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Larry King Live

Gore v. Bush: Will the U.S. Supreme Court Finalize the Election?

Aired December 12, 2000 - 9:00 p.m. ET

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

LARRY KING, HOST: Tonight, on day 35, the nation waits for the United States Supreme Court. Nine justices could hold the election in their hands.

And in Florida a big vote to name electors for Bush. Joining us in Tallahassee, Gore campaign spokesman Doug Hattaway, and from the Bush camp lead attorney Barry Richard. Then a superpanel: Senator Dianne Feinstein, Democrat of California; and the chair of the Armed Services Committee, Republican Senator John Warner. Also, the managing editor of Court TV, Fred Graham, along with Hal Bruno, former political director at ABC news, and Hugh Sidey, "Time" magazine's presidential correspondent. They're all here. They're all next on LARRY KING LIVE.

We begin before our panel assembles for the full hour by going down to Tallahassee and checking in with Doug Hattaway, the Gore campaign spokesman. Do you read anything into this long delay on the Supreme Court decision?

DOUG HATTAWAY, GORE CAMPAIGN SPOKESMAN: We haven't read a lot into it, Larry. I think the Supreme Court usually deliberates for quite a lot longer before they deliver opinions. So, if they did issue something tonight or even tomorrow it would be pretty quick turn around. We're happy for them to take the time to get it right.

KING: Is it clear to you that December 18th is the key date, not today the 12th?

HATTAWAY: Today's date was the date by which electors needed to be certified to avoid challenge from Congress. The 18th is when they actually meet. We think that if the Supreme Court does order a recount, which we are very optimistic about, that that can get sorted out an completed in plenty of time. So, we're optimistic about it.

KING: If it goes against you, Doug, this is certainly the end of it, don't you think, with the Florida Supreme Court turning down the appeals in the Seminole and Martin County cases?

HATTAWAY: Well, they're highest court in the land. As David Boies said after the arguments, if they say there will be no recount there will be no recount. But we are optimistic about it. We think that the case was well made, that the Florida Supreme Court did its traditional job in interpreting Florida's election laws, that counting people's votes and counting those votes by hands is perfectly constitutional, so we're optimistic about a good outcome.

KING: Now, when you kick these things around as everyone in Washington is doing, I'm sure they're doing it in Tallahassee, do you say they might do, this might do that might -- can they literally do anything?

HATTAWAY: They don't call them Supreme Court for nothing, Larry. I think you guys have aired out the different options. We're not trying to read too much into tea leaves. Our legal team was actually busy today preparing for one eventuality. In case the court does send the case back to the state courts here, tells them to work up a single specific standard for counting the votes, our team was preparing legal papers in that eventuality.

KING: Are you surprised in that the decisions as they were stated when they voted 5-4 to hear this were so definitive that they're still out?

HATTAWAY: No. I think what I understand from the experts on the Supreme Court, the -- when they took when they took up -- or when they issued the stay they do that with a probability that the party asking for stay could prevail in the case. But I'm also told that's certainly not a definitive ruling that they -- and I think we heard yesterday. They asked very probing questions of both sides. We believe the justices approached this question with an open mind. So, we're very optimistic that indeed they'll rule that the Florida Supreme Court did its job properly, that the people's votes ought to be counted.

KING: Thank you, Doug. Doug Hattaway, Gore campaign spokesman. Now we stay in Tallahassee, and check in with the Bush campaign attorney for Florida, the now very familiar face of Barry Richard.

Barry, what do you read into this? I mean, this would be considered short by typical Supreme Court standards. Considered quick by Supreme Court standards, we're considering it -- it's taking too long. What do you read into it?

BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: It's very fast, by ordinary Supreme Court standards. Generally, it would be months, sometimes many months before we'd receive an opinion from the Supreme Court. I have no doubt that the court is going to release this opinion the moment that they have one that they're satisfied with, and it seems to me that what probably is happening is that the court -- there's a majority opinion I would imagine by now being drafted, but they will probably will be a number of opinions, concurring and dissenting and there's -- it's likely that the court has been striving to get more than a 5-4 decision, and there may be deliberations going on regarding what enough justices would feel comfortable with to achieve more than a 5-4 decision.

KING: From your standpoint, are you optimistic?

RICHARD: Well, I have learned not to really speak in terms of optimism or pessimism about a case. I argued a case as vigorously as I can, and then I await the result. And there are cases where I'll walk out and I'll be pessimistic because I've gotten a very clear reading from the court, or optimistic for the same reason, but this not one of those cases. I don't think anybody on this case can feel any degree of assurance until we actually see the opinion.

KING: As a lawyer stepping aside watching the proceedings yesterday, what were your thoughts as to how well they were handled, how well the questions were asked, how well answered?

RICHARD: My answer would be very well on all sides. I have been before the court, and I have watched the court when the questions were a lot harsher, they had a much harsher edge than they did yesterday and in -- very frequently, it appears that the questions the justices are asking are designed more as debating points with other members of the court than as real efforts to find answers and it appeared to me, yesterday, that the justices were really probing the issues in an effort to determine where they would be comfortable on one side or the other. And I had the impression that the court was really looking to see -- to see what the answers would be.

