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U.S. Supreme Court Hears Bush Recount Challenge; Florida Supreme Court Rejects Gore Campaign's Appeal for Immediate Recount

Aired December 1, 2000 - 10:00 p.m. ET



CHIEF JUSTICE WILLIAM REHNQUIST, U.S. SUPREME COURT: We'll hear argument this number in No. 00836: George W. Bush versus the Palm Beach County Canvassing Board.


ANNOUNCER: At the U.S. Supreme Court, questions and answers in a case for the history books.


LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: But we're looking for a federal issue.


ANNOUNCER: As an election hangs in the balance, the emotions of an extraordinary day, both inside the courtroom and out on the streets.


PROTESTERS: Bush won! Bush won!


ANNOUNCER: As more ballots arrive in Tallahassee ahead of tomorrow's crucial hearing, attention shifts to the folksy judge at the center of Al Gore's challenge to Florida's election results.


JUDGE N. SANDERS SAULS, LEON COUNTY CIRCUIT COURT: We can't have people just running up and jumping up on the horse again and riding off in all directions.


ANNOUNCER: We welcome our viewers from around the United States and the world to this CNN election 2000 special report: "The Florida Vote." From New York, CNN senior analyst Jeff Greenfield.

JEFF GREENFIELD, CNN SENIOR ANALYST: Well, we still don't know who the next chief executive will be and we may not know until the legislative branch -- that's the Congress -- decides next January. So maybe it was only natural that the judicial branch would play its part.

Today, in of those historic firsts that no show up on a daily basis, the U.S. Supreme Court heard arguments about this undecided presidential election, and we got to hear that argument shortly after it ended.

Meanwhile hundreds of miles away, Florida courts, low and high, were moving toward their own decisions that might maybe bring this post-campaign campaign to an end.

We'll touch all of these bases, but we begin at the top, at the United States Supreme Court with CNN senior correspondent in Washington Charles Bierbauer, who was in the courtroom.


CHARLES BIERBAUER, CNN CORRESPONDENT (voice-over): The justices wanted to be sure they should even deal with the Florida state Supreme Court decision extending vote recounts.

ANTHONY KENNEDY, ASSOCIATE JUSTICE OF THE UNITED STATES: If the state Supreme Court relied on a federal issue or a federal background principle and got it wrong, then you can be here.

BIERBAUER: Bush attorney Ted Olson says Florida violated both the U.S. Constitution and federal election statutes.

THEODORE OLSON, BUSH ATTORNEY: 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.

BIERBAUER: The change in counting deadlines is critical.

PAUL HANCOCK, DEPUTY ATTORNEY GENERAL OF FLORIDA: The laws were in place before the election. And those laws granted to the judiciary...

O'CONNOR: Well, but certainly the date changed. That is a dramatic change, the date for certification, right?


BIERBAUER: Later, Gore attorney Laurence Tribe...

LAURENCE TRIBE, GORE ATTORNEY: We're not dealing here with a decision in which within the gray area where a court could reasonably go either way. This court simply said, we don't care about these federal considerations.

BIERBAUER: This court will not lightly reverse the Florida decision. Justice Ginsburg...

RUTH BADER GINSBURG, ASSOCIATE JUSTICE OF THE UNITED STATES: In case after case, we have said we owe the highest respect to what the state says, state Supreme Court says, is the state's law.

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: This is a very unusual situation, Justice Ginsburg, because it is in the context of a presidential election.

BIERBAUER: The justices questioned the to and fro over recounts...

ANTONIN SCALIA, ASSOCIATE JUSTICE OF THE UNITED STATES: Do you know of any other elections in Florida in which recounts were conducted, manual recounts, because of an allegation that some voters did not punch the cards the way they should have, through their fault, no problem with the machinery, it's working fine? But you know, there were pregnant chads, hanging chads, so forth.

TRIBE: No, Justice...

SCALIA: Did it ever happen before?

TRIBE: I'm not aware of it ever happening before.

BIERBAUER: ... and Secretary of State Katherine Harris' authority to reject late returns.

JOHN PAUL STEVENS, ASSOCIATE JUSTICE OF THE UNITED STATES: Does that mean if there were an act of God that prevented the returns from being filed, that she would have discretion either to accept or reject the returns?

OLSON: Yes, I believe she would.

STEVENS: She would have the discretion. Would she be compelled in that event to accept the returns?

OLSON: I don't think so.

BIERBAUER: The U.S. Supreme Court was not compelled to take this case and now has to consider why it did.

OLSON: They were obviously interested in the question of why the Florida Supreme Court did what it did, and explored that question very carefully, both with respect to the provisions of Florida statutes and the provisions of the Florida Constitution.

TRIBE: I certainly didn't think there were any curveballs, and there was nothing that disturbed the court that we were unaware of, and in that sense, it's always a relief to know that the case doesn't have any time-bombs in it. BIERBAUER (on camera): Time is ticking, though. The justices are aware of the deadlines on the electoral calendar and are expected to act quickly, but there's no word exactly when.

