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Larry King Live

Will a Supreme Court Decision Be the Most Important Vote of Election 2000?

Aired December 1, 2000 - 9:00 p.m. ET

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

(BEGIN VIDEO CLIP)

DALE BOSLEY, MARSHAL OF THE SUPREME COURT: The honorable, the chief justice and the associate justices of the Supreme Court of the United States.

(END VIDEO CLIP)

LARRY KING, HOST: Tonight, Supreme Court showdown in day 24 of election 2000 standoff. Fresh from the legal fight that could determine the 43rd president, the esteemed attorney Laurence Tribe, who will argue the Gore position, his distinguished opponent Ted Olson, who made the case for the Bush team. And then a political square-off with Democratic Senator Carl Levin of Michigan, Republican Senator Robert Bennett of Utah, Republican Senator Pete Domenici of New Mexico, and General Chairman of the DNC Ed Rendell. Plus the perspective of two former White House press secretaries, Jody Powell and Marlin Fitzwater -- all next on LARRY KING LIVE.

We begin with Professor Laurence Tribe, a familiar figure at the Supreme Court. He made his 30th argument before that court today.

How have you done in the previous 29? What's you record?

LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: About 19 -- 19-11 -- 19 and 10 I think.

KING: Winning?

TRIBE: Oh, yes, winning. Not losing.

KING: Nineteen-eleven.

So what is it like? Is it different from all other legal experiences?

TRIBE: Yes, it's very exciting. It's a peak experience even though you've done it before, and unless you get nervous enough to get the adrenaline going, you're not going to do your best anyway. And today was a peak among peaks. I mean, it was an amazing feeling.

KING: We notice and we learned watching the Florida Supreme Court that Supreme Court judges interrupt. Do all state supreme court judges do that?

TRIBE: No. I had an argument recently in the Illinois Supreme Court, where I had the frustrating experience of going for an hour without one question. And you think you kind of don't mind getting your story out, but fact is that's like arguing in front of the sphinx, is you have no clue what's bothering them or what you need to say.

KING: So you like the questions?

TRIBE: I like the interruptions. Occasionally, I wouldn't mind one or two fewer, so I could finish a sentence, but I like them.

KING: We're going to an example of Laurence Tribe today at the Supreme Court. Listen.

(BEGIN VIDEO CLIP)

TRIBE: ... if it were the case that the Florida legislature could not simply decide, "Well, we're tired of all this counting, we're moving in," and that this court cannot decide whether the conditions of 3 USC, Section 5 are met, it would then remain only for Congress to make a determination.

(END VIDEO CLIP)

KING: What's that like? Is it -- how did you do today, do you think?

TRIBE: I felt good about it. I felt good. I mean, the case is a complicated one.

KING: Obviously.

TRIBE: The case has a great many issues. A great deal turns on it. But in a kind of post-mortem, when I listened to what was going on, I felt pretty good. I can't say that I would predict anything in particular, but I felt the basic themes that I wanted to get across, that this was not...

KING: You'd say that you got a chance to make your case.

TRIBE: Yes.

KING: And of course, they'll read the briefs before. A lot of them...

TRIBE: They're very well-prepared.

KING: ... know it...

(CROSSTALK)

TRIBE: Well, they're very well-prepared. And in a case like this where they know that it's important to come out with a decision quickly, it wouldn't surprise me if they'd... KING: If they had written a part of it.

TRIBE: Well, written part of it. Yes, I mean, if each of them hadn't already scoped out not only a tentative vote, but a tentative set of arguments and opinions. And so they might come down with something awfully soon.

KING: On your side of the fence, the clash occurred with Justice Scalia, one would say. And I know you and he are friends and you've gone up against each other before, appeared away from the court on panels together.

TRIBE: Yes.

KING: Is he tough to deal with?

TRIBE: As a person, not tough to deal with at all. He's fun to deal with. Intellectually, he's very challenging. He's a very bright fellow, and he is very tenacious, so that if you make a point that might, with a different setting, lead somebody to lean back and say, hmm, maybe you've got a point, his inclination is to say, oh, but what about this?

And that's OK. I think that's part of what makes a good lawyer and it makes it fun to engage with him.

KING: A good lawyer -- and we understand the dilemma here -- could argue the other side, couldn't he? Both you and Mr. Olson could probably, not with the same vigor, but know the other side.

TRIBE: I think that's probably true, although I have -- I'm lucky. I've got the luxury of being a professor at Harvard, and I don't take a case unless I really believe in it. I don't have to.

I mean, if I were a partner in a law firm, maybe I'd more often would do things where I didn't have any clear sense which side was right. But if I had to, I could have argued the other side.

KING: So many lawyers have to argue cases they may not believe in.

TRIBE: That's right.

KING: All right...

TRIBE: Although I think every lawyer should have some ethical limit. You know, there is some stuff I just won't argue. I think every lawyer should do that.

KING: Do lawyers guess as to how this is going to come out, or do they make it a practice not to?

TRIBE: I think most lawyers have private guess, but I don't -- don't know any who would curse themselves by making those guesses public.

KING: In your previous cases -- let's say 19 wins and 11 losses, whatever -- were you right in your guessing?

TRIBE: Actually fairly often. I mean, the bating average was pretty good. There was -- there was one striking case where I was completely off. I thought I was going to lose 5 to 4 and I won 9 to nothing. But on the whole, my guess have been pretty good.

KING: When we as laymen listen to the arguments, should we judge that boy, Scalia is going to vote against you just by the way he handled it today?

TRIBE: No. No, I think...

KING: No?

