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CNN Late Edition

Will the Supreme Court Be the Final Stop for Campaign 2000?

Aired December 10, 2000 - 12:00 p.m. ET

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

WOLF BLITZER, HOST: It's noon in Washington, 9:00 a.m. in Los Angeles, 7:00 p.m. in Jerusalem, and 8:00 p.m. in Moscow. Wherever you're watching from around the world, thanks for joining us for this two-hour LATE EDITION.

We'll get to our guests shortly, but first let's check in with CNN reporters covering the Florida vote.

(NEWSBREAK)

BLITZER: Tomorrow's Supreme Court arguments are of course critical for both the Bush and Gore campaigns. A short time ago, I spoke with Governor Bush's Florida point man, former Secretary of State James Baker.

(BEGIN VIDEOTAPE)

BLITZER: Secretary Baker, thanks for joining us on LATE EDITION once again. I'm sure you didn't expect to be in Florida this long, but you are. So are we.

And as a result you are on LATE EDITION.

Let's begin, right away with what Justice John Paul Stevens said in his dissenting opinion regarding the stay in before U.S. Supreme Court. He said this, he said, "Counting every legally cast vote cannot constitute irreparable harm". And went on to say, "Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election."

Those are pretty strong words from Justice Stevens.

JAMES BAKER, BUSH CAMPAIGN OBSERVER: They are strong words. You had equally strong words from Justice Scalia on the other side, saying, in effect, that you don't give someone the remedy before they establish the fact that they're entitled to it, and the real issue here is what are legally cast votes. And that's what Justice Scalia said.

So, they're both strong statements. And they are statements that the United States Supreme Court will have to resolve after hearing oral arguments tomorrow.

BLITZER: And you don't -- you have been suggesting that you don't think this is a done deal by any means, that the five to four decision in favor of your side to grant the stay will necessarily be repeated when all is said and done after the oral arguments.

BAKER: Well, I think it's prudent for us not to take anything for granted. In the first place, I don't think courts like to hear from litigants that they are going to do something or not do something. And our position, therefore, is simply we are very gratified that we got the stay, very gratified that for the second time the United States Supreme Court is going to be willing to review an opinion of the Florida Supreme Court on constitutional grounds. And we are going to get the very finest brief we can in there this afternoon and make very finest argument we can tomorrow.

BLITZER: Newsweek magazine, in a new poll that's out today, asked this question. What is more important, removing all doubt about the votes, 51 percent said that was more important, or getting the matter resolved, 45 percent. Seems that a slight majority, perhaps within the margin of error, but still a slight majority, think that it's more important to remove all doubt, presumably by going forward with that manual recount.

BAKER: Yes, that's correct. Those numbers have been closing up significantly, as you know, Wolf. The number used to be about two to one, removing any doubt about the votes.

But the real issue here is, how do you remove the doubt about the votes? You don't do it by, in effect, a new system of manual recounting. You don't do it by using the contest statutes in Florida law to create a new manual recount system that will, in some counties, be simply a partial count, because they're only going to do undervotes, after having counted all votes in 20 percent of the precincts in Miami-Dade. You don't do it by not giving any guidelines at all to the people who are doing the counting. You don't do it by rounding up, as the Florida Supreme Court opinion says, all necessary officials to complete the count when the laws of Florida say it should be done by canvassing boards. And you don't do it, in effect, by changing the rules after the game has been played.

That was the reason that the United States Supreme Court vacated the first Florida Supreme Court opinion, and we're very hopeful that we'll see the same result here tomorrow or the next day, whenever the Supreme Court rules.

BLITZER: Vice President Gore's top lawyer, David Boies, was on ABC earlier today. And he said, in effect, suggested that the Republican side, your side, is simply trying to run out the clock right now.

Listen to what David Boies had to say.

(BEGIN VIDEO CLIP)

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I think the time is a problem. And I think one of the problems that we've confronted from the beginning is that the Republicans have thrown up one obstacle after another to counting these votes. We found out yesterday that if they'd just let the votes be counted, they could be counted in a matter of hours.

(END VIDEO CLIP)

BLITZER: That's the argument he's making. Why not just allow those votes to go forward, and to repeat what Justice Stevens said, to remove any possible cloud over the legitimacy of the next president?

BAKER: Wolf, that's the whole issue here. It would not, as Justice Scalia says, remove a cloud. It would create a cloud, because the recount is being done in an unconstitutional way, as far as we are concerned. And it's being done in a way that changes the rules after the game has been played, so that would create doubt.

And I -- and I want to take exception, if I might, to the fact -- the suggestion that somehow we're just trying to run out the clock.

BAKER: It was the Gore campaign, and I think Mr. Boies, who filed the original protests that they filed, and who extended those, and who asked the Supreme Court of Florida to extend the date by 12 or 14 or 15 days, from November 14 to November 26, 12 days, before they ever filed their contest action. They could -- if they hadn't done that, they were running out the clock on themselves, if you will. It's not the Bush campaign that is running out the clock.

BLITZER: Well, they argue in response, as you well know, that it was the Bush campaign that first went to federal court to try to prevent the Gore campaign from getting that additional manual recount.

BAKER: Well, that's correct, and we got no relief at that point. The court didn't delay things one day. We went as a defensive matter, because we have a situation here where they are contesting everything. They're protesting everything. They're filing lawsuits to overturn the results of a certified election after the election has been held and after Governor Bush has been declared the winner, first time in modern history in a presidential election that that has ever happened.

And now they're complaining that we are raising our constitutional rights in the United States Supreme Court? I don't see how anybody can criticize anyone for raising their constitutional, or trying to preserve their constitutional rights before the United States Supreme Court.

BLITZER: You know, yesterday Governor George Pataki of New York was down in Florida watching this manual recount. And at a news conference, he suggested that -- he said, I was very pleased with the results that were going forward. He didn't release specific numbers, but implied that Governor Bush was actually gaining votes over Vice President Gore.

BAKER: I think we were. I think we are. And that is what -- but that is really not what the issue is here, Wolf. The issue is, is the system appropriate and proper and constitutional? Or does it represent a change in the law after the game has been played? No one can know what the ultimate result of this would be if we kept on going here, with partial recounts and no standards and different rules in different counties. We might very well end up, after we go through that, still winning, after we've already had a count. We've had a recount. We've had partial manual recount. We might be winner after this, but that's not the issue here.

BLITZER: But -- excuse me for interrupting, but wouldn't that, from your perspective, from Governor Bush's perspective, be the best of all worlds? Let the manual recount go forward and Governor Bush wins once again.

BAKER: If you knew that was going to be result, sure, maybe so. But you don't know that. And, also, you do not know that it is going to be concluded by the 12th of December, which is Tuesday, which is the day it has to be concluded by if you're going to get the conclusive presumption that's given to slate of electors under 3 U.S.C. 5. So, for a whole host of reasons, most of which have to do with constitutionality, that's not the right approach to take.

But, you know, I don't want to talk about vote totals, because we are under court orders not to speak about that, even though I think the other side was throwing a lot of numbers of out there yesterday. There is a specific court order telling the parties that you are not to talk about what the results of these recounts are showing.

BLITZER: The House Democratic Leader Richard Gephardt had a news conference yesterday with Bill Daley, the chairman of the Gore campaign, and he seemed to take a swipe directly at you and some other Bush advisers, by raising the issue of the criticism you've launched against the Florida Supreme Court. I want you to listen to what Gephardt said yesterday.

(BEGIN VIDEO CLIP)

REP. RICHARD GEPHARDT (D-MO), MINORITY LEADER: Equally disturbing are attacks on the integrity of courts. Vice President Gore and Senator Lieberman have lost several cases during this process, and not once have they criticized the judicial branch. In contrast, Governor Bush's operatives and adherents have engaged in an assault on the courts unprecedented in 50 years, and unhealthy for our Democratic system.

(END VIDEO CLIP)

BLITZER: Some of his advisers say that that was pointed directly at you.

BAKER: Well, I would take issue with that, Wolf, because the fact of the matter is the Gore team has criticized the recent ruling of a granting of a stay. They said that it was wrong. They said that it was unwarranted.

My criticisms of the Florida Supreme Court, if you will go back and look at the record, and I really wish you would do this, are directed at the legal points that the Florida Supreme Court made. And, by the way, those criticisms were upheld by the United States Supreme Court when they vacated that first Florida Supreme Court opinion.

The criticisms I made were that it was unconstitutional, that they changed the rules after the game had been played. These are the very grounds that the United States Supreme Court used in overturning the Florida court's decision.

So -- and furthermore, I must say, I don't understand why it is not fair to express your reservations about the legal reasoning or the legal result of a court opinion, when you are a party to the case. The other side has done the same thing.

BLITZER: Well, what they say, what they say is that the language that you expressed, that House Majority Whip Tom Delay expressed, was inappropriate. Tom Delay saying only the other day that...

BAKER: You go back, Wolf, and you pull up, please, for me, the exact language that you are talking about...

BLITZER: Well, I will give it to you.

BAKER: ... or that Dick Gephardt is talking about, that I used. Now don't attribute to me some language that somebody else used.

BLITZER: Well, I will give you the specific they are referring to after that first Florida Supreme Court result was released, when you said the following: "It is not fair to change the election laws of Florida by judicial fiat."

They considered that to be strong, inappropriate language.

BAKER: Oh, really. Is that is right? Well, I don't. I think that is a criticism of what the Florida Supreme Court did, and I think that it was supported, in fact, by the United States Supreme Court coming down immediately thereafter and vacating that decision of the Florida Supreme Court, on the grounds that they had in fact changed the rules after the game had been played.

That is what the United States Supreme Court said. Is that kind of criticism out of bounds? I don't think so.

BLITZER: Secretary Baker, we only have a few seconds left. You heard some Democratic operatives like Bob Beckel suggest that with Governor Bush, if he wins Florida, getting 271 electoral votes, they only have to find two electors out there to try to peel them away. What do you do in a situation if, when all is said and done, they try to do that?

BAKER: Well, you try to keep them from doing it. I think that is what we are doing. We are in touch with our electors. We hope very much that they will remain faithful. We believe they will.

And you simply, but you don't, I don't think -- I mean, we haven't stood up and said that somehow that's a completely inappropriate, or unfair, or illegal thing to do. If they think they can swing some of them, they're going to try. On the other hand, maybe we ought to be considering doing the same thing with theirs. What's fair for one side, it seems to me, is fair for the other.

BLITZER: Secretary Baker, I know you've been anxious. The last time I was in Florida and saw you, which was some 30 days or so ago, you wanted to go quail hunting. It doesn't look like you're going to be quail hunting at least this week.

BAKER: Not for awhile. We've been here 33 days, Wolf. But it's always good to talk to you.

BLITZER: Thank you so much for joining us.

BAKER: Sure thing.

(END VIDEOTAPE)

BLITZER: And just ahead, the Gore response. How does the vice president plan to convince the Supreme Court to restart the counting? We'll talk with the Gore campaign's Florida point man, Warren Christopher, when LATE EDITION continues.

(COMMERCIAL BREAK)

BLITZER: Welcome back to LATE EDITION.

Joining us now talk about the vice president's next steps is the former secretary of state, Warren Christopher. Mr. Christopher has been Al Gore's adviser on Florida recount.

Secretary Christopher, thank you for joining us.

WARREN CHRISTOPHER, GORE CAMPAIGN OBSERVER: Good morning, Wolf.

BLITZER: Let's go over a couple of these news nuggets that just came in. The fact that these ballots from Florida are now on the way to U.S. Supreme Court in Washington, what does that mean to you?

CHRISTOPHER: Well, the ballots were actually entered into evidence, so they are a part of the evidentiary record. And they would normally come to Supreme Court, unless Supreme Court doesn't want them. You know, it's a good thing, I think, that somebody looks at those ballots. The trial judge never looked at a single ballot, which I thinks were major fact that the Florida Supreme Court took into account in reversing the trial judge.

BLITZER: Do you have any hope that the nine justices of U.S. Supreme Court will take actual look at those disputed ballots?

CHRISTOPHER: Well, they certainly can if they wish to do so. I have a real hope, Wolf, that on more mature consideration the Supreme Court of the United States will decide that the count should go forward. I think that there is a good chance of that. The ruling on the stay, I think, made that more difficult, makes our case more difficult.

But nevertheless, I've got hope and confidence that they will look at it anew when our brief is in and when the argument is made. BLITZER: But given the time constraints, the Tuesday deadline for selecting Florida's 25 electors, if the ballots are now on way to Washington, and let's say Supreme Court says yes, go ahead and count them, don't they have to be shipped back to Florida? Couldn't that delay the entire process?

CHRISTOPHER: Wolf, I thought there was some ambiguity about whether the ballots are coming here or not. That could produce some delay. On the other hand, those ballots have been going back and forth. They came up from Miami-Dade in a day.

And one thing I would like to correct, Wolf, the 12th is not a deadline. It's a safe harbor. That is, there are certain preferences that exist if the ballots -- if the count is in by that time. Nevertheless, I think the real deadline is the 18th of December when the Electoral College meets.

BLITZER: All right. Now one other news nugget. I take it that Laurence Tribe, the Harvard law professor, is not going to be arguing the vice president's case before the Supreme Court tomorrow as he did the other day. It's going to be David Boies.

CHRISTOPHER: Yes, that is right, Wolf. I wouldn't make too much of that. Laurence Tribe is a superb advocate. I thought he argued very well last time in Supreme Court. The reason vice president decided last night to ask David Boies to argue is that this has been David Boies' case from very beginning. He tried it in the trial court. He argued it in the Florida Supreme Court.

And I think we are inclined to believe that the major issues in argument tomorrow will be as to what the Supreme Court of Florida did. And of course, David Boies is in the best position to take that position, so he will be arguing. But Larry Tribe is a very much a member of the team. He's been working on the brief today. The vice president has put together quite an extraordinary team, and for this particular argument he decided that David Boies would make it.

BLITZER: So was it a mistake the last time the arguments went before U.S. Supreme Court to use Tribe instead of Boies?

CHRISTOPHER: Not at all. I think the issues there were predominantly federal constitutional issues. He argued very well that time. One of those choices you have to make, and this is one of those times when vice president made a decision, I think quite considered decision. As I say, they are all part of the team. We have some superb lawyers in Florida who are continuing to advise with us.

BLITZER: Now, Antonin Scalia, the justice who wrote the majority opinion in five to four decision to stay the recounting in Florida. Among other things he wrote this. He said, "Count first and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires."

CHRISTOPHER: Wolf, I just see that the other way. The old biblical saying, you shall know the truth and the truth shall set you free, I think, is right here. We ought to know how those ballots that were not counted -- that is, they were not showing any vote for president the first time around, how they actually look when you make a hand count of them. That's what we wanted from the very beginning, and I think that's what will do best to set us free.

BLITZER: But, also in his concurring opinion, Justice Scalia also writes this, very, very important words. He says, "It suffices to say the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner" -- George W. Bush -- "has a substantial probability of success."

CHRISTOPHER: Well, that certainly is correct. That's one of the standards for granting a stay. In my life as lawyer, Wolf, I have seen many times when a court looked at something, saw the briefs and argument, and changed their opinion. And we hope that is what will happen tomorrow.

You know, there is a long tradition in a Supreme Court of giving deference to the Supreme Court of a various state in interpreting state law.

CHRISTOPHER: Justice O'Connor, at the very beginning of the last argument, emphasized that point, in dealing with Mr. Olson, counsel for Mr. Bush. And I hope she'll come back to that point of view after she hears argument tomorrow.

BLITZER: The five justices who supported the decision for the stay -- and let's show our viewers on the screen who they were; in addition to Scalia, Rehnquist, Kennedy, Thomas, and O'Connor -- one of them you're going to have to try to peel away from that five-to-four majority. The minority justices who voted against the stay included, of course, Justices Souter, Ginsburg, Breyer, and Stevens. Who do you think, among these five in the majority, is most likely to change his or her mind?

CHRISTOPHER: I hope they will all change their mind. And, being just hours away from the argument, I wouldn't like to speculate on which one. One of the real problems with the stay, I would say, Wolf, is that this is the court entering the political thicket in a five- four posture.

I've got great reverence for the court. I was a law clerk there 50 years ago, this very year. So I know the court, and I've got great reverence for it.

But I think, looking down the long corridors of history, it will be seen that they did not strengthen the court but weakened it by stopping the vote count at this precarious moment. The court enters this thicket, I think, with a good deal of danger. Usually, they have not come into this kind of a situation where they are so badly divided.

BLITZER: Well, what you are suggesting is, if it does come down to a five-to-four decision in favor of Governor Bush, that would be seen as a political decision?

CHRISTOPHER: No. I don't suggest that. I just think that entering the election situation for the presidency of the United States, such a badly divided court, will, in the long term, in the long view of history, be seen to weaken the court.

BLITZER: If it is a five-four decision, or any decision favoring Governor Bush, is it over for the vice president?

CHRISTOPHER: Well, this particular contest is over, Wolf, but, you know, having ridden the roller coaster for 33 days, I don't think that I ought to try to answer a hypothetical question about when it is going to be over. We hope it will be over soon. We'd like to end this excruciating delay. It's been difficult for all of us, but I don't think this is a very good time to answer hypothetical questions.

BLITZER: But what is -- what other legal options are there if the Supreme Court says no more manual recounts? The secretary of state in Florida has already certified the election. The electors are supposed to be picked on Tuesday. What other legal recourse would there be?

CHRISTOPHER: Well, as David Boies said this morning, this particular contest is over, certainly, we respect the Supreme Court of the United States. But I don't really want to go into the what-if questions that might exist after that happens.

BLITZER: I want you to listen to what Democratic Senator Robert Torricelli of New Jersey said earlier today, because he was willing to speculate about what happens if the Supreme Court rules against Vice President Gore.

Listen to this.

(BEGIN VIDEO CLIP)

SEN. ROBERT TORRICELLI (D), NEW JERSEY: If this is concluded in the next 48 hours, the person who is on the losing side of this should go and meet with the winner. They should make an appearance together. There should be an immediate call for national unity and for accepting the results of this election, getting about the country's business.

(END VIDEO CLIP)

Sound advice?

CHRISTOPHER: Well, I would say that, you know, at the end of the day, certainly the vice president, if he is not the winner, will do the right thing and will do everything he can to bring this country into unity. But I don't have quite the boldness that Senator Torricelli has in giving the vice president advice, until we see what the Supreme Court does.

This thing has taken some very strange twists and turns up to this point, and I think we just have to ride with it see what happens. But let me assure you, the vice president is very confident that he will see this thing through, that he will then do the right thing.

I talked to him twice last night. He was very calm and collected about it, very businesslike about it. And, I assure you, he understands the importance to the American people of trying to bring this country together when this long process is finally at an end.

BLITZER: Can you assure the American people there will be no effort on the part of Democrats like Bob Beckel to go ahead and try to peel away some electors, two electors that are pledged to vote for the Republican presidential candidate but you might manage to convince? You heard the exchange I had with James Baker on that.

CHRISTOPHER: The vice president has never said he would engage in that kind of activity, and I'm sure he won't.

BLITZER: Will he discourage Democrats from engaging it in?

CHRISTOPHER: Yes, I think he'll discourage them.

BLITZER: What about, and I know we only have a little time left, what the chief justice, in his dissenting opinion of the Florida Supreme Court, Charles Wells, wrote on Friday when he voted against the manual recounts. He said, "I have a deep and abiding concern that the prolonging of judicial process in this counting contest propels this country and the state into an unprecedented and unnecessary constitutional crisis."

CHRISTOPHER: Wolf, I've got great respect for the chief justice. I've watched him in Tallahassee, and so I -- I hear what he has to say, but as you know, he was the only judge on the court of the Supreme Court of Florida who took that position. The four justices, of course, ruled the other way, but even the other two justices who joined in dissent found errors in the ruling of the trial court Judge Sauls.

One other thing I'd like to say: You know, there's been a lot of talk about this being a Democratic court. But, of the four judges in the majority in Florida, three of them have stood for election in the last election, and all three were approved by more than 70 percent of the votes. That's in an election where the Republicans scored very heavily. The fourth one was appointed jointly by Governor Bush and the outgoing Democratic governor.

So, I think it's wrong to characterize this court as being a Democratic court. They are a court trying to do their job in the best possible way, and now we'll see what the Supreme Court of the United States ultimately says about it.

BLITZER: Isn't it interesting -- we're all out of time, Secretary Christopher -- that when both Bush and Gore went to look for somebody to send to Florida to represent them, they both picked former secretaries of state.

CHRISTOPHER: It's an interesting coincidence, isn't it?

BLITZER: Thank you so much for joining us.

CHRISTOPHER: Nice to see you, Wolf.

BLITZER: Appreciate it very much.

CHRISTOPHER: Thank you.

BLITZER: And up next, could the decision about the next president ultimately be up to the U.S. Congress? We'll talk about that and much more with two members of the U.S. Senate: Republican Kay Bailey Hutchison of Texas, and Democrat Tom Harkin of Iowa.

LATE EDITION continues right after this.

(COMMERCIAL BREAK)

BLITZER: Welcome back to LATE EDITION.

Although the Supreme Court could settle the matter of who wins the presidency, it may ultimately be up to the U.S. Congress to determine the winner. Joining now to talk about that and much more are two members of the U.S. Senate: In Dallas, Texas Republican and Bush supporter, Kay Bailey Hutchison; and here in Washington, Iowa Democrat and Gore supporter, Tom Harkin.

Good to have both of you on LATE EDITION.

I want to begin with you, Senator Harkin: Is it over if the Supreme Court rules against Vice President Gore?

SEN. TOM HARKIN (D), IOWA: I don't know that it is entirely over. I think it presents another step in the process. I think it would be injudicious and unwise for the Florida legislature to go ahead and certify these electors until we know precisely whether or not we can go ahead and count every vote.

BLITZER: But if the ruling of the Supreme Court goes against Bush is there any -- excuse me, goes against Gore, is there anything else the vice president should or could do?

HARKIN: Well, I think, again, that we have to see what the ruling of the Supreme Court is. First of all, we are playing a what- if type of thing. Let's see what the Supreme Court really does decide, see what their decision entails. I think it is interesting that they have asked the ballots to be brought here to Washington. Who knows exactly what they are going to decide? So I think it would not be wise to say here is what we are going to do on a what-if basis.

BLITZER: Let me ask Senator Hutchison, if the Supreme Court should decide to rule against Governor Bush, and says go ahead and recount those disputed ballots, is there anything else Governor Bush should do to fight that, or just go along with what the U.S. Supreme Court decides?

SEN. KAY BAILEY HUTCHISON (R), TEXAS: I think if the U.S. Supreme Court makes a definitive ruling that there should be a recount or there shouldn't be a recount, that that probably will resolve it one way or the other. I certainly think if the Supreme Court says that you can't have a manual recount that would meet the tests of the Constitution that it is over. Now whether they would remand it back and say, recount certain things, then I think probably that would occur, and we would see where we go from there.

BLITZER: And so, I just want to pin you down on this, Senator Hutchison: If the ruling should go against Governor Bush, would you say to the Florida legislature, stay out of it, let this recount go forward, and let the dust settle wherever it does settle?

HUTCHISON: I'm not sure if the Supreme Court, and that is a big if, said yes, the recounting is constitutional, that that would preempt the Florida legislature from keeping the time capabilities to declare the winner for the Florida electors. Not that they might act before a recount, if the Supreme Court said that it would be constitutional. But if they have to do something that would keep the timing in place, then they may need to go forward.

So I think there are a lot of if's there, but I think certainly if Vice President Gore loses and the recount cannot go forward because it can't be done in a way that would protect every vote and make it count equally, then it is over.

BLITZER: Senator Harkin, Senator Patrick Leahy, the Democrat from Vermont, had some strong words reacting to the Supreme Court decision yesterday to stay the manual recount. He said this; I want to read it to you and show it on our screen: "This is very bad for the Supreme Court because their credibility is so diminished and their moral posture is so diminished that it could take years to pull back from that."

Do you agree with Senator Leahy?

HARKIN: Well, I basically do. I think the Supreme Court has waded into a political thicket that is going to be unwise for the Court and unwise for this country.

I think what the Court really has to ask itself is, does it want to go down in history as the most activist interventionist court in a political matter perhaps that we have ever had in our history? Is that really what they want to go down in history as?

The Florida law was very clear, Wolf, that no vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board. That is what the Supreme Court of Florida decided: Leave it to the local canvassing boards.

And now is the United States Supreme Court going to say that law is invalid, that that law is unconstitutional?

HARKIN: If that happens, that would throw into jeopardy all election laws in the United States and make it subject to a federal interpretation.

BLITZER: Senator Hutchison, what about that, the argument that the U.S. Supreme Court is intervening in what really should be a state matter and putting, perhaps, some ideological miscasts, if you will? The right side of the U.S. Supreme Court normally would want to stay out of a statewide dispute, yet the other side is saying, hold back. HUTCHISON: I think if this were an election for governor of a state that there would be a different standard. But I think one thing that Congress probably will deal with very shortly is some uniformity in our presidential elections.

Having said that, I do believe that the court is looking at the constitutional question of whether you can have an equal vote for every person in Florida if the individual canvassing boards are making different decisions, which they very clearly are.

If you have a dimpled ballot that counts in Broward County but not one that counts in Dade County, or Palm Beach County, then I think there is a constitutional question, which the Supreme Court obviously is going to address. So...

BLITZER: I see Senator Harkin vigorously shaking his head no. Go ahead, and then we'll take a quick break.

HARKIN: We already have different standards. We have different kind of voting machines. We have different ballots in counties all over United States. What we are saying is, leave it to the common sense of the each canvassing boards. We already have those different standards.

BLITZER: All right. We're going to take a quick break. We have a lot more to talk about when we come back; also your phone calls for Senators Kay Bailey Hutchison and Tom Harkin.

LATE EDITION will be right back.

(COMMERCIAL BREAK)

BLITZER: We continue our conversation with the Republican Senator Kay Bailey Hutchison of Texas and Democratic Senator Tom Harkin of Iowa.

Senator Hutchison, Tom DeLay, the House Majority Whip, had some strong words on Friday after the Florida Supreme Court ruled against Governor Bush, ordered that those manual recounts; listen to what he said about the Florida Supreme Court.

He said, "Four justices of the Florida Supreme Court have distorted the judicial process into nothing more than a mechanism for providing Mr. Gore with the victory he was unable to win November 7." And he went onto say, "This judicial aggression must not stand." Is that -- are those the kind of words you could associate yourself with?

HUTCHISON: I think each person has to be able to speak for him or herself. I thought what Senator Leahy said was also very strong. I thought Mr. Christopher and Mr. Baker said what they thought. People have opinions. I just think that when you have the ability to appeal, the final arbiter is going to be the Supreme Court of the United States, and I think the Supreme Court of the United States has stepped in here to try to make sure that if a vote is counted, that it is legally required to be counted. BLITZER: Senator Harkin, if this were -- for some strange twist, and God knows there have been many strange twists over the past 30 odd days -- if this were to go to U.S. Congress, with a 50-50 split in the Senate, 50 Democrats, 50 Republicans, and a narrow, very slim Republican majority in the House of Representatives, how do you think it would play out?