KING: Does this decision as was most just come out written Barry or might they convene a publicly statement issued by someone?

RICHARD: Well, you know, they -- traditionally, while most of the opinions are just released in writing, the court has a history of reading the opinions. Occasionally, sometimes just some of the justices will read the opinions that they write, a concurring opinion or a dissenting opinion. But sometimes they read most or all of them. Usually that happens in cases in which there's a particularly historic decision or in which one or more justices feel very strongly about their opinion, and this could be one of the cases where they do that.

KING: Thank you, Barry. As always, we'll be hanging by as you do. Barry Richard the lead Florida attorney for the Bush side of things. Our panel is with us the rest of the way. It's an outstanding group of five. We'll meet them all and go at it right after this.

(COMMERCIAL BREAK)

KING: A little history, here, tonight. Our senators -- usually senators remain above the fray -- our senators have agreed to sit down with three prominent journalists, and participate as they will. And they are Senator Dianne Feinstein, Democrat of California; Senator John Warner, Republican of Virginia, chairman of the Armed Services Committee; Fred Graham, chief anchor and managing editor Court TV, formerly of CBS and "The New York Times"; Hal Bruno, the former political director for ABC News, who was on guard for CNN on election night, on that historic night five weeks ago; and Hugh Sidey, famed presidential correspondent of "Time" magazine.

We'll begin with our senators. Anyone can jump in. We're going to mix it up.

You were at the proceedings yesterday.

SEN. JOHN WARNER (R), VIRGINIA: Yes. KING: Is this taking a long time to you?

WARNER: You know, I'm very positive in my thinking, because as I sat there in that chamber, where I've been before -- I was a lawyer -- I said to myself, their main objective is to preserve the integrity of the Constitution of the United States, the rule of law, and the credibility that the people of the United States and faith they have in the Supreme Court. That's foremost. Then they proceed. So that's in every justice's mind, whether they're going to go with the majority or be in the dissent.

KING: Senator Feinstein, is this the kind of mind-boggling case where you can find yourself nodding with both sides?

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Well, for me, it's been a roller coaster, it's up and down, it's like a huge political soap opera, it goes on and on, and I find it very difficult, I must say that. I'm accustomed to elections being definitive, and they end and that's it. And this one has gone on and on, and I think -- I'm very concerned right now, because what I see is an increasing polarization among people, and I don't happen to like that. Even when I see, you know, Bush fans and Gore fans ready to engage in fisticuffs, it shouldn't be this way. I mean, we are one people in America and that's what I think we need more reinforcement of, our similarities, not our differences.

KING: Fred, is this court taking a long time?

FRED GRAHAM, MANAGING EDITOR, COURT TV: Yes, and it suggests to me -- I don't agree with John Warner on this one -- that it's not going to be the easy -- easier unanimous decision to go back and recount some more, but they are struggling there. I have been covering the Supreme Court for 35 years, it's a very proper institution, and I have never seen them stay up this late holding an opinion that will come down tonight or early in the morning.

KING: Do you think they are arguing?

GRAHAM: I think they are narrowly divided, they have decided, five of them probably, to go with George W. Bush, and the others are writing dissents.

KING: That's what's going on now?

GRAHAM: This is speculation, you don't know, but it sounds that way to me, has that smell to it.

KING: Hal Bruno, what do you smell?

HAL BRUNO, FORMER POLITICAL DIRECTOR, ABC NEWS: Well, I wanted to reassure Senator Feinstein that I think what she saw in front of the Supreme Court, the pro-Gore and the pro-Bush people, were probably the extremists, the activists, people who feel fanatically about this thing. I think when you get out in the rest of the country, that people are taking it very much in their stride. They may have strong opinions, they are interested in it, but it doesn't dominate their lives. And I think the American people have a tremendous capacity to roll with whatever happens and accept it.

FEINSTEIN: Hal, don't mistake me, I think people know the government works.

BRUNO: Yes.

FEINSTEIN: They know the system works and there is a pride in the system, so you rely on the system functioning, and I think there is a great sense of respect for the Supreme Court out there. And I agree with you, I mean, I come from California, and that's the way it is in California. But you get inside the Beltway, and the degree of partisanship that exists here, John, has been one of the great surprises in my life.

BRUNO: Yes, that's true. You know, I drove 3,700 miles across the country back and forth at Thanksgiving time, when you pulled into truck stops and restaurants at night, nobody was talking about it until you got back here.

WARNER: Yes, but let's remember...

KING: Let's get Mr. Sidey's thoughts.

WARNER: ... there are no tanks in this election, there are no colonels taking over, there is nobody trying to seize this studio. This nation has faith in our documents, the Constitution, and this republic I hope will emerge stronger.

(CROSSTALK)

KING: ... I'll let you get a word in.

Will that faith remain if it is 5-4?

HUGH SIDEY, "TIME" PRESIDENTIAL CORRESPONDENT: Sure, I think so. As a matter of fact, this is an expression of just how well off we are today. If we had a war, or the threat of a war, or a depression, it wouldn't be a close election. This is a debate about wealth and peace and our well-being, it's fine tuning. I -- you know, most of the theories I have heard expressed today, Larry, I dismiss. I think this country...

(CROSSTALK)

KING: You mean all the chatter.

SIDEY: Yes, the people out -- yes, the people out with the placards and that -- the division -- come on now. What were the issues that we discussed in the campaign? Social Security, prescription drugs, they all want action, we are just trying to decide how quite -- how to do it, fine-tuning. I don't see...

(CROSSTALK)

GRAHAM: You know, if they come down, people are saying that the Supreme Court can suffer egregious, self-inflicted wound here. But you know, when you go to argue in the Supreme Court, you sit down there, you are a lawyer, they're across quill pins sitting there.

SIDEY: Probably pills, too.

(CROSSTALK)

GRAHAM: Quill pins. And that's the tradition, the long tradition, and I think the Supreme Court can stand a lot more political heat than people think. And if they are making a tough decision...

KING: Well, what can you do to them anyway?

GRAHAM: They just disappear and they've got lifetime jobs, and you -- and the news cycle goes on, and they go on their way.

KING: We'll be right back with our panel and lots more to talk about. They're with us for the full hour, we'll include your phone calls.

Don't go away.

(COMMERCIAL BREAK)

KING: Anybody concerned about charges that came up today about Judge Scalia's sons connected with law firms representing Bush, and Judge Thomas's wife, who is working with an organization dealing with transition purposes for the Republicans? Dianne, does that bother you, Senator?

WARNER: Not in -- no -- excuse me -- not in the least, I will cast that vote. You go ahead.

FEINSTEIN: No, it -- no, it doesn't. I mean, I think the role of a spouse in politics is a whole new role to explore now, because we have more two-person marriages where people are working, where both people are working. And so the question comes, what really is a conflict of interest, and I think the Supreme Court is probably the ultimate authority.

KING: They can't -- who do you appeal to if they don't recuse?

FEINSTEIN: That's right.

(CROSSTALK)

SIDEY: Listen, Larry, we just went through the greatest conflict of interest, Hillary Clinton and Bill Clinton, in which they were on opposite sides of many of the issues in that debate, in that campaign. No, I agree absolutely with the senator -- this is ridiculous.

WARNER: Also, a word on children. Those of us that have the privilege of public office, we want to let our children do their own thing, and we should in no way try and control their lives simply because we have the privilege to serve.

KING: But in all fairness, Hal, if this were a case in circuit court in Miami and the judge's son worked for one of the firms, he would recuse himself?

BRUNO: Yes.

KING: There is no doubt about it?

BRUNO: Yes.

KING: How is this different?

BRUNO: But this is not that kind of a case and this is the Supreme Court, and there is no reason for anybody to recuse themselves for something like that.

GRAHAM: Yes, and Clarence Thomas and Anthony Scalia are so deeply rooted in their ideology, the idea that these minor considerations involving a wife and a son -- and look...

(CROSSTALK)

GRAHAM: I want to clear something up here.

BRUNO: ... decision anyhow.

GRAHAM: Senator Warner, I certainly did not mean to imply. He had made the statement that all of these justices were acting from the best of principles and what they believe to be right, and I certainly did not dissent from that.

WARNER: OK.

KING: You -- would you be shocked if Thomas and Scalia disagreed?

(CROSSTALK)

SIDEY: Yes, I would be somewhat shocked, but look, this thing is wide open. We're talking about the -- people say, goodness, the Supreme Court shouldn't get into this -- that's nonsense, Larry. That's what they're there for. That's why they earn their pay, to go into new areas, to settle things we don't know about. And if they came out on opposite sides, OK, so be it.

KING: Senator Warner, do we have a reversal of form? The Republicans saying it's a federal interest, the Democrats saying states rights.

WARNER: Well, that's -- that's clearly an issue. And you saw Justice O'Connor struggling with that, because she's a very strong and comes from the strong belief in states rights and so forth. Her career, much of her distinguished career, is in that area.

But the law is quite clear in this case. That supreme court of Florida wrote law, and that law was inconsistent with the duties of the legislature of Florida. And therein is the problem, coupled with the many ways in which these ballots were counted, so many times, in these different counties. FEINSTEIN: Could I say one thing on this...

KING: Go ahead. Go ahead.

FEINSTEIN: And this may be too much from the Democratic perspective, John, but I feel it very deeply. The election has to be fairly won, and that's the problem. You have Al Gore winning the popular vote by a large number. You have him nearly winning the electoral vote. You have everything up to Florida, where you have a very confused situation.

It is not helpful what the Florida legislature is doing now in terms of healing some of the scar tissue. It's sort of an unnecessary insurance policy that George Bush, almost regardless of what the Supreme Court does, is the certified candidate for the electors.

I think this is a very hard one to swallow, because many of us are very familiar with that Vote-O-Matic systems. After all, it's used in a third of the states. It's notoriously unreliable in close elections.

Here you have the closest of elections, and you can't get a manual recount of a large number of ballots.

KING: Didn't the Florida Supreme Court have a dilemma in dealing with a legislature that wrote the standards they did?

BRUNO: There was ambiguity in the legislation, written by the Florida state legislature

KING: What was the court to do?

BRUNO: The idea that the Florida Supreme Court is writing law now, I'm not so sure about that. That's the question that the Supreme Court has to answer. But if you're a Republican, you think they wrote law. If you're a Democrat, you say, well, they were interpreting the law. But that's what we're waiting to find out, and only the Supreme Court can tell us the answer to that.

WARNER: Let me have some words with my distinguished colleague here.

SIDEY: Larry...

KING: Let me hear from Hugh first, and then we'll take a break, and...

SIDEY: I don't have that much faith in the manual recounts. When the intensity gets this -- to this degree and you know that the various parties that control the precincts in that, I'm sorry but...

KING: But you could assign judges.

FEINSTEIN: Yes...

(CROSSTALK) ... judge is the final arbiter.

SIDEY: Well, I do not have that much faith in it being better than the machines at this moment.

KING: But the manual, every state calls for it.

SIDEY: I'm a graduate of one of the old Richard Daley, the 1960 campaign. and I'm -- I -- you know, perhaps it's a little better now, but I'm still a good deal skeptical. What did James Baker say? A little mischief out there.

BRUNO: Well, wait a minute, I'm from Chicago. I was a reporter there at the time, and let me repeat again: What the Democrats did on the west side of Chicago, the Republicans did in downstate Illinois and held them back.

SIDEY: Not that much.

BRUNO: Well, not enough. The Democrats (UNINTELLIGIBLE). But Richard Nixon himself told me he understood -- this was some years later -- he understood what had happened there.

SIDEY: I talked to Richard Nixon about it.

KING: Before Senator Warner brings up his point with Senator Feinstein, as an attorney, Fred, does this case boggle your mind? Is it one of those cases that where you would have a difficult time were you on that court tonight?

GRAHAM: Well, absolutely. Just the whole idea. This is after all the first time in our history that a presidential election has been contested in the courts so that it would be decided by a court, the Supreme Court of Florida or the Supreme Court of the United States. Well, I have an idea that it won't go back on a remand to Florida, but maybe it'll be decided...

KING: But if you had to decide it, it would it be difficult?

GRAHAM: Oh, yes, and for two reasons. One is the toll that it may take on the prestige of the Supreme Court of United States, because everyone is so narrowly divided, including the Supreme Court, and the disappointed people -- we've heard from Senator Feinstein. After all, Al Gore won the election as far as popular vote goes.

WARNER: I've got to interject...

GRAHAM: He won the popular...

(CROSSTALK)

KING: We'll take a break and Senator Warner will take the floor. We'll be right back.

(COMMERCIAL BREAK)

KING: We're back. Dull this isn't! Senator Warner...

WARNER: I just want to make two quick points. One to you, my good friend. I was a young aide to Nixon in the '60 election and with him the night in California as a part of his team when he lost, and the next day traveled with him back to Washington, and I saw him that day making the decision process start, I will not contest this election. Now...

KING: He had two states (UNINTELLIGIBLE)...

WARNER: No, I understand. This is Chicago.

Now to my two good friends here, you bring up this point about the total vote that Al Gore won. That's a nonissue. We have a responsibility to the American public to tell them what we think about this election within the confines of the way it was conducted, and both these candidates went in knowing it was the electoral college that would determine it and not the total vote.

KING: But it does boggle the mind a little?

WARNER: Well, we shouldn't be further boggling the minds. We ought to admit it's a nonissue.

BRUNO: It is the first time in 116 years that we've had something like this happen.

WARNER: So what? You're trying to change the rules like the Supreme Court of Florida.

BRUNO: No, I'm not. I'm covering it. I'm not changing...

WARNER: That's what they did, try to rewrite the rules after the election was over.

KING: Hold on.

FEINSTEIN: I don't think it's a nonissue. I think it is an issue in people's minds, because you can't say every vote counts, and then say when you win the popular vote, it really doesn't matter. The only thing that matters is a group of people who are elected...

KING: But he's right. They were running on that.

Now if the public voted tomorrow, they'd probably throw out the electoral college. Do you agree? Nationally? If the public voted.

FEINSTEIN: Yes.

WARNER: Because of so much confusion, but it's the duty of the Congress to reaffirm the right of the large states and the small states to have a voice in our elections. Now, you and I know we are going to go into this in the Congress very carefully to try and avoid a problem like this again.

BRUNO: But the small states, the small states don't want to give up the electoral college.

WARNER: You bet, and they shouldn't.

(CROSSTALK)

SIDEY: But Larry...

(CROSSTALK)

KING: Hugh. Hold on, Hugh.

SIDEY: In everything we do in this life, human interaction, there is a system that brings closure, whether it's instant replay for the games, or whether...

KING: The referees are wrong there sometimes.

SIDEY: Yes. Whether it's contracts that we enter into for cars or homes, there are some sometimes when it looks unfair, but there has to be a system that says this is the end. And that's what the electoral college is all about.

And you can -- we can debate this and we can say that it's a travesty because he will be the popular winner. It doesn't matter!