TRIBE: ... most of the justices get a kick out of being devil's advocates, and to some extent they learn a good bit about the issues by pushing something pretty hard whether they believe it or not. And quite often, you'll see the same justice pushing both sides very hard.

KING: That happened today.

TRIBE: Yes, and you hear -- and today it happened partly because there were two very different issues on which it's quite possible that Scalia is leaning in different directions on those two issues.

KING: Now is it, in fact, though, maybe moot in this sense? Whatever they decide, they're already in the contest phase, which is not part of this argument. Gore can have a recount in the contest then. You have other circuits...

TRIBE: That's right.

KING: ... in various cases. Is this merely an intellectual exercise?

TRIBE: It may be. It may be, and Justice Breyer asked a question that in effect raised that possibility. Interestingly, none of the other justices took him up on it, so who knows.

KING: Like what do we -- what's it matter?

TRIBE: But one of the things that's interesting is that Governor Bush and his lawyers are asking for some pretty sweeping relief, which may make it anything but moot. What they want the court to do is not only reverse the Florida Supreme Court and say that it went off the reservation but also turn back the clock, say that we should act as though it was now November 14th. And guess what? You guys have no right to bring any of these challenges and contests because it's out of time.

KING: But you can contest after the 14th?

TRIBE: Yes, but there's a time limit, like 10 days or whatever, and conveniently there would be no time.

KING: In other words, they can sweep it all out. TRIBE: That's right. They want basically to run out the clock on the ground and to turn back the clock on the Supreme Court.

KING: Guessing we'll have a decision when?

TRIBE: I wouldn't be surprised if it was before the middle of next week, could even be Monday.

KING: That would be the fastest ever made?

TRIBE: Probably. There may have been -- I don't remember any faster, and of course, I could be wrong.

KING: Thanks for coming by as always.

TRIBE: Thank you.

KING: Professor Laurence Tribe. He represented the Gore campaign.

Equally eloquent on the other side was Ted Olson, who represented the Bush campaign, and he'll make his first live appearance since that event today, next. Don't go away.

(COMMERCIAL BREAK)

KING: There they are, the nine justices of the Supreme Court. This was their most historic meeting, this group, ever today. And we now welcome to LARRY KING LIVE, an old friend, Theodore "Ted" Olson, who represented the Bush campaign.

We're kind of involved in this. We flew to California together on the day you were called right back to -- we landed and you were called back, right?

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: I turned around, took the very next plane back. I think it was the same airplane, Larry.

KING: You were hired that day, right?

OLSON: That's right.

KING: On to go to Tallahassee to argue.

OLSON: That's right.

KING: All right. All right, was what it like -- this was your what time appearance?

OLSON: Fourteenth.

KING: So...

OLSON: I'm just a rookie.

KING: Rookie. So between the two of you, though, that's like we're up to 45 appearances here. And how have you done in your 14?

OLSON: Well, I've done -- I think eight of them I've won.

KING: Six losses.

OLSON: Sometimes the way the Supreme Court decides cases there's -- you win part of it, you lose part of it, and things like that, so...

KING: But they don't have to be total victories.

OLSON: They come out in different ways at different times, so...

KING: What was it like for you today?

OLSON: Well, it's an exhilarating experience. The justices were exceedingly well-prepared. They did this in a record amount of time. A week ago, they took this case, we filed two sets -- each of us filed two sets of briefs. The justices had read the record. They asked hard questions, as anybody who listened to that tape would know. They were very much on top of all of the issues. And they asked these kind of penetrating questions that make you understand they really know what's going on. They really care about this.

KING: And like Professor Tribe, do you like being interrupted? Do you like the challenge?

OLSON: Oh, it's essential, because just like this, you don't want to just talk. You want to know what it is that you want to know, and when the justices ask those questions, we're learning a little bit about what they want to hear, what they care about, what they think are the important issues. That gives us a chance, if we're well- prepared, to respond to their interest in the case. And so, that's what it's all about.

KING: Do you also agree that you can't read them?

OLSON: Well, I also agree that you shouldn't try to. You should try to pay attention to what they're saying. You should do a little bit of research to find out what aspect of what part of the issues they're going to be particularly interested in so that you can understand the context of the way that they'll ask the questions.

I never try to figure out how they're going to vote.

KING: So you don't say, oh, boy, Justice Ginsburg's against me?

OLSON: No. I listen to her questions, I try to answer her questions, and I do the best I can there. And then after that, it's all up to her.

KING: Could a lawyer be a very good lawyer in a jury case and not good in an appellate case?

OLSON: Some people are good trial lawyers and good appellate lawyers. Some people are good at one or the other. It's usually that people stick to what they're specialized in, what they're best at.

I used to do trial work, and I decided this was -- this was an aspect of the field that I liked best.

KING: What's the secret -- secret may be a bad word -- what's the ability you look for in someone to argue a case like today?

OLSON: Well, I think you have to be -- you have to be very interested in the law. You have to like to do the research. You've got to like to understand the issues, and you like to be able to stand up there and have that rigorous intellectual exchange with the justices. You really have to have enthusiasm for that, a passion for it. And then you hope it turns out OK.

KING: Do you agree that it's better when you believe in your side?

OLSON: Well, I think every advocate winds up believing in their case by the time they stand up there.

KING: In...

OLSON: Well, in one way or another. I mean, you believe in the issues and you convince yourself. Part of what you're doing here, you have to both have an objectivity so that you can understand the weaknesses of your case, but you also develop a passion for the issues that you're representing. And you wind up convincing yourself that you're right by the time you get there.

