- The Washington Times - Monday, December 11, 2000

WASHINGTON — The Supreme Court bombarded lawyers for George W. Bush and Al Gore with questions for 90 historic minutes today in the case of the nation's contested presidential election. The justices set no timetable for a ruling on whether to resume a recount of Florida's questionable ballots.
"Where's the federal question here?" Justice Anthony M. Kennedy asked Mr. Bush's attorney, Theodore Olson, less than two minutes into the legal clash over the partial manual recount that the state Supreme Court ordered last Friday and that the U.S. Supreme Court halted less than 24 hours later.
At another point, Justice David Souter, seeming to ponder the ground rules for a possible resumption in the recount, asked, "Why shouldn't there be one subjective rule for all counties."
Justice Stephen Breyer seemed to be thinking about the same issue, pressing Mr. Olson on what "sub-standards" should be employed for considering questionable ballots in addition to a decision about "voter intent."
Mr. Bush and Mr. Gore watched from a distance as their lawyers posted rival legal claims before a court that seemed eager to challenge and probe for weaknesses.
"I am keeping my emotions in check," Mr. Bush said in Texas a short while before his attorney, Mr. Olson, stepped before the nine justices to argue the recount should be shut down — and Mr. Bush's certified victory allowed to stand.
Mr. Gore was at the vice president's residence, pinning his hopes on attorney David Boies and his ability to persuade a majority of the court to resume the recount. Three of Mr. Gore's children — Karenna, Kristin and Albert III — were among the spectators given seats to the historic arguments.
The court allotted 90 minutes for the oral arguments, which unfolded only two days after a 5-4 majority voted to stop the recount at least temporarily.
Justice Antonin Scalia, in a concurring opinion issued on Saturday, said it "suffices to say … that a majority of the court" believes that Bush had a substantial probability of success on the final ruling.
That meant that Mr. Gore faced an uphill struggle as the black-robed justices settled in their seats for the formal arguments. Mr. Boies said on yesterday that defeat at the high court could mean the end of the road for the vice president's 2000 quest for the White House.
The atmosphere inside the courtroom stood in contrast to the noisy scene outside the building — where demonstrators protested beneath the chiseled marble inscription "Equal Justice Under Law."
The court allotted 90 minutes for the oral arguments, which unfolded only two days after a 5-4 majority voted to stop the recount at least temporarily.
By their questions, it seemed that Justice Kennedy and Justice Sandra Day O'Connor — both of whom sided with Justice Scalia in suspending the recount — were intensely interested in the question of whether there was a federal issue for the justices to decide.
"I have the same problem Justice Kennedy does, apparently," Justice O'Connor interjected at one point.
At the same time, Justice Ruth Bader Ginsburg, who opposed the suspension of the recount on Saturday, questioned why the nation's highest court should overrule the Florida Supreme Court's interpretation of state law and "say what the Florida law is."
In their questioning, the justices raised many of the issues that have swirled around the recount that holds the key to the White House. Mr. Bush has been certified the winner in Florida by 537 votes, but Mr. Gore looked to the recount to let him overtake his rival. The winner of Florida's 25 electoral votes stands to gain the presidency.
Thus, while the justices did not say when they plan to rule, their decision to hold oral arguments on extremely short notice signaled an understanding of the importance of speed.
Failure to settle the issue by tomorrow could expose the state's 25 electors to greater risk of challenge when the Electoral College votes are counted in Congress on Jan. 6. And finally, the state Legislature is poised to name its own state — loyal to Mr. Bush.
Hovering in the background are inevitable questions about the ability of the winner — either Mr. Bush or Mr. Gore — to claim legitimacy after an election so close and contested.
Montana Gov. Marc Racicot, a Bush backer, dismissed the idea that winning a narrowly divided court decision on the votes of five conservative justices would cost Mr. Bush legitimacy as president.
"That's something that's bestowed by the American people," Mr. Racicot told CNN.
The Bush campaign is arguing that a recount won't be fair because Florida counties use varying standards to determine a voter's intent.
The "crazy-quilt ruling" is a "recipe for electoral chaos," Mr. Bush's lawyers said in court briefs filed Sunday. "It has created a regime virtually guaranteed to incite controversy, suspicion and lack of confidence, not only in the process but in the result that such a process would produce."
Attorneys for Mr. Gore argued in court papers that the Florida court simply placed "the voters whose votes were not tabulated by the machine on the same footing as those whose votes were so tabulated. In the end, all voters are treated equally: Ballots that reflect their intent are counted."
If Mr. Gore prevails, the hand counting could continue and possibly help him overtake Mr. Bush, who leads by fewer than 200 votes. A ruling for the Texas governor would shut down the recounts.
A CNN/USA Today Gallup Poll conducted yesterday found a nearly even split over whether the court should allow the recount to continue — 47 percent for a recount and 49 percent against, with a margin of error of plus or minus 4 percentage points.
The survey of 735 adults also found 72 percent believe the Supreme Court will rule fairly in the case. However, among people who identified themselves as Bush supporters the figure was 87 percent, while among Gore supporters it was 54 percent.
The court again agreed to release a full audiotape of today's argument for broadcast shortly after its conclusion. But the justices stuck to their long-standing ban on television and still cameras inside the courtroom.
Neither side committed to giving up if the Supreme Court issues an adverse decision, but even Mr. Gore's advisers conceded he has fewer options than Mr. Bush beyond the high court.
The U.S. Supreme Court first heard arguments in the case on Dec. 1. Justices unanimously set aside the Florida court ruling and sent the case back for clarification of why it allowed ballots to be recounted after the Nov. 14 deadline set by the Florida secretary of state.
In response, the Florida Supreme Court issued a 4-3 decision Friday ordering a hand recount of all undervotes statewide. Hours after the tally began Saturday, the U.S. Supreme Court voted 5-4 to grant Mr. Bush's request to halt the recount until the court determines its legality. When the counting stopped Saturday, an unofficial Associated Press survey put Mr. Bush's lead over Mr. Gore at 177 votes.
Tomorrow is the date for choosing presidential electors under a provision of federal law that shields them from challenge in Congress. Members of the Electoral College will cast their votes for president on Dec. 18.

Sign up for Daily Newsletters

Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide