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Saturday Morning News

Florida Court Prepares for Historic Hearing

Aired December 2, 2000 - 8:00 a.m. ET

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

MILES O'BRIEN, CNN ANCHOR: Now, get out your notebooks and your VCRs, load up a tape. The next several hours will be studied for generations to come as among the most singularly historic in American politics. One hour from now, a hearing gets under way in a Florida courtroom that marks the first time a presidential candidate has contested a state's certified election results.

It would be foolish to predict the outcome, of course, but the case before Circuit Court Judge N. Sanders Sauls in Leon County, Florida should give us some insight into whether this election impasse ends sooner rather than later.

At issue, Vice President Al Gore wants a manual recount of some 14,000 disputed ballots. The Florida Supreme Court yesterday turned down a Gore campaign request to begin the hand count immediately. Time is a critical factor, of course. The deadline for the state to appoint its 25 electors to the Electoral College only 10 days away. And the date for the Electoral College to actually vote for the next President of the United States comes just six days after that.

Still looming large in the background is a pending decision from the U.S. Supreme Court. As you know, the nine Justices heard arguments yesterday on whether the Florida Supreme Court over stepped its authority in extending the deadline for the state recount. We'll have more on that in just a few moments.

We have correspondents stationed at every signpost and to lead things off for us we turn it over now to CNN's Bill Hemmer, our man in Tallahassee, once again. Good morning, Bill.

BILL HEMMER, CNN CORRESPONDENT: Hey, Miles, good morning to you again, as well.

Again, an hour away from that hearing and when it begins we'll have live coverage, when it starts here in Tallahassee. You know, the attention's dribbling back to Florida today with that hearing scheduled to start in the U.S. Supreme Court, oral arguments having concluded yesterday.

But, you know, we've gotten to know Tallahassee quite well in the past three and a half weeks. It was two weeks ago when we had that very important college football game between Florida and Florida State. Well, today there's a holiday celebration planned right here on state capital grounds. They're anticipating 150,000 people. This place is going to be packed all around us later today and into the evening hours.

But, while the people start to flood into the capital grounds, we're going to be watching that hearing. It's possible it still may be underway even later today and into the early evening hours.

CNN's Mark Potter now at Circuit Court to bring us up to date on what's happening over there.

Mark, good morning to you.

MARK POTTER, CNN CORRESPONDENT: Good morning.

We're about an hour away from that hearing on the third floor at the courthouse here, the Leon County Courthouse. It'll be before Judge N. Sanders Sauls. The lawyers will be debating Al Gore's contest of the Florida election results. He says that the vote totals were wrong and that George W. Bush should never have been declared the winner in Florida.

He is also asking that the uncounted and contested ballots in Miami-Dade and Palm Beach County be manually counted and, of course, the attorneys for George W. Bush vigorously oppose that.

We have one of those attorneys with us today, George Terwilliger, an attorney for George W. Bush.

Let me just ask you at the outset, what's wrong with that core argument that there should be a manual count, at least a partial manual count?

GEORGE TERWILLIGER, BUSH CAMPAIGN ATTORNEY: Well, there's three questions that the court has to address and resolve before it can get to a manual recount. The first is did the canvassing boards abuse their discretion? The second is if the ballots are to be counted, what standards should be used to count them? And the third is are the ballots still in the same condition? In other words, do they have the same integrity to show evidence of voter intent that they did right after they were cast.

POTTER: And briefly on those points, what's your opinion?

TERWILLIGER: Well, we'll see what the judge says. Our argument is going to be at the outset, and it's, and we trust or hope at least that it'll be dispositive, that, in fact, the canvassing boards did not abuse their discretion. We, our position was that dimples should not be counted as votes.

The canvassing boards, for the most part, in general, took a more liberal approach to that and did count some dimples as votes and Gore gained some votes as a result, the Vice President did.