KING: As we did with Professor Tribe, now let's listen to a portion of Ted Olson at work today.

(BEGIN VIDEO CLIP)

OLSON: The Florida Supreme Court radically changed the legislative scheme because it thought it could do so under the Florida constitution. By doing so, it acted inconsistently with Article II of the Constitution and inconsistently with Section 5 of Title 3. And it has brought about precisely the circumstances that Section 5 of Article -- Section 3, Title 3 is designed to avoid.

(END VIDEO CLIP)

KING: How do you assess your own performance?

OLSON: Well, I mean, that part of it wasn't terribly good, because -- that's a very esoteric part of the case. What we were trying to convince the court was that the rules shouldn't be changed in the middle of the counting of the votes in an election: that the rules going in should be the rules coming out. And that while there was a lot of technical stuff about federal statutes and constitutional provisions, that that is what it's all about.

As far as my own performance is concerned, you sort of put that aside. You do the very best that you can writing those briefs. You do the very best you can in the Supreme Court. And then you walk out and walk away.

KING: Were you surprised at the question -- I don't know who, I forget who asked it -- when you were asked, are you questioning the integrity of the Florida Supreme Court?

OLSON: Justice Ginsburg asked me about that.

KING: Were you surprised?

OLSON: She didn't ask me quite in that way, but I wanted to make clear that we weren't questioning the integrity of the Florida Supreme Court. We did believe that they departed from the statute that they were to enforce and that they changed the rules. I think they very conscientiously believed that was the right thing to do. They were trying to interpret the will of the people.

And our point is that you have to know what the rules are when you go to an election. You have to know what the rules are as to how to counts the votes, because if you start changing those in the process, people don't understand where you're going.

KING: All right, a couple of other things. Professor Tribe says by the middle of the week, maybe Monday?

OLSON: I would not be surprised. I think he's probably right.

See, the case was taken just seven days ago. They were all prepared. They -- when they took it and put it on this schedule, they knew that the country had to have a decision soon. I think they realized that and I would not be surprised.

KING: Do you think we'll get a 9-nothing or a 7-2?

OLSON: Oh, I just don't guess about things like that.

KING: You don't?

OLSON: No, I don't.

KING: You personally have to think of how it's going to come out. You're not going to discuss it, but in your head you say here's what I think.

OLSON: It doesn't really matter what I think. It's what they think now.

KING: It don't matter...

(LAUGHTER)

OLSON: It's what they think and they'll tell us. And the wonderful thing about this institution in America is that they are there asking questions, and when they're at the end of the day, they will write opinions saying we came out this way because this is why -- they will explain what their reasoning is. KING: And how will they tell us, Ted? Like any other decision, will it just come out at 11 o'clock in the morning and hand it out to the people?

OLSON: That's right. It's possible...

KING: No...

OLSON: It's possible in this case that they might make an announcement that a decision is coming out. But normally...

KING: You don't know.

OLSON: ... you don't know when your decision is coming out. You show up there and decisions come out or they don't come out.

KING: Have a good weekend.

OLSON: Thank you very much.

KING: You deserve it.

Ted Olson, who represented the Bush campaign today at the United States Supreme Court. Norm Ornstein, Roger Cossack and Bill Schneider weigh in with their opinions as we continue along on LARRY KING LIVE. Don't go away.

(BEGIN VIDEO CLIP)

GORE PROTESTERS: Every vote should be counted!

BUSH PROTESTERS: Once!

GORE PROTESTERS: Every vote should be counted!

BUSH PROTESTERS: Once!

GORE PROTESTERS: Every vote should be counted!

BUSH PROTESTERS: Once!

GORE PROTESTERS: Every vote should be counted!

BUSH PROTESTERS: Once!

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KING: Now let's meet our panel in these portions: Norm Ornstein is resident scholar of the American Enterprise Institute; Roger Cossack, CNN legal analyst, co-host of CNN's "BURDEN OF PROOF" and occasional pinch-hitter as he was last night, will be again tomorrow for LARRY KING LIVE; and Bill Schneider, CNN senior political analyst.

All right, Norm, what did you make of today, and after what we've just heard from the first two guests tonight?

NORM ORNSTEIN, AMERICAN ENTERPRISE INSTITUTE: It what an extraordinary day actually. I thought it was a terrific argument. They did well. The justices except for Thomas were really all very much engaged. And we don't quite know, but I do think it's very unlikely that we're going to see a unanimous decision in favor of the Bush position. It sure seemed as if there were four justices taking a pretty strong stance suggesting skepticism about that approach.

KING: Roger?

ROGER COSSACK, CNN LEGAL ANALYST: You know, I agree that we're not going to see a unanimous opinion, but I couldn't tell you which way they were going to go. While I agree with Norm that there was a lot of skepticism, I also agree with your previous guests you just can't tell. And they like to push the envelope and they like to play the devil's advocate for both sides.

So even though you heard Justice Ginsburg saying things like, aren't we supposed to give deference to the Florida Supreme Court, which would make it sound like her mind is up, you just cannot ascertain that and you can't conclude that.

KING: Would you be shocked if Justice Scalia went with the Gore side?

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Nothing that the Supreme Court does really would shock me. But, you know, what the country needs is a voice, a strong, virtually unified voice, it doesn't have to be unanimous, by the Supreme Court because somebody has to speak for the total body politic. Nobody else in this country...

KING: If it's 5-4, though, does that continue the orneriness?

SCHNEIDER: Yes, if it's 5-4 -- particularly if the opinions are fairly touchy and snipe at each other, then I think people will say, well, look the Supreme Court is just as divided as the American people, as the politicians, as Congress, as everyone else and it really won't settle anything. People need a clear cut decision in this case.

