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Larry King Live
Gore Suffers Major Setback in Florida CourtroomAired December 4, 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)
JUDGE N. SANDERS SAULS, LEON COUNTY CIRCUIT COURT: The court finds that the plaintiffs have failed to carry the requisite burden of proof.
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LARRY KING, HOST: Tonight, a big setback on day 27 for Vice President Gore in a Florida courtroom, and the U.S. Supreme Court wants the Florida Supreme Court to take another look at a decision that favored Gore. Joining us from Tallahassee, Ron Klain, attorney with the Gore campaign, and from team Bush, lead attorney Barry Richard.
And then a call for Gore to concede from Republican Congressman J.C. Watts. Opposing him in Washington, Congressman Ed Markey, Democrat of Massachusetts. We'll also hear from Senator Orrin Hatch, Republican of Utah, as well as Democrat Senator Harry Reid of Nevada.
And then Senator John Breaux, a Democrat of Louisiana, and the woman who survived her own long count, Senator-elect Maria Cantwell from Washington state.
They're all next on LARRY KING LIVE.
We begin with Ron Klain, a campaign attorney for Al Gore. Were you surprised that you lost in Leon County today?
RON KLAIN, GORE SENIOR ADVISER: Well, Larry, it's always disappointing to lose at the trial court level, but I think both sides in this case agreed that whichever one lost would take the court case up on appeal. We filed our appeal already this afternoon, and we hope to be before the Florida Supreme Court in the next few days.
We think the basic principles we're fighting for in this case will be vindicated by the Florida Supreme Court, that those 14,000 ballots that have never been counted correctly will be counted, and they'll show that Al Gore and Joe Lieberman won this election.
KING: But the question was, were you surprised that you lost at the circuit level?
KLAIN: Well, again, Larry, I think that we knew, from some of Judge Sauls' earlier rulings, that it might be a tough court for us, but we thought we had put on a good case. We still think we put on a good case, and I think that's what the Florida Supreme Court will find when it reviews this case in the next few days.
KING: Is the -- one of the essences of the appeal the fact that the judge never looked at any ballot, which was one of your points of evidence?
KLAIN: Absolutely. Again, with all due respect to Judge Sauls, we think he was just wrong when he concluded that there weren't enough votes there for Al Gore and Joe Lieberman to win the election without even looking at the votes to see what was there.
There are 9,000 ballots in Dade County that no person has ever looked at, 3,300 votes in Palm Beach County that we think were looked at under the wrong standard. In an election decided by 500 votes, clearly, that's more than enough to change the outcome once someone looks at them and sees the votes on those ballots.
KING: Do you expect the Florida Supreme Court to go just by what your briefs say, or will they call for an open hearing?
KLAIN: Well, obviously, that'll be up to the court, Larry, but I would expect they will ask for oral arguments in this case given its significance and its complexity. So I'd expect we'd have that later on this week, one way or the other.
KING: Were you surprised that the United States Supreme Court sent it back?
KLAIN: A little bit. I thought that there really wasn't the need for that, but it's not that uncommon for the U.S. Supreme Court, when it looks at a state Supreme Court case, when it's uncertain about what the state Supreme Court did, to ask that court to provide it with a little clarity.
That Supreme Court -- the Florida Supreme Court said today that it would accept briefs until tomorrow at 3:00 p.m. and then do something to clarify its ruling. I think, Larry, once it does that, once it clarifies its ruling, its opinion will be reinstated and its original judgment will be upheld all the way up to the U.S. Supreme Court.
KING: And Ron, do you expect oral arguments on that as well or do you expect they'll just go by the briefs?
KLAIN: Larry, I think -- again it's up to the Florida Supreme Court, but I think they'll just go by the briefs. The fact that they asked for shorter briefs on a very tight timetable suggests to me that they'll do it that way. After all, they wrote this opinion in the first place. They know what it means. They know why they did it.
We're grateful that they asked for our opinions about how to interpret it, but I think the Florida Supreme Court knew what it did here. What it did in our opinion was acted under state law, appropriately and lawfully, to interpret the election code. With a little more clarity I think the Supreme Court -- the U.S. Supreme Court will agree, and that victory for our case will stand.
KING: Thanks, Ron. Ron Klain, campaign attorney for Al Gore.
Now let's go back to Tallahassee and Barry Richard, who is the lead Bush attorney for all of their Florida litigation. Were you surprised at the result today? I know you never guess how a judge is going to rule. Were you surprised?
RICHARD: You know that because I told you last show, but no, I wasn't surprised. I felt that we put on a good case. I had an extraordinarily fine legal team with me. I thought that the witnesses did a good job, and I felt, as I said in the closing arguments, that the plaintiffs, the Gore legal team, just didn't make a case, and I think the judge's ruling was correct.
KING: Are you worried, on appeal, that the fact that he didn't look at a ballot, which is one of other side's pieces of evidence, might be upheld?
