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Inside Politics

U.S. Supreme Court Considering Bush Appeal of Manual Recount in Florida; Florida House Approves Bush Slate of Electors

Aired December 12, 2000 - 5:00 p.m. ET


JUDY WOODRUFF, CNN ANCHOR: High alert at the nation's high court, as we wait for a ruling in Bush versus Gore.


LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: We need to step back, take a deep breath, and wait for the courts to rule.



UNIDENTIFIED FEMALE: The 2000 Election is spiraling out of control, and we must stop it now.


BERNARD SHAW, CNN ANCHOR: The Florida House adds to the presidential controversy by approving electors pledged to George W. Bush.


WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST (voice-over): It's December 12th, do you know who your electors are? You're supposed to.


WOODRUFF: Bill Schneider on the date that's not exactly a deadline and the wiggle room ahead.

SHAW: And thanks very much for joining us on this second day of our United States Supreme Court watch. The next big step in the presidential election stand-off remains in the hands of the nine justices. But the Florida Supreme Court has issued two new rulings. A short while ago, it upheld the lower courts' refusal to disqualify disputed absentee ballots in Seminole and Martin Counties.

In addition, the Florida state House voted about an hour ago to intervene in the presidential stalemate. We'll have reports on these late-breaking developments, but first we go to CNN's Charles Bierbauer standing by at the U.S. Supreme Court. CHARLES BIERBAUER, CNN CORRESPONDENT: Well, Bernie, now we have two time clocks running: 35 days without a president-elect; 28 hours without a Supreme Court opinion in the case of Bush versus Gore. We have no clues other than those questions which the justices asked yesterday during the arguments here, and no hint as to what they are deliberating here today.

But when I took this assignment a few years ago, Bernie, one of the justices told me if you want to get a sense of what we're thinking about, ask our former law clerks and all those law professors.


BIERBAUER (voice-over): We've talked with former Supreme Court clerks about what happens after the justices hear arguments in a case as they did Monday.

UNIDENTIFIED MALE: As soon as an opinion has been drafted and the justice who's authored it is satisfied with it, it will go around in draft form to the chambers of all the other justices and they will then consider whether to join that opinion, whether to ask for changes or whether to decline to join it.

BRADFORD BERENSON, FORMER JUSTICE KENNEDY CLERK: In a case like this where the time frame is so compressed you can expect the justices probably to talk to each other physically a lot more than they do for most cases where it's all done in writing.

BIERBAUER: And with law professors about how the justices' deliberation might be proceeding.

MARY CHEH, CONSTITUTIONAL LAW PROFESSOR: It seems to me if one of the justices, like Justice O'Connor or Justice Kennedy can be peeled away to make a majority opinion in favor of Vice President Gore, you may have a cascade. You may have Justice Kennedy join and then Chief Justice Rehnquist, because he can see which way the vote is going, might choose to join that side also and then he can assign the opinion to whomever he wants. So, if it should go for Gore, it might be a surprising number of even something like 7-2.


BIERBAUER: That's one scenario. The case could just as easily go the other way. And we have no indication now even if there will be an opinion from the justices this evening -- Bernie.

SHAW: Charles, I'm curious, are they still in the building, working?

BIERBAUER: Well, we suspect they are. We're still in the building. The public affairs office is still staffed. But they just don't give us clues as to what they're up to and how long they're going to be working, Bernie. Doesn't work the way some other offices in this town do.

SHAW: Charles Bierbauer at high court here in Washington, standing by.

Now, to Tallahassee, where the Florida state House stepped into the presidential dispute by approving a slate of electors pledged to Texas Governor George W. Bush. Our Mike Boettcher joins us with details on that vote and what happens next -- Mike.

MIKE BOETTCHER, CNN CORRESPONDENT: Hey, Bernie, well, the vote was 79-41, mostly along party lines although two Democrats who served in districts where Governor Bush won the vote count in the presidential race switched over to the Republican side. This was one Florida vote that didn't take long and they didn't need a recount.

Let's go back an hour and look at this historic vote.


TOM FEENEY (R), FLORIDA HOUSE SPEAKER: The clerk will lock the machine and announce the results.

UNIDENTIFIED MALE: Seventy-nine yeas, 41 nays, Mr. Speaker.

FEENEY: And so by your vote, the resolution passes.



BOETTCHER: The debate went on for about 5 1/2 hours. The Republicans argued that they were simply affirming the will of the people while the Democrats argued that the will of the people was being overturned.


FRANKEL: I ask you are we protecting our electors or are we protecting certain electors of a certain candidate? It appears, I believe, that we're running around, right around, our voters.



JOHNNIE BYRD (R), FLORIDA STATE HOUSE: Some people would say we have a constitutional crisis. Most notably, the Chief Justice of our Supreme Court. Others would say that we are simply experiencing the healthy tension between the various branches of government. I think each of us has to decide in our own heart where we are in that spectrum.


BOETTCHER: Now, this concurrent resolution passed by the House today simply restates the names of the 25 electors that were sent in the certificate of ascertainment by Governor Jeb Bush a couple of weeks ago to the Archives in Washington. It's the same names. Some say it will be the same slate of electors although others say it means that there will be two slates of electors up there even though they have the same name for Governor Bush.

This now goes to the Senate tomorrow. They will vote. We understand, though, they will not meet at 10:00 now. They've moved their session to 1:00 p.m. and it is expected to be a long session with some long debate -- Bernie.

SHAW: Mike, what did one lawmaker mean when he said he hoped the United States Supreme Court would save them?

BOETTCHER: Well, there were some people who really didn't want to act knowing that the Supreme Court could come out afterwards and close everything down, say the vote's over and essentially Governor Bush wins. That's especially true in the Senate, but I've got to tell you most of the House members all along on the Republican side have wanted to move forward with this and have been the movers behind this.

But the speaker himself said if they would have come with a Supreme Court decision they were going to recess the session and take a look at it, and see if it affected their vote in either way. But it didn't happen. The Senate presumably might have the luxury tomorrow, but the House sure didn't, Bernie.

SHAW: Indeed they did not. Thank you, Mike Boettcher, Tallahassee -- Judy.

WOODRUFF: Well, not far from the Florida House chamber, the state supreme court has weighed in again on a battle over ballots that had offered some lingering hope for Al Gore.

CNN's Susan Candiotti is at the Florida Supreme Court -- Susan.