HARKIN: Well, the law would state that if there was a difference between the House and the Senate, then the governor of the state in question would certify the electors. And in this case it would be Jeb Bush, and obviously he'd probably certify the electors for his brother, even though the popular vote in Florida may have gone the other way.

BLITZER: So if it does go to the Congress, though, it means that George W. Bush is going to be the next president of the United States?

HARKIN: Well, I think that's true, based upon his brother being the governor of Florida and certifying the electors; it would go that way.

BLITZER: All right, let's take a caller from Germany. Please go ahead with your question.

QUESTION: Hello, I have a question for Mr. Harkin. He just stated that he felt that the Florida -- Oh, I'm sorry, the U.S. Supreme Court was activist in its granting a stay. And I thought that maybe the Florida Supreme Court was actually the activist one, in the sense they overturned the circuit court's decision to revoke the canvassing board's decision to not go ahead with the manual recount. I wonder what he thought about that.

HARKIN: Well first of all, the U.S. Supreme Court chastised the Florida Supreme Court earlier for not following Florida law. Now in this case, the Florida Supreme Court accurately followed Florida law, when the Florida law states -- as I said just a moment ago; I'll read it for you again -- it says that no vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board.

So what the Florida Supreme Court has said was, let's leave it up to each canvassing board to apply common sense and see if they can clearly understand the intent of the voter.

So now the U.S. Supreme Court is saying, that they're chastising the Florida Supreme Court for following the Florida law.

BLITZER: Let's take another caller from Grambling, Louisiana. Please go ahead with your question.

QUESTION: Yes, I have a comment. I'm Cassandra Vaughn (ph), and I would just like to say that -- the Florida Supreme Court, they started the recount again and why would the United States Supreme Court come in and stop the count? To me, it seems like the whole legal system is pulling against one another. BLITZER: Let me ask Senator Hutchison about that. What do you say to people out there who are so confused about these various court decisions, one overruling, the other one contradicting the other one? What are the American people going to think about the judicial process in the United States when all is said and done?

HUTCHISON: Well, it is confusing because there have been so many different lawsuits filed and different opinions from different courts, from the district court to the circuit court to the Supreme Court of Florida and the Supreme Court of the United States.

But, I think everyone knows that it is well settled that the final word in our country is the Supreme Court of the United States, and they are the ones who said that it is irreparable harm if you go forward counting ballots that may not be legally able to be counted, and they want to determine the legality before they go on with the counting. And I think that has to stand.

BLITZER: Senator Hutchison, Senator Harkin, unfortunately we have to leave it right there. I want to thank both of you for joining us on LATE EDITION.

HARKIN: Thanks, Wolf.

BLITZER: And when we return, a nation in waiting. What impact could this protracted fight for the White House have on the next president's ability to govern. We'll talk with former New York Governor Mario Cuomo and former White House chief of staff John Sununu when LATE EDITION continues.

(COMMERCIAL BREAK)

BLITZER: Welcome back to LATE EDITION.

Joining us now are two guests with very different perspectives on the fight for the White House: In New York, the former Democratic governor, Mario Cuomo, and in Boston, the former New Hampshire governor and Bush White House chief of staff, John Sununu.

Gentlemen, good to have both of you back on LATE EDITION.

And I want to start with you, Governor Cuomo.

Do you agree with a lot of other people, including Senator Torricelli of New Jersey, that it should end with whatever decision the U.S. Supreme Court decides in the coming days?

GOV. MARIO CUOMO (D), FORMER NEW YORK GOVERNOR: No, I would like to see decision, frankly. And I can't imagine, after what they've done so far, what it's going to be, because their decision to stay the proceedings here is a shock to most lawyers I know, to the American people. There's a Newsweek poll just out that says something like 60 or 70 percent of American people say, why can't we see the ballots?

And so, there is all kinds of confusion. And, until that confusion is clarified, I don't see why anybody should commit to a decision by this court. I think the Supreme Court, especially, in reaching out and saying stop the counting -- I don't think the lay public understands the intelligence of that. And I think that's because there is no intelligence to it.

BLITZER: Governor Sununu, what do you say about that?

JOHN SUNUNU (R), FORMER BUSH CHIEF OF STAFF: Yes, I think the public does understand the intelligence of it, with all due respect to Mario. And I think when people stop and take a look at what is creating the confusion, it is the confusion of a four-three decision by a Florida Supreme Court that obviously had to fish around to get the fourth vote, in spite of the admonition of their chief justice that they were going the wrong way, and came up with what I consider is this cockamamy solution of giving a remedy that wasn't even asked for.

The Gore people were asking for a recount in three counties. And in order to gather the fourth vote in this extremely split and not recommended decision by the Florida Supreme Court, those justices in Florida came to this crazy solution of saying we're going to recount every county, even though nobody was asking for that. That's where the problem is, that's where the confusion is, and that's where the difficulty is.

BLITZER: Governor Cuomo?

CUOMO: Yes, well, the Supreme Court of Florida applied what the Supreme Court of United States told them to apply, the legislative law of the state of Florida. The one judge that John Sununu just referred to was all alone. Six judges disagreed with him. And, so, unless, John, he is more brilliant than all the other six, you know, citing him doesn't do your case a whole lot of good.

SUNUNU: No...

CUOMO: Look, the confusion here is a Supreme Court has said to us over and over you ought to let the state call the shots is saying, now, five conservative judges in the Supreme Court are better suited to pick your president than the voters of the United States of America. And we won't even let you see what the ballots were that were contested, notwithstanding the legislative law. This Republican legislature, they say, is in charge in Florida, required exactly what the Florida court did. That is what's confusing me. And, incidentally, John, the poll says 70 percent of the American people don't understand it.

BLITZER: Governor Sununu, you get a chance to respond.

SUNUNU: Look, the Florida Supreme Court overruled the trial judge that made it clear that he thought that the problem was a variety of standards were being applied, and that could not be done, and that he thought there was not sufficient indication that there would be any difference anyway. And that Florida Supreme Court -- seven Democrats in that Florida Supreme Court -- four of them decided to get together and acted not in terms of the law of the state of Florida, but in terms of their interpretation. CUOMO: Don't say that, John.

SUNUNU: In terms of -- may I finish?

CUOMO: Yes. Please, I...

SUNUNU: In terms...

CUOMO: ... wish you would.

SUNUNU: ... in terms of their interpretation of what the trial judge should have done. And the trial -- they went into areas that were not appropriate for a review decision by the Florida Supreme Court.

SUNUNU: That's where the confusion has come from. Now, people are trying to suggest that it's OK to have four-three split in Florida, but not a five-four split in the Supreme Court.

CUOMO: No, well, I...

SUNUNU: It probably won't end up at five-four.

CUOMO: I didn't say...

SUNUNU: ... But the fact is is that's where it should end up, in the U.S. Supreme Court.

CUOMO: I didn't say anything like that. The Supreme Court of the United States said, please follow the legislative law of the state of Florida. Then Florida did. The legislative law, John, calls for exactly what happened here. You make a protest. You look at the ballots. You hand count the ballots. And you use a test, John, to decide whether or not the voter intended to vote for Bush or Gore.

But what is the test? Exactly the same test that the plaintiff in the Supreme Court of the United States, one George W. Bush, said should be the law of the state of Texas. And you could use just the common sense in that law that he adopted and apply it, as they did in Broward County, a variation of it in Palm Beach. That is the law here.

BLITZER: All right.

CUOMO: Now, if you can explain to me how that justifies the Supreme Court stepping in with only hours to go and saying, we're not going to give you a chance to finish for fear that it will prejudice George Bush, which is what they said, because he may lose the votes...

BLITZER: Now Governor...

CUOMO: ... If you can explain that to America, you're a better man than I am.

BLITZER: Governor Sununu, you'll have a chance to explain...

SUNUNU: It's not very hard to explain to America that the issue...

BLITZER: Wait a second, Governor Sununu -- Governor Sununu, stand by. You're going to have a chance to explain it to America and the entire world, actually. But we have to take a quick break, give you an opportunity to collect your thoughts, both of you. We have a lot more to talk about.

But right now, we're going to take this break.

For our international viewers, "World News" is next. For our North American audience, the second hour of LATE EDITION is coming up. We'll check the hour's top stories, then take your phone calls for Governors Mario Cuomo and John Sununu.

Plus, former White House special counsel Lanny Davis and former Bush attorney general, Dick Thornburgh, help sort through the latest legal maneuverings, and they'll preview tomorrow's U.S. Supreme Court hearing.

Also, our LATE EDITION roundtable, and Bruce Morton's "Last Word": It's all ahead in the next hour of LATE EDITION.

(COMMERCIAL BREAK)

BLITZER: This is the second hour of LATE EDITION: the Florida vote.