Whether or not that standard would apply on any recount that might come in this case is an open question, but you don't reach that if, in fact, what the judge concludes that what the canvassing boards did was proper and that the certification now that shows Governor Bush to be the winner of the election should stand. POTTER: A political question. How important do you believe this hearing to be given the other rulings that we've had recently?

TERWILLIGER: Well, I do law more than politics but I do think that in the political scheme of things, Americans, you know, leaving aside politicians, but Americans are beginning to tire of this entire process and question whether what we're really talking about here is counting votes or searching for votes.

POTTER: Briefly, if the judge rules against the Vice President here, do you think basically in the legal realm it's over?

TERWILLIGER: Not necessarily. I mean there are more appeals that the other side could take if they lose here.

POTTER: OK, thank you very much, George Terwilliger, for your time.

TERWILLIGER: You're welcome.

POTTER: Thank you.

Well, Bill, a lot to talk about, a lot to see. This is going to be all day long. The judge says he hopes to get this done in 12 hours. He has told the lawyers to get all the fluff out, tighten up their arguments, try to do this in one long day.

Bill, back to you.

HEMMER: All right, we'll see how much fluff they can cut through today. Mark Potter, again, thanks to you. Just about 53 minutes away now from that hearing, set to begin here in Tallahassee.

Two other items to talk about quickly. Late yesterday afternoon, the State Supreme Court behind me here issued two rulings on two different cases.

Number one, there was a petition earlier in the week from the Gore campaign to try and get the State Supreme Court to get the process sped up. They're working against the clock trying to get those ballots counted. However, that petition was dismissed yesterday.

The other case that was dismissed goes to that butterfly ballot issue from Palm Beach County. That case was brought here earlier in the week to the State Supreme Court. The court has dismissed that case and says there will not be a revote in Palm Beach County. And again, this goes to the butterfly ballot we're watching right there on your screen.

They also dismissed this case with prejudice, which, in other words, means that is dead in the water. That case will not come back in the flight, fight, rather, for the State of Florida.

Back in 20 minutes. Again, more from Tallahassee, but for now here is Kyra and Miles once again in Atlanta. Again, Kyra, less than an hour before that hearing starts with Judge Sauls in Tallahassee. Back to you now.

KYRA PHILLIPS, CNN ANCHOR: All right, see you soon, Bill.

As we mentioned at the top of the hour, legal experts and political pundits are trying to decide how the U.S. Supreme Court might rule on the election stalemate after hearing 90 minutes of arguments yesterday.

CNN's Charles Bierbauer has been our man inside the high court and he joins us now from Washington.

Good morning, Charles.

CHARLES BIERBAUER, CNN CORRESPONDENT: Good morning, Kyra.

A very different atmosphere here at the U.S. Supreme Court this morning, quiet. All of the demonstrators are gone. Most of the cameras are gone. I don't know where the Justices are, if they're in their offices or not. It's a Saturday morning. My suspicion is that what is happening here today is that the law clerks are working feverishly on some drafts after the session yesterday.

The Justices' practice is to confer, take kind of a straw poll, see where they are on these arguments and then assign a Justice who is in the majority to prepare a draft of the opinion.

What will that opinion say? I know the experts are divided and they think that the Court is divided, but it's very problematic trying to guess the U.S. Supreme Court.

But what we can do is come back to the arguments as we heard yesterday in that unique circumstance where the Court released an audio tape to give you some sense of how the arguments went and what the issues were, as the Justices searched in particular for a reason for the federal court to be involved in this Florida matter.

Here's how the arguments proceeded with Ted Olson arguing for George Bush.

(BEGIN VIDEO CLIP)

JUSTICE RUTH BADER GINSBURG: I do not know of any case where we have impugned a State Supreme Court the way you are doing in this case. I mean, 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 and...