RICHARD: Well, that's an interesting -- it's an interesting media observation they're making but it has nothing to do with any legal rights. There is no right in Florida to have somebody manually count your ballot just because they say so. There are hundreds of thousands of votes in 64 counties that never were manually counted, and you don't have a right to do it just because you file a lawsuit and you don't prove anything. You get a...
KING: But don't you -- doesn't the judge have to look at evidence presented in front of him?
RICHARD: Well, but the burden was on the plaintiffs in this case, the Gore legal team, to present some evidence to justify the judge looking at ballots, and they didn't succeed in presenting any evidence. That's what Judge Sauls said.
KING: Do you expect there to be oral arguments at the Supreme Court on this, as Ron Klain just said?
RICHARD: Well, you're talking about the return from the United States Supreme Court? I don't know...
KING: No. No, this one, this one.
RICHARD: Oh, this one.
KING: The Leon County. Oral arguments?
RICHARD: Well, we don't know for sure that this is even going to reach the Supreme Court, although I agree that it's probable that they'll take it. They've taken most of the cases. And yes, I would think they will have oral argument on it if they receive it.
KING: Were you surprised at the Supreme Court today?
RICHARD: I think all of us were surprised at what they did. Nobody knew what to expect from the Supreme Court. I think that some people thought the court -- based upon the court's questioning at the hearing, I think that people thought they either would reverse the Florida Supreme Court or that they would just decline to retain jurisdiction. So they surprised all of us by doing the third thing that nobody speculated about.
KING: And could that now go either way or do you expect the Florida Supreme Court to make a strong case to affirm its decision?
RICHARD: Well, I don't know. I have said from the beginning I know the seven justices in the Florida Supreme Court. I think that -- excuse me -- they're all persons of high integrity. I think they're going to take the Supreme Court's order and they're going to read it carefully, and I think that they're going -- they're going to do a good job of looking at it.
This is an issue that the Supreme Court didn't focus on in its first opinion, and I believe that there is a possibility that when they focus on it, they will agree with the Supreme Court's -- with the suggestion of the Supreme Court that they should change their opinion or they might rewrite it.
KING: Are you concerned about the Seminole County thing coming up on Wednesday, I believe? Some calling it a sleeper about the absentee ballots in the Democratic's complaint.
RICHARD: Well, part of it comes up actually tomorrow on a motion to dismiss, and I don't believe that that case has any legal substance. I'm concerned about it in the sense that I have concern over any case filed against a client, and it needs to be prepared for and it needs to be dealt with seriously. But I don't so any legal substance to it.
KING: Thanks, Barry, as always. We'll probably see you again tomorrow.
RICHARD: OK, nice talking to you. KING: Barry Richard, lead Bush attorney for Florida litigation. (UNINTELLIGIBLE) because Barry and I go back about 43 years. Other than that I don't know him.
We'll be right back with Floyd Abrams, Viet Dinh and Roger Cossack. Don't go away.
KING: Now, let's get at the legal aspect of this with three experts: in New York, Floyd Abrams, the famed constitutional attorney; in Washington, Viet Dinh, professor of law at Georgetown University Law Center; and also in Washington, our very own Roger Cossack, CNN legal analyst, co-host of CNN's "BURDEN OF PROOF" and pinch-hitter on LARRY KING LIVE.
Floyd Abrams, were you surprised first with the United States Supreme Court today? FLOYD ABRAMS, CONSTITUTIONAL ATTORNEY: Well, I'm not surprised that they made a major effort to come out with a unanimous ruling of one sort or another and that they did so. I wouldn't have predicted that they would do it this way, but they have come up with something unanimous and they have come up with something which may get them out of the picture completely, because what they've done, Larry, is to send this back to Florida. The Florida Supreme Court now is to write a new opinion or to change their opinion or to write something else. And after they do so, I'm not at all sure this will ever see Washington again.
KING: Viet Dinh, were you surprised at the ruling by the judge in Leon County?
VIET DINH, GEORGETOWN UNIVERSITY LAW CENTER: No, I was not. I had the fortune of being able to be at home and watching the trial proceedings all weekend, and I thought the judge had considered all the evidence presented to him and made conclusions, justifiable conclusions, therein.
People may look at the difference in evidence differently, but ultimately, it is his courtroom and that's the high hurdle that the Gore team now has to pass: how do you go about looking at this evidence and say that the judge had made an error of law in looking whether it was sufficient or not.
KING: Are you saying, Viet, that in your case, to you, the plaintiff did not prove the case?
DINH: I think that given the legal standard that the Judge Sauls was operating under -- and I think that it is a correct legal standard under Florida law -- that the plaintiffs had a very high burden to prove, and indeed, they did not prove it.
There is a question as to whether or not the judge should have considered the ballots as part of the evidence. But it seems to me that counting the ballots is not part of the evidence but rather part of the remedy, and what the Gore team was asking for was really for the remedies before the merits decision was rendered. They were in effect asking to score the extra point rather before they scored a touchdown.