KING: Norm, do we have a divided country? Equally divided country?

ORNSTEIN: You know, we do, Larry, in one sense but I don't think the public is divided. You've got about 20 percent on either side who believe that if the other guy wins the election was stolen from them.

KING: The rabids.

ORNSTEIN: Yes, but 60 percent in the middle who'd like to see it ended. But I think it's -- for them, it's more like a political version of "Survivor." They're waiting to see who gets off the island last and they'll be content with either one. But you know, what happened in the Supreme Court today is a part of a legal struggle. We also have a public relations struggle going on at two levels. It's the broader public which is still murky enough that Gore can keep going and then it's the elite, the opinion leaders. Right now, nothing has happened that caused those opinion leaders, Senators Daschle and Levin or Congressman Gephardt to abandon Gore's ship, and as long as he can keep going, the legal battles which are many ways more significant down in Florida than the one the Supreme Court considered today are going to keep going, too.

KING: Might the Supreme Court, Roger, be moot in this? I mean, they may come to a decision be he's already in his contest form. You've got other cases there that they're not even dealing with.

COSSACK: That's exactly right. In fact, one of the things I was going to respond to, what Norm said is that I think the American public is waiting for somebody to put down the hammer and say, look, this is it. That's it. We're going to give you the final answer on this one and we move on, but it's not going to come from the Supreme Court because as you point out, we're moving along in Florida and don't forget there's a case in Seminole County where they're talking about 4,700 ballots that there's some touchy issues that are involved and that could come back to bite us very, very heavy.

SCHNEIDER: I'll tell you one thing, Gore needs a win somewhere along the line, and the news today wasn't particularly good from the Florida court decisions. Nothing seems to be moving along for him and he's got a public relations problem because the more it looks like he really can't win anything, the more some of his supporters will be tempted to get off.

KING: But he could still win that circuit argument tomorrow.

SCHNEIDER: He could win the circuit argument tomorrow. All I'm saying is he needs a win. A Supreme Court win would be terrific. A Florida Supreme Court would be fine.

KING: PR-wise.

SCHNEIDER: PR-wise and look, a Seminole County -- that could be a critical decision because if they decide to toss out those ballots in either the Seminole County case or the Martin County case, where there were some evidence of irregularities. If they toss out those ballots then Gore has a big victory.

KING: And that's tough to overturn.

SCHNEIDER: Yes.

(CROSSTALK)

KING: We'll be right back with more of Ornstein, Cossack and Schneider. Another legal team. Don't go away.

(COMMERCIAL BREAK)

KING: All right, Tribe and Olson wouldn't do it, but we can. Prediction.

COSSACK: Boy, this is a tough one. I'm not going to tell you how it's going to turn out, but I will tell you this. It's not going to be a 9-0 decision. I suspect it's going to be very close. I think the best we can hope for is 6-3.

KING: And decision by?

COSSACK: Larry, I simply don't know. I'd tell you if I knew.

SCHNEIDER: I think it's more likely to be in Gore's favor, that is that they will support the Florida Supreme Court than in Bush's favor because from what I heard today in questioning about it there were some real reservations on the parts of several of those justices and there were at least three or four I think that would be very hard to bring along in a decision for George Bush's position.

KING: Decision by.

SCHNEIDER: Oh, my goodness. I think they realize that the political pressure is there and they have to decide pretty quickly. My guess is it would be early next week, Monday, Tuesday, Wednesday.

KING: Norm.

ORNSTEIN: You know, I don't think they've ever decided a case within three or four days of the oral arguments so I expect it may be the middle of next week. I think they want to go near unanimous if they can and I expect it'll be kind of in Gore's favor but on narrow grounds. Either there's not a federal issue here or maybe even punting and saying it's not ripe anymore.

KING: Do you think they're meeting this weekend?

ORNSTEIN: No, I don't -- I think they met after the oral argument. That's what they generally do and they begin to discuss things. Now, Justice Rehnquist has probably assigned himself the task of writing a draft and then they'll circulate it among themselves. I don't think they're meeting.

SCHNEIDER: That worries me, what Norm just said that they might punt. Let's pay attention to that. If the Supreme Court punts and says, look, this case is moot. Bush has won either way by either count, that would be a misfortune for the entire country because the people want the Supreme Court to have something definitive to say about this.

COSSACK: But Bill, that isn't a moot case because it depends on when he wins by. Yes he wins under any scenario, but if he wins under the Katherine Harris way he wins by about 550 or 600 more votes than he does over the other way and now in the contest, one of the arguments they have to make is two things. One is there were legal votes that weren't counted and two, if you recount them we can win and the difference is how many votes there are and the more votes the tougher it gets.

KING: But the case tomorrow will not know the Supreme Court decision.

COSSACK: No, that's not. He won't know. I don't have the answer to that wasn't.

KING: Will we get -- this is a guess, now -- will we get a preannouncement that the decision will be given tomorrow at 10:00, which the Supreme Court never does?

SCHNEIDER: They don't do that, but this is an extraordinary case. Nobody expected them even to take this case. And look, they never have audiotape recordings of their proceedings. They break a lot of precedents. I think they'll break that one.

KING: Norm.

ORNSTEIN: I wouldn't be surprised if they give us a hint of when they're going to rule. But that'll depend, too. I mean, I'm not sure they have any clue where they're going to go with this or what the numbers will be.

KING: Is it disconcerting when you have a justice like Thomas who doesn't ask you a question?

COSSACK: No, everybody knows Justice Thomas doesn't ask questions...

KING: And most of the time agrees with Scalia, right?

COSSACK: And most of the time agrees with Scalia and so you don't expect -- I think it would be more disconcerting if all of sudden Justice Thomas piped up and said, you know, I've been thinking about this, let me ask you this because you would never be expecting it.

ORNSTEIN: We've had lots of justices in the past, some of the best, who just don't participate much in the oral arguments. It's only one small shred of this. The briefs and all the other stuff, including the give-and-take between the justices, is probably more important.

KING: Bill, is this the biggest political story of your life? I mean -- bigger than Watergate?

SCHNEIDER: Bigger than Watergate.

KING: Bigger than impeachment?

SCHNEIDER: Really, I think it's bigger than impeachment because there you sort of knew what was likely to happen. What's interesting about this case in the impeachment case, look, public opinion really prevailed. It was one-sided. People said, yes they thought Clinton was guilty, but yes, thought he should stay in office. And in the end that won. The Republicans are trying to have public agitation here because they want to put public opinion on their side, but in this case, public opinion is really divided and has remained divided and so it can't be conclusive. KING: No story like it, Norm. Right?

ORNSTEIN: I've never seen anything like this and whatever the outcome here is the next couple of years could be the most interesting and explosive in American history.

KING: We're going to have a 50/50 Senate.

COSSACK: A 50/50 Senate and close to the House and what happens if they can't agree -- or what happens if Florida -- the Florida legislature sets up their own electors and two of them go up to the House and now the vote starts...

SCHNEIDER: Here's an interesting question for the new present: Can you have a honeymoon if there's no wedding?

KING: Cossack, the world's best pinch hitter.

COSSACK: Thanks, Larry.

KING: Glad you're always there and Ornstein, now a regular. Norm Ornstein, Roger Cossack, Bill Schneider. When we come back, Senator Carl Levin of Michigan, Senator Robert Bennett of Utah, Senator Pete Domenici of New Mexico and Ed Rendell, the general chairman of the Democratic Party. Don't go away.

(COMMERCIAL BREAK)

KING: Those are the Miami-Dade ballots arriving -- different trucking line in Tallahassee. We learned a lot about people -- I tell you how old I am, I know Ryder, the guy who started Ryder trucks -- that's old.

We now welcome to our panel, Senator Carl Levin, Democrat of Michigan. He attended today's Supreme Court arguments and got back to Detroit in time. He's at our base there. Here in Washington, Senator Robert Bennett, Republican of Utah. He also attended the arguments today. Also in Washington, Senator Pete Domenici, Republican of New Mexico, current chairman of the Senate Budget Committee. He will not be chairman I think for 20 days and then be back as chairman -- we'll figure it out. And in Philadelphia, Ed Rendell, general chairman of the Democratic National Committee.

We'll start with Senator Bennett. What did you make of the proceeding today? You were there.

SEN. ROBERT BENNETT (R), UTAH: Yes, I had a great sense of history, as I think most people did. And to show you how old I am, Larry, the first time I ever heard an oral argument in the Supreme Court was on the Julius and Ethel Rosenberg case in 1953.

KING: You were there for that argument?

BENNETT: I was there for that argument, and this was equally as historic today.

KING: Boy.

SEN. PETE DOMENICI (R), NEW MEXICO: You've got to tell them you were very young.

BENNETT: Yes, I was only 19 years old.

KING: Senator Levin, what was it like?

SEN. CARL LEVIN (D), MICHIGAN: A very imposing hearing. I thought the justices were superb, really asking wonderful, tough questions, and it reinforced my belief that the supreme courts, both in our states, including Florida, as well as the U.S. Supreme Court are the places which will have the greatest public confidence when they rule.

I think the confidence level in those of us who are Democrats or Republicans and active in these elections is a lot less than it will be in the Supreme Court of the United States or the Supreme Court of Florida, and that's what was really reinforced as I sat there, that the supreme courts in both Florida and the U.S. Supreme Court have, it seems to me, the greatest level of public confidence here.

KING: Now Senator Domenici, you were not there today.

DOMENICI: I was not. I've listened to some of it, and I...

KING: What did you make of what you've heard?

DOMENICI: I think it was a very, very important day in American history, and the judges comported themselves as if it were a very important day.

KING: As did the lawyers?

DOMENICI: As did the lawyers. They were excellent.

My own view, however, is that for each one that comes on this show and says they're going rule that the issues are moot and they don't have to rule, I would ask each one of them, if I were you, how did you vote whether or not the Supreme Court would take this case. Most of them will say we didn't think they would.

KING: By the way, with this election, would you agree, everybody's been wrong.

DOMENICI: Well, excepting...

KING: No pundit, no poll had it right.

DOMENICI: Yes, excepting I believe I was right. I said they'd take it, and I believe I'm right tonight that they're going to rule and it's not going to be a flimsy sort of "we want to get out of this." I think they're going to rule that the...

KING: Decisively.

DOMENICI: Yes, I do.

KING: But you didn't predict an election that's a tie.

DOMENICI: No, I said I predicted...

KING: I know.

DOMENICI: ... that the Supreme Court would take -- no, of course not. In my state it was almost a tie.

KING: That's right.

DOMENICI: Three hundred votes.

KING: Still arguing.

DOMENICI: Still arguing.

KING: Ed Rendell, what did you make of today's proceedings?

ED RENDELL, DNC GENERAL CHAIRMAN: Well, I listened to it, Larry, and my feelings are much the same as the senators. I thought this was a good day for America. I thought it was very important for the Supreme Court to air this -- I would have liked to see them televise it but to air it so the American people can hear it.