Charles Bierbauer, CNN, the Supreme Court.


GREENFIELD: Getting a seat inside the chamber was one of the hottest tickets in town. CNN legal analysts Greta Van Susteren and Roger Cossack, the co-hosts of "BURDEN OF PROOF," were both among the lucky ones.


GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Can we predict what the United States Supreme Court is going to do? Absolutely not. And in fact, what I found most interesting about the arguments is that both sides had lots of questions thrown in their direction, and both sides got tough, aggressive questions.



ROGER COSSACK, CNN LEGAL ANALYST: It's clear they were troubled with the issues. Should there be a federal -- is there a federal issue? Should they override a state court? Are they troubled with what the Florida Supreme Court did, as Justice Scalia pointed out?

So I am sure, if I can bet on one thing, that I do not think this will be unanimous court. Now, as I've said that, watch it come out with a unanimous decision, but I don't think it will be.


GREENFIELD: Today's court hearing lasted just over 90 minutes and CNN will replay the audio of the entire event at 1:00 a.m. Eastern, 10:00 Pacific. Or you can hear the audio and read the transcript any time at our Web site,

Now in sharp contrast to the cordial proceedings inside the U.S. Supreme Court chamber were the boisterous protests outside.

CNN's Carl Rochelle brings us that story.


CARL ROCHELLE, CNN CORRESPONDENT (voice-over): They came by the hundreds, staking out their place and their politics in front of the U.S. Supreme Court.

PROTESTERS: Three strikes you're out!

PROTESTERS: Get out the Bushes! Get out the Bushes! ROCHELLE: Demonstrators came from all parts of the country. Some brought bags of chads, the now famous punch-outs of the ballot. Some brought signs. All had their reasons for being here.

UNIDENTIFIED MALE: People come down here because they support the man who won the election. The president-elect of the United States is George Bush. Deal with it.

UNIDENTIFIED MALE: We have to count the vote because that's the American way. The Constitution says every man one vote.

ROCHELLE: At first, the George Bush/Dick Cheney supporters outnumbered the backers of Al Gore and Joseph Lieberman. But as time for the hearing inside the courtroom grew close, the ranks of Democrats, including a marching demonstration by civil rights leaders...


PROTESTERS: Every vote...

JACKSON: ... counts...

PROTESTERS: ... counts...

UNIDENTIFIED MALE: Everybody sing...


ROCHELLE: ... put the numbers about even.

(on camera): It was easy to tell the players. Gore/Lieberman supporters on one side of the court building, Bush/Cheney supporters on the others. Authorities split the demonstrators almost in half early on and kept them that way, a prudent step to head off any possible conflict between the two sides.

(voice-over): The strategy worked, the demonstrations, which went on for hours even after the court had finished hearing arguments, was peaceful, even collegial at times.

But no one here famous or not so well-known was changing their mind about who they support or what they wanted the court to do.

PATRICIA IRELAND, PRESIDENT, NOW: I want my vote counted. I want the votes of every woman in Florida, every African-American voter counted. I'm a Miami-Dade voters.

UNIDENTIFIED MALE: I feel very strongly, especially when they can't want to count the military vote, that triggered me. I've never demonstrated in my whole life, and I fought two wars. I was in Korea and both Vietnam, and this took the cake.

ROCHELLE: The crowd even included a new U.S. citizen, who said he thought it was important to be here.

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


GREENFIELD: And now to Florida, where that state's high court today turned down a Gore campaign request to begin an immediate hand recount of disputed ballots from Miami-Dade and Palm Beach counties. The ballots from those counties, they're now in Tallahassee, ahead of tomorrow's circuit court hearing on whether any of them should be counted again.

CNN national correspondent Gary Tuchman has a preview of tomorrow's marathon proceedings.


GARY TUCHMAN, CNN CORRESPONDENT (voice-over): It won't be just another Saturday in Tallahassee.

SAULS: This is a trial contesting a state election.

TUCHMAN: A state election that will determine the winner of the presidential election.

Now that the motorcade carrying Miami-Dade County's 654,000 ballots has pulled into the Leon County courthouse, more than 1.1 million ballots are now inside. Democrats want to start counting them now. Republicans do not.

A Democratic appeal to the Florida Supreme Court to start counting immediately was denied on Friday. The circuit court judge, N. Sanders Sauls, says he'll decide whether to do a count after testimony begins on Saturday, but says standards for counting will have to be determined.

SAULS: Well, we can't have people just running up and jumping on the horse again and riding off in all directions just counting. They can -- we can count until everybody's slaphappy, but if nobody's on the same page, then I don't know what's -- what's being accomplished.

TUCHMAN: A Republican motion to demand ballots from three additional counties was just one action that makes Democrats think the Bush team is using delay tactics.