KING: Roger Cossack, unless something happens in Seminole County, where they're going to hear a case not brought by the Gore team, but dealing with absentee ballots and the possibility of what might be fraud, does this look like it's over for the vice president?
ROGER COSSACK, CNN LEGAL ANALYST: Larry, this couldn't be more over after today's decision by N. Sanders Sauls. There is know other way to describe it. This is a stake in the heart. I mean, this -- this was a tough decision.
You know, there a lot of ways that Judge Sauls could have made -- could have concluded that Vice President Gore didn't win. He could have just dismissed the case and let it go to the Florida Supreme Court based on whether or not he should have dismissed the case. But instead, he made findings of fact and findings of law, which makes it almost an impossibility. You never say never. But it makes it almost an impossibility for this Florida Supreme Court to do anything but follow his opinion.
KING: Floyd Abrams, do you agree?
ABRAMS: I guess I'm a little more optimistic for the Gore point of view. Look, it's a tough appeal. I don't think there's any question of that. I think -- I think the judge may have overdone it a bit. I mean, if anything, finding no merit at all in any of the arguments, applying a legal standard which may or may not be correct -- and that's one of the things the Florida Supreme Court has got to decide -- but a legal standard which two people could argue about, about what the right standard is.
So I think the Florida Supreme Court will take a tough look at it, but there's no question that this is a real uphill battle for the Gore team.
KING: Viet Dinh, what about case in Seminole County, about the absentee ballots? Might that be a winner for the Gore team even though it's not their case?
DINH: I think it is definitely a wildcard, one of the last remaining wildcards in this legal contest. I do not think that it is a winner simply because the remedy being asked -- that is the throwing out of all 15,000 absentee ballots -- does not match up to the violation being alleged, which is an irregularity in the application process.
If you think there was an irregularity in the application process, the normal process would be to send it back, reject it, and have the voter send in a new application. That way he would still be able to vote, and then even if you can somehow remedy that by throwing out that voter's vote, you would still have to have a high hurdle to clear in order to throw out all the other voters' votes.
You know, the Bible says that one should not visit the sins of the father upon the sons. Well, it should be very, very hard to visit the sins of one applicant on all the voters of that county.
KING: They have, though, precedents in the Miami case, do they not, where all the ballots were thrown out in that mayoral race?
DINH: There is -- there is that precedent. It is a horizontal precedent, as such, and so it is not binding on that -- on that county court. But we will see how Judge Clark rules in her case.
KING: Roger, are we in the home stretch?
COSSACK: Oh, yes, I think we are in home stretch, Larry. You know, outside of this Seminole County case -- and I -- while I kind of agree with what Viet says in terms of the real issue here is a remedy, you have to understand something. This is a fraud issue in Seminole County, whether or not fraud was committed. That's a -- it's a class three crime in Florida. It's going to be a tough case to prove, and whether or not the remedy should be throwing out votes, that's even going to be tougher to prove.
So just putting that aside for a moment, I think that we are in the last week of this. It's my opinion, as I've said, that the Florida Supreme Court will not be able to reverse Judge Sanders Sauls' opinion, and without that, I think this thing is over.
KING: Thank you all very much. We'll do lots more on it tomorrow. We always thank -- always good to see Floyd Abrams. Nice to have Viet Dinh with us. And of course, the ever-present Roger Cossack.
When we come back, two outspoken congressmen on opposite sides of this fence: J.C. Watts, former great all-American at Oklahoma, and Congressman Ed Markey of Massachusetts. Don't go away.
KING: We now welcome to LARRY KING LIVE Congressman J.C. Watts. He is the Republican conference chairman, Republican from Oklahoma. I don't know what's going on in the world, but I know where he's going to be on New Year's Day, rooting for his alma mater for the national championship. And in Washington is Congressman Ed Markey, Democrat of Massachusetts.
Congressman Watts, you have officially asked Vice President Gore to concede. Why should he concede if he still has a legal battle open to him?
REP. J.C. WATTS (R), OKLAHOMA: Well, Larry, but it seems to be a scintilla of hope. And when you go back from the outset of this thing to where we are today, 27 days later, from canvassing boards in Miami- Dade that refused to recount, the time limits that the state Supreme Court put on the recount to that -- that seemed to work against the vice president -- when you look at what the circuit court judge did today, which was a serious blow to the vice president, I think all of the things add up over the last 27 days going in the wrong direction from the vice president.
So it's tough enough getting prepared for a new administration, Republican or Democrat, and I think this thing being extended and being dragged out -- I think it's time to call it a day and allow the new administration to move on.
KING: Congressman Markey, how do you respond?
REP. ED MARKEY (D), MASSACHUSETTS: Well, Al Gore always knew that it was going to come down to the Florida Supreme Court. It had to wind its way through the political process to get to this point, but now, whether Judge Sauls had ruled for George Bush or for Al Gore, the other one was going to appeal the case up to the Supreme Court of Florida.
I think that Judge Sauls erred. He said that there was no reasonable probability if all of the ballots were counted that it would affect the outcome of the race. There are 14,000 uncounted ballots that he's not including. Amongst them are the Palm Beach votes that have already added 215 votes to Al Gore's total but aren't being included, the Dade County total of 10,000 ballots, which when they began to be counted added 157 votes to Al Gore's total, but they have now been excluded. And that's 400 out of the 537 votes that he would need with another 9,000 votes left to count, and yet Judge Sauls never looked at a single one of those ballots.
CNN covered live these trucks coming up from Miami-Dade and Palm Beach County for two days. They arrive in Tallahassee. The judge has ordered them up there. He's delayed the trial waiting for them to arrive, and then he doesn't look at one of the ballots, knowing that if he began that process, he would have to count them all, and if he did, there was a reasonable probability that Al Gore would win.
KING: Honestly, Congressman Watts, if positions were reversed, wouldn't both sides be acting the same way?
WATTS: Well, I think both sides -- you've got two competitive sides, two competitive men that have worked very hard throughout the campaign. It was a close election, a very tight election, a lot of intensity. I would have been disappointed if George Bush wouldn't have contested the election based on how close it was, how tight it was.
But all I'm saying is -- and I would hope that Governor Bush would have said at some point in time, had he been in the position that Vice President Gore is in, that he would have said enough is enough, we can't continue to put the country through this -- through this ordeal. We can't see the markets -- continue seeing the markets doing what they're doing.
I think it's -- I would hope that Governor Bush would have had the character to say enough is enough.
KING: And Ed Markey, were positions reversed might you have been saying tonight Governor Bush concede?
MARKEY: Well, you know, there's an old saying in politics that where you stand depends upon where you sit, so there's probably some truth to what you're saying, Larry. But nonetheless, it's a legal question. I mean, all the pundits and all the polling and all the rest really doesn't amount to a row of beans. It really amounts to Florida state law. And everything else is dicta (ph), just, you know, crowd noise in the background, waiting for the Supreme Court of Florida to ultimately make this decision.
And I think either candidate would have wound up there any way, and we're quite content that with all these legal fences now taken down and the case now up before the Supreme Court, it will be up to them to determine whether or not these ballots are counted for the first time.
You know, it's like a Coke machine, Larry. When you put a dollar into a Coke machine, a lot of times it just spits itself right back out again: the dollar. If you hand it over to a human being, a human being will give you a Coke. Well, there's 10,000 of these ballots up in Tallahassee under armed guard that Judge Sauls never looked at, and I think the Supreme Court of Florida is going to ask that they be inspected, and the real winner will be known.
KING: We'll be back with some more moments with Congressman Watts and Markey, and then we'll meet Senators Hatch and Reid. Lots more to come. Don't go away.
KING: Congressman Watts, Dick Cheney is going to meet with you and your Republican conference folks tomorrow to go over legislation. Is a lot going to get done in this next Congress?
WATTS: Well, Larry, I think we can do a lot. I think there's a lot that obviously needs to be done. There's a prescription drug benefit that I think we need to pass. We need HMO reform, eliminating the death tax and the marriage tax. Those things are still floating out there.
KING: Yes, but will it happen?
WATTS: I think they will happen. I think we can get good bipartisan support on those things. The death tax and the marriage tax, in the House, we actually got about 50-something Democrats on the marriage tax and 60-some on the death tax. So I think we can.
I'm not so sure the vice president-elect is going to be talking about legislation tomorrow. I think he mainly wants to give us an update and let us ask some questions concerning what's going on with the transition and with the Bush team right now.
KING: Congressman Markey, do you expect much in this next Congress no matter who's the president?
MARKEY: I think Al Gore will want to work with the Republican Congress to achieve bipartisan success. I think that there's going to be a chance for some progress, probably limited, because of the narrow divisions which in the House and the Senate between the two parties. But some progress is possible. But it will depend upon the good will of both sides to set aside the animosity and the acrimony that has characterized this campaign and the post-campaign period. But some limited success, I think, is more likely than not.
KING: Congressman Watts, do you think the acrimony will last a long time?
WATTS: No, Larry, I don't. I think you've probably got -- you've got some Republicans that probably would never accept a Gore presidency and vice versa. You've got some Democrats that will never accept a Bush presidency.
But I think there is many of us here in the House and the Senate, Republicans and Democrats, that think it's important to get a prescription drug for our seniors so they don't have make that choice of having medicine or food on their table, eliminating the death tax, eliminating the marriage tax, get some HMO reform. I think those are things that we can work on: paying down our public debt.
We've seen good bipartisan support on many of those issues. And by the way, Larry, we operated over the last two years with a six-vote majority. So we've got some experience in working with a very narrow majority in the House.
KING: Ed, do you have some optimism there that vitriol may go away?
MARKEY: Well, I hope so. I'm just surmising here, but if there was a Bush presidency, Republican House and Republican Senate, there would have to be some exercise of restraint on their part, because there would be an invitation to partisanship. They would have to reach across the aisle. They would have to try to find ways in which they would work together with Democrats.
But as long as people like J.C. were there, then I think we would have a chance for some success, as I said before.
KING: J.C. Watts, Ed Markey, thank you both very much.
When we come back, senators Orrin Hatch and Harry Reid go at it. This is LARRY KING LIVE. We're also going to meet the newest member of the United States Senate. She won on a recount. Don't go away.
KING: We now welcome to LARRY KING LIVE two distinguished members of the United States Senate: Orrin Hatch, Republican of Utah, the chairman of Senate Judiciary, and Harry Reid, Democrat of Nevada, Senate Democratic whip.
Let's start with Senator Reid. You heard what Congressman Watts said: Should the vice president now think about throwing it in or should he wait out these final legal battles?
SEN. HARRY REID (D), NEVADA: Larry, I think everyone should just kind of relax, take it easy. There's no constitutional crisis. There's no -- there's not been a single arrest. There's been no violence of any kind. We live in a country where we have an orderly transition. This is part of an orderly transition.
The decision is now going to be made by the Florida Supreme Court. They're going to make that decision very soon. So I think we should just be very careful before we rush to judgment. There are a number of important decisions still to be made by the courts in the state of Florida: not only the Florida Supreme Court, but there's an important hearing that's taking place literally as we speak -- you know, it's going to start tomorrow -- in Seminole County dealing with about 4,500 ballots.
This things is not over yet, and we just have to be calm and deliberate and make sure that people understand that an election starts with a vote and should end with a vote. It shouldn't be fast; it should be fair.
KING: Senator Hatch, is there anything wrong with what Senator Reid just said?
SEN. ORRIN HATCH (R), UTAH: No, except that literally there were two very big setbacks for Al Gore today. The Supreme Court coming down and basically saying, look, we've got a five -- at least five justices are going to overrule you if you don't change your opinion and take into consideration Article II, Section 1 that says that the power over elections is in the hands of the state legislature, and Title III, Section 5, which basically says you can't the change the rules after the -- after the election.
And then you have this opinion by Judge Sauls, the finder of fact. Really, it is a very comprehensive opinion. It was devastating to the Gore team, and frankly, I don't see how the Supreme Court can overrule it, because it all comes down to dimpled ballots and Judge Sauls didn't find any reason to count dimpled ballots.
KING: The question was Senator Reid said, just wait it out. If you don't think it can happen, you have no worries. What's wrong with letting it play out?
HATCH: Well, I think there's a time, you know, like Richard Nixon and Hubert Humphrey and Gerald Ford, all of whom said, we're going to place the country above ourselves. I think there is a time. I think that time is now for Vice President Gore to really put the country above himself, and I think he'll come out it better than he ever could otherwise, because this isn't going to change.
I think he's got to lose in the Florida Supreme Court. If not, he'll lose in the Supreme Court of the United States of America.
Plus, there's another case. Tomorrow, in the 11th circuit -- 11th Federal Circuit Court of Appeals tomorrow is on the due process issues, and I happen to believe that that case is going to come down against Vice President Gore as well.
It's -- you know, we've had lawsuits in almost everywhere except traffic court, and I think they'd put them there if they could get them there. The fact...
HATCH: ... (UNINTELLIGIBLE) it's time to end it.
KING: Senator Reid, what do you think would happen if, as some have suggested, someone with "freedom of information" files an act and has the money and counts every ballot in Florida and George Bush is president and next June releases the fact that Gore won?
REID: Larry, this is an important thing that we're dealing with. We're talking about president of the United States, the most powerful office in the world. I don't see why we just can't take our time.
I think it would be very bad if George Bush is sworn into office as president and we find out at some subsequent time that he didn't get enough votes. Remember, we already have kind of a pale over all this. He lost the popular vote by a quarter of a million votes, and now to come into Florida with not having a fair count is something we have to take a look at.
We're country that is ruled by law, not by men. Let's let the courts decide this. That's where it is now, and I think it would be much better for every one that this plays itself out in the courts.
It's going to be over with in a very short period of time, and I repeat, everyone, cool their jets, let the court take its normal course, and people like Orrin, who certainly understands the law, should feel very good that the court is going to determine this.
KING: And simply put, Orrin, what's wrong with another few days as long as we get it right?
HATCH: Al Gore can do whatever he wants to do. I'm suggesting that the right thing to do is place the country above himself.
KING: But what's the county -- what's the difference to the country in the next few days?
HATCH: Well, because we're going to go through even more of this pain, and frankly, look, you're talking dimpled ballots, you're talking about something that was a change of the rules after the fact. And not just dimpled ballots, other approaches that literally you'll never know throughout the state.
And nobody's ever going to count all those ballots throughout the state, and even if they did, the fact of the matter is, is that every contest, every count, every recount, every manual count George Bush has won.
Now, it's time to wrap it up, and I'm concerned about Vice President Gore's reputation as well. I think there's a time to say, look, I've done my best, I think I won, but I've got to place the country above myself, and I think this is that time.
