Presidency now in hands of U.S. Supreme Court
Published 12:00 am Tuesday, December 12, 2000
The Associated Press
Holding nine crucial votes in America’s election saga, U.S. Supreme Court justices quizzed campaign lawyers Monday about a muddle of Florida recount laws and the judicial branch’s power to settle Bush v. Gore – the case that may determine the 43rd president.
”We’ll await the outcome,” Texas Gov. George W. Bush said, and the nation joined him in suspense after 90 minutes of historic oral arguments.
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No timetable was set for a ruling that could end Democrat Al Gore’s quest for the presidency or throw open the state to recounts, jeopardizing Bush’s officially certified, razor-thin lead. Florida’s 25 electoral votes would put either man in the White House.
In case the court rules against Bush, Florida’s GOP-led Legislature moved closer Monday to naming its own slate of electors loyal to the Texas governor. Separate House and Senate panels recommended the GOP slate after a constitutional scholar told lawmakers ”the buck stops here.”
The Supreme Court rushed against a Tuesday deadline for states to select presidential electors. The Electoral College meets Dec. 18, and Congress will count electoral votes Jan. 6.
If left unsettled for much longer, the 2000 presidential election could spill into a GOP-controlled Congress, where House Majority Whip Tom DeLay vowed that Republicans would ”stand up and do our constitutional duty.”
The candidates watched from afar. Bush, who has been certified the victor by 537 votes out of 6 million cast, talked to his legal team from Texas and said the lawyers were cautiously optimistic.
”If they are, I am,” he said.
Gore was at his official residence in Washington, while three of his children – Karenna, Kristin and Albert III – attended the session.
Chief Justice William Rehnquist gaveled the session open: ”We’ll hear argument now in number 00949, George W. Bush and Richard Cheney v. Albert Gore et al.”
And off they went.
”Where’s the federal question here?” Justice Anthony Kennedy asked Bush attorney Theodore Olson less than two minutes into arguments over the Gore-sought recounts ordered by the Florida Supreme Court on Friday. In a 5-4 decision on Saturday, the U.S. Supreme Court halted the counting.
Justice David Souter, who voted against the Saturday stay, seemed to ponder the ground rules for a possible resumption of the recount. ”Why shouldn’t there be one subjective rule for all counties?” he asked.
Some justices who made up Saturday’s majority seemed skeptical of a recount, under any standard.
Justice Sandra Day O’Connor warned of a ”big red flag” in election law that seemingly requires courts to defer to the legislative branch. With Republicans controlling the Florida Legislature and Congress, Bush’s legal team has raised the same issue.
Justice Anthony Kennedy, who along with O’Connor is a frequent high court swing vote and sided with the majority on Saturday, asked pointed questions about standards that county election boards use in Florida to determine voters’ intent on questionable ballots.
”I think it can vary from individual to individual,” said Gore lawyer David Boies.
Kennedy sounded skeptical about recount standards that would vary from ”table to table and county to county.”
Afterward, Gore’s legal advisers – putting the arguments in the best-possible light – said Kennedy might have been fishing for a way to conduct recounts legally.
The justices pummeled both sides with questions, layering their skepticism evenly in arguments that covered the full landscape of the 34-day dispute. Obscure legal terms mingled with the popular culture’s latest buzz words.
”Were those dimpled or hanging chads, so to speak?” asked O’Connor at one point.
Some Gore advisers were reviewing various contingencies for him to concede the race or suspend his campaign in the event of an adverse ruling. Democratic running mate Joseph Lieberman said if the court ruled in Bush’s favor, ”that’s probably the end of it.”
But other Democrats warned that they wouldn’t accept defeat easily; the Rev. Jesse Jackson said a Bush victory would ”incite a massive civil rights rebellion.”
Five weeks of legal twists and turns left both sides leery of declaring victory or defeat. ”I am keeping my emotions in check,” Bush said.
Though he wasn’t at the White House yet, his brother was. Florida Gov. Jeb Bush was shaking hands with President Clinton at a bill-signing ceremony.
For the second time in two weeks, demonstrators and history-seekers gathered outside the high-columned Supreme Court building. A teen-ager dressed as Santa Claus shared space with a farmer and his mule and hundreds of folks like Martha Burns, 48, of Washington, D.C.
”I get to see history being made – quite a bit of history,” Burns said. Signs nearby read, ”Don’t Bushwhack the USA” and ”Five to four, no more Gore.”
The latter was a reference to the 5-4 decision Saturday, which came with a concurring opinion by Justice Antonin Scalia who said it ”suffices to say … that a majority of the court” believes that Bush had a substantial probability of success in the final ruling.
Kennedy and O’Connor seemed intensely interested in the question of whether there was a federal issue for the justices to decide.
Asked by Justice Stephen Breyer what type of standards should be set for manual recounts, Bush lawyer Olson said the ballot should be punched through. ”Indentations are no standards at all,” he said.
Souter asked Boies to explain how a recount could be conducted under different standards without violating the rights of voters to be considered equally.
”What would you tell them? Under what standard” would the recounts be conducted? he asked Boies.
After a long pause, Boies said. ”I think that’s a very hard question.”
The heavy weight of the issue at hand gave way at times to humor. Joseph Klock, representing Florida Secretary of State Katherine Harris, misidentified two of the justices before Scalia prefaced a question with: ”Mr. Klock, I’m Scalia.”
Laughter eased the tension of the packed courtroom, at least for the moment.
Throughout the day, the contested election ricocheted among other courts as well:
– Florida’s top court, in reply to the U.S. Supreme Court, said its ruling to allow some recounts had been based on state law.
– An appeals court in Atlanta upheld a federal judge’s refusal to throw out 2,400 overseas ballots.
– Democratic lawyers in Tallahassee asked the Florida Supreme Court to reject thousands of votes for Bush under a lawsuit challenging absentee ballot applications.