WARNER: That's correct. We're not going to change the rules of the game. They both entered this race with that understanding.

KING: The law also says some electors don't have to vote for who they're supposed to be pledged to.

WARNER: Well, now you're bringing up a very sensitive issue, and right now it's being discussed in a rather light way. But that's a serious problem, because I know for a fact that some of the Republican electors, who are going to on the 18th cast that vote, have been petitioned through e-mail and other means, hey, start thinking about changing your vote. Now that's serious.

(CROSSTALK)

BRUNO: That would be acceptable.

WARNER: No, wait a minute...

BRUNO: Yes.

WARNER: I stated a fact that there have been communications.

BRUNO: All right. Sure, there have.

WARNER: That's all I said.

BRUNO: Yes.

KING: But that's not illegal, right? That's not illegal.

BRUNO: Well, first of all -- what is it? -- 28 states that do...

(CROSSTALK)

... that do not bind the electors. So it can only happens in those places, but I don't think it's going to happen.

WARNER: I agree with that, and it shouldn't.

KING: Let me get a break.

BRUNO: And I don't think.

KING: I'll come right back.

WARNER: Then you -- then you could have a constitutional crisis.

(CROSSTALK)

KING: We'll come right back, and we'll reintroduce our panel. We'll reintroduce our panel. We'll take some of your phone calls, and we'll discuss -- hold it, guys -- we'll discuss the legislature's possible involvement. Don't go away.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The clerk will lock the machine and announce the results.

UNIDENTIFIED MALE: 79 yeas, 41 nays, Mr. Speaker.

UNIDENTIFIED MALE: And so by your vote, the resolution passes.

(END VIDEO CLIP)

KING: That's the Florida legislature. We'll ask about that. Let's reintroduce the panel. We're also going to include your phone calls. They are Senator Dianne Feinstein of California, Senator John Warner of Virginia, Fred Graham of Court TV, Hal Bruno, former political director of ABC news, and Hugh Sidey, "Time" presidential correspondent.

Let's start with -- we'll go around. Fred Graham, what do you make of the legislature's involvement?

GRAHAM: Seems to me that this is the way it was initially done under the Constitution. The Founding Fathers thought that was OK. Of course, there's been many, many years where they've passed that onto the voters.

They don't like it. They really wish the Supreme Court would deal with this hot potato, and I think the Senate is going to hold back, hoping that tonight or tomorrow the Supreme Court will rule. KING: But if it doesn't happen, what if we wound up, Senator Warner, with two sets of electors, one voted by the people and one voted by the legislature?

WARNER: Then regrettably she comes to the Congress. I mean, I'm just reading this Constitution, which I re-read: "Each state shall appoint in such manner as the legislature thereof may direct a number of electors." So it's their job in the absence of a credible vote count. And that's the question, the credibility of this...

KING: Senator Feinstein, some say that they would challenge that, right? The right of the legislature to presume this or to take this action.

FEINSTEIN: Well, that may well be, but I don't know how realistic that threat is.

KING: So it is the legislature's ball game.

FEINSTEIN: Well, as they interpret the law, it is. I think what's unfortunate is that it perpetrates the feeling of unfairness, you know. The Floridian political structure did not bend over backwards to show an even-handedness in this, from the secretary of state's decision...

KING: But they can do it.

FEINSTEIN: ... on up, and that's one of the problems, I think, for those of us on the Democratic side. You either accept it and sit down and be quiet, or it bothers you very deeply and you want to do something about it.

KING: Hugh Sidey?

SIDEY: Well, that's a great senatorial analysis, because they are gentlewomen and gentlemen, and it is still a great chamber of debate. But state legislators, that's raw meat down there, Larry.

KING: That's wild things.

SIDEY: These guys are killers. I mean...

KING: That's John Wayne.

(CROSSTALK)

SIDEY: Yes. So what are we talking about? We're down on the ground...

(CROSSTALK)

WARNER: Many of them are new. They've only been in office -- what? -- one or two days.

BRUNO: I think the Senate's much more restrained than the House down there in the Florida legislature, which is often the case, here as well as there. But I think this: that the legislature would prefer not to have to be involved in this. That's a hot potato.

KING: (UNINTELLIGIBLE) today, though...

BRUNO: Yes, well, that's the Republicans doing what they're doing, you know. But one quick thing, Larry: They will not stand in defiance of the U.S. Supreme Court. If the Supreme Court hands down a rule, the legislature, the legislature becomes academic.

KING: Let's take a call. Stockton, California for our panel, hello.

CALLER: Yes, do you think the outcome or non-outcome of this election has had a positive benefit in that the common American person is now talking about politics?

KING: More people talking about politics, senator?

FEINSTEIN: I think, and I hear this from young people, they're fascinated. Their classes are now devoted to it. They're beginning to learn the intricacies of the system and make some decisions as to where they see change coming in the future.

WARNER: They're going to vote next time, believe me. There's going to be tremendous...

KING: Someone mentioned to me today that more lawyers now are interested in appellate work.