SUSAN CANDIOTTI, CNN CORRESPONDENT: Hello, Judy, well now that hope is gone because the Florida Supreme Court in a unanimous decision, 6-0, Justice Leander Shaw had recused himself from this case from both cases, the Florida Supreme Court came down on the side of not -- of deciding not to reverse a trial court's ruling to indeed throw out 25,000 absentee ballots. So, indeed, those 25,000 absentee ballots will remain valid. The court decided not to invalidate them, and about half an hour ago, a court spokesman made the formal announcement.


CRAIG WATERS, FLORIDA SUPREME COURT SPOKESMAN: The trial court in this case found that the evidence does not support a finding of fraud, gross negligence or intentional wrongdoing in connection with any absentee ballots. Today, the Supreme Court affirms this finding. In doing so, the court does not in any sense condone the irregularities noted by the trial court in the way applications for absentee ballots were handled. However, these irregularities do not require the voiding of all absentee ballots.


CANDIOTTI: Now in one particular cases, that is the case of Seminole County, I'd like to read one line to you from the Florida Supreme Court's decision where they noted that they found the supervisor's conduct in this case troubling.

So, it is unclear at this time whether there might be possible criminal charges forthcoming from this action. We do not know that either way at this time. We can also tell you that just before this court formally made its announcement about a half hour before, the Florida Supreme Court called the U.S. Supreme Court to inform it as a courtesy that this decision was forthcoming and told them what it was.

Also, I spoke with Barry Richman who represented the Seminole County on behalf of the Democrats, and he said that he was disappointed by the decision, disagreed with it and currently he is deciding whether to appeal this to the U.S. Supreme Court. The Republican attorney representing this case, defending it, Barry Richard, said prior to the decision that he would be shocked if the Florida Supreme Court had indeed reversed the lower court ruling and he is still waiting to give us an official reaction to this latest decision this day.

Now the Democrat, a spokesman for the Democratic Party also told me a short time ago that indeed that some Florida legislators might have been using, or indeed trying to use this, in their view, this decision, this pending appeal as political cover for why they are choosing their own slate of Florida electors, saying that they were worried about losing these absentee ballots. But now, clearly that is off the map now.

Other than that, they had no official reaction to this, saying that the biggest concern to the Democratic Party right now is waiting to see what is forthcoming from the U.S. Supreme Court.

Judy, back to you.

WOODRUFF: Susan, so is that the end of election-related cases before the Florida Supreme Court?

CANDIOTTI: That would appear to be the case at this time, Judy, although I hesitate in saying anything for sure, because there have been so many twists and turns, as we all know, following this entire matter.

WOODRUFF: All right, Susan Candiotti in Tallahassee, thanks very much.

And we are joined now by familiar faces, CNN legal analysts Greta Van Susteren and Roger Cossack. Roger still right there in front of the United States Supreme Court building.

Roger, first on this Florida ruling out of Tallahassee, this does close another legal door for Al Gore?

ROGER COSSACK, CNN LEGAL ANALYST: That's right. This was all about those absentee ballots, Judy. Remember, the issue was not whether or not the ballots had been tampered with, but whether or not the applications for those ballots -- which were handled in a, to say the least, troubling manner, as the Supreme Court described it, by the election people -- would be discounted. And the -- initially, they wanted all those votes thrown out, some 15,000 votes. Later on, there was notion of a percentage, but the Supreme Court has today decided unanimously in both cases that the votes would continue.

WOODRUFF: Greta, to the important matter before the U.S. Supreme Court, does the length of time that they are taking suggest to you that they are working on trying to find language that would give them a consensus greater than the 5-4 we saw in the stay?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: That I don't know. The best I can think is the amount of time they've spent means that that they're working on it, which indeed I hope that they are working on it. I expect that the court is working on it.

(UNINTELLIGIBLE) like it's taking a long time, but in your run- of-the-mill case -- which, of course, this is not -- a case can be argued the first week in October and you get a decision the last week in June, at the end of the Supreme Court term. You know, if the decision comes down tomorrow, that is still a very fast decision.

This is a complicated decision, and you've got a 5-4 decision on a stay on Saturday, which suggested a deep divide between the members of the court. But that was on a different issue. That was on whether a stay should be issued and whether there's a substantial likelihood that the Bush side would win.

Now, that certainly is a signal to everybody. Most people think that shows they're divided on the merits, which in this case the merits are whether hand counts, basically whether hand counts are constitutional in the state of Florida.

But I don't think we can read anything into the time. We -- it's just simply guesswork. We have no idea. They may just want to make sure they get everything just right.

WOODRUFF: Roger, do you agree with that, that we really can't read anything in terms of whether they're looking for a consensus, a greater consensus here?

COSSACK: If there's one thing I am absolutely sure of is that you cannot read into anything the amount of time that it's taking to come up with this opinion. I'm also very, very sure that the justices in this case would like to write an opinion that had as many of the justices able to sign that opinion as possible.

This is a very important issue, perhaps the most important issue in clearly my lifetime and any of our lifetimes, the notion of who's going to be the next president of the United States of America.

Since the Supreme Court may very well decide that, it would be in the country's best interests -- and I'm sure they know this, too -- to come down with an opinion to which at least seven or eight or perhaps all of the justices could sign on. Now, whether or not that happens, we'll just have to wait and see.

WOODRUFF: And we can understand why that would take some time. Greta, there's been some speculation -- and we realize all of this is speculation -- that perhaps they could come up with a compromise, again seeking a larger number in agreement, a compromise that would send this case back to Florida to allow recounts to take place under a more precise ballot-counting standard. What about that?

VAN SUSTEREN: Well, that certainly would be dodging the bullet, and we know that a week ago they were very comfortable with dodging the bullet by sending the case back down to the Florida Supreme Court on a different issue for clarification.

But I mean, certainly it does -- I mean, that might not be something that would be so extraordinary for the Supreme Court to do, because, of course, everyone wants every vote to count. But the question is what is a vote, what's a valid vote. There's some dispute in the state of Florida how you determine what a legal vote is.

The law says the intent of the voter. The Republicans say that's not enough. That leads to violations of equal protection, because different counties count differently.

So maybe the Supreme Court would think the right thing to do is to try to come up with some sort of compromise, which allows every legal vote to be counted, but does not create a problem that the Republicans say exists, which is that different counties count votes differently, so the effect is, is that you don't have equal protection of the law. Some people get an advantage, some people have a disadvantage.

WOODRUFF: Roger, how hard do you think it would be to come up with a compromise like that?

COSSACK: It's -- you know, Judy, it's a very tough issue, because there's so many shades of it. I mean, is the issue that you must have one standard? Is the issue that you could have many standards as long as all of those standards were reasonable and done with unanimity? I mean, these are all the kinds of decisions that the Supreme Court has to decide.

You know, I'm not so sure that the only answer is that there's only one standard for all of the counties. There's different types of ballot. It may be that you could have different standards as long as all of those standards would pass the reasonable test muster, which under the contest statute in Florida would be decided by a judge.

So you know, Judy, it's a very difficult decision and I'm glad they're making it and not me.

VAN SUSTEREN: You know what, though, I'm not so sure that the Supreme Court is going to say that there are different standards. I mean, that hasn't been conclusively established in my mind, because the Florida legislature has issued a standard, which is that the person assigned to look at the ballot determines the intent of the voter. That is a standard. The question is whether that is a sufficient constitutional standard or whether you have to have more. It would not surprise me -- but I have no idea what the U.S. Supreme Court's going to do, but it would not surprise me if the U.S. Supreme court says: Look, we think it's sort of a dumb standard, it's rather vague, but we're going to leave the Florida legislature to determine a standard that they want to, and that's what they claim the standard is, and they've passed the buck to a judge in a contest proceeding to determine the votes. So the end of it.

So I don't know how the U.S. Supreme Court is going to decide, but that's not beyond the realm of possibilities.

WOODRUFF: All right, Greta Van Susteren, Roger Cossack, still out in the cold. Thank you both, and you know you'll be back.

Still ahead on INSIDE POLITICS, the presidential candidates consider the future and keep low profiles as they wait, along with the nation, for word from the nation's highest court.


SHAW: For Al Gore, a decision from the United States Supreme Court could end or re-energize his Florida efforts to win the presidency.

Here now with more on the vice president and how he is holding up, CNN's Jonathan Karl.

JONATHAN KARL, CNN CORRESPONDENT: Well, Bernie, as the vice president waits for that decision that could determine what happens to his run for the presidency, he did step outside for long enough to go down to the White House, to his White House office, had a couple of meetings, including with Charles Burson, his chief of staff, but conducted what his staff is calling official vice presidential business.

But meanwhile, his legal team in what is a sign either potentially of wishful thinking, or maybe incredible foresight, is down in Tallahassee. Virtually all the top members of his legal team, including Ron Klain, who arrived in Florida at about 8:00 last night, is in Tallahassee preparing briefs for what they think will be the next step. They are preparing in case the Supreme Court of the United States remands the case down to the Florida courts, for instance, to establish a standard for what actually is the intent of the voter.

The legal team there in Tallahassee also with one eye on the Florida legislature, preparing for a legal battle with the Florida legislature. If they win -- if the Gore team wins before the Supreme Court, it goes down, the Florida legislature sends up their own slate of electors, the Gore team preparing to challenge that legally in court.

Meanwhile, this waiting game, I've got to tell you, Bernie, is driving the senior Gore staff a little stir crazy. The Gore staff has conducted an office pool, as a matter of fact, where they're all trying to determine when the decision would come down, which news organization would break the decision, and which justice would write the majority opinion. This office pool reaches to the highest levels of the Gore campaign.

To give you an idea, Bill Daley, the campaign chairman is part of the office pool and he had been predicting, according to my sources, an 11:14 a.m. decision, he had also predicted that CNN would break the news and that William Rehnquist would write the majority opinion. Virtually all the senior staff predicted that this news would break by noon today. As a matter of fact, according to my list, which is not complete, it -- but it's got most of the names, Ron Klain is the only person in that office pool that is still in the money, because he predicted that the news would break at 5:30, which, you know, could happen very shortly.

Meanwhile, another sign of stir crazy things going on at the Gore campaign, Chris Lehane, the campaign press secretary -- I am told not directly by Mr. Lehane, but by those who have witnessed this -- is playing a video game and vowing to continue to play the same video game until he gets a decision from the Supreme Court. So while the legal team down in Tallahassee getting for -- getting ready for what could be a very serious next couple of steps, depending on what the Supreme Court rules, the rest of the political team very much on edge waiting for a final ruling -- Bernie.

SHAW: Are they bringing Lehane bread and water? Just kidding.

KARL: Let's hope so, let's hope so.

SHAW: But a serious question, though.

KARL: Yes.

SHAW: Reaction from the Gore camp to the Florida state Supreme Court saying that 25,000 absentee ballots in Seminole and Martin counties should be counted, not thrown out?

KARL: Right. Well, the official reaction from the Gore campaign to that is simply that they were not a party to those lawsuits in Seminole and Martin County, so it's not their concern. But as you saw, Bernie, the vice president had taken a great personal interest in both of those cases, whenever he was asked about it, he commented at length, talked about the unfairness of what happened in those counties.

Now, the Gore campaign turning what could be seen as a defeat, trying to turn it into something where they can score some political points. The Gore campaign is saying now what this does is it eliminates the excuse that the Florida legislature was using for acting, because the Florida -- the Republicans in the Florida legislature have been talking about how they need to act because there are still pending lawsuits, and they had pointed to those two lawsuits. Well, with those two lawsuits now dead, finally done, the Gore team saying there is no reason at all for the Florida legislature to go forward.

SHAW: Thank you, Jonathan Karl.

Judy, to you. WOODRUFF: Well, we'll see if Ron Klain was right, it's almost 5:30.

In Texas, Governor George W. Bush stayed out of the public eye, as he too waits for word from the high court. And joining us from Austin, our own Candy Crowley.

Candy, any office pools there?

CANDY CROWLEY, CNN CORRESPONDENT: Not that I know of, Judy. We haven't seen or heard much from either the governor or his staff. As you say, he's been holed up in the mansion all day, talking to both his legal as well as his political and his transition team. So much like the vice president, what they're doing in the Bush camp is kind of bracing for the worst, that could come at any time and at any point, and planning and hoping for the best. The Seminole and Martin County cases, they were pleased to get both of those decisions from the Florida Supreme Court, said they were gratified, they thought the law was crystal clear. But they haven't been all that fortunate in front of the Florida Supreme Court, so they were gratified to have those decisions.

As far as planning for the near-term and the far-term, they are and have for the past week or so been looking at what sort of things that the governor might say should this ruling go his way, or along the way if anything had gone like that, that he would be declared the winner. They know very well that the time for great celebratory occasions is sort of over, what they need to do is to reach out to people who may be frustrated or feel that they were denied something, so they are sort of working on the kind of language that the governor might use.

But beyond that, they are like the rest of us, watching and waiting.

WOODRUFF: Candy, running mate Dick Cheney planning an appearance on Capitol Hill tomorrow. What can you tell us about that?

