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U.S. Supreme Court Rules 5-4 to End Florida Recount; Decision Gives Bush a Path to the PresidencyAired December 12, 2000 - 10:00 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BERNARD SHAW, CNN ANCHOR: Thank you, Larry.
And quickly to CNN's Roger Cossack, who has been sitting in that director's chair outside the high court for hours -- Roger.
ROGER COSSACK, CNN LEGAL ANALYST: Hi, Bernie.
We just heard that the decision is going to come out momentarily. We're sitting here all waiting for it. As you can imagine, there is a great deal of commotion, people just suddenly began to run. We were all sitting around trying to stay warm inside the CNN truck when all of a sudden we just saw people started to run. We had heard rumors most of the evening that something was going to happen, the press information office, of course, had stayed open and that was always a good sign. Last night, they didn't stay open. Our own Charles Bierbauer was, you know, right inside the whole time and we were in great communication, so the moment when we will find out perhaps who the next president of the United States is upon us -- Bernie.
SHAW: ... how they are doing, in effect, they have this stack of paper comprising the opinion, the ruling, and they are just handed out to reporters and, of course, there is a lot of frenzy as each person tries to get his or her copy and either get to a telephone, or in this case, the CNN location outside the high court.
COSSACK: Yes, I'm awaiting my copy, I come right over here in hopes that -- and I'm sure it will be coming over here shortly. We know Charles is going to have one, Charles was inside. Each network was allowed one person inside the press information office tonight. Our own, of course, senior White -- senior Supreme Court correspondent Charles Bierbauer was inside and he should have his shortly. Mine will be coming over, too, and I will try and provide some analysis. But I'm sure that Charles is ready to go in just a moment.
SHAW: OK, also standing by, my friend, my colleague Judy Woodruff, and CNN analyst Bill Schneider -- the moment of truth.
WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: It is the moment of truth. The Supreme Court may use this moment to determine who is the next president of the United States. There are many ways this decision could go. The two most commonly discussed are that the Supreme Court could send the -- could ask Florida to resume the recount which it stopped on Saturday. We don't know who would win that recount of the disputed ballots, the ballots that were undercounted by the machine count. It could turn out either way. But they seemed to be struggling in the hearing yesterday for a uniform standard that could be used for the entire state. Alternatively, they could over-rule the Florida state Supreme Court and say that the process, essentially, has been determined, that it was certified that George Bush was winner of the Florida vote and they could go with that.
JUDY WOODRUFF, CNN ANCHOR: One of the arguments made by the Gore team, David Boies, the attorney, and it was even brought up by Justice Ruth Bader Ginsburg, and that is that perhaps finding a uniform standard may not make sense in so many words, because from county to county, the type of voting, the type of balloting changes in Florida.
At one point, David Boies said, you know, there's more difference in the different kind of ballots across the state of Florida than there is when you really look at the different ways of interpreting a -- one punch-card ballot.
SHAW: Jeff Greenfield in New York, our long wait is over.
JEFF GREENFIELD, CNN SENIOR ANALYST: Well, perhaps. It just occurs to me Bernie and Judy and Bill five weeks ago tonight we were in Atlanta watching the presidential election and one of things that made it special was we didn't know what would happen. It's now five weeks later. It's 10:00 on the East coast. We're waiting for a Supreme Court decision and for all of the speculation, we do not know what is going to happen.
You know, there's a reason why courtroom dramas work and have worked for several centuries. That sense of suspense coupled with the magnitude of what the court is about to tell us, makes for drama that I think no playwright, no matter how brilliant, could ever possibly create.
WOODRUFF: It was what, Bernie, five weeks ago tonight, as Jeff said, and it was five weeks ago tonight literally at this hour, when CNN and every other network decided to move Al Gore from the winner in Florida into too close to call little did we know then that five weeks later we'd still be wondering.
SHAW: And quickly now to our Supreme Court correspondent Charles Bierbauer.
CHARLES BIERBAUER, CNN CORRESPONDENT: Bernie, let's work through this as carefully as we can. But let me get to the bottom line here. The judgment of the Supreme Court of Florida is reversed.
That was the judgment that had allowed these broad counts to go forward and the case is remanded, that is sent back, for further proceedings consistent with this opinion. Seven justices of this court have agreed that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy.
The only disagreement, it says, is as to what the remedy should be. Because the Florida Supreme Court has said that the Florida legislature intended to obtain the safe harbor benefits, that is to say to have the electors named prior to this known cut-off date of December 12th, that would be today, it goes on to say Justice Breyer proposed remedy remanding to the Florida Supreme Court for its ordering of a constitutionally process until December 18th contemplates action in violation of the Florida election code.
So, that's an indication Justice Breyer is one of the two dissenters. I'm going to need a good bit more time to go through this. But the important thing is to say that this has sent back, that the Florida Supreme Court is going to have to address it to come up with a recount mechanism, that is consistent with the broader detail of this ruling -- Bernie.
SHAW: Thank you, Charles. Just take all the time you need. Roger Cossack, you're outside the Supreme Court right now.
COSSACK: Bernie, I have not received my copy yet, but let me tell you what I think this means. It's what I've been saying was not going to happen, unfortunately, for me at least, was that I thought there would be a final decision. It is now clear what this means this is that this is being sent back to the Florida Supreme Court.
They have found a constitutional violation and they are asking the Florida Supreme Court therefore to find a remedy for that violation. The safe harbor provision which we've heard so much about means that the Florida legislature intended that its delegates and electorates, rather, be named by December 12th, the date today, and that the constitution of the United States provides for that safe harbor.
If states do it