(BEGIN VIDEO CLIP)

BAKER: We are going to get the finest brief we can in their this afternoon, and make the very finest argument we can tomorrow.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

(UNKNOWN): I don't think the Supreme Court of United States is going to let the clock run out on this one.

(END VIDEO CLIP)

BLITZER: With the U.S. Supreme Court set to meet tomorrow, we will ask former governors Mario Cuomo and John Sununu about the prospects of finally settling the presidential election.

Then, former White House special counsel Lanny Davis and former Bush attorney general Dick Thornburgh review the legal maneuvering and what happens next.

Plus our LATE EDITION roundtable -- Steve Roberts, Susan Page, and David Brooks. And Bruce Morton has the last word on democracy around the world: Elections are never quite as easy as we would like them to be.

BLITZER: Welcome back to the second hour of LATE EDITION. We'll get to your phone calls for former Governor of New York, Mario Cuomo, and former White House chief of staff John Sununu in just a moment. But first let's go to Gene Randall for a check of the hour's top stories. Gene?

(NEWSBREAK)

BLITZER: Thank you, Gene. Now back to our conversation with former New York Governor Mario Cuomo and former New Hampshire Governor John Sununu.

And I promised you, Governor Sununu. a chance that you would be able to respond to Governor Cuomo. But I guess the gist of his question, and let me paraphrase it in my own way for those viewers who are just coming aboard: Wouldn't a lot of people think that if Governor Bush does win the election as certified and the electors vote for him, that if this manual recount had gone forward, and it showed that he did get more votes, wouldn't his presidency be more, if you will, legitimate? Wouldn't it be enhanced if the manual recount went his way?

SUNUNU: Look, there was a legitimacy established in the process and the recount and the certification of Governor Bush as the winner. There's a reason the press and all legal observers were saying that there was a miraculous rejuvenation of the Gore campaign by the four- three decision of the Florida Supreme Court. And it was called miraculous because prior to that everybody saw that there was no legitimate legal way for the Florida court to overturn the trial judge.

But they found a new way which frankly is not consistent with the laws in Florida. And that is why the U.S. Supreme court, as the arbiter of next resort, is reviewing whether or not they acted constitutionally. And that is the role of the U.S. Supreme Court, and if they certify a process which brings George Bush to the win, then that will be seen as a legitimate process.

BLITZER: All right. Let's take a caller from Amsterdam in the Netherlands. Please go ahead with your question.

QUESTION: Good afternoon. Mr. Blitzer, I have a question for your guest.

BLITZER: Go ahead.

QUESTION: Yes? Suppose there is no final solution, either political or by court at all, on December 18. What would be the next step?

BLITZER: All right, I will let Governor Cuomo answer that question.

CUOMO: Well, that is a very good question, and it allows me to answer something that Governor Sununu just said.

CUOMO: You should understand, and I hope all Americans understand, that even if the Supreme Court does what it's threatening to do, which is to say we're not going to let you look at the ballots, we're going to say George Bush is the winner, that will not make him the president.

Then what happens on December 18, you have the Electoral College. And under our law, 24 of the states will send representatives who are not required to follow the popular vote in their state. And right now, Al Gore has won more votes than George Bush nationwide.

But after the Supreme Court would have beat Gore, there's no guarantee that three or four electors who were previously supposed to vote for Bush wouldn't turn around, out of anger and confusion, perhaps, and say, we're going to go with Al Gore, which means that the sequel of this, what I think would be awful, decision by the Supreme Court of the United States, could be to convince some electors previously thought to be committed to Bush -- you only need three to make Al Gore president, even if he loses Florida. Think about that.

BLITZER: Well, what about that?

CUOMO: So it'll be over when -- it'll be over in the Electoral College only if George W. Bush, Gore gets the 270 votes they need. And no matter what happens in Florida, that will still be an open question.

BLITZER: Is that a realistic scenario, Governor Sununu? Something that we discussed earlier in the program with Secretary's Baker and Christopher, what Bob Beckel, the Democratic political operative in Washington has suggested, perhaps peeling off some of those Bush electors to switch their -- change their minds and to vote for Vice President Gore?

SUNUNU: I take Secretary Christopher at his word when he indicated that Vice President Gore would indicate that he would not want that solution. So as much as Mario may be dreaming about it, I don't think that's realistic.

CUOMO: But that wouldn't stop it, John. Whatever Gore says, whatever Bush says would not stop it. If they vote for Gore...

SUNUNU: It's not going to happen, Mario. The Republicans are so angry at what they perceive is a gaming of the election by a Gore group that has decided to try and create unwarranted confusion in the process, that the electors on the Republican side are not even leaning one iota towards this fairy tale solution that you suggest might be Al Gore's last hope.

CUOMO: Well, with all your adjectives, let me make it clear that what you think is creating confusion is demonstrating to the world how people voted. I though the highest gift...

SUNUNU: Absolutely not.

CUOMO: ... we gave to people in this country was the right to vote. What you're trying to do...

SUNUNU: Absolutely not.

CUOMO: ... is deny them that right and let five judges of the Supreme Court substitute themselves for 53 million people who voted for Al Gore. That's what you're trying to do.

SUNUNU: We have had a count and a recount. We have had people's votes counted. What we are objecting to is a process in which there is no standard to determine whether a vote has been cast or not.

CUOMO: John, after all the counts -- John, after all the counts...

SUNUNU: And you're just counting on the fact -- you're just counting on the fact that there is so much confusion in a manual counting process that maybe it will change the results.

CUOMO: Let me keep it simple, John. When you count up all the votes right now, who wins, Gore or Bush?

SUNUNU: Bush.

CUOMO: Universally, the United States of America, who's ahead?

SUNUNU: Oh, you want to change the Constitution now, Mario?

CUOMO: No, just a simple question. Who's ahead? Do you know who's ahead? Al Gore.

SUNUNU: In the popular vote, Al Gore.

CUOMO: OK.

SUNUNU: But he's losing the electoral vote.

CUOMO: Well, then, who's confusing this?

SUNUNU: That's what counts. As you said, the electors will determine who the president is.

BLITZER: All right. Governors -- gentlemen...

CUOMO: Al -- do you think the gentlemen from the Netherlands understands it now?

SUNUNU: Yes, he does.

CUOMO: Al Gore is ahead, but George Bush is the winner.

SUNUNU: I give him credit for being smart enough to know that the Electoral College will determine the winner.

CUOMO: That's what I said; that's what I said, John.

SUNUNU: Mario, you know that the Electoral College will determine the winner, don't you?

CUOMO: Absolutely, but I don't know how they're going to vote.

SUNUNU: OK, then why are you trying to confuse it?

CUOMO: I'm not; I'm saying I don't know how they are going to vote. Do you?

SUNUNU: Oh, sure you are, Mario. You're trying to create worldwide confusion by suggesting there's something illegitimate by the Electoral College choosing the winner, and you know that's wrong.

CUOMO: Oh no, no, no. It's legitimate, but it's also legitimate...

SUNUNU: Oh, thank you.

CUOMO: ...for them to vote their conscience, and what if they change their mind, three Republicans.

SUNUNU: But they're not going to do that and you know it, and to suggest it's going to happen is just adding to the confusion.

CUOMO: John, maybe you have a direct route to the eternal wisdom; I don't. All I know is about human beings.

BLITZER: All right, governors, let me interrupt this interesting colloquy with a quick caller from Shelbyville, Tennessee (ph). Please go ahead with your question.

QUESTION: Yes, I'd like to ask Mr. Sununu if he stuck a dollar in a machine and it kicked it out, if he'd throw it away?

SUNUNU: No, I wouldn't throw it away, but if I stuffed a -- if I had to look at the votes that weren't cast for president around the country and saw that statistically it's not much different, I don't think that's sufficient justification to say that the people -- who by the way, were polled ahead of time, and with probably as large or larger a number saying, they didn't like either candidate -- I can believe that there's a lot of non-votes for president down there, the same as there are in every other state in the country. That's an insufficient reason to suggest that we have doubts in the result; there is no doubt.

BLITZER: All right, Governor Cuomo, I want to read to you what Congressman J. C. Watts of Oklahoma, one of the leaders, the Republican leaders in the House of Representatives, said on Saturday. He said this: "For the last month the Dow and NASDAQ have fallen on good news for Gore and risen on good news for Bush. One man's obsession and denial have the potential to have a devastating impact on our stock market and our economy. Once again for the good of the nation, I call on Al Gore to admit defeat and concede this election." Congressman J. C. Watts.

CUOMO: I'd be disappointed if Reverend Watts was saying vote for Bush because he's good for big share holders and big corporations. That wouldn't be too good for Bush.

And I don't think it's true. I think if you look, you'll see earnings are down, productivity is challenged, there's a softness in the economy. Alan Greenspan explained it, and he knows, I guess, as much or more than anybody, and said there's a little softness and maybe I'll tick up the interest rates. He never mentioned Bush or Gore, and I don't think Reverend Watts sees the thing correctly.

And incidentally, this is very simple. All you have to do is open the votes. Let the people of the world see what was in those ballots. If John Sununu was right and it's clear that people didn't intend to vote for Gore or Bush, intelligent people can look at it and say that's the case, and throw it out. Maybe Bush would win. Why are the Republicans so afraid to look at the ballots and apply the test of reasonableness to them?