(LAUGHTER)

(CROSSTALK)

BRUNO: I'll tell you one thing, a lot of us political reporters who always thought certain things could never happen have learned that they do happen.

KING: Are you going to change the system? Are you going to look -- like Canada has a uniform election system. If you vote in Montreal, you're voting the same way they're voting in Toronto.

WARNER: What we're going to do is try to improve it. The discretion still must be left for the states as to how they conduct it, but we should offer them every bit of help, including financial help, to get the modern machines.

What concerns me are reports that in the inner cities the cheapest, the most old antiquated machines are there, and I think many of the minorities feel, boy, we got ripped off on this one.

KING: Hugh?

SIDEY: Do not get rid of the electoral college. Hillary, if you're out there, hear me. Let's fight this.

KING: Why? SIDEY: Because it was established so that the huge clotted majorities couldn't overwhelm smaller groups, and if you look at this nation, a demography, a map of the population, you will see 60 or 70 percent of it is sparsely populated. But what do they do in those areas? They grow the food we eat, they mine the materials we use, they do the transportation, they do the energy, they do the timber that builds our houses. They need a voice, more than the people's count.

KING: Why not pro-rated electors, Fred? Like 13 in Florida for one guy, 12 for the other.

GRAHAM: You know, that's been suggested.

KING: Maine does it.

GRAHAM: Many years ago, right after the cliffhanger between Nixon and Kennedy, Senator Kefauver appointed me the chief counsel of his Constitutional Amendment Subcommittee to study that. And you know, we came up a lot along the lines of Hugh Sidey, to stick with the electoral vote...

(CROSSTALK)

GRAHAM: Do away with the individuals, though, because some of them do jump the track.

Senator Kefauver and others were for this proportional way. You know one problem is, that encourages the splinter parties, because if you get a percentage, you get...

KING: Why is that bad?

GRAHAM: Well, people who think that the two-party system has been good for this country disagree with it.

BRUNO: Yes, the two-party system has given this country stability that it could otherwise have not have had. We couldn't exist with...

KING: But it also does mean that...

BRUNO: We could not exist with a multi-party system.

KING: It does mean 3 million voters in Florida's vote are meaningless...

FEINSTEIN: Larry...

KING: ... because the winner gets all.

GRAHAM: Well, it doesn't mean it's meaningless. They -- and what Senator Warner just said was a lot more people are going to go out because they say, hey, if there'd been 200 more like me, that guy Bush... KING: But this time, if I've got 100 votes more than you, I get all the electors. So if you're on the losing side, your vote is meaningless...

GRAHAM: And one good thing is that it magnifies the electoral majority of the person who wins. Kennedy had a good, comfortable electoral vote majority. He waltzed in there with a hair-breadth popular vote and looked like a great winner and parlayed it into a successful presidency.

FEINSTEIN: Could I respond to Hugh Sidey's comment, because it may be true as far as he goes, but I think it has to be remembered that the electoral college was also established because there was a fear of how the -- quote -- "multitudes" would vote. It was certainly pre-television. It was certainly pre-radio. And a lot of people didn't have voting rights in our country when it was established, including women.

KING: Like you.

FEINSTEIN: That's right. We didn't get that right until 1920, as a matter of fact.

That's a very different situation now. It is one person, one vote. And in an electoral college, you don't really have one person, one vote. You have a skewed situation.

Now whether it's a vestigial remnant of a day past is something that I question very much. I'm not sure we are well-served by the electoral college today, if we want a president that really has the popular majority.

KING: Let me get a break. We'll be back with more and more phone calls. Before the end of the show, we'll ask each of these guests to do the impossible: predict what the Supreme Court will do. Don't go away.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: One, two, three.

(END VIDEO CLIP)

KING: That's the Congressional tree. The tree of the Warners and the Feinsteins and the members of the House to show your good tidings to all. Meanwhile, a block away, people are screaming at each in front of the Supreme Court and freezing. Let's take a call. Norco, California. Hello. , are you there?

CALLER: Hello?

KING: Yes,go ahead.

CALLER: Yes, you know, we've had much talk about bipartisanship throughout this whole ordeal and I'm wondering when we will see some bipartisanship as at this point we've not had anybody cross the line yet and stop over to the next side of the aisle?

KING: Senator Warner, we haven't seen any yet?

WARNER: You're going to see it in the aftermath of this decision. Hopefully, it'll be the Supreme Court's decision. It'll bring quick finality to this. But I assure you that the Congress will come together and support a legislative agenda for our next president. It's very important that the president in the first six or seven months of his term or hers, as the case may be. has an opportunity to get a major piece of legislation, a series of it, through.

KING: Are you saying, Senator Warner, if this Supreme Court were to remand it back and say count the votes, all Republicans would support that?

WARNER: Oh, no. You totally missed the answer. That wasn't the question. I said once thing reaches finality and I hope it will quick and expedition so I think you can infer what I want the court to do. You don't need diagram. Now the point is I'm a strong George W. Bush, but I want see rule of law followed, the Constitution followed and this republic will be stronger and the Congress will come together and support that next president.

