Supreme Court Arguments Conclude
By LAURIE ASSEO, Associated Press Writer
WASHINGTON (AP) - The Supreme Court bombarded lawyers for George
W. Bush (news - web sites) and Al Gore (news - web sites) with questions for
90 historic minutes on Monday 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
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 (news - web sites) halted less than 24
hours later.
``I have the same problem Justice Kennedy does, apparently,'' Justice Sandra
Day O'Connor (news - web sites) interjected at one 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
Olson on what ``sub-standards'' should be employed for considering
questionable ballots in addition to a decision about ``voter intent.''
O'Connor said she was concerned that the Florida court's ruling on Friday did
not fully acknowledge that its previous ruling allowing recounts had been set
aside by the U.S. Supreme Court.
She noted that the Constitution gives state legislatures the authority to control
the choice of presidential electors. ``Does that not mean that a court has to ...
give special deference to a legislature's choices insofar as a presidential
election is concerned?''
``Isn't there a big red flag up there, watch out?'' she said.
Bush and Gore watched from a distance as their lawyers posted rival legal
claims before a court that seemed eager to challenge the lawyers and probe
their arguments for soft spots.
``I talked to some of our legal team. They are cautiously optimistic. If they are,
I am,'' Bush told reporters after Olson had stepped before the nine justices to
argue the recount should be shut down - and Bush's certified victory allowed to
stand.
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 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, had 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 Gore faced an uphill struggle as the black-robed justices
settled in their seats for the formal arguments. Boies said on Sunday that
defeat at the high court could mean the end of the road for the vice president's
2000 quest for the White House.
There were a few moments of humor - and embarrassment for one of the
lawyers, Joseph Klock, representing Florida Secretary of State Katherine
Harris (news - external web site).
Klock accidentally referred to Justice John Paul Stevens as ``Justice Brennan,''
a reference to the late Justice William Brennan.
A moment later Klock stumbled again, mistaking Souter for Breyer. Souter
responded, ``I'm Justice Souter, you'd better give that up.'' And a few moments
later, Scalia drew a laugh when he began a question by saying, ``Mr. Klock, I'm
Scalia.''
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.''
While Kennedy and O'Connor, both of whom sided with Scalia in suspending
the recount, asked questions about whether there was a federal issue for the
justices to decide, other members of the court probed elsewhere.
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 (news - web sites)'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. Bush has been
certified the winner in Florida by 537 votes, but 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 Tuesday could expose the state's 25 electors to
greater risk of challenge when the Electoral College (news - web sites) votes
are counted in Congress on Jan. 6. And finally, the state Legislature is poised
to name its own state - loyal to Bush.
Hovering in the background are inevitable questions about the ability of the
winner - either Bush or 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 Bush legitimacy as president.
``That's something that's bestowed by the American people,'' Racicot told
CNN.
Bush's lawyer, Olson, said the Florida court made a ``new wholesale,
post-election revision'' of state election law when it ordered the recount, and
``wrenched it completely out of the election code.''
But Boies, representing the vice president, said the Florida court was not
making new law but interpreting laws passed by the Legislature. He also said
any differences in the way the recount is conducted from one county to the
next would be less than ``the mere difference in the types of machines used'' in
different counties.
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,'' 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 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.''
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 Bush's request to halt
the recount until the court determines its legality. When the counting stopped Saturday, an unofficial Associated
Press survey put Bush's lead over Gore at 177 votes.
Tuesday 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. |