BLITZER: All right. Governor Sununu, Governor Cuomo had the first word, you'll have the last word.

SUNUNU: The votes have been counted, they have all been recounted, and in some cases recounted a third time, and after each one, Bush won. Bush is the winner, the certified winner. And the Supreme Court is going to tell the activist Florida Supreme Court they're not going to pick the winner of the president of the United States.

BLITZER: All right. Governor Sununu and Governor Cuomo, thank you so much for joining us; that was a lively discussion. Hopefully both of you will be back on LATE EDITION in the not too distant future. Thank you very much.

SUNUNU: Have a good day, Mario.

CUOMO: Be well, John.

BLITZER: Thank you. And when we return, with U.S. Supreme Court set to hear arguments over the Florida vote for a second time, does this mark the end of the line in the battle for the White House? We'll wade through the week's legal developments with former Clinton White House special counsel Lanny Davis and former Bush attorney general Dick Thornburgh.

LATE EDITION will be right back.

(COMMERCIAL BREAK)

BLITZER: You are looking at a scene outside the U.S. Supreme Court. People already camping out, getting ready for an overnight stay, hoping to get one of those seats inside the Supreme Court tomorrow morning, 11:00 a.m. eastern, when those oral arguments, 90 minutes of oral arguments, are scheduled to begin.

These look like college students perhaps from George Washington University, someplace here in the area, hoping to get one of those seats.

Welcome back to LATE EDITION.

Joining us now for some insight into the latest legal developments are two veterans of the law and politics, both very familiar faces to our LATE EDITION viewers. Lanny Davis is a former White House special counsel -- he joins me here in Washington -- and in New York, Dick Thornburgh, a former Bush administration attorney general.

Gentlemen, welcome back to LATE EDITION.

I want to begin with you, Dick Thornburgh. The fact that the ballots are now on their way, presumably, from Tallahassee, the disputed ballots, to the Supreme Court in Washington, what does that mean? What is your take on that?

RICHARD THORNBURGH, FORMER BUSH ATTORNEY GENERAL: Well, I think the ballots follow the controversy, and they have been moved around depending upon where the controversy is centered, and it is now in the Supreme Court of the United States.

BLITZER: And Lanny Davis, do you agree with that? Do you think that there is anything more to it, that perhaps the Supreme Court could order the counting of those ballots?

LANNY DAVIS, FORMER WHITE HOUSE SPECIAL COUNSEL: Well, if they happen to rule our way, which I'm still hoping they will, and there is an immediacy, they could certainly order the federal marshals in Washington and clerks of the various courts in Washington to attend to the recounting process right from the get-go.

BLITZER: Dick Thornburgh, you heard on this program earlier some of our guests suggesting that a badly divided U.S. Supreme Court, a five to four decision, on a sensitive political issue like this determining perhaps the next president of the United States, could hurt the court for many years to come. Do you accept that suggestion?

THORNBURGH: Oh, I think that is unlikely. I'm not sure they are badly divided. We'll have to see what their holding is and what their opinion is. The fact of the matter is, there are four or five substantial federal questions that have to be resolved by this court in the controversy growing out of the actions of the Supreme Court of Florida.

They have to, first of all, construe the provisions of the United States Constitution, Article II, Section 1: A federal statute, Section 5 of the U.S. Code, Section -- Article V, U.S. Code, Section 3. They've got to take a look at the response which has never been forthcoming from the prior case before the Supreme Court, from the Supreme Court of Florida. And there are basic issues of due process and of equal protection of the law, so the notion that the Supreme Court is somehow butting into a case in which they have no business is totally wrong.

BLITZER: Do you agree with that, Lanny Davis?

DAVIS: Well, I think that the case on the merits is a close call; it was a divided court in Florida. But what is shocking and not a close call to lawyers all over the city -- and I speak as a lawyer who practices in Washington -- with all due respect, this five-member Supreme Court will go down in history for its decision on the stay, on stopping the counting, as a political decision, that Justice Scalia shockingly agreed he was making a political judgment of irreparable political harm to George Bush -- he didn't mention Al Gore -- if they allowed counting to continue.

Twenty minutes earlier, Wolf, the 11th Circuit Court of Appeals, by an eight to four vote, did it right. They said, we are going to let the count continue, but we won't allow a certification until after we have heard the case on the merits. This decision by the Supreme Court to stay the count is a shockingly partisan decision that I think will go down in history as such.

THORNBURGH: Wait a minute...

BLITZER: Dick Thornburgh, I want to read to you what Justice Scalia side on that matter, and we'll get your response.

BLITZER: Justice Scalia saying, quote, "The counting of votes that are of questionable legality does, in my view, threaten irreparable harm to the petitioner and to the country by casting a cloud upon what he claims to be the legitimacy of his election."

Lanny Davis, referring to that citation from Justice Scalia's concurring opinion.

THORNBURGH: I can't begin to see what's shocking about that. If these votes are counted improperly and they result in a recertification before Tuesday of next week, that's the end of the election. Now it only makes sense to stop that count until the Supreme Court has had a chance to review two things: One, the so far non-existent response from the Florida Supreme Court to the holding of a week ago; and secondly, a response to this badly divided Florida court's decision that was announced earlier this week.

And I think that it's only prudent to stop the counting until you have a decision on the substantive matters.

DAVIS: Dick, the 11th Circuit ruled that the count could continue, but there would be no certification. The only irreparable harm would be a political effect if Al Gore goes ahead, which is what Justice Scalia is worried about.

That is not what a Supreme Court known for its conservative judicial restraint, much less the impropriety of five members of the Supreme Court, worried about a political effect when they should be doing legal judgments, not political ones.

THORNBURGH: It's a pretty irreparable harm to have on Tuesday a whole new slate of electors certified on the basis of a recount that's very, very much in question.

BLITZER: You know, Lanny Davis, I want to tell -- I want you and our viewers to take a look at the five justices of the U.S. Supreme Court who voted with the majority in favor of the stay stopping the manual recounts. And let's take a look over there: Justices Rehnquist, Kennedy, Thomas, O'Connor and Scalia.

You've studied the court, you know the court. What -- which justice is Al Gore's best hope of changing his or her mind to come around and say let the recounting go forward? DAVIS: Well, Justice O'Connor and Justice Kennedy are known to be the most independent of the five. But I have to tell you that years ago I met Justice Rehnquist and was very impressed by his sense of history. I disagree with his philosophy. If Justice Rehnquist is watching today, he does not want to be known as the chief justice of a partisan arm of the Bush campaign.

When Justice Scalia spoke on behalf of the other four justices and he described the effect on "his" campaign, the "his" is George Bush. Where was Al Gore in Justice Scalia's decision-making? The irreparable injury here is -- if December 12 is a deadline, and I'm not sure it is, they have made the decision on the merits tantamount to a verdict for Bush by not allowing the counting to continue, which would have at least allowed something to occur between now and Monday.

BLITZER: Dick Thornburgh, if you're looking --

THORNBURGH: Lanny, it is simply...

BLITZER: Go ahead.

THORNBURGH: ... outrageous to refer to the potential of the Supreme Court of the United States, the highest court in this land, as being a partisan arm of the George Bush campaign. I think that simply exceeds the bounds of fair comment.

This court will decide the case on the basis of the law. They are the highest court in the land. It's their responsibility. And I think we must await and see what that decision is before any characterization, even an outrageous one like that, could be made.

DAVIS: Dick, I promise you, I say that with all care. Because when I read Justice Scalia's reference to his campaign being irreparably damaged because votes can be counted, as the 11th Circuit said, but not certified, that is a political judgment made by Justice Scalia as to the effect of allowing the vote count to continue.

And I say to you that only referencing George Bush in that opinion is a partisan reference. He didn't include the effect on Al Gore, that he would be irreparably harmed if he's not able to have the votes counted if they decide his way on the merits. That's why I say that.

THORNBURGH: Obviously, because Gore is the beneficiary of the erroneous ruling in the Florida Supreme Court.

DAVIS: And they can make that...

THORNBURGH: And the one that's going to be adversely affected, and irreparably so, is Governor Bush, who so far has won every single count that's been carried out by machine or by hand in the Florida courts.

THORNBURGH: And now comes along the court with another new theory about how they are going to count these votes in a totally unregulated manner, a totally non-uniform manner, and before the deadline is in place, to potentially certify a new election result. That's simply has to be irreparable harm.

BLITZER: All right, gentlemen, we have to take a quick break. Up next, your phone calls for Lanny Davis and Dick Thornburgh. LATE EDITION will be right back.

(COMMERCIAL BREAK)

BLITZER: Welcome back to LATE EDITION.

We're continuing our conversation about the extraordinary legal twists in the fight for the White House with former White House Special Counsel Lanny Davis and former Bush Attorney General Dick Thornburgh.

Let's take a caller from Long Island, New York. Please go ahead with your question.

QUESTION: Hi, I'd like to know if it would be a conflict of interest if Justice Scalia's son is in practice with Ted Olson, that is George Bush's attorney?