Right now, the American people desperately need somebody that they can believe who will decide this in a non-partisan fashion. And even though there are seven justices picked by Republican presidents out of the nine, I believe partisan politics will play no part in this ruling. And I think that was desperately important for the American people to believe.

KING: You think it could come down, Senator Bennett, to Congress actually being involved in this?

BENNETT: There's always that possibility. I hope that it won't, and my instinct is that it won't. It will get resolved before that. But there's always the possibility that the Florida folks can't sort it out, and it will come to Congress either in the form of a set of electors that is then challenged in terms of its legitimacy or two set of electors.

KING: Could this have happened in Utah with ballots and the like?

BENNETT: No, I don't think so, although...

KING: You have uniform pretty much throughout the state?

BENNETT: We have the punch ballots, too, and frankly I'd like to see us get rid of that. I'd like to see the nation get rid of that, go to an electronic voting like you have in Fairfax County. You know, you live in Virginia, along with Utah and California. I don't know where you vote, but...

KING: I voted in California this time, and that was punch -- well, I voted absentee.

BENNETT: But in Fairfax County you touch the screen.

DOMENICI: Same in New Mexico.

BENNETT: Yes.

DOMENICI: We're way -- many steps ahead of what they have in Florida.

BENNETT: I think clearly this says we need to use the technology to get away from these kinds of mechanical problems.

KING: And, Senator Levin, could the Senate have something to do with that? Could we get some legislation to change this? You maybe would have to fund some new technology.

LEVIN: Yes, there would have to be a funding mechanism, and I think it would probably take some time to do it. And, of course, it won't resolve this present issue here. But hopefully the Florida Supreme Court and the U.S. Supreme Court between them will reach a decision here, because they will have the greatest credibility. And it won't have to come to us,

But I just am praying that the U.S. Supreme Court, even though its decision is likely not to resolve the issue because at most it probably will decide whether or not Gore needs to pick up 400 or 500 or 900 votes. And the Supreme Court in Florida is the one I think that will ultimately make the major decision. And I just hope that the Supreme Court of Florida will be followed, whatever it's ruling is will not be end run.

KING: Pete, you were shaking your head no when he said that.

DOMENICI: I think this was overall not a good day for Vice President Gore, and I think he knows that, too. He lost two, maybe three, cases at the lower court -- at the state court level.

KING: Not cases, he lost motions.

DOMENICI: Well, I mean, in essence he did not win.

And secondly, I believe the United States Supreme Court asked a lot of questions and acted like they weren't too sure where they were coming down, but I think they are going to make a firm decision that the court -- Supreme Court of Florida was wrong in extending the date, and, therefore, whatever falls from that legally, they're going to rule, whether it means that all recounts are out of order because of time, they will rule. I can't predict by what numbers, but I don't think that's terribly important. I think they will rule.

KING: We'll be right back with more of our panel on this edition of LARRY KING LIVE.

Don't go away.

(COMMERCIAL BREAK)

KING: Still to come, two experts at the spin game, Marlin Fitzwater and Jody Powell, and they don't have the jobs now so they can chime in right from the heart.

Back to Ed Rendell in Philadelphia, who might have some thoughts on whether we should change -- whether we should have a uniform election system across the country. Can it be done?

RENDELL: Well legally I don't think Congress can mandate it. But what I think Congress should is develop a matching-fund program where they pay at least half, maybe more, of any jurisdiction that wants to modernize their voting machines.

When I was mayor of Philadelphia for the eight years, we needed to modernize other voting machines. It was going to cost $25 million. We had a $100 million capital budget, which went for police stations, fire stations, rec centers, libraries. And I was reluctant to spend a quarter of it on voting machines. I finally did in my last year.

But the way you're going to get local governments to spend the money -- those electronic machines are expense, Larry -- is by Congress developing a matching-fund program.

KING: Senator Bennett, what is a divided Senate going to be like, down-the-middle divided? You're going to be 50-50 with that result in Washington today?

BENNETT: Well, if you look at history, we have no idea. There is no precedent for this.

KING: You've got to go back I think when there was 28-28 or something like that.

BENNETT: Something like that. I -- one thing that I think we will do is divide the staff money more along those kinds of lines. When I chaired the Y2K Committee, I took 51 percent for the majority and gave Chris Dodd 49 percent for the minority. And it was a wonderful kind of atmosphere that we created, because normally the majority gets two-thirds and the minority gets one-third.

And I think in the 50-50 Senate, we will be willing to say -- we, if the Republicans control, say, look, we will divide it 51-49 so that there is an equal support on the staff side.

KING: And there will be a couple weeks where the Democrats have the majority because Gore will be the there been tie breaker and they're sworn it in before the new president's sworn in.

DOMENICI: I don't think anything significant is going to happen. I think the minority leader, who at that point will be for a short time the majority leader, said so.

But I would like to suggest that in addition to where the resources to run the committees go, which my friend from Utah has talked about, I think that both sides are going to recognize that they cannot get anything substantial done without some members of the other side, because there's more than 40 on each side and it's deadlocked. So, you know, you need 60 to break a filibuster.

KING: Classic bipartisan. You need...

DOMENICI: Or -- or the decision is made to fight an issue and do nothing if the parties believe that the issue's important.

BENNETT: It will have a lot to do with who the president is, too.

KING: Senator Levin, what's it going to be like?

LEVIN: I agree with Bob and Pete that it's likely that both the Democrats and Republicans are going to really make an effort to reach out and do some significant sharing here of power in a way that is equitable and that the public cheers will be so loud that we will be heartened by them and that we will truly try to get some things done that maybe we could not have done frankly if it were not a 50-50 Senate. So we're in for some positive surprises, I hope. I'm an optimist.