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I think the inevitable effect of what they have done is to make it more time-consuming and confusing, and I think anyone knows that.

TUCHMAN: But late Friday Bush lawyers said they now don't want more ballots sent but preserve the right to get them if a count begins.

Surprising most, the judge says he wants to get this whole trial done in 12 hours.

SAULS: We're going to have to do the best we can. So I suggest to each of you, look at your presentations, let's slim it down. Absolutely, let's get all the fluff off and proceed in that fashion.

TUCHMAN: Thus judge has the power to overturn Florida's certification for George W. Bush. Republicans will fight for him to maintain the status quo.

(on camera): Throughout much of this week, during preliminary hearings, the atmosphere in the court has been relatively light. But all know the stakes are enormous and there will be much tension in the court and in the nation when the judge utters his decision about whether or not to count ballots.

Gary Tuchman, CNN, Tallahassee, Florida.


GREENFIELD: And later this hour, we will profile Judge Sauls, a man who comes from a small town and now finds himself under a very big spotlight. That will be especially true tomorrow at 9 a.m. Eastern, 6 Pacific when CNN will carry live the Leon County Circuit Court hearing on whether to allow another count of disputed ballots.

Now,the Florida Supreme Court today did bring an end to one court case. It refused to order a new election in Palm Beach County. You'll remember that voters there had complained that the county's now infamous butterfly ballot was confusing and led many to vote for Reform Party Candidate Pat Buchanan instead of Gore. The court dismissed the case with prejudice, that means it will not hear the case again.

Now, before we continue with the courts and the presidential race in Florida an important political story has developed all across the country. That is on the other side in Washington state. The recount finally is over and Democrat Maria Cantwell has defeated incumbent Republican Slade Gorton. She claimed victory and tonight he conceded. Her winning margin, 2,229 votes out of 2 1/2 million votes cast.

Cantwell's victory sets up a situation Washington hasn't faced in 120 years, a dead-even split in the U.S. Senate. For the first two weeks in January at least, the Senate will be tied with Al Gore, the vice president, in the chair to break a tie. That could be of enormous significance if a dispute about Florida's electors comes before this new Congress. With a Republican House and a Democratic Senate, the outcome is completely uncertain.

Now there's much more to come on this CNN special report. The United States Supreme Court building -- a familiar Washington landmark. Not so well known, what happens inside when justices ponder potential landmark decisions like the Florida case. You will meet two former insiders who know.

And also, what if the vice president gets his recount? Will he like the results? You may be surprised by the findings of number crunchers with no political axe to grind.



UNIDENTIFIED MALE: Oye, oye, oye, all persons having business before the honorable, the Supreme Court of the United States are admonished to draw near and give their attention for the court is now sitting. God save the United States and this honorable court.


GREENFIELD: Few people who work in Washington are less well known or more influential than U.S. Supreme Court -- Court, sorry, law clerks who help research and in some cases even shape the opinions of their bosses.

Joining us now two former clerks who really knows what goes on inside the nation's highest court. In Washington, we're joined by Viet Dinh of Georgetown University Law School, who was a clerk to Justice Sandra Day O'Connor, and from Los Angeles we're joined by Eddie Lazarus -- he clerked for Justice Harry Blackman. Lazarus is now an author and a federal prosecutor.

Mr. Dinh, you were actually in that courtroom, and unlike a lot of people there you actually know what happens when the justices go behind that curtain and back inside.

From your perspective, were there any particular questions or lines of inquiry you heard today were your ears pricked up and you went a-ha?

VIET DINH, GEORGETOWN UNIVERSITY LAW CENTER: Well, I thought that the lines of questioning regarding the role of the Florida constitution. It was started by Justice Scalia to the -- Professor Tribe was a very, very interesting one and that was one that was one that was not briefed by the parties.

Another line of questioning was the one that was started by Justice Kennedy which pointed out that in a footnote of the opinion the Florida Supreme Court actually cited two of the federal laws at issue here, 2 USC sections 1-10. And so in that sense Justice Kennedy said that the Florida Supreme Court knew that there was a federal law issue in the background here, both of which were not very prominently if at all featured in the briefs of the parties.

GREENFIELD: But what does that tell you in terms of even thinking about where the justices might be going?

DINH: I think that -- my sense of it, at least, is that the first issue, the initial issue as to whether or not the federal court has jurisdiction here. The primary argument of the Gore team is that this is solely a matter of state law I think is easily disposed of by a majority if not a clear majority of the court.

So, the entire time was spent on parsing the Florida statute but more importantly parsing the Florida Supreme Court opinion to see what exactly did it do and whether what it did actually violated the constitutional -- the commitment to the Florida legislature or the federal law requiring that the rules be set prior to the election itself.

And so in that sense, I think this case will turn on not questions of federal versus state law but really the court issues whether or not the justices think that the Florida Supreme Court was too activist, was so activist that is has gone beyond the role of interpretation into the role of law making. And so if there is a split here on the substance it will be strictly a jurisprudential one -- a disagreement as to how judges do their work rather than on any political or partisan lines.

GREENFIELD: Now, Eddy Lazarus, we were hearing before this court convened about the great desire these justices must have to get some kind unanimity considering we're in the middle of a political thicket. From what you were able to hear and read today, does it sound to you like these justices are all able to come together on some kind of common notion about what this case is about?

EDWARD LAZARUS, FEDERAL PROSECUTOR: Quite the opposite, Jeff. I think today's hearing was troubling in one significant respect and that is I think that most people would agree that it would be unhealthy for the court and for the country for the justices to split 5-4. But I think what you heard at the hearing today was at least the possibility of that. I think there are four justices, the center-left group, if you will, who definitely will not rule in George Bush's favor.

GREENFIELD: Just for a minute, tell us who is in that center- left coalition in your view.

LAZARUS: That's Stevens, Souter, Ginsburg and Breyer. They were clearly indicating by their questions today that they don't see anything objectionable about what the Supreme Court of Florida did. On the other side, as our other guest mentioned, there was a shifting ground today and Justice Scalia floated a new thought, really, a new theory for how the Florida Supreme Court had violated Article II of the Constitution.

He seemed to picked up with that theory at least the views of the Chief Justice and also perhaps Sandra Day O'Connor, and although Clarence Thomas didn't say anything, it seems to me likely that he would go along with Scalia and the chief. And if they're playing this game of brinksmanship, the votes are getting very close. And so one has to really wonder whether any kind of unanimity, or even a substantial consensus, is possible at this point. It's a deep question mark.

GREENFIELD: Mow, Vet Dinh, if in fact the court, likes I mentioned earlier, really likes to not get involved in what Justice Frankfurter once called the "political thicket." Could it be that if the court sees itself divided, they might may look for a way to duck this case, at least temporarily?

DINH: I think they can duck this case. There is a mechanism for them to do so. They can duck by "digging." Digging stands for Dismiss as Improvidently Granted. But they cans simply this petition as having been unwisely taken. I think that is unlikely because it Will be seen as a ducking maneuver, as you correctly characterized it. And here I disagree with Eddie's characterization of the split here. I do not think that it is actually harmful to the nation or to the court that if the court comes up with a 5-4, 6-3 split. The reason why is that the disagreement will be over journal philosophy, over judicial activism versus judicial restraint.

And so in that sense, as a country, as a democracy, we should be wanting our justices to be thinking about how they do their job. How do they go about interpreting the law so that they do not intrude into the power of the legislature or the political branches, and, therefore, intrude into the power of the people.

We want to be assured that we live in a democracy ruled by the people rather than a critocracy, ruled by judges. And I think a split here would actually be quite healthy and quite affirmative of the court's legitimacy as an institution.

GREENFIELD: Eddie Lazarus, though, if the court splits where all -- where the people we think of as conservative all back the Bush position, and the people we think of as more liberal all back the Gore position, it would seem to me that would really run a risk, maybe a justifiable one, that the public would look at it and say, oh, another political branch.

LAZARUS: I think that that's exactly the risk and why I disagree with Viet. I think that's precisely how it will be seen. They'll be inviting the same kind of cynicism upon themselves that people have about the political branches. And I would add a gloss to that, which is that they're going to be accusations, I suspect, by the dissenters, if there are four dissenters, that this is highly peculiar that the justices, the conservative justices, who are usually for restraint will be reaching out by a rather aggressive interpretation of the Florida Supreme Court opinion to strike that opinion down.

For example, Justice Ginsburg said, look, ordinarily when we face a state Supreme Court opinion that can either be read in a bad way or a good way, we give that state Supreme Court the benefit of the doubt. Here, the conservatives would not be giving a Supreme Court the benefit of the doubt, even though on other contexts they tend very much to give state institutions the benefit of the doubt.

So there's going to be charges of a kind of intellectual flip- flop, and that is going to create real problems.

GREENFIELD: Mr. Dinh and Mr. Lazarus, you know how the Supreme Court imposes strict time limits for oral argument. Ours are even more draconian than the courts,

I thank you both for joining us. I hope you'll be back with us again. And as a former law student, I'm deeply envious of anybody who gets to be a Supreme Court law clerk. So thanks both of you for joining us.

Still to come... DINH: You're welcome.

LAZARUS: Thanks.

GREENFIELD: Still to come when we come back, how many votes would Gore gain if in fact he got the recount he wants? Surprising findings from a couple of impartial bean counters.

And also, from armed robberies to divorces to maybe deciding who will be the president, a profile of a suddenly high-profile Florida judge.


GREENFIELD: And welcome back to our special report on the Florida vote. I'm Jeff Greenfield, and here is a quick look at the latest developments in this battle over the presidency.