BLITZER: I don't know if that's true. Maybe Dick Thornburgh or Lanny Davis knows. Is Justice Scalia's son in practice with Ted Olson, who is the chief attorney for Governor Bush and will be arguing the case before the Supreme Court?

THORNBURGH: I don't know.

DAVIS: I don't know either. There is certainly a question of appearances, but I do respect the integrity of Justice Scalia.

And, Dick, going back to your outrage, I certainly don't mean to impugn the motives or the good faith judgment of each of the five supreme court justices. But there's no question that the language used in Justice Scalia's concurring opinion makes a political judgment of the irreparable political damage to George Bush if the vote counting proceeds, even as the 11th circuit would have it, but not allowing certification, just let the vote count proceed.

And, in my judgment, it's fair for me to be shocked that a political judgment should govern somebody in a Supreme Court known for its judicial restraint in avoiding unnecessarily getting into political questions.

THORNBURGH: I simply disagree. It's not a political judgment at all. It's a legal judgment about what the legal consequences of letting that vote count go forward, in face of the looming deadline on Tuesday of this week.

BLITZER: All right. Let's take another caller from Dubuque, Iowa. Please go ahead with your question.

QUESTION: Yes, my question is for Mr. Davis. And what I would like to know is that, during all of this discussion that has been going on, it has never been proven that there is a fault with the machines. So whatever happened to the responsibility of the voter to correctly cast their vote?

DAVIS: Well, actually, two quick points. The expert presented by the Bush campaign ended up admitting that the punch machines that he himself had a patent on were substantially flawed. And his last sentence, that caused the Bush lawyers to roll their eyes was, a hand recount is necessary here because of the unreliability of those older machines.

Secondly, it is pretty clear that in the case of the absentee ballots, the Bush campaign was arguing, let's avoid the technical problems of people who didn't fill in their ID numbers who weren't responsible about that. Let's let Republican activists do it for them. Then they demanded responsibility on the part of people who were unable to completely punch through those cards. I think that was a double standard on the part of the Bush campaign lawyers.

BLITZER: Dick Thornburgh?

THORNBURGH: I think this caller is right on the money in his question, and I think it prompts to us look at what these so-called undercounts are. They are simply ballots where the presidential office was left blank. No vote was cast.

And there are 1.4 million people across the United States who did not choose to vote for a presidential candidate, and the percentage of those votes in the state of Florida is no more no less than what it is across the United States. And to somehow turn loose local canvassing boards, without any guidance whatsoever as to what standards they should apply, to divine the intent of a voter seems to me to border on the absurd.

BLITZER: All right. Dick Thornburgh, Lanny Davis, once again, thanks for joining us. I don't know if you're going to be back next week, but I didn't expect you'd be back this week either. We'll see what happens in the coming days. Thank you very much.

DAVIS: Thank you, Wolf.

BLITZER: And up next, more than a month after the election and still no official presidential president-elect. What does it all mean for the eventual winner and for the country? We'll go around the table Roberts, Page, and Brooks when LATE EDITION continues.

(COMMERCIAL BREAK)

BLITZER: Welcome back.

Time now for our LATE EDITION roundtable: Joining me, Susan Page, Washington bureau chief for "USA Today"; Steve Roberts, contributing editor for "U.S. News & World Report"; and David Brooks, senior editor for "The Weekly Standard."

And I just want to alert our viewers out there: We are standing by awaiting word from Craig Waters, a spokesman for the Florida Supreme Court, on the fate of those disputed ballots that have been ordered to be shipped to Washington to the U.S. Supreme Court. When Craig Waters makes his statement, we will be taking that live, so stand by for that.

Steve, the perception is that the U.S. Supreme Court, voting five to four to grant the stay to stop the manual recounts, is probably going vote five to four to give, in effect, the election to George W. Bush. At least that's a widely held perception here in Washington. Is it accurate?

STEVE ROBERTS, CNN COMMENTATOR: I think it's more than probably, I think it's almost a certainty. I see no reason why they would go out on a limb, stay the count, if they weren't pretty sure what the vote was going to be.

But I think they've made a big mistake. You know, Scalia said that, in his comment, that one of the reasons for staying the count was to avoid creating a cloud over the Bush campaign. I think he's done exactly the opposite. I think staying the count has created the cloud; I think we saw all those pictures of those voters -- of the counting yesterday. Those votes are not counted. The Supreme Court is creating a cloud over a Bush presidency, because those votes were not counted.

BLITZER: David Boies is going to be arguing the case on behalf of Al Gore before the Supreme Court. Is he good enough of a lawyer to convince one of those justices, one of those five justices, perhaps Justice Kennedy, Justice O'Connor, to perhaps reconsider?

DAVID BROOKS, CNN COMMENTATOR: Ask Bill Gates. He's a pretty good lawyer, though I agree with Steve, I think it's unlikely.

But in the stay order, you know, four implicitly said, the four in the minority implicitly said, there's no substantial chance that Bush is going to win this. Five said there is a substantial chance. It seems to me that four is solid. We know there's four against. There's a possibility of one shifting; I would certainly not bet on it though.

BLITZER: What do you think, Susan.

SUSAN PAGE, CNN COMMENTATOR: I think that's right. I mean, the targets are obviously Sandra Day O'Connor and Justice Kennedy. I'm sure Boies' arguments can be directed straight at those two. The other three are not real prospects for flipping.

You know, before we're too sure of anything, though, we should remember that for the past 33 days we've repeatedly been wrong about what's going to happen next.

BLITZER: So, we're probably going to be wrong right now. This alert to our viewers out there: We're probably totally wrong when it comes to all of this.

But, on the argument of a cloud, perhaps, and David I want you to discuss this issue. We've been hearing a lot about a cloud hanging over Governor Bush if he becomes president. Is that a serious concern that he should worry about? BROOKS: It's a charge, but I think the cloud is moving. The cloud is moving over the court system right now. I had a friend of mine say, you know, I'm so busy hating Al Gore I don't have time to hate Hillary Clinton.

Well now, I think people are hating the courts so much, and so upset with the court system and the way they've behaved, some of the fury has been deflected off the two candidates.

BLITZER: The Republicans hate the Florida Supreme Court, the Democrats hate the U.S. Supreme Court.

BROOKS: And to me that is the real effect of this past week, that the Florida Supreme Court by getting so involved in politics, dragging the Supreme Court into it, has really done more damage to the authority and the prestige of the court system than has been done in really a generation.

ROBERTS: There is so much hypocrisy here. You know, you had the Republicans attacking the Florida Supreme Court vociferously, four to three, a Democratic court, justices appointed by Democratic governors, you know, doing the work of a Gore campaign.

It turns around, five justices appointed by a Republican, operating in a clearly political and partisan manner, and suddenly, this is wonderful. This is just...

BLITZER: But two of those Republican-appointed justices voted on the other side, and...

ROBERTS: Yes, I understand, but just shows that they had some independence. Look, I think there's a lot of damage to the court, I agree with you, and I think the court increased it by what they did yesterday, because they appeared to be acting along partisan lines. They appeared to be acting for partisan motives to protect George Bush from those votes being counted. I think they've done themselves a lot of damage.

PAGE: But you know the court doesn't need to take over on January 20 and lead this nation, the new president will, and your question about a cloud over, say, a Bush presidency I think is a real one.

What's the number one thing that happens during a transition? It's not that you start the FBI investigating the background of your Treasury secretary, it's that there's a kind of suspension of partisanship. And after an election people say, okay, we've got one president, it's this guy. We're going to unite behind him at least a little while.

Instead, during this transition period or non-transition period, we've gone in the other direction where partisan fevers (ph) are actually intensified from where they were in the final days of the campaign.

BROOKS: Yes, but there could be rebound. You know, it's so furious now, that when it's all over, whoever wins, there could be an ostentatious effort to create some sort of harmony.

BLITZER: But, David, now, you know Republicans quite well. If, for some reason, there is a five-to-four decision of the Supreme Court in favor of Al Gore and he becomes the next president, there are millions of Republicans who would never, never accept that.

BROOKS: Oh, it'll be apoplexy. It'll be like watching Bobby Knight throw chairs onto the floor of the NBA. There will be a fury, and I think there was a fury yesterday among Democrats about the stay. I mean, it is apoplexy.

But then you get Bush, assuming he wins, Gephardt, and Daschle getting together in a room. There will be stories about surprising comedy. And, remember, there is actually a series of issues which they're pretty close on. I think you've got three months of real peacefulness, and then the war breaks out when we get to the bigger issues.

ROBERTS: I'll tell you, though. While I firmly believe Gore had the better of this argument legally, I actually prefer -- and I think the Supreme Court made a mistake by the way they acted precipitously. They should have let the count go ahead.

Having said that, I think the country is better off if the court settles this one way or another. Because if we had gone into the -- the Florida legislature getting involved, if we had gotten the Congress involved, I think there would have been no healing at all. I think there's a possibility that the court will -- even if a lot of Democrats disagree with their judgment, I think there would be a finality here. If this had gone on for another month, it'd be even worse.