KING: Ed Rendell, you're not in the Senate, so as an onlooker what do you expect in a 50-50 Senate?

RENDELL: Well, I think more than at any time in my lifetime this is the time for leadership in the Congress and by the president. If we're going to dig ourselves out of this hole, Larry, we have to not conduct a two-year election battle for the next congressional election or a four-year election battle for the next presidential election. And I'm going call on, in my limited power as chairman of the DNC, all of our senators and congressmen to act in the best interest of the country.

Let's forget about the next election for a while. Whoever wins this election, let's get some things done.

KING: It's been so vituperative, Senator Domenici, do you expect the Senate to be the composing element here?

DOMENICI: Look, I think we have a rare opportunity if the president, whomever that is -- I think it will be George Bush -- if that person decides to really set about to bring us together rather than to create -- pull us apart.

KING: He must, right?

DOMENICI: Then he will have made a decision that big things are going to be on the agenda, and then both sides are going to have to figure out whether they wanted to get that done or do they want to just be divisive and stand their ground.

KING: Would it help, Senator Bennett, if the loser and the winner get together right away and appear together publicly?

BENNETT: Well, sure, that would help. The... KING: Almost a must.

BENNETT: The rumor that I've heard is at least some of the Gore people, if Gore loses, will immediately go to Florida, file Freedom of Information Act motions, get every single ballot, count them themselves, announce that Gore really won and do their very best to tear the country apart in preparation for the 2004...

KING: You've heard that?

RENDELL: Well, let me...

Yes, I've heard that. I hop that's not true.

KING: Ed Rendell, you want to deny that?

RENDELL: Let me interrupt. That is not on the radar screen for the DNC people or the Gore people. I think we will be constructive if we are losers. I think we're still going to win this, but if we lose I think the message that I just gave is the one we have to give. The election's over. Let's get it done. Let's get it done.

KING: Thank you all very much. We'll be seeing lots of you.

BENNETT: Yes, thank you.

DOMENICI: Thank you.

LEVIN: Thank you very much.

KING: Senators Bennett and Domenici, thank you, Carl Levin, and thanks as always, Ed Rendell.

When we come back, Marlin Fitzwater and Jody Powell.

Back in history with two of the pros.

Don't go away.

(COMMERCIAL BREAK)

KING: We apologize to both gentlemen for implying that they are old. They are not old. In fact, they're younger than the previous panel. However, they are veterans of the game.

Marlin Fitzwater, former White House press secretary to Presidents Reagan and Bush, and Jody Powell, former White House press secretary to President Carter. OK, guys, you're the pros. What do you make of this, Marlin? What would you do?

MARLIN FITZWATER, FORMER WHITE HOUSE PRESS SECRETARY: Well, there's so much confusion going on, but the worst part, it seems to me, is that the country is half for Gore and half for Bush.

KING: They voted that way, they feel that way? FITZWATER: They feel that way, and they get more bitter and more polarized every day. So there's not a whole lot you can do. You certainly can't change the other side's view on this.

KING: So if you were press secretary for the governor today, what do you do?

FITZWATER: I would say stick to business.

KING: Press secretary for Gore today?

JODY POWELL, FORMER WHITE HOUSE PRESS SECRETARY: I think he needs to do about what he's doing. His message is that all the votes should be counted.

KING: Keeps saying that?

POWELL: And I think it will become increasingly clear as we go along they haven't been counted, and if they are counted he would win. So I would stay right with that. I wouldn't sponsor demonstrations with bullhorns shouting at people and that sort of thing. I'd just stay with that message.

FITZWATER: Yes, I don't think that will work, though. When I hear Al Gore say count all the ballots, I hear Bill Clinton saying, I never had sex with that woman. I think that's the big lie.

KING: He wants all the ballots.

FITZWATER: The ballots have been counted, at least about twice by machine. And people, I think, are starting to say, there's something crazy going on here. There's something not right.

POWELL: I wouldn't want to call Marlin a liar, but perhaps in defense of the vice president I should reciprocate.

FITZWATER: Oh, boy.

KING: Go ahead.

FITZWATER: Oh, go ahead.

POWELL: Those ballots haven't been counted. Those ballots went through a machine, and the couldn't read the vote, just like...

FITZWATER: No, the machine said they didn't vote for Al Gore. There was no vote there. They voted for somebody.

POWELL: They said they didn't vote -- they said there was no vote for president. Now let me tell you something here. In the course of the next...

FITZWATER: You can't vote for (OFF-MIKE)

POWELL: In the course of the next few days, I think we're going to all come to understand that there was a huge undervote in Florida, far beyond anything you've ever seen, far beyond anything that could possibly have expected from random chance. It was concentrated in Democratic precincts. Why have the Republicans not asked for a statewide hand count? Because they know if you hand counted those votes, they would lose not by hundreds of votes but by thousands of votes. And those ballots have not been counted. And if you look at them, if you look at them, you can tell what the people wanted to do.

FITZWATER: Now see, there's...

KING: You are just like the country.

FITZWATER: That's right. There's the spin specter now. Jody's raising this. Why can't I say, I think the public's going to find out.

KING: You think they will be counted eventually?

FITZWATER: I think eventually they will be counted and they'll find out that George Bush won those just like he's won every other one.

POWELL: Let me ask, if -- clearly George doesn't believe that. If he did, he wouldn't be doing everything he can to stop those -- I mean, never has so much money been spent trying to keep votes from being counted.