REID: Larry, if I could just say one thing, Orrin has concern about a lot but not Al Gore's reputation.
HATCH: Oh, yes, I am.
REID: I don't think that's his concern right now.
HATCH: When I say it, I mean it.
REID: And I further say -- I further say, I've been involved in two statewide recounts, one two years ago. And in that election, I had the Republicans move forward to move the certification date three separate times. I did not oppose that. We had to hand count various machine votes. We did that. Thousands and thousands of votes were hand-counted because the machine did not count the votes properly. That was done in Nevada. And after it was all over, my worthy opponent, John Ensign, said I've seen enough of this, I'm not going to cause you anymore grief, it's time to concede. But he had to wait until he was sure the count was right.
That's all we're trying to do here, is to make sure the count is right. Nothing wrong with that.
HATCH: But John Ensign finished before a total count was made, because he recognized that he wasn't going to win. And I think that -- I think Roger Cossack is right here earlier this evening. He said this is like a stake driven through the heart of the Gore campaign, and I think there is a time to say, look, we've put the country through enough here. And I would be given the same advice to George Bush if the shoe was on the other foot.
KING: You would?
HATCH: Every count, every recount, every hand count, Bush has come out ahead. It's time to wrap it up.
KING: Thank you both, senators Orrin Hatch and Harry Reid. Always good seeing you both.
REID: Thank you.
KING: When we come back, Senator John Breaux, a Democrat of Louisiana, who spoke with Governor Bush last Friday and who is rumored for a possibility of being an appointment into the Bush Cabinet. And then we'll meet with the newest senator-elect, Maria Cantwell, who went through a recount herself to win it, and then our panel. Don't go way.
KING: Before Senator-elect Cantwell, let's spend a few moments with Senator John Breaux, Democratic of Louisiana, who spoke with Governor Bush last Friday. What did he want to talk about?
SEN. JOHN BREAUX (D), LOUISIANA: Larry, first, congratulations for having the largest number of guests in the history of television.
KING: Keep it up. We've got more right behind you.
BREAUX: Well, we talked. We had a good conversation. I think it was an appropriate call to make. He said he wanted to reach out to members in the Democratic Party. If after this was over he was to be president, he wanted to make sure that he was going to involve people from both sides.
I think Al Gore would have exactly the same position at this time.
KING: Did he -- are you interested in a post if there's a Bush administration?
BREAUX: Larry, this is a heck of an exciting time to be in the United States Senate. Can you imagine anything better than a 50-50 tie as far as trying to be able to forge coalitions, to work together to get things done? I'm not really interested in it. I'd be happy to talk to anyone about it and see if I can be helpful in some capacity to either of the candidates. But being in the Senate's going to be a real challenge. It's going to be a lot of fun. It will be really a lot of good things to do.
KING: Should Vice President Gore play this things out?
BREAUX: Sure he should. I mean, that's what the law says. I mean, this law was not invented by Al Gore. I mean, there's process, and I think Harry Reid was exactly on target when he said the law allows for an appeal to the Supreme Court of Florida.
There's no question that if Governor Bush lost in Judge Sauls' court he would be doing exactly the same thing. I think the country will be better off by a definitive decision by the Florida Supreme Court. I think both candidates ought to commit to accept that decision and get on with it after the Supreme Court rules in Florida.
KING: What's the Senate going to be like?
BREAUX: I think it's going to be an exciting time. I think that both Tom Daschle and Trent Lott recognize that they have to work with each other. The Senate being tied 50-50 means we're going to work together whether we like each other or not. And I think we do. I think we understand that neither side has enough members to get anything done without the other side being part of it.
We're going to be organized, I think, on a 50-50 ratio in our committees, and I think that's something that is going to demand cooperation. I mean, we will get absolutely nothing done if we just vote down the line, 50-50, on everything.
KING: So you'll be -- and maybe it's a good thing. You're forced to do something.
BREAUX: I think it's an opportunity. And for those who said it's nothing but a recipe for gridlock, Larry, I think that's wrong. I think the message of this election, if there is one, is that it wasn't a policy direction in any particular direction, but it was a call for us in Washington to quit the fighting, quit the bickering and start working together for the good of the country.
I mean,.you can't get any closer. This election was essentially a tie...
KING: A tie.
BREAUX: ... There's no sudden-death playoff here.
KING: Thanks, Senator.
BREAUX: Thank you. Larry.
KING: Senator John Breaux, Democrat of Louisiana. We now welcome the newest member of the United States Senate. She was just really officially entered into the Senate last Friday when she was declared the winner in that wild race in Washington, Senator-elect Maria Cantwell.
What was it like during that time when you didn't know?
MARIA CANTWELL (D), WASHINGTON SENATOR-ELECT: Well, good evening, Larry.
As you can imagine, it was a lot of waiting and a lot of anxious moments, but it was a very slow and deliberate process. And I think that actually worked very well for the voters of Washington state.