CROWLEY: Dick Cheney will go up to Capitol Hill tomorrow morning at the invitation of some moderate Republicans headed by Jim Jeffords of Vermont, they want to talk to him about how they can best be useful in a Congress that is going to be a very sort of delicate proposition, sort of split down the middle.

Many of those within this group feel, for instance, that the Clinton campaign did not really approach them and ask them to sort of come on in and try to reach compromised legislation, they want to make sure that the Bush team doesn't make the same mistake, that the Bush team does reach out to moderate Democrats and stay in touch with them. George Bush, of course, has made much of his ability, as he says, to unite rather than divide. So that would seem sort of a natural outreach that George Bush would do.

Beyond that, he will meet with Senator Larry Craig, who is sort of the point man on Senate policy. So they're getting their ducks in a row here. This is part of the planning for the long-term and beginning to look and see what sort of legislation they can pass. There is a general feeling among Republicans on Capitol Hill that they have to start doing bipartisan legislation, perhaps no big tax bill of the sort that George Bush campaigned on, but maybe marriage penalty and death taxes, things that there seems to be, you know, within the middle of the Senate and the House a consensus that those things can be passed. So there's very much a feeling that they need to move quickly and do something quickly to show that this is a Congress and indeed if it's a George Bush White House, a White House that can work together and get something done.

WOODRUFF: All right, Candy Crowley reporting from the Texas capital city, Austin, thanks a lot -- Bernie.

SHAW: There is much more ahead on this expanded edition of INSIDE POLITICS.

Still to come, how firm is today's deadline for selecting presidential electors? Can Florida wait a few more days?

Plus, from the Supreme Court's involvement in the White House race to the odds on the next president's success on the Hill, we are going to talk election 2000 with Stu Rothenberg.

And later...


HOWARD KURTZ, CNN CORRESPONDENT (voice-over): The Florida phase of election 2000 has been a full employment problem for prognosticators, but their record hasn't exactly been stellar.


SHAW: Howard Kurtz on the election coverage and the shortcomings of the chattering class.


WOODRUFF: The waiting game continues in the U.S. Supreme Court case of Bush versus Gore. Here are the latest developments: One day after closely questioning lawyers for Al Gore and George W. Bush, the nation's highest court is pondering whether to restart the manual recount of disputed ballots in Florida. The ruling is expected at any time and could determine who will be the next president of the United States.

The Republicans-dominated Florida House of Representatives today approved 25 electors pledged to Bush. The state Senate is expected to take up the issue tomorrow, but it's leaders say they may wait to see how the U.S. Supreme court rules in the case.

In twin victories for Bush, the Florida Supreme Court late today refused to throw out thousands of absentee ballots in Seminole and Martin Counties. The 6-0 opinions with one recusal upheld the rulings of two lower court judges, who said the ballots should count despite irregularities. A decision to void the ballots would have wiped out Bush's slim lead in Florida.

Joining us now, our senior political analyst Bill Schneider. Bill, this deadline we've been talking about so much -- it's finally here.

SCHNEIDER: It is. It's December 12th and do you know who your electors are? You know what, you're supposed to because today is the deadline for each state to choose its electors or else. Or else what?


THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: We're today smack up against a very important deadline and we're in a process...

JUSTICE DAVID SOUTER, UNITED STATES SUPREME COURT: Yes you are, but that is a deadline set by a safe harbor statute for the guidance of Congress...

SCHNEIDER (voice-over): A federal safe harbor statue governs what happens if there's a contest over a state's electoral votes, just like there is now in Florida. The statute says, "if a state had a law governing the determination of the contest" -- as Florida does -- "and if the law was enacted prior to Election Day" -- as it was in Florida -- "and if the contest is resolved six days before the electors meet to vote" -- which would be today. Then "such determinations of the conflict shall be conclusive." Meaning it can't be challenged when Congress counts the electoral votes next month.

But here's the rub. Vice President Gore is contesting the vote count Katherine Harris certified so ceremoniously on November 26th. And Republicans say those electors were certified after the state Supreme Court illegally extended the deadline.

DANIEL WEBSTER (R), FLORIDA STATE SENATE: We have a slate of electors which are somewhat tainted.

SCHNEIDER: That's why the Republican-controlled Florida state legislature is meeting this week. The law says when a state "has failed to make a choice on the day prescribed by law, the electors may be appointed in such a manner as the legislature of the state may direct."

Who failed to make a choice, Democrats ask. The voters made a choice on November 7th. We just haven't figured out what it is. The legislature is planning to pass a resolution affirming the Bush electors, Republicans argue, to make sure Florida's voters are enfranchised when the electors cast their votes on Monday.

J. DUDLEY GOODLETTE (R), FLORIDA STATE HOUSE: And this resolution contemplates preserving their ability to cast ballots on behalf of the over six million voters in the state of Florida who voted on November the 7th.

SCHNEIDER: No, it doesn't, say Democrats. It disenfranchises Florida voters because the legislature is declaring a winner before all the votes have been counted. DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: I think that's essentially a cover for what's really going on, is setting themselves up to guarantee George Bush gets elected if the people have voted otherwise.

SCHNEIDER: There's no law saying the state can't continue counting the ballots after today. But if the ballot count results in a Gore victory, then it's possible that two slates of electors will vote in Florida on Monday, and Congress will have to decide which votes to count. No more safe harbor. Legislators in Washington and Tallahassee are looking to the U.S. Supreme Court to save them from that dilemma.

WEBSTER: Hopefully, though, they're going to give us a path to finality. If they do, then I think all of us will be very, very glad.


SCHNEIDER: Now, say you're a Democratic U.S. Senator whose state voted for George Bush. If you vote against your party, you could be threatened with a primary opponent. If you vote against your state, you could have re-election trouble. But if the Supreme Court says you don't have to vote at all, why then, God bless the Supreme Court -- Judy.

WOODRUFF: All right. Bill Schneider, thanks very much.



SHAW: Thank you.

And joining us now in New York, our senior analyst Jeff Greenfield.

Jeff, if Bill Schneider's scenario does not come true and we have just one slate of Florida electors for Bush, is that the end of our problems?

JEFF GREENFIELD, CNN SENIOR ANALYST: Probably, but I hate to be the spoiler here, but there's one notable, possible exception, and that's the so-called faithless electors. When the electors gather on December 18th, George W. Bush, if Florida electors stay with him, will have 271 electoral votes. That's only one more than he needs for the majority.

So, if three of those 271 Bush electors for some reason would defect to Al Gore, then Gore would have 270 electoral votes, enough to elect him president. Those electors would almost certainly be challenged in the new Congress and if only two Bush electors say sustain or voted for John McCain or for Steve Forbes or for you or for Judy, then that would give Bush 269 electoral votes, still one short a majority and that would be the problem.