FITZWATER: Not one vote has gone to Al Gore that didn't result from a change in something. Every vote that's gone to Gore, they've changed the chad, changed the dimple, changed the interpretation.

KING: What would happen if this goes -- P.R.-wise now, if this judge rules for Gore and they recount or they count and Gore takes the lead? The legislature then goes into session. You could have a major crisis here, couldn't you, Marlin?

FITZWATER: I think it goes to the Congress. I think it goes all the way to Washington.

KING: And they could split?

FITZWATER: They could split.

POWELL: No, no, no. If it goes to Congress.

KING: The House could vote one?

(CROSSTALK)

POWELL: Let me say this. I have said here and to foreign clients that for two weeks now that I thought this thing was going to work itself out, that we would find an answer here in this system. In the last few days I've begun to doubt that. I think we may be headed for a train wreck here. If the Florida legislature tries to elect the president of the United States, they may hand the presidency to a man, but they will hand him a tarred and damaged and perhaps irreparable prize when they do that. (CROSSTALK)

KING: Maybe this is the first agreement of the night? Marlin, do you agree with that?

FITZWATER: I think I agree with that. Nothing that's happened yet was predicted. We've gone further than we ever thought we would go.

POWELL: I will make a prediction. I will predict that before the next two weeks are out we're going to see stories that say, you know what? the networks exit polls were right. They asked people how they voted. That was how they voted, and if you counted all the votes you would find that those exit polls.

KING: That's the next story.

POWELL: That would be a true story.

FITZWATER: My friend Jody has sold out to the media. I can't believe it.

KING: When we come back, we'll ask if they'd like to be involved right now. Don't go away.

(COMMERCIAL BREAK)

KING: As we come back, there's a beautiful picture of where these fellows used to work. Would you like to be there -- well, no, there tonight, is the PR for the White House tonight is just sitting around. I saw President Clinton last night and he actually told me he envied me. He'd like to be sitting here doing this than what he's doing. And he -- that was a quote.

Marlin, would you like to be in the middle of this hunt? Would you like to be Governor Bush's press secretary now?

FITZWATER: I think he's got great people, and I'm not...

KING: Just personally.

FITZWATER: No, I wouldn't wanted to be there.

KING: Wouldn't want to be there?

FITZWATER: No, you've got to be a young man with a strong heart and I'm past that.

KING: Would you want to Jody?

POWELL: I think you have to -- let me say about both of the candidates and their people, they have to be absolutely exhausted. I mean, they've been through a grueling campaign. They thought it was about to be over. It wasn't. They felt maybe it would be over in a week. It wasn't. And you know, I feel -- I have a great deal of sympathy for all of them. They have been through hell in a campaign pain and then double hell for the last few weeks and they've got to be just...

FITZWATER: Jody and I have both lost a campaign and we both know how long it takes to get over it. This is going to be tough. really tough.

KING: Can you strategize at this point or is it out of your hands?

FITZWATER: I think it's very hard to strategize beyond some basic things beyond like look busy, do your jobs, be calm...

(CROSSTALK)

KING: But you're in the courts. When you're in the courts, what strategy?

FITZWATER: Well, you can do that kind of strategy, legal strategy,

KING: Yes, but PR strategy.

FITZWATER: But PR strategy, I think it's pretty limited. I mean, if you look at Jay Leno and Letterman for the last few nights, you say, man, I don't want to come out of the building because you hold yourself up to ridicule by the media in every form these days.

KING: Jody.

POWELL: Well, I think there are some things you can do. I think both the gentlemen have to think about the future both as a president or as somebody who may want to be president some other day, and when I said we were headed -- I was referring to a train wreck that's one of the things that concerns me. Things have gotten so nasty and so out of hand and for both of them, you know, there's an old military axiom that you can delegate authority but you can't delegate responsibility.

So, if you've gotten people screaming in bull horns at the vice president when he's trying to eat Thanksgiving dinner, people are going to remember that and if you're encouraging a legislature to try to decide the presidency of the United States, people are going to remember that. It's going to make it much, much harder to put this country back together.

KING: What would you say to the next president? What advice would you give him as to how to deal with it? Let's say he is selected next Thursday. President X, do this. First thing.

FITZWATER: I think THAT there are things that need to be said to the country and I think both these fellows would say that. I also I remember negotiating with the Russians during the Cold War and we would always try to start out with what we call confidence builders, some agreements that kind of got things going, showed you could work together, showed you could enforce the whole concept. And I would suggest the president might be able to look for something like prescription drugs or the Breaux commission on Medicare or estate taxes. Get right on a path and show you can work together and then try to figure out where can we take on the tough ones.

KING: Would you recommend both candidates appear together in front of the public?

POWELL: That would be a nice thing, but...

KING: Would it be ideal?

POWELL: What worries me is that we are, I'm afraid, headed toward a situation where that becomes less and less and less likely.

KING: Because?

POWELL: I think both -- I think either candidate would make a gracious concession people speech, but...

KING: You can't see them coming out together?

POWELL: I'm not -- I didn't say I can't see it, but we're piling up a lot of rancor.

KING: We're out of time. Marlin, can you see it?

FITZWATER: I don't see it. I think it's more important the instruction they give all the rest of the people around them and the party about how to do this with dignity.

POWELL: But the time to give those instructions is now. It's too late once it's over.

KING: Marlin Fitzwater and Jody Powell, they know from whence they speak. A live edition of LARRY KING LIVE tomorrow night. Thanks for joining us. Stay tuned now for another CNN special report and "THE SPIN ROOM" in an hour. Good night.

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