KING: In your state, what, every vote was recounted?
CANTWELL: Well, our state has a high percentage of people who vote by mail, by absentee ballot. And so that process was a very elongated but deliberate, check the signatures, check the polling places and the ballots to make sure that everything was in order.
That process took weeks, and then an official recount because it was so close, because it was within one-half of 1 percent, took place, and that is what we just concluded last Friday. So the process in Washington, because it was so slow and deliberate I think gave a lot of people the certainty that the process was working. But, yes, for a candidate it's a very, very anxious moment.
KING: What's your read then on how Florida has conducted its election?
CANTWELL: Well, I think because our secretary of state has been a leader nationally on these issues and our auditors have worked well together and because of that long process, there were some very beneficial things when questions did arise. It wasn't under the constant -- I mean, obviously there were two campaigns and candidates looking at it, but it wasn't under the constant scrutiny of all the legal and media attention. People were watchful, mindful, we let process take place. There were no deadlines that were being missed, and because of that we got to a result on Friday that, albeit a very close election, basically 2,200 votes, we had a winner that was declared and someone that conceded.
And I think that was very positive and a good example that we should drill down on more.
KING: Do you think Florida created its own problems with different ballots in different counties and in some places there's a machine and some places there's handwritten and some places it's a ballot where you shove it through?
CANTWELL: Well we, obviously, in the state of Washington have a variety of voting processes, as well, some punch cards, some with the actual -- looking at a ban on the system. And so a variety of ways.
But the process, again, because we are just now coming to our certification by the secretary of state this week, our process has been very slow and deliberate. And that has just provided for a lot of issues to be raised, a lot of issues to be addressed, a lot of observation by both sides.
KING: Should the vice president continue the fight?
CANTWELL: Well, I think that the process of answering questions in the end so that issue is resolved will be good for Americans.
KING: And you will be one of three new women in the Senate. You come in with Jeanne Carnahan and Hillary Clinton. And also in your state it's two women, right?
CANTWELL: It's two in our state, but there are four new women, including Debbie Stabenow from Michigan. So...
KING: That's right, Debbie's coming in.
CANTWELL: So now there are 13 of us all together in the United States Senate, and I think actually that's a lucky number.
KING: Good seeing you. We'll see you in Washington -- congratulations.
CANTWELL: Thank you.
KING: Senator-elect Maria Cantwell, Democrat, Washington state, and four new woman coming in.
When we come back, our panel, Norm Ornstein, Roger Cossack returns and Richard Shenkman.
Don't go away.
KING: Now our panel, Norman Ornstein, resident scholar, American Enterprise Institute; the return of Roger Cossack of CNN; and, of course, with the addition now of Richard Shenkman, the presidential historian.
Norm, Yogi says it ain't over until it's over. Is it over?
NORM ORNSTEIN, AMERICAN ENTERPRISE INSTITUTE: It's not over. It's getting closer to being over certainly, Larry, but what the U.S. Supreme Court did today in some ways was to give a little additional lease on life for Al Gore. It is no question, as some of the other guests have said, a more uphill battle, but he's probably got another few days. The key for him is not so much broader public opinion as keeping the support of those Democrats, like John Breaux, like Tom Daschle, like Harry Reid, like Ed Markey. As long as he's got them, he can play out this legal process a little bit longer. And he's still got a couple of places where he could turn.
KING: Richard Shenkman, do you think it's over?
RICHARD SHENKMAN, PRESIDENTIAL HISTORIAN: Oh, I hate to tell Al Gore that it's over, but it sure does look that way. It sure does look that way. KING: Because?
SHENKMAN: Well, because he's running out of options. He's just going to have the Florida Supreme Court take one more whack at this on a day when they got whacked by the Supreme Court, and they're going to be hesitant as a result to really make a bold decision, I think.
KING: Do you think anything can happen for him not in his case in Seminole County on those ballot questions?
SHENKMAN: Well, Al Gore really doesn't want to win with the Seminole case because that means throwing out thousands of ballots of -- these are absentee voters -- and that goes against his entire philosophy here, which is to break the rules so that every vote can count. And I don't think he wants to win that way.
KING: Roger, you earlier said this was a dagger in the heart. Is it over?
COSSACK: Well, Larry, let me use one more phrase. I think this, if I can, I think you can stick a fork in this. I think this is done. And I hate to sound trite about it, but I disagree with Norm except for the part where he says this has maybe got two or three days left. There's just no more options.
I can't underline enough how deadly Judge Sauls' opinion was today. It is such an uphill battle now to get any action out of that Florida Supreme Court to reverse this case. And I think anybody would -- any lawyer would admit that if we could get them to -- even the Gore team would have to admit that. So I just don't see where he goes after this.
KING: Norman Ornstein, the battle will range on, will it not?
ORNSTEIN: Yes, it's going to...
KING: No matter what happens.