SHAW: But, couldn't the Congress get those votes back for Bush? GREENFIELD: No, and that's something I think that should this horror come to pass we have to keep in mind. If these votes go the way I've described, then they can be challenged in the Congress as not, quote, "regularly given." That's the word in the law.

Now, both Houses of Congress that vote separately would have to reject those electoral votes and remember, the House has a narrow Republican majority. The new Senate will be 50/50 with Al Gore breaking the tie. You could imagine if the three electors went for Al Gore that the Democratic Senate with Al Gore forming the majority would vote for the Gore electors except that Al Gore I said that will not accept faithless electors.

But if they reject those votes or reject those two abstentions, they can't give them to Bush. Nobody has 270 electoral votes. The election is thrown into the House and under those rules, Mr. Schneider's nightmare comes to pass because they have to vote.

It is conceivable, Bernie that the House, which votes by state delegation, would choose as George W. Bush as president because 28 states have Republican majorities. The Senate votes for the vice president, 50/50 with Gore breaking the tie, so Bernie you could conceivably see on January 6th a President George Bush and a Vice President Joe Lieberman.

Now, I doubt it would happen. I think Lieberman himself would vote for Dick Cheney. He'd tell the Democrats, come on, Bush is entitled to his vice president. My point here is that December 18th, it turns out, is still a day when if mischief is going to occur, that would be the last day that such a mischief could pop up.

SHAW: A lot to think about. Jeff Greenfield, thank you.


SHAW: And when we come back. more on the Supreme Court, the Congress and the presidential outlook with political analyst Stu Rothenberg.


WOODRUFF: A resolution to one of two outstanding congressional races in this election. A recount still under way in one Michigan race. Now as the candidates and the nation wait for a decision from the United States Supreme Court and the next step in the White House battle.

We turn to Stu Rothenberg of "The Rothenberg Political Report."

Stu, the fact that this Bush versus Gore case is before the highest court in the land, a fresh reminder to all of us, to the American electorate that this court is political.

STUART ROTHENBERG, "ROTHENBERG POLITICAL REPORT": Well, Judy, I think what's interesting is the amount of deference that's been given to the Supreme Court. I certainly understand it. I think it's the result of an evolution of the court's position in American politics and American society.

But actually, if you go back to what many people refer to the founding fathers, even if you go back before the founding fathers, to some of the -- the theorists, whose writings and thoughts underweigh much of American democracy, you find actually a greater reliance on the legislative branch rather than the judiciary.

There's no assumption that the judicial branch and judges are somehow wiser, more thoughtful, more in-tune with the public than are the legislators.

I think for many of the political philosophers who have affected this country, they would probably figure that the Congress or the state legislature would be the ones who are going to decide this presidential race.

WOODRUFF: But that's -- that thinking has changed. It's evolved.

ROTHENBERG: It has. It's changed dramatically. I remember when I was teaching political science. I used to teach classes, teach students that there was no such thing as judicial review in the Constitution. And the kids used to say, what, what are you talking about? And you'd tell them that no, it's developed over time, it was a power that was asserted by the court. They'd be -- they'd be stunned.

I think Americans have come rely on the court for this kind of judgment. I think we're also finding that it's a problem when a court from the judiciary has to decide a political event.

WOODRUFF: Jump ahead now. Once we have a decision from the Supreme Court, once there is clarity, once we have -- know who the next president is, how hard will it be for him to deal with the Congress that is so almost evenly split?

ROTHENBERG: Well, the conventional wisdom, of course, is that it won't be merely hard, it will be absolutely impossible. And it's hard to argue with that. And certainly, if it's Al Gore, I think that is in fact the case.

The Republican anger, bitterness toward him is so deep. They just don't trust him, and particularly the Republican leadership on the Hill just doesn't trust him.

WOODRUFF: Worse for Gore than for Bush?

ROTHENBERG: Yes, I think so, because the Democrats' attitudes toward Bush is not that he's evil. Republicans, when I talk to Republican audiences and when you talk to Republican members, boy, they see Al Gore as really evil.

WOODRUFF: Why is that?

ROTHENBERG: I think that it has been built up over time: the association with Bill Clinton, the reputation of do anything and say anything to get elected, the coffees...

WOODRUFF: But "evil" is pretty strong.

ROTHENBERG: When I talk to Republican audiences around the country, the anger toward him -- it's just total distrust. That's what it is. It's distrust. I mean, I'm certainly not saying that myself, but I'm saying the distrust toward him is considerable.

The attitude on the part of Democrats toward George Bush is different. It's one of, they just don't think he's up for the job. They don't think he's smart enough, they don't think he's serious enough, they don't think he's thoughtful enough.

They may also find some of his policies and potential appointments to the court, for example, as dangerous. The more liberal they are, the more evil they see those appointments.

But generally, they characterize him as a nice guy who's just not up to the job. And I think those are two very different views, and they suggest different ways that the parties would respond to the two men.

WOODRUFF: So it sounds like -- so it sounds like you're suggesting that Bush could get more out of a divided Congress than could...

ROTHENBERG: I think he has the possibility, but he has to do this, Judy. During one of the debates, he commented, when the vice president asked him about a particular piece of legislation that may have well been Norwood-Dingell, he wouldn't respond, and he said: I am not going to play the Washington game, I am going to take solutions from outside of Washington, from Texas and elsewhere and bring them to Washington.

I think he would have to do that. If he was just going to jigger with the Republican proposals on Capitol Hill, the situation would deteriorate very quickly. He's got to bring in some new ideas from the outside and go to both the Republicans and the Democrats and say, maybe neither of you are going to like this proposal entirely, but it's the way for us to come together.

If he doesn't do that, if he just tries to mix around Capitol Hill stuff, that's going to be a failure as well.

WOODRUFF: OK. I'm writing all this down. We're going to see what happens in January, February. Stu Rothenberg, thank very much.


WOODRUFF: And coming up on INSIDE POLITICS: playing a tricky game of the contested presidential election. Howard Kurtz on why some journalists keep striking out.


SHAW: The battle between George W. Bush and Al Gore for the White House is unlike any event in American history since the disputed presidential election of 1876. But for journalists, it is the story of a lifetime. As Howard Kurtz reports, it is a story many pundits are having a hard time getting right.


KURTZ (voice-over): When the U.S. Supreme Court dramatically stopped the Florida recount last weekend, it was the latest plot twist in a drama that keeps finding journalists eating their words. The sense of shock was acute last Friday, when the Florida Supreme Court ruled in favor of Al Gore.


CHRIS MATTHEWS, HOST: He's had two strikes against him, but you can hit a homerun on the third strike, and it looks like he did it.



UNIDENTIFIED MALE: We are heading to some very uncharted and very rough waters.


KURTZ: And CNN's Roger Cossack admitted he blew it in saying the Florida court would probably bury Gore's candidacy.


COSSACK: Bob, do you know what I am doing here?

I am wiping a little egg off my face.


KURTZ: Journalists had already started covering George W. Bush like the president-elect. His transition was news every day, whether he was meeting with congressional leaders or showcasing future cabinet members.

Gore only merited a journalistic death watch and predictions about when he would concede. That's because the legal prognosticators assured us that the Florida Supreme Court was highly unlikely to overturn trial court Judge Sanders Sauls and order a hand recount of the disputed ballots.


UNIDENTIFIED MALE: The reality is, they're probably not going to win.


(BEGIN VIDEO CLIP) VAN SUSTEREN: It is a huge standard to beat. He is going to have a very tough time in the Florida Supreme Court.


KURTZ: Wrong again. The dueling Supreme Court rulings were just the latest developments to take the media establishment by surprise. Throughout the 2000 campaign, in fact, the pundits have tried to predict the future with the absolute certainty of Johnny Carson playing Carnac The Magnificent.

Remember all the media speculation about Bush's likely running mate?


KATE O'BEIRNE, "NATIONAL REVIEW": We're hearing, of course, Frank Keating's name.



BILL KRISTOL, "THE WEEKLY STANDARD": John McCain is the obvious pick for vice president.



AL HUNT, "CAPITAL GANG": Chuck Hagel, a -- who is John McCain's closest friend in the Senate.


KURTZ: Nary a mention of Dick Cheney. And how many pundits had all but written Gore's obituary before the Democratic Convention?


ROBERT NOVAK, "CHICAGO SUN-TIMES": I have a feeling that for the first time, Democrats are really beginning to feel a little bit of panic.


KURTZ: And we all remember election night. The Florida phase of election 2000 has been a full employment program for prognosticators, but their record hasn't exactly been stellar.

Remember when Bush asked the U.S. Supreme Court to intervene for the first time, after the Florida high court extended the vote certification deadline? The chattering class was nearly unanimous.


COSSACK: I probably would predict that -- I will predict that they won't hear the appeal.



UNIDENTIFIED MALE: About 1 out of 100 odds -- better odds in Vegas.


KURTZ: Oops. And when the high court took that case, there was a clear consensus in pundit: we were heading for an ideologically divided 5-4 ruling.


DAN RATHER, CBS ANCHOR: It looked like a divided court to me.



UNIDENTIFIED MALE: I think you'll see maybe a 5-4 decision.


KURTZ: But the justices displayed no such division, using an unsigned order to send the case back to the Florida Supreme Court. The experts were wrong again. By now, that should have been no surprise.


KURTZ: There's been plenty of other journalistic speculation, of course. The election will wind up in the hands of Congress. Al Gore will cast the tie-breaking vote for himself in the Senate. The next president will be so badly tarnished that he'll be unable to govern. My prediction? Some of this will turn out to be wrong -- Bernie.

SHAW: Very safe. Howard Kurtz, thank you.

And there is still much more to come on this edition of INSIDE POLITICS. When we return, the latest from Florida on the move by the state legislature to name electors loyal to George W. Bush.

Also, we will talk with the Florida house speaker and the chamber's Democratic leader.

And, the wait goes on for the ruling from the United States Supreme Court. We'll have a live update.

First, pictures of House Speaker Dennis Hastert lighting the Capitol Christmas tree moments ago.






SHAW: In the presidential waiting game, the candidates and the nation stand by for a decision from the U.S. Supreme Court.


GARRICK UTLEY, CNN CORRESPONDENT (voice-over): What is it that makes this third branch of government -- the one we never see in action -- special?


WOODRUFF: Garrick Utley on the high court's power to provide closure.

SHAW: Plus, constitutional issues at play, as the Florida house votes to step into the presidential dispute.

WOODRUFF: Welcome back to this extended edition of INSIDE POLITICS.

While the United States Supreme Court keeps us guessing about when and how it will rule in Bush versus Gore, Florida's high court has issued new rulings in the presidential tug of war. That court refused to throw out some 25,000 disputed absentee ballots from Seminole and Martin counties. And Al Gore was not a party to those appeals, but he could have surged ahead in the Florida vote count if those ballots had been disqualified. Now, Gore's presidential hopes appear to rest with the nation's highest court.

CNN's Charles Bierbauer is there reporting and waiting. Charles, could the opinion still come today?

BIERBAUER: Well, yes, it could still come today, Judy. But we have no indication one way or the other as to whether we will get that opinion tonight. The only clue would be the fact that they haven't closed up shop here yet at the Supreme Court, the press officers are still there. A short while ago, a couple of the press officers walked down one of the corridors carrying nothing so much as a soda can, you can't read tea leaves in a soda can, and that's kind of what we are reduced to in this waiting mode, waiting for the justices to give us their opinion in the court -- in the case that they heard yesterday.

WOODRUFF: Charles, in the -- among court watchers, and you are one of them, the fact that it's now taken yesterday afternoon, all of today. Does that tell you anything about what the justices may or may not be doing?

BIERBAUER: It tells us that they are certainly deliberating, trying to come up with a solution which was not readily apparent. It was not going to be an easy call, it was probably not going to be a unanimous call. That would have come quickly. It suggests that they are trying to craft a compromise or trying to persuade one justice or another to swing one way or another.

But beyond that, it's very risky to try and anticipate what this really means. Some people will say, the longer it takes, perhaps that's better for Vice President Gore, because they're trying to find a way to let the counting proceed under newly prescribed rules, which they would presumably tell the Florida court and the Florida officials to lay down. But that is very speculative and only a means of illustrating what they might be trying to accomplish inside -- Judy.

WOODRUFF: All right, CNN's Charles Bierbauer at the Supreme Court, and we know you'll be there until they say it's time to leave.

Florida's legislature is keeping an eye on the U.S. Supreme Court, but not necessarily waiting for it to act. The GOP-led state House today approved a resolution designed to ensure that George W. Bush wins Florida's 25 electoral votes. The state Senate is expected to debate the measure tomorrow.

CNN's Mike Boettcher is following the action in Tallahassee. Mike, no real surprises in what has come out of the House or what we expect to come out of the Senate, correct?

