS: What is going on with Trent Lott in the U.S. Senate, Bob?

NOVAK: Well, this was a disastrous election for the Republicans in the Senate, just as it was a disastrous election for the Democrats in the House, and nobody is saying that. But it's going to be a different kind of Senate, and we had Senator Tom Daschle on "Evans, Novak, Hunt & Shields" last week and I take him as a man of his word, and he said that he would really be willing to go along with Republican-style tax cuts as part of an overall grand compromise which had something like patients bill of rights and the..

SHIELDS: Minimum wage.

NOVAK: ... and whether they're going to get that in the lame duck session -- and if prescription drugs, more to the Democrats liking. But I will say this...

SHIELDS: Would you buy that?

NOVAK: Sure.

CARLSON: I can't say much about what a 50/50 Senate's going to be like, but a Bush-Novak tax cut, no, I don't see it.

But can I just give three cheers for 13 women in the Senate, we're 50 percent of the population and we finally got 13 percent up there on Capitol Hill in the Senate.

SHIELDS: That's an historic high.

NOVAK: That's terrific, really makes my heart warm.

CARLSON: Yes -- and we are what, 30-40 percent of THE CAPITAL GANG?

SHIELDS: Just one point of personal privilege. Bob Novak said you take Tom Daschle as a man of a word and you think that Al Hunt is an honest man. Go ahead -- Kate.

O'BEIRNE: With respect to an awful lot of votes, I don't know that the 50-50 split is that critical. Increasingly in the Senate you need 60 votes to get anything done; and as long as one party has 40 they can certainly block the will of the majority.

NOVAK: That ought to change.

O'BEIRNE: I don't anticipate it will under these circumstances though, Bob.

NOVAK: I think it can, it can change. This whole idea of saying, I'm going filibuster every time you pose a bill -- that wasn't the way the Senate was when I covered it under Lyndon Johnson.

HUNT: I'll tell you one thing: campaign finance reform will pass the Senate. Something very close John McCain.

NOVAK: You don't like this, but it has to have some labor union...

SHIELDS: At the risk of resurrecting Florida, the Florida legislature has threatened to get into this whole thing and so has the Republican leadership in the House of Representatives into certifying the electors and all the rest of it. What happens if it comes -- because the House, as we know, each vote gets one state, picks a president and the Senate's split 50-50 and they can't choose a vice president.

HUNT: No, it's a Bush-Lieberman administration.

NOVAK: It's a Bush-Lieberman administration.

NOVAK: I've got to say one thing: that if Gore wins or if Gore is counted in -- I shouldn't say "wins," if he's counted in as president, and Governor Rowland, Republican governor of Connecticut picks a Republican to replace Joe Lieberman who has to resign, that will just be the final degradation in the decline of Joe Lieberman for his selfishness -- refusing to quit and let a winning Democrat run, and it will just be the last straw, but it will be touching irony.

CARLSON: Joe Lieberman is a fine man and has not been degraded.

SHIELDS: As George W. Bush would say about Joe Lieberman, he's got a good heart.

The gang of five will be back with "The Outrage of the Week."

(COMMERCIAL BREAK)

SHIELDS: And now for "The Outrage of the Week."

It is always helpful for Christians to remember that Christ was a humble man who spent his time with the poor, the outcast, the despised. He didn't spend much time with the soft-money crowd at the country clubs. Jim Colby of Arizona is the only openly gay Republican in the Congress. On Thursday Jim Colby did not serve Thanksgiving dinner to the homeless at a shelter, as he did last year, because the Gospel Rescue Mission told him he was not welcome because he was gay. Saturday, after adverse public reaction, the Gospel Rescue Mission apologized for telling Jim Colby he was not worthy to feed the hungry.

Bob Novak.

NOVAK: I don't agreed with former Clinton political aide Paul Begala about much, but I have always admired him as a conscientious, religious, patriotic American -- until now, that is. In an on-line column, Begala called attention to the map showing red-colored Bush country and blue-colored Gore country. Inside the red area, a black man was lynched in Texas. A gay man was crucified in Wyoming. Hundreds were killed in Oklahoma City. I could say what goes on in the blue area, but I won't be that outrageous and neither should Paul Begala.

SHIELDS: Margaret Carlson.

CARLSON: Yesterday in Tallahassee I met William Ruverall, the co-developer of the antiquated Vote-o-Matic, used largely, sadly by people in poor precincts. His machines produce far more of the infamous dimpled chads than others, primarily in the presidential column which, as the day wears on, gets harder for most voters to punch out cleanly. In 1998, down-ballot races in Palm Beach always got more punches than higher offices; 10,000 people hardly waited in line to vote in Palm Beach only to lodge a protest vote against voting for president. The only fair thing is to count those votes.

SHIELDS: Kate O'Beirne.

O'BEIRNE: In England it is reportedly against the law to distress the monarch by making startling noises in her presence. Although Florida law has proved unimaginably elastic, it is not against the law to distress the canvassing boards by making loud noises in their presence. There has been no violence, but Senator Lieberman who, until lately, had an intact reputation for integrity, tries to demonize citizens with a grievance against the government. The Florida Supreme Court may shatter Florida state law at will, but it's reach, thankfully, stops short of the Bill of Rights.

SHIELDS: Al Hunt.

HUNT: Mark, two Washington men of enormous values paused away this week. One of the truly honorable and devoted public servants of these times was Charles Ruff -- Watergate prosecutor, U.S. attorney and President Clinton's brilliant lawyer during impeachment. He commanded huge fees as a distinguished private practitioner, but cared more about public service.

And Lars-Erik Nelson, who personified the best of the old and in a more noble journalism. He was an incredibly diligent reporter who got it right and promoted his work, not himself. They both will be very much missed.

SHIELDS: I'm Mark Shields saying good night for THE CAPITAL GANG.

Coming up next, the very latest on the Florida Recount, a CNN special report.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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