ORNSTEIN: It will rage on. And Rick is right, certainly. Gore doesn't want to win with Seminole County, but he wouldn't turn it down either if it happened that way. Now it would be poisonous in a lot of ways if that's the way it comes out. But because you've got that case out there and you've got the Martin County case out there and you still have at least some possibility that the Florida Supreme Court will opt, despite this opinion -- and they're going to look for ways, I think, to do so -- could open things up.
It is much, much harder. There's no question it's a steeply uphill battle, but it's going to go on for at least the next few days.
KING: We'll be back with more of Ornstein, Cossack and Shenkman on this edition of LARRY KING LIVE.
Don't go away.
(COMMERCIAL BREAK) KING: Richard Shenkman, could this turn into a Pyrrhic victory? Could it be that the winner is the loser in that he's going to have a Senate and a House that are so close nothing's going to happen?
SHENKMAN: It's going to be a real problem. You know, we were just talking during the break about what would it have taken for either of these guys to commit an act of statesmanship that would have allowed them to really stand before the country and say, I have tried to do my best.
In the case of Gore right now, it would be to disavow that Seminole case and say, I don't want to win that way. And if he loses, losing would be winning for Al Gore in that case.
Bush had some opportunities to repudiate Katherine Harris, her overly strict look at the rules. And he didn't do that, so he kind of missed that opportunity for statesmanship.
KING: So, Norm, both have clouds?
ORNSTEIN: Yes, and I think -- you know, the bottom line here, Larry, is that neither of them would define losing as winning under any set of circumstances in any way, shape or form.
They both believe they've won, but they both also believe that if you win the presidency, even if it's tarnished and made more difficult along the way, it's better than losing the presidency. That's what's taken us to this point, and it's what's going to take us at least a few steps further. Now there will come a point where somebody's going to have to concede. Certainly Gore does have uphill battle now. But they're going to play it out until they're pretty sure they can't win, because they still define statesman with one word: loser.
COSSACK: And, you know, Larry, I might...
KING: Roger, you're -- yes.
COSSACK: I might just add in, I would say the real sad part of it is -- and playing off of what Norm just said -- is the notion that the prize is worth anything. And I think what we're missing here, and I think what the American people are saying, is, wouldn't it be wonderful if the right person stood up and said, you know, as bad as I want this prize, as bad as I want to be president, it's better for the country if I step away.
And I think that's the definition of statesmanship. And I don't think that would be a loser. I think that would be someone who would be remembered well.
KING: Richard, won't Florida always be a cloud no matter what?
SHENKMAN: Well -- yes. But I tell you, I want to play up what Roger was saying now. It's in the American political mainstream to fight to win.
I was just reviewing some early history. When they were trying to ratify the Constitution in Pennsylvania, the Federalists were going to lose. And they were going to lose because the Antifederalists were going to refuse to attend the session so there wouldn't be a quorum. So what happened? The Federalists went down to a local tavern where they knew some Antifederalists were, they picked them up by the shoulders, dragged them over to the courthouse, then physically blocked them from leaving, had a quorum declared, and then they announced that they -- Pennsylvania had ratified the Constitution.
Winning: That is an American tradition.
KING: Norm, hard to argue with that, right?
ORNSTEIN: And it's right. And if you look back, even at the last great controversy in 1876, Samuel Tilden ended up being the statesman. I mean, in the end, when the possibility of riots could have occurred, when he really thought he had won, he stepped back. Who remembers him except when we have, 125 years later, another contest?
We're not talking about "Rutherfraud B. Hayes." Most of the times in civics classes, you know, for the last 50 years, it's been Rutherford B. Hayes. Nobody knows about the controversy. So you can make a case that you could look good but you're a footnote in history if you're a loser, and you're a major figure in history if you're a winner.
I do think, Larry, that Florida will be a cloud, in a way, and that we're going to remember this election in this fashion. But once we get a winner, he's got a chance to make a stamp on history. And that partly what motivates that guys, too.
COSSACK: And, Larry, if I could just jump in and give my history lesson on that same Rutherford B. Hayes, the way he finally got into office was they appointed 15 people, five Democrats, five Republicans and five members of the court who they thought would be neutral, of course who didn't turn out to be neutral, and Hayes got in by a vote of eight to seven, and for his one term in office he was always known as "Old Eight to Seven."
KING: Roger, just quickly. the Seminole County, do they have a shot there, the plaintiffs?
COSSACK: Yes, I think they have a shot, but I don't think it's a strong shot. And what it really gets down to is, what is the remedy here. I think they're going to find out that the facts are fairly close to what happened. But remember, these aren't ballots, these are applications for ballots. Is the remedy going to be that therefore these votes are thrown out and the people who didn't really do anything are going to be caught -- are going to have their votes not count? That is a rather dramatic result.
KING: Thanks all very much.
We'll be back again tomorrow night. Ken Starr will be one of our guests. You may have heard of him. Ken Starr tomorrow night.
Stay tuned for another election special report, this one hosted by my buddy Jeff Greenfield out of New York.
Thanks very much for joining us. For all 14 guests tonight, good night.
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