BOETTCHER: Really, no real surprises except tonight we're learning, Judy, that the House may have to come back in on Thursday. The Senate may have a couple of word changes in the resolution. So this might not be over by Wednesday, as we thought.

The Senate also has postponed its session. It was originally supposed to begin at 10:00 a.m. We're told now it will begin at 1:00 p.m. tomorrow. So there's some movement there.

The House today had their eye on Washington, and there were a lot of House members hoping the Supreme Court would come down with some sort of decision that would give finality and make it so that they would not have to vote. But I must tell you that the majority of the House members there really felt that they wanted to go ahead and take this vote as a statement of their legislative authority in the state.

The vote was 79-41. Two Democrats crossed over. They serve in districts that went for Governor Bush in the general election, and they were allowed to cross over by their Democratic leadership.

Again, that session begins tomorrow at 1 o'clock in the Senate, and it really looks, Judy, that the House is going to have to come back on Thursday and vote to accept those amendments from the Senate, but there are minor changes in the resolution -- Judy.

WOODRUFF: Mike, any sense of whether there will be Democratic defections over to the Bush side in the Senate?

BOETTCHER: There may be. Senators in districts again that -- whose districts during the election went for Governor Bush. What's happened early on -- and both sides actually gave their membership, we're told, the option of going either way if they serve in districts that went opposite from their party. And the Republicans in the House toed the line. There were about a dozen who actually were elected in districts that also voted for Al Gore. But they voted with the Republican leadership.

But in both houses, people are going to be allowed to vote because the Republican majority here is so huge it really doesn't make any difference, and they don't want to lose any seats in upcoming elections, because this is highly charged issue that will be used by both sides in the upcoming elections in two years and four years down the line.

So a lot of people looking at the future of politics here as they take this vote about politics right now -- Judy.

WOODRUFF: All right, CNN's Mike Boettcher, watching closely the Florida state legislature. Thank you, Mike -- Bernie.

SHAW: Now, let's talk to two of the key players in today's showdown in the Florida House. In a moment, we'll be joined by the chamber's Democratic leader, Lois Frankel. But first, the Florida House speaker, Republican Tom Feeney, is with us from Tallahassee.

Mr. Speaker, if Florida already has a slate of 25 electors, why this move today to create a second one?

TOM FEENEY (R), FLORIDA HOUSE SPEAKER: Well, we do have a slate of electors that has been certified and signed by the governor. Unfortunately, Title III of section 5 of the United States Code says that your slate is only guaranteed to participate in the electoral college if No. 1 all of the controversies and contests have been finally determined, which obviously is not the case here, and No. 2, if you had that slate elected because of an election.

The rules of the election could not have been changed after the fact. In this case, the Florida Supreme Court changed the laws and the rules after the election. So while we have a slate, it's not necessarily a slate that Congress would have to accept.

Article III says in a case where we don't have a final determination that the legislature can step in to ensure that 6 million of Florida's voters are represented when we pick our next president.

SHAW: And to the Democratic accusation that this is an insurance policy for Governor Bush -- you say what?

FEENEY: Well, I respect that, and I think we had an honorable debate between men and women of goodwill today in the Florida House. It was well-conducted. But the bottom line is some people in the Gore campaign have tried to exclude military ballots, they've tried to exclude Hispanic ballots from being counted as part of the manual recount in Miami. And I think there are some people that might like to exclude all of Florida from participating. And what that would mean, obviously, is that Vice President Gore would become the victor, but it would be very sad indeed if the legislature didn't do its constitutional duty to make sure Florida participates.

SHAW: I want to ask you a serious "what if" question. We all know, the world knows that the nine justices on the United States Supreme Court are still deciding what it is they want to say. Now, what if the highest court in this nation's land says that the undervotes should indeed be counted, and what if Al Gore emerges the winner of Florida's 25 electoral vote, yet you have two slates of electors pledged to George W. Bush?

FEENEY: Well, Bernard, that's a great question. I'll tell you -- you know, your last segment was about how bad some of the prognostications have been by reporters, and I'm no better. I don't have any clearer crystal ball than anybody else.

I will tell you that if while we are still in session the United States Supreme Court says to us directly that we should cease and desist what we're doing because our understanding of Article II of the United States Constitution is flawed, or if they say that the recount should continue and that slate should be the finally determined slate, that will definitely obey the United States Supreme Court.

We obviously are going to listen to them with respect to what Article II of the United States Constitution requires of us.

SHAW: But you didn't do my question the honor of responding to: What if Al Gore were to win?

FEENEY: Well, if Al Gore wins the recount and if we're still in session and the United States Supreme Court has issued a direct order that whoever wins the recount is deserving of the electors, we would, while we're still in session, I believe, we would ratify a slate or select the slate that the Democratic Party has selected here. We will definitely follow instructions from the United States Supreme Court. As long as they're direct and clear, we'll follow them absolutely.

SHAW: House Speaker Tom Feeney, good to have you on INSIDE POLITICS.

FEENEY: Thank you.

SHAW: Quite welcome, sir.

Now, as promised, we're joined by the Democratic leader of the Florida state House, Lois Frankel. A charge was just leveled by the speaker of the House. I don't know that you heard it. But he said that the Democrats are trying to exclude the military and some Hispanics. Your response to that?

LOIS FRANKEL (D), FLORIDA HOUSE MINORITY LEADER: Well, I think that's definitely untrue. First of all, in reference to Hispanics, I think he was talking about the recount in Dade County, and it's the Democrats and Al Gore who have been calling for a recount in Dade County, and that would include the Hispanic voters down there.

As for the military, Al Gore has always stated that he's the one who wants all the votes counted. And so, I mean -- I said this on the floor of the House today. I feel like sticking my head out the window and just saying, just count the votes. That's all that Al Gore has been asking for the last month is let's just count the votes.

SHAW: Leader Frankel, I'm looking at my notes, because at one point during the debate on the floor of the House today, you said that some members are running around the voters. What did you mean by that?

FRANKEL: Six million Floridians went to the polls on November 7th. That's when we had a lawful election.

Today, the Florida state House of Representatives had a new election and they substituted the will of 160 members -- or I really should say 79 members -- for 6 million Floridians, and that's wrong.

This was not necessary to do this. We have the George Bush electors certified in the National Archives, and they will remain there until and unless Al Gore is given a recount and he wins the election, and then his electors would be sent up to the Archives.

So this was an unnecessary, illegal and unjust action that this legislature took today.

SHAW: Why, in your judgment, did they take this action?

FRANKEL: Well, I said it before and I'll say it again: This is an insurance policy for George Bush. It's a "just in case," "what if." What if Al Gore should win this election?