BLITZER: Susan, Senator Bob Torricelli of New Jersey, who's very often ahead of many other Democrats or behind, depending on your perspective, in terms of his public arguments, was on "Fox News Sunday" earlier today. Listen to what he said about this upcoming decision from the U.S. Supreme Court.

(BEGIN VIDEO CLIP)

TORRICELLI: I think it would be very regrettable if the fight in Florida became a fight in Washington. So, I hope in the next 24 hours this comes to a close.

(END VIDEO CLIP)

PAGE: Well, I think there is some -- you know, there's some emerging consensus that it will. There will be oral arguments tomorrow in the Supreme Court. We'd expect a Supreme Court decision rather quickly. They've already looked at issues. And that if the decision is with Gore --if the decision is for Bush side, Gore has made it clear, his people have made it clear, that he will concede.

BLITZER: Have they made that clear?

PAGE: Well, David Boies, this morning, said that's the end of the road for us, if you lose on the recount. So, yes, I think the Gore people have made it clear. You know, I think that Al Gore, for about a week, has been ready to concede if it turned out that his challenges to the Florida Supreme Court were not going to work. I think he may have been as surprised as anybody when he got that brief reprieve on Friday from the Florida Supreme Court.

But I do think that if the court rules for Bush, I think this is over in very short order.

BROOKS: Yes, but let me defend the Florida state legislature. You know, they're being treated like peasants with pitch forks here, like, how could they dare disturb this pristine process we've got going with these guys in black robes.

The Constitution and the founders believed this was a political process. It should be handled by people who have to go back to the voters in a few years. The idea that if we hand it over to some magical men and women in black robes we're going to get a better process, well, that has been belied by what just happened this week: a bunch of extremely close split decisions. These judges are just as shambolic (ph) as the rest of us.

BLITZER: And you heard Mario Cuomo on this program say, earlier, that he's not ruling out the possibility that some of those electors -- Republican electors -- would be so outraged if the Supreme Court rules against Vice President Gore they may change their mind. We'll pick that up, we'll talk about that, but we're going to take a quick break. More of our roundtable when LATE EDITION returns.

(COMMERCIAL BREAK)

BLITZER: Welcome back to our LATE EDITION roundtable.

This programming note, we're awaiting word from Craig Waters, the spokesman for the Florida Supreme Court, on those disputed ballots, whether or not they're being shipped from Tallahassee to the U.S. Supreme Court in connection with those oral arguments that are scheduled for 11 a.m. Eastern tomorrow morning. The briefs are scheduled to be submitted 4 p.m., in about two hours from now, just slightly more than two hours, before the Supreme Court.

Steve Roberts, we were talking about what Governor Cuomo was saying on this program that, perhaps, if the Supreme Court rules against Gore, there will be such an outrage among some Republican electors, they may change their minds and not give the 271 electoral votes that Governor Bush would have, and that maybe they would vote for Vice President Gore.

ROBERTS: I think that's a total fantasy. I think there is absolutely zero chance of that happening. I do think there are Republicans who are privately upset with how this has gone.

I talked to a state legislator in New Jersey this week, a Republican, who said, don't quote me directly, but I think the Bush people have handled this very badly. They've attacked the court system. They've undermined the credibility of a lot of institutions. I see no chance of that happening. I think Gore will concede. He's been -- he's had a lot of practice. He's almost conceded twice already. His speech was written. I've talked to people who saw it. This whole notion that he wasn't ready to concede is wrong. He was absolutely ready to do it. I think by the middle of the week we will see a Gore concession. I think it'll be an important gesture, and I hope he does it.

BLITZER: So if the Supreme Court rules against Al Gore, you think he's going to concede right away?

PAGE: I think they've made it perfectly clear that he won't pursue additional legal challenges. You know, he's never gone to the federal courts. That if this U.S. Supreme Court decision goes against him, which means that basically he won't have a recount in Florida, that's it.

BLITZER: Well, you know, we all woke up -- I assume we all woke up Friday morning thinking that Gore was going to concede Friday night after the Florida Supreme Court were to act. So a lot of people are probably waking up tomorrow morning think Gore might concede tomorrow night if the U.S. Supreme Court acts very quickly against Gore. Do you think that's going to happen?

BROOKS: I hope so, but you know, I've always assumed the worst case is always going to happen. They're going to recount the vote. It'll come out an absolute tie. We'll have a civil war. I don't know.

(LAUGHTER)

BLITZER: That would be a pretty bad case.

PAGE: You know, it has been incredible the number of ties, or near ties, the division of this country. You know, the difference -- his lead, Bush's lead in Florida is one-quarter of one-hundredth of one percent of the Florida vote.

BLITZER: Well, why shouldn't the Supreme Court of Florida be so evenly divided and the Supreme Court of the United States be so evenly divided when the American people are so evenly divided?

ROBERTS: Well, you know, one of the reasons why there's so much acrimony -- and David made this point -- is that both sides have a reasonable argument. You know, there's the Gore people saying, count every vote. That's a good argument. There's the Bush people saying, hey, we've got to have a reasonable standard for counting this for it to be fair. That's a good argument.

And therefore, both sides feel outrage that the other is stealing the election. But they also feel that they both have a reasonable point of view. And the capacity for hostility has grown and grown, because, in fact, not only was it a tie, but both sides have a legitimate argument.

BLITZER: All right. Unfortunately, we have to leave it right there. Steve Roberts, David Brooks, Susan Page, we'll have you back next week. Thanks for joining us.

And when we return, Bruce Morton's "Last Word."

(COMMERCIAL BREAK)

BLITZER: Time now for Bruce Morton's "Last Word" on the sometimes difficult task of making democracy work here in the United States and around the world.

(BEGIN VIDEOTAPE)

BRUCE MORTON, CNN CORRESPONDENT (voice-over): Well, let's see. In Iran we have Mohammed Khatami, elected president 3 1/2 years ago, frustrated because he doesn't have the power to institute the freedoms and reforms the voters elected him to get. Unelected conservative religious leaders have shut down reform newspapers, jailed dissidents, vetoed reform legislation. So the economy's a mess; people are leaving; and, with elections six months off, the president is saying he doesn't have the power to do much about any of that.

In Romania, the election worked smoothly enough, and there will be a runoff between an ex-communist and a nationalist described as resembling Russia's flamboyant Vladimir Zhirinovsky, and whose magazines attack Jews, Gypsies, Hungarians, and other groups, voters apparently tired of the centrist coalition which had been in power.

In Haiti, Jean-Bertrand Aristide won re-election, sort of. The opposition boycotted the vote. The government said turnout was more than 60 percent, but news accounts said 10 was more like it. This is the same Aristide the United States helped restore to power after a coup interrupted his first term. In Haiti, democracy has never been easy.

In Israel, Prime Minister Ehud Barak agreed to early elections after the Likud party rebuffed his efforts to form a coalition government of national unity.

(BEGIN VIDEO CLIP)

EHUD BARAK, PRIME MINISTER OF ISRAEL (through translator): And I say to you, you want elections, I'm prepared for elections.

(END VIDEO CLIP)

MORTON: The election may well be held as fighting between Israelis and Palestinians continues. At least nothing tried so far has brought peace. The U.S. once elected a president in the midst of a civil war. This may be Israel's chance.

And Canada held an election after a campaign which lasted five weeks, as against the two years or so for presidential campaigns in the United States. The Canadians followed their five-week campaign with a one-day election, and they knew the winner, Labor Party leader, Raymond Chretien, Election Night. Canada has provinces, as the United States has states, but the whole country apparently uses the same kind of ballot. (BEGIN VIDEO CLIP)

(UNKNOWN): You've got the picture right in front of you. It tells you what to do. You cross your x. It's not a problem. Yeah. Yeah, I must admit I was looking at those American ones and it looked pretty silly.

(END VIDEO CLIP)

MORTON: So there is democracy, struggling, working, sputtering, whatever, in five countries: Israel, Haiti, Iran, Romania, and Canada. Where on the scale -- working well, working poorly, broken -- would you put the United States?

I'm Bruce Morton.

(END VIDEOTAPE)

BLITZER: Thanks, Bruce.

Up next, we'll reveal what's on the cover of this week's major news magazines.

(COMMERCIAL BREAK)

BLITZER: Time now for a look at what's on cover of this week's major news magazines in the United States. And the U.S. Constitution sweeps all three.

"Time" magazine assures the nation, "Yes, We'll Survive the Presidential Deadlock," on the cover.

"Newsweek" has, "Chaos: Will the War of the Courts Give us a New President or Constitutional Crisis?" on the cover.

And on the cover of "U.S. News & World Report," more chaos: "Will the U.S. Supreme Court Overturn the Florida Decision?"

And that's your LATE EDITION for Sunday, December 10. Be sure to join us next Sunday and every Sunday at noon Eastern for the last word in Sunday talk. I'll also be back tomorrow night and every night this week at 8 p.m. Eastern for the Florida vote, a special edition of "THE WORLD TODAY."

For now, thanks very much for watching. Enjoy the rest of your weekend. I'm Wolf Blitzer in Washington.

Up next, more on the Florida vote on "CNN SUNDAY." Plus, live coverage of the statement expected shortly from the Florida Supreme Court on those disputed ballots.

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

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