THEODORE OLSON, BUSH ATTORNEY: This is a very unusual situation, Justice Ginsburg, because it is in the context of a presidential election and it is in the context of federal rights. This court has, in the areas in which we have described in our brief, undertaken to review the meaning and effect of the State Supreme Court or state court decision under certain circumstances. We submit this is one. What the Florida Supreme Court said...

GINSBURG: But I said, and even in the very cases that you cite, because I checked them, that we owe the highest respect to the state court when it says what the state law is.

(END VIDEO CLIP)

BIERBAUER: And that's why there is a concern, as Justice Ginsburg put it, that the U.S. Supreme Court might not want to overturn the Florida Supreme Court, Attorney Olson making the case that the issue is bound up in the U.S. Constitution, not the Florida constitution and that is a protection matter that the proceedings for choosing the electors, for holding the election, are set forth in the U.S. Constitution and that by changing the dates for counting the votes down in Florida, the Florida State Supreme Court has violated that tenet.

The debate, of course, did not end when the arguments were finished inside the U.S. Supreme Court. Laurence Tribe argued the case for Vice President Al Gore and continued to explain what he had already explained to the Justices afterwards. Here's Mr. Tribe.

(BEGIN VIDEO CLIP)

LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: The fundamental issue was whether anything in the United States Constitution prevents the state, through its highest court, when a very major election ends in a photo finish, from taking a closer look at the films of that photo finish by counting and recounting, if necessary, in order to get it right.

(END VIDEO CLIP)

BIERBAUER: And we'll see how the Justices decide right really is when we get their opinion. No precise word when it will come, but the Justices are certainly cognizant of the tight timetable that the election process has set for them.

Charles Bierbauer, CNN, reporting live from the U.S. Supreme Court.

O'BRIEN: The Florida election embrolio (ph) has created a maze of twists and turns through almost every level of the justice system and every day seems to bring new surprises and more confusion. Not for legal analyst Greta Van Susteren, of course, because she's keeping tabs on all the relevant legal developments for us. She's in Washington now. Greta, good morning to you.

I saw one count now, 42 suits, and I know you're intimately familiar with each and every one of them, but I'm not -- specifically the Supreme Court, that hearing, you had the opportunity to be in there for it and it was a very lively discussion. I was talking a little bit earlier with somebody who has actually plead cases before the Supreme Court and she said you can't read too much into the nature of the questions. Is that accurate to say?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: That's accurate, Miles, but it doesn't stop any lawyer from attempting to do so or in this particular case, since we had a momentous day yesterday, the audio tape was played after the argument for the viewers, the viewers can do it as well.

We can try to look at the questions of the Justices and guess, and I underline guess because that's all it is, because sometimes Justices ask a question which is basically playing the role as devil's advocate and they may not ultimately agree with some of the thrust of their question when they write the opinion.

But, there were some interesting things. For instance, Justice Ginsburg, one of the women Justices, seemed most concerned at being deferential to the Florida Supreme Court, a state court interpreting state law. Justice O'Connor, the other woman Justice, seemed to be very concerned about the fact that it seemed to her that the Florida Supreme Court might have gone too far, that it changed the rules, changed the law, that the Florida Supreme Court wasn't merely interpreting the legislature, the Florida legislature's law, but rather making it.

Don't know what we can read into either question.

And Justice Scalia seemed also concerned whether or not the Florida Supreme Court was not properly deferential to the legislature in light of the fact that the United States Constitution gives the Florida legislature the obligation to determine the manner by which we seek the electors that ultimately go on to elect the President of the United States.

Does it mean anything? Lots of fun for us lawyers and now viewers to guess what it means, but who knows what will happen?

O'BRIEN: All right, Greta, we're going to have to leave it at that. You, of course, will be joining us a little bit later. I've got to tell you one thing, though, it made me wish that there were TV cameras in that courtroom and...

VAN SUSTEREN: Me, too. That should be a litmus test for the next Supreme Court justice.

O'BRIEN: Absolutely. Absolutely. Let's put that on record right now. We'll see you in just a bit.

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