FEINSTEIN: Well, we're going to have an opportunity for that are in the Senate because the Senate, if Mr. Bush does become the president, will be 50/50 and how the Senate is organized will really, I think determine the level which it's bipartisan. If there is an equal representation of both political parties in the committees, that more than anything else will drive bipartisan legislation.

But I would hazard to guess what you're going to hear is we really can't have equal representations from the parties on the committees because one party has to prevail. And that takes us back to the way things have been done the last six years which is certainly not in a bipartisan manner.

WARNER: Let me say to my good friend...

KING: My good friend...

(CROSSTALK)

WARNER: And she is a good friend, it's just one word called accountability. Someone has got to be accountable when things don't go right and unless we have a chairman and not two co-chairman, a chairman and that chairman has at least one vote on those committees of his party -- I mean one excess vote, extra vote they can't be held accountable for the actions of that committee. When things go right, we can all share but when things go wrong people look, who is at fault and as committee chairman I'm willing to step up and take that responsibility.

KING: What do you think the nonrepresentative...

(CROSSTALK)

SIDEY: Well, Larry, I think there's a false assumption and that is I've heard it over and over from mostly the media that we have to have some great piece of legislation or there's some horrendous problem before us. I may have been on Mars these last months, but I don't think we're facing World War III. I don't think we're facing a Great Depression. If nothing happens, I'm not sure that isn't the Best. I still believe that -- remember that old statement...

(CROSSTALK)

KING: But some people might need prescriptions here .

SIDEY: Remember that old rule back that less government is better government. We're in a period like this in our national life and I just am not one of those who thinks that there needs to be a great rush of legislation or bills proposed by either side, and that we can take our time and kind of reconcile and to peel these wounds, talk about it, lets just calm down.

BRUNO: I think if this Congress -- if the present Congress can get through a special session and just take care of the basics of government such as getting a budget, that'll be a minor miracle. It's going to happen, but it's a tough thing.

(CROSSTALK)

WARNER: But you see...

BRUNO: And in the next Congress if they can just -- if they can just take care of the basics of government and don't have any overly ambitious programs this time because one thing's for sure, nobody in the White House, whoever it is, in the House or the Senate can claim they've got a mandate because when it's this close, there are no mandates.

KING: What are your thoughts.

(CROSSTALK)

FEINSTEIN: There's no mandate for either tax plan or prescription drug plan.

BRUNO: Oh, absolutely, for any issue or anything.

KING: Fred.

GRAHAM: You know, I can't agree with Hugh that sort of incompetence is the best policy on this because I do remember that when as I said, the Senate Kefauver, who was a Democrat, appointed me the chief counsel to one of his committees, I thought it was a stroke of genius and it turned out that there was at least accountability, as Senator Warner said, and to the extent that we are not as smart as we should have been we were held responsible and it has to work that way. I can't imagine...

(CROSSTALK)

FEINSTEIN: But we have accountability now and look at the mess. You know, we are supposed to be out October 7th and we haven't done our business yet. There is a party that's accountable, but the test of leadership is beyond just having a majority and using that majority in an arbitrary way. The test of leadership is bringing people together, is finding an accommodation. It is practical problem solving and I think that's what people want.

(CROSSTALK)

KING: We'll take a break and find out how much of that will be up to president. Don't go away.

(COMMERCIAL BREAK)

KING: There's the United States Supreme Court right now. Still waiting. OK, how much of this -- Hugh Sidey, you're our presidential correspondent, how much of this will depend on how Bush or Gore act?

SIDEY: Everything. I think this is a great opportunity for either one of them. This is a brand new kind of emergency, not a crisis, but it's a -- Jimmy Carter at the White House the other night put it, said it's an unaccustomed event, and that's what it is, not a great crisis.

KING: Good line.

(CROSSTALK)

SIDEY: It is. Terrific line. He just had it right. He said we'll work our way through it. But I think it depends on one or the other that says OK, let's come together.

KING: Do you think they both have that ability?

BRUNO: Oh, absolutely so.

KING: You do?

BRUNO: Sure. Sure, they do. And Hugh is right it is -- and Jimmy Carter was right, it is an event that's never happened before. There's a great chance to take advantage of it and I think they will.

KING: Fred.

GRAHAM: Well, the public is going to be so much on their side, I mean, for a while. Now, two things can happen. You can foul it up or some outside event that no one could anticipate. But I just think for a while -- you talk about honeymoon? I think there'll really be a honeymoon.

KING: You do?

(CROSSTALK)

GRAHAM: I think so. From the public, maybe not...

BRUNO: From the public, not from...

(CROSSTALK)

KING: Do you have to put people from the other party in the Cabinet?

WARNER: That's been a tradition and it's likely to be followed this time to some extent, but I think...

FEINSTEIN: Good idea. Good idea.

KING: To show cohesiveness.

FEINSTEIN: Yes, to show cohesiveness and as I said, Larry, I think people want practical solutions to real problems and they expect to us sit down at a table and work them out and when we can't, they say a pox on both your Houses. So, the time has come. really, to end the partisanship and work across aisles.

(CROSSTALK)

KING: Let me get a....

BRUNO: The part that worries me, and I'll ask this of the senators, if I can, there's no party discipline, though. up there on the Hill.

WARNER: Less, you're correct. Less authority.

BRUNO: (UNINTELLIGIBLE)

FEINSTEIN: Well, I think there are problems with the edges of both political parties. In the Republican caucus that, I understand, is true. Sometimes at our caucus it is true. And -- so I think there needs to be a different mind set. You know, John, we had a meeting of the centrist coalition...

WARNER: Yes, you and I there together just a few days ago.

FEINSTEIN: Yes, and 26 members of the Senate showed up...

KING: You're the centrists?

FEINSTEIN: ... Republicans and Democrats.

WARNER: We're sort of centrist.

FEINSTEIN: One quarter of the United States Senate came to a meeting to see how we could work together to solve some basic policy issues.

SIDEY: We are over -- Larry, we are over the Newt-Clinton era.

KING: That's gone? BRUNO: Yes.

SIDEY: Yes, and that was a bad one.

(CROSSTALK)

SIDEY: These were -- these are scorched earth people, both of them.

KING: Used at conventions?

SIDEY: Well, they had terrorists on both sides, as you know, and...

(CROSSTALK)

WARNER: There was a lot of good fallout...

(CROSSTALK)

SIDEY: Well, come on now. But we had them right, left, and they decided that arguing was better and it was no good.

KING: Quick call from Delbarton, West Virginia, hello.

CALLER: Yes, I have a question: If this thing goes to Congress, and which it looks like it may, West Virginia is a Democratic state, registered about 2-1 Democratic, and will our representative vote party line, which they are Democrats, or will they vote the will of the people?

WARNER: Well, the rule is that the majority vote of the delegation from your state controls the vote for your state.

KING: And it's one vote, right?

WARNER: And it's one vote. And I'm confident West Virginia, knowing that distinguished colleagues we serve with, Robert Byrd and Mr. Rockefeller, his colleague, there is not much doubt about your state.

KING: We'll take a break and come back and we'll get a prediction from each of the members of our panel. I wonder what they're doing now at the court?

Don't go away.

(COMMERCIAL BREAK)

KING: OK, Mr. Graham, what are they going to do?

GRAHAM: I don't know the exact configuration, but I do think there is a considerable sentiment, just in the court, but elsewhere to put an end to this, so it will be a decision that will do that.

KING: Senator Feinstein, come on, what do you... FEINSTEIN: I know what I want to say and...

KING: They're not going hold it against you, we're not keeping score, it's just what everyone else is doing.

FEINSTEIN: Well, from all of the body language and vibrations, you know, it looks like Bush, but that doesn't mean that that's what's going to happen necessarily. Hope springs eternal.

KING: Some justices are still there and this is -- we'll be repeated later, so it's now almost five to 10:00 Eastern Time -- Senator Warner.

WARNER: I thought your concluding statement that Bush wins, I don't know whether I want to dissent, but I would like to add, I think the Supreme Court will carefully follow the rule of law, follow the prescribed rule they have under this Constitution of the United States, and our republic, this great nation will be stronger than before.

KING: No matter what that decision is?

WARNER: No matter what the decision.

KING: Hal Bruno.

BRUNO: I think the court -- I agree with Fred that the court will understand that it has to make a decision, I don't think it's going to send it back for more questions. What the decision will be, I don't know. I learned the hard way, you don't guess what the Supreme Court is going to do based upon the questions that are asked.

KING: No decision tonight, ice storm tomorrow, Hugh?

SIDEY: That's not bad.

(CROSSTALK)

KING: They can't get in.

SIDEY: No, I think...

KING: Hold on, we think we have a breaking story, let's go to Bernie Shaw and Judy Woodruff -- guys.

BERNARD SHAW, CNN ANCHOR: I'm Bernard Shaw.

Thank you, Larry.

We have -- CNN has just learned that the United States Supreme Court has reached a decision, it has come down, and as you know, we have had all our people at the court around the clock.

CNN senior correspondent Charles Bierbauer is there and, in effect, we are standing by now for the word. He is not there, and we'll just patiently wait. Also, CNN's chief legal analyst Roger Cossack is at the high court and we are standing by just waiting for the word.

KING: ... for the word from the United States Supreme Court, and apparently they have reached a decision, that word is imminent.

Don't leave CNN.

So we were right on the cusp here, guys.

BRUNO: Fred and I were right, they reached a decision.

KING: They've reached a decision. Come down -- history will be made tonight on this key date, December 12.

So we're going to have a decision, Charles Bierbauer is there, Bernie and Judy are anchoring, Roger Cossack is on hand.

GRAHAM: Well, I have to say that based on my experience now, 35 years of covering the Supreme Court, I mean, this is obviously an unprecedented decision from so many ways. It's the first court contest to a presidential election. But staying up this late, the irregularity of what they are doing just underscores how important this is and it just speaks for itself.

KING: Have we ever had a decision at 10 o'clock at night Eastern Time from a Supreme Court?

BRUNO: But it shows that the court is aware of how important it is.

(CROSSTALK)

KING: Let's go back to Bernie Shaw. Don't go away -- Bernie.

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