In an historic proceeding, the justices of the United States Supreme Court grilled attorneys for the Bush and the Gore campaigns for about 90 minutes today. The court is trying to decide whether Florida's Supreme Court violated federal law when it extended the deadline for reporting election returns so that manual recounts could be if included. A ruling could communist time.

Outside the court, hundreds of protesters supporting both sides while a slew of TV reporters tried to broadcast news of the proceedings. And meanwhile, 650,000 ballots, Miami-Dade County, arrived in Tallahassee this afternoon. Palm Beach County ballots are already there.

The Florida Supreme Court today refused to order an immediate count of the ballots. Tomorrow, Circuit Court Judge Sanders Sauls will hear arguments to decide whether or not to granted a Democratic request for a hand count.

Now you can watch those arguments right here on CNN beginning at 9 a.m. Eastern, 6 Pacific time. The stakes in this battle are highest for the vice president, because he is the one who trails in the certified Florida vote.

As CNN's senior White House correspondent John King explains, Judge Saul's ruling could make or break a Gore presidency.


JOHN KING, CNN CORRESPONDENT (voice-over): For all the attention on the U.S. Supreme Court, Florida is where the votes are and where the vice president is most in need of a legal breakthrough.

The judge hearing the vice president's challenge of the official statewide results holds a key hearing Saturday. At issue: whether to manually inspect some 14,000 ballots from Miami-Dade and Palm Beach counties to determine if machines failed to register votes for president. JACK QUINN, SENIOR GORE ADVISER: I do believe with all my heart that the American people, as eager as they are to get to a final resolution, would not want to see this country make a mistake, and more importantly, or as importantly, would not want to see thousands and thousands of their fellow citizens have their votes cast aside.

KING: And in Republican-leaning Seminole and Martin counties: Democratic lawsuits to disqualify thousands of absentee ballots on grounds local GOP officials were wrongly allowed to fix faulty applications. A ruling favorable to Gore in any of those cases could wipe out the 537-vote edge Governor Bush has in the official statewide count.

The U.S. Supreme Court case heard Friday has no direct connection to any of the key cases pending in the Florida courts, but the major issue was whether the Florida Supreme Court overstepped its limits in an earlier dispute over Gore's recount effort, and the high court's ruling could dramatically reshape the legal climate in Tallahassee.

JAN BARAN, ELECTION LAW ANALYST: The decision of the U.S. Supreme Court is going to give guidance to the Florida Supreme Court in terms of the perceived scope of power of state courts in these types of disputes.

KING: The scene outside the court was a reminder this is a political debate too. And with some Democrats getting nervous and the Congress due back in town next week, the high court's ruling could shape that debate as much or even more than it does the legal climate.

MARSHALL WHITMAN, HUDSON INSTITUTE: The Supreme Court ruling is Al Gore's life support system. Without it, likely, other Democrats will defect.

KING: The official Gore line is that it is the Florida cases that matter most.

(on camera): But a top adviser says it's clear to everyone in the Gore camp, including the vice president himself, that political support for his challenge will dry up after the legal breakthrough in the next several days.

John King, CNN, Washington.


GREENFIELD: So if Al Gore gets those recounts, he's sitting pretty, right? Well, two university economists, experts in statistical projection, have each taken a cold, dispassionate look at how many votes Al Gore might pick up if -- if he wins in the courts. Neither of them have worked for either campaign. Both say they took up the subject out of curiosity, for sheer love of crunching numbers.

But as our Brooks Jackson reports, the vice president may not like the odds they calculate.

(BEGIN VIDEOTAPE) BROOKS JACKSON, CNN CORRESPONDENT (voice-over): What are the odds? Longer than Al Gore figures, according to two new studies by economists at two different universities.

Gore's lawyers say a full hand recount in Miami-Dade alone would put Gore in the lead statewide. Their arithmetic was simple: Canvassers counted about one-fifth of the precincts in Miami-Dade before quitting. That partial recount produced a 157-vote gain for Gore that wasn't included in the certified total.

Gore lawyers just multiplied, projecting the remaining precincts would yield Gore votes in the same ratio, for an additional gain of 600 and a total Gore gain of 757.

But the new studies say that's wrong.

BRUCE HANSEN, UNIVERSITY OF WISCONSIN: Those projections were unreasonable. I don't think any statistician alive, with the Gore team or not, would have signed onto that.

JACKSON: Professor Hansen's mathematics are more sophisticated, examining the data precinct by precinct. His projection: Gore in all likelihood won't gain more than 179 more votes from the uncounted Miami-Dade precincts, possibly as few as 15: not 600.

One reason, Hansen says the partial recount hit the most pro-Gore precincts, and the rest tend to favor him less. Indeed, a second study concludes there's one in a 10 chance Gore could lose votes.

PEYTON YOUNG, JOHNS HOPKINS UNIVERSITY: There's a chance that Bush would actually end up the net gainer in the remaining precincts to be counted. There's a possibility of that.

JACKSON: Professor Young's calculations put Gore's likely change from the uncounted precincts from a minus 62 votes to a gain of 283. And that's based on very sophisticated methods, choosing possible variables by chance and projecting each precinct's possible outcomes over and over again.

YOUNG: About 1000 times we ran this so-called "Monte Carlo" simulation trying to estimate how many votes net for Gore or Bush you would get out of a manual recount.

JACKSON: And if these projections are correct, it means Gore would still need to gain votes in other counties, even if Miami-Dade conducts a full hand count.

Gore is asking the courts to add in 188 votes he gained in the Palm Beach recount and 52 votes he gained in a Nassau County machine recount, both excluded from the certified total.

(on camera): But even if Al Gore got all that and a full hand count in Miami-Dade, Professor Young figures Gore's chances of overtaking Bush are about one in three.

Brooks Jackson, CNN, Washington. (END VIDEOTAPE)

GREENFIELD: No official comment from the Gore camp on this, but one top aide did tell CNN that there are more uncertainties in any future recount than mere statistical analysis could actually calculate. The Gore campaign has maintained all along that its own projections show it is highly likely the undervotes would produce more than enough votes to put Gore over the top.

When we come back, from the courthouse to the state house, maybe to the White House, a trio of journalists examine the terrain ahead in a moment.


GREENFIELD: Now let's talk about today's U.S. Supreme Court hearing and other matters from three journalists -- we'll talk with them -- with strong credentials in political and legal reportage.

Joining us from Miami, Tom Fiedler, editorial page editor of the "Miami Herald"; from Washington, Nina Totenberg, she covers the Supreme Court for National Public Radio -- she also was in the courtroom -- and here in New York, Michael Kramer, he heads up political coverage for the "New York Daily News" and, like at least one other journalist I know, has a law degree, which, with a buck and a half, will get him on a New York bus.

Nina, you have covered the Supreme Court for a long time. Did anything in the oral argument today cause you to sit up and go, "Ahah, that -- now I think I see something I wasn't aware might be happening until now"?

NINA TOTENBERG, NATIONAL PUBLIC RADIO: Well, I can't honestly say there was a eureka moment.

I guess I was surprised somewhat as the argument wore on, particularly when it got to the Gore advocate's turn, that the argument seemed to devolve into a pattern that we've seen quite frequently with this court of conservatives -- ideological conservatives on one side and more moderate to liberal justices on another side and them sort of making their arguments through the lawyers; that is, helping out the lawyers or beating up on the lawyers from one side or the other.

And I -- all day long I've been thinking about this. I left the court really thinking there was a strong possibility of a 5-4 conservative-moderate split -- something that I think almost everybody in the -- at least in the commentator class thinks would not be very good for the Supreme Court of the United States -- and in the scholarly world, too.

And I -- by this evening, I've come to think, well, maybe they -- I was really overfelt it, in a way, maybe they really are not going to do that, but they'll try to look for some way to get out of this without seeming to get out of it, is sort of what I came to. GREENFIELD: Well, Michael Kramer, since everybody is -- not everybody -- but a lot of people are looking for the -- some voice of dispassion in this increasingly clamorous argument, what would the impact be of a 5-4 decision? Do you think it would just make the public more cynical, if that's possible, about -- that this is entirely a matter of politics rather than principle?

MICHAEL KRAMER, "NEW YORK DAILY NEWS": Well, in terms of cynicism in this particular mess, Jeff, I kind of agree with Woody Allen that no matter how cynical you are, it's hard to keep up. But I think the 5-4 decision is not as awful, or would not be as awful as Nina and some other people suggest it might.

I think anybody who paid attention to the oral arguments today understands that reasonable people can actually disagree -- that these are very interesting philosophical questions. It would obviously be preferable to have a court decision that was unanimous or close to it, but I don't think it would be awful. And in any event, I think if the Supreme Court rules in favor of Bush, it will embolden those who favor him to go forward, and specifically the Florida legislature.

GREENFIELD: Let me pick up on that with Tom Fiedler, who is in Florida, because some people have made the point that whatever the court decides -- the Supreme Court -- it's not going to end the contest phase, and if they give Al Gore a victory, it still means that Bush is leading. So what impact on the ground in Florida would, say, a court victory for the Bush campaign have?

TOM FIEDLER, "MIAMI HERALD": Well, I think it would have a tremendous -- a political pragmatic or morale victory, certainly for George Bush if the court came back and ruled in Bush's favor. And I think that at that point, the possibilities for Al Gore to keep the support that he has, as John King said in the earlier report tonight, and to have really the wherewithal to keep going becomes very, very slim.

I kind of wonder here, though, if the court finds itself in -- and I would defer to Nina and Michael on this -- if the court finds itself heading toward a 5-4 decision, if it might not just basically pull back and take the option of just either not making a decision at all or delaying until things become a little bit clearer in Tallahassee, hoping for some kind of a resolution, because I frankly think a resolution is apt to come in a few days, maybe even before the Supreme Court's ready to seal -- to sign off on this thing.

GREENFIELD: Nina, Viet Dinh, a former law clerk -- and I talked about that a few moments ago -- is that something you've seen in your coverage of the court, where it will take a kind of temporary exit from the scene and see if the situation resolves itself?

TOTENBERG: Not really in a situation like this.

I mean, we all remember, for example, Watergate, where we got a pretty fast decision and I suppose the court could have delayed. There were, at the time, impeachment hearings and votes going on in the House of Representatives. I mean, the court is a very -- I hesitate to say this -- is a very serious institution and it takes itself very seriously, and I don't see it taking a dive and waiting on purpose after it has reached out and said, "Look, we think we have a role in this case." I just don't see that happening.

Maybe they would wait, I think, if they couldn't manage to negotiate disagreements among themselves and they were still working that out. That might take some extra days. But if they've got -- if they have reached a conclusion, they are going to tell us what that conclusion is and they're not going to wait around.

GREENFIELD: We're going to come back in just a minute and pursue this with Totenberg, Fiedler, and Kramer, a fine three-city law firm, in a moment.


GREENFIELD: And we are back with Tom Fiedler of the "Miami Herald," with Nina Totenberg, National Public Radio Supreme Court correspondent, Michael Kramer, political editor of the "New York Daily News."

Tom Fiedler, you're on the ground in Florida -- actually, you're sitting up, but you know what I mean -- any chance at all that the Florida legislature is not going to proceed with a special session that will give it the power to name the Florida electors?

FIEDLER: I can't imagine that they won't proceed. There could be a question about the day, whether they will go ahead and do this on Tuesday as it is now supposed. That supposedly will give them the opportunity to pass a bill and then wait seven days and it becomes law without Jeb Bush's signature. In their thinking, this keeps Jeb kind of insulated from this whole controversy.

But they're really sitting and eager and ready to go. And, you know, that's another factor -- if the U.S. Supreme Court does come in here on the side of George W. Bush, I think at that point the Florida legislature will without any hesitation whatsoever come in and name the Bush electors. And that to me would be -- that would break the back of the Gore campaign.

GREENFIELD: And yet, Michael Kramer, we've been hearing for weeks that the Bush partisans -- the Bush supporters are much more energized, much more angry at what has gone on than the Gore people. It would seem to me that the one thing that could light a bonfire under the Gore supporters is the idea of the Florida legislature saying, "OK, we're now going to name the electors."

KRAMER: Well, I think that's possible, but then you need a countervailing force, and what is it going to be? With the majority so heavy -- heavily Republican in the legislature in Florida, I think that's going to go down the track that Tom described, regardless of any of the judicial decisions that may come along in the lower Florida courts. And there are some that can be characterized, I suppose, as the equivalent of killer applications in high tech. And the problem there is that you don't know what the energized Gore folks would actually do ...

GREENFIELD: Well, I wasn't ...

KRAMER: You kick it over to January and to Congress.

GREENFIELD: No, but what I guess I could imagine then is if George W. Bush became president, rather than a sense of, "OK, let's let this rest," if the Democrats thought that Gore had lost the presidency because of a -- of an act of over-reaching by the Florida legislature ...

KRAMER: Right.

GREENFIELD: ... it would make the first few months of a Bush presidency not entirely -- even less comfortable than it might otherwise be.

KRAMER: Well, I don't think they're going to be comfortable by any stretch of the imagination, no matter what. And I think they will become comfortable over time due to the skills of a President Bush in being the conciliator that he claims to be or not. And -- but it's going to be raw and nasty and mean and dirty for a long, long time, and the knives are going to be out and the race for 2004 will begin very quickly, I think.

TOTENBERG: That's one of the reasons ...

GREENFIELD: Saints preserve us. Nina, go ahead.

TOTENBERG: That's one of the reasons -- Michael said that he didn't think that it would be bad for the court to have a deeply split vote, for example. The court has managed to stay above the fray in a whole lot of ways, most recently I must notice to you, in the Paula Jones case when its decision was unanimous.

And if it comes down with a 5-4 decision in this case, it will find itself, I think, embroiled in politics in a new administration in a way it had not anticipated. It's a way of sort of waving the red flag, and if the Democrats in Congress were going to give George Bush a hard time over judicial appointments and over Supreme Court appointments, in particular, this would only make it yet more difficult.

GREENFIELD: Nina, I want to raise one other kind of -- what may seem like a side issue to you, but I can't help but be curious about it.

Here's a Supreme Court dealing with a current political campaign in which one of the candidates has publicly praised Scalia and Thomas as the kind of justices he would like to appoint; and the other candidate publicly attacked them, or at least criticized them, as the kind he wouldn't have appointed. I don't ever remember a case like this before.

Will that have any impact on, do you think, on how these justices might rule? I mean, it's just so unusual. TOTENBERG: It is unusual. I can't imagine that it has an effect on the individual justices in this case, for example, Scalia and Thomas. I think their views are very strongly held and firmly and ideologically held -- in the best sense of the word ideological and that is in earnest -- with or without regard to what Al Gore says about them or George Bush says about them.

And it's -- but it is very -- this, you know -- the court is slowly and inexorably being drawn into the political sphere and really not since the 1930s and the New Deal, probably, have we seen that. The last time I think that we heard Supreme Court justices names be mentioned in a campaign was, in fact, in FDR's campaign, where he sort of reviled individuals whose names I don't remember -- Vander Vander (ph), duh-duh (ph), duh-duh (ph), and duh-duh (ph) -- if some historian will tell me what the names were ...


TOTENBERG: ... and they just -- at -- that was the last time I know that, 70 years ago.


GREENFIELD: Excuse me. Excuse me. Speaking of inexorability, I'm sorry, but the time for this -- these segments is up and you know what that's like. I want to thank Tom Fiedler and Michael Kramer and Nina Totenberg for joining us.

And next up, a no-nonsense judge, good old boy, potential key player in Al Gore's future. He is all of the above and more. A closer look at Florida's Judge Sauls when we come back.


GREENFIELD: Judge N. Sanders Sauls -- you'll be hearing this name a lot tomorrow. So who is this man that some say could have the future of the presidency in his hands in the morning?

As CNN's Kate Snow tells us, he's been around the block deciding all sorts of cases for more than a decade. None, it's safe to say, quite like this one.



KATE SNOW, CNN CORRESPONDENT (voice-over): When he's not in Tallahassee, Judge N. Sanders Sauls spends his time 20 miles from the big city in rural Wakulla County. The county seat, Crawfordville, has one stop light. Last Monday, Judge Sauls was hearing from domestic violence victims in this courtroom before he learned he might decide the presidential election. His dry one liners from the bench have earned him an instant reputation.

SAULS: Have we got to go to the mountain or is the mountain going to come to us? SNOW: But those who know him say he's not just playing to the cameras. He's always used humor to relax a tense courtroom.

UNIDENTIFIED OFFICIAL: We'd also appreciate it, if it's possible, to have some help unloading the transfer boxes.

SAULS: Our clerk is not that big.

SNOW: Sauls was appointed to the Leon County Circuit Court in 1989 by Republican Governor Bob Martinez. Like many in north Florida, he's a Democrat with conservative leanings. But most agree he is no partisan politician when he's wearing the robe.

(on camera): Judge Sauls literally grew up around a courtroom. His father was court clerk in nearby Jefferson County. His mother worked in the tax assessor's office.

(voice-over): Sheriff W.A. Woodham in neighboring Gasden County invited Judge Sauls to his hunting cabin for election night. He says you could call Judge Sauls a good old boy if you mean a good man with close ties to his community.

SHERIFF W.A. WOODHAM, GASDEN COUNTY, FLORIDA: If you're talking about redneck, uneducated, beer-drinking Bubba from north Florida, I'd say he's not a good old boy.

SAULS: We're going to get it done.

SNOW: Sauls is known as a fair judge who won't be pushed around by big league attorneys.

BRENT THURMOND, WAKULLA COUNTY CLERK OF COURT: He's not a judge that's going to go out and create law and make law. He's going to go look for the law and he's going to apply it.

SNOW: In Wakulla County, Sauls hears everything from divorce disputes to armed robbery. He put two convicted murderers on death row last year. Attorneys in town say his laid-back nature can be deceiving.

THURMOND: Don't let any of that fool you. He's a very, very intelligent, smart judge.

UNIDENTIFIED MALE: I would really expect that he would be the same after this is all said and done and be the same Judge Sauls.

SAULS: If you don't mind, just take it on there.

SNOW: Kate Snow, CNN, Tallahassee.


GREENFIELD: And finally, there's a whole lot we don't know tonight, including what Americans will think about what has happened. These days I'm often stopped by people who tell me they've gotten interested in politics again, that their kids have actually started watching the news, that schools are assigning papers on the Electoral College and the presidency. So maybe this means that public matters will matter again to millions.

On the other hand, this contest has brought out the worst in many partisans, some media commentators very much included. Sulfurous, contemptuous language has been the coin of the realm, and any pretense of fairmindedness has been jettisoned in the rush to the barricades. That could make less impassioned citizens more cynical about the whole business.

We know we'll have a new president. Will we have a new birth of public interest? That is very much an open question.

And that is also it for this special report on election 2000, the Florida vote. I'm Jeff Greenfield in New York, and "THE SPIN ROOM" is ready to take off.



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