This legislature is determined to -- by all costs to make sure that George Bush has a set of electors in the National Archives.

SHAW: But Speaker Feeney just said here in the interview preceding this one that if the United States Supreme Court is explicit, they would obey the law.

FRANKEL: Well, what I heard him say is that he would have to get a direct order from the United States Supreme Court to basically cease and desist. And if that is true, then why don't we just wait to see what the United States Supreme Court does.

That's what we, the Democrats have been saying all day. Let's live by the rule of law. I can live with George Bush being president if he wins the election fair and square. I cannot live with an edict from the Florida state House of Representatives. We are not the ones who are supposed to be picking the president of the United States.

SHAW: House Democratic leader Lois Frankel. Good to have you on INSIDE POLITICS. Thanks very much.

FRANKEL: Thank you, thank you.

SHAW: You're quite welcome.

WOODRUFF: And when we return, our election law analyst David Cardwell joins us with his assessment of today's key move by the Florida Legislature.

And Garrick Utley on those men and women who are supposed to be above politics, the justices of the U.S. Supreme Court.


SHAW: Joining us now in Tallahassee with his take on the latest legal developments in the disputed presidential election, our election law analyst, David Cardwell.

David, let's go first to the Florida Supreme Court action involving the Martin and Seminole County cases in which the high court said that 25,000 absentee ballots should be counted and indeed not thrown out. What threshold did the plaintiffs fail to prove?

DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, in that case, they failed -- in actually both cases failed to show that despite some wrongdoing by election officials and by the party representatives, that the wrongdoing did not so permeate or so taint the absentee ballots that were cast countywide in all races that they should all be thrown out.

The cases the Florida Supreme Court has ruled in the past where that was done was where it was really severe cases where you could not tell the good ballots from the bad, where it was very pervasive as the court has said. That was the not case here.

SHAW: What do you think is going to happen to the election office official involved?

CARDWELL: Well, that's going to be up to, you know, either the state attorney in the county in which the election officials are located. The court did in a footnote note that there may be violations of Chapter 104 -- that's our penalty provision in the election code -- and that there could be something done under that. It's also possible that there could be an administrative proceeding before our state ethics commission.

SHAW: It's 18 minutes past 6:00 Eastern time, David, and we are waiting, the world is waiting. What's the mood like down there where you are? I'm just curious. I know you've been talking to officials. You know a lot of folks there in the state capitol. What do you hear?

CARDWELL: There's a lot of anxious people that are waiting for the U.S. Supreme Court. In fact, I think today when we saw the Florida Supreme Court clear out those two cases you just mentioned, the Martin County and the Seminole County cases, I described it as they were clearing the deck.

They've got their agenda and their docket clear if the U.S. Supreme Court does send the case back down to them. So, everyone is sitting here, anxiously awaiting what's going to happen with the super Supremes in Washington.

SHAW: Last quick question. On January 20th, the United States of America will have its 43th president, and months later, do you think that in Florida there will be any effort to come up with a landmark revision in the Florida standards for counting ballots?

CARDWELL: Well, I'm sure that's going to be discussed during the upcoming legislative session. Already, you are hearing a lot of calls for a review of the election code. In prior years, the Florida legislature has spent a good bit of time revising the election code, but mostly on the campaign finance area, though as we now found out, they also did a significant rewrite of the contest statutes and the absentee ballot.

But I think they're going to go back and review those and learn from our experience. We've got a lot of case law now. We've got a lot of experience of what we've learned from this, and I think you will see some changes here.

SHAW: Thank you, David Cardwell, and we wait.

CARDWELL: Glad to be with you.

SHAW: Always -- Judy.

WOODRUFF: Indeed we do.

Still ahead, the Supreme Court's action and the importance of how it is perceived by the public.


WOODRUFF: The impending decision by the nine justices on the high court will not only affect the presidential race, it will likely shape public opinion about the Supreme Court itself.

CNN's Garrick Utley reports.


GARRICK UTLEY, CNN CORRESPONDENT (voice-over): What is it that makes this third branch of government, the one we never see in action, special? The justices of the Supreme Court are not elected, and can serve for life and are therefore, in theory, above politics. But how Bush versus Gore is settled may determine whether there will be true finality and closure.

PROF. SAMUEL ISSACHAROFF. COLUMBIA UNIVERSITY: This will be a challenge to Chief Justice Rehnquist's stewardship. If the court has to decide this case, the worst thing that could happen is that it would split 5-4 along the predictable conservative-liberal lines.

CROWD: Count all the votes.

UTLEY: And yet, as those who demonstrated outside the court, as well as others who watch and wait know, that's the way the court is frequently split. The American public seems ready to give the Supreme Court the benefit of any partisan doubts.

In a survey conducted on the eve of the hearing, support for the Bush and Gore positions on a recount was nearly dead even. But 72 percent of the same people said they felt the ruling, whatever it would be, would be fair.

FRANK NEWPORT, GALLUP POLL EDITOR-IN-CHIEF: Despite their personal preferences which still split even, the public is telling us, let's get on with it and if the Supreme Court says otherwise even if its against my own position, I'm willing to live with it.

UTLEY: Throughout its history, the Supreme Court has gone through periods which were considered activist and politically liberal. Today, it is generally seen as more conservative and less activist. Seven of the nine justices were appointed by Republican presidents.

(on camera): Which raises question: If the Supreme Court in effect decides this election, it means it'll determine who the next president will be, who in turn will be able to name who the next Supreme Court justices will be which gives a new definition to the constitutional concept of separation of powers.

(voice-over): The justices themselves know what is at stake.

ISSACHAROFF: They really have to preserve their institutional integrity. If they are perceived as acting in a partisan fashion it will be a tremendous mark against the court for many, many years to come.

UTLEY: And perceptions could be crucial.




UTLEY: For on January 20th, there will be the chief justice giving the oath of office to the man who will be the next president because of a Supreme Court ruling. In the end, there will be two opinions in this case. One from the Supreme Court, the other, the public's opinion on what the court has done. Neither can be appealed.

Garrick Utley, CNN, New York.


WOODRUFF: And that is all for this expanded edition of INSIDE POLITICS. But, of course, you can go online all the time at CNN's

SHAW: And please stay with CNN throughout this evening as we continue to await the Supreme Court decision. Our colleague Jeff Greenfield will host a one-hour Election 2000 special report at 10:00 p.m. Eastern.

I'm Bernard Shaw.

WOODRUFF: And I'm Judy Woodruff. "MONEYLINE" news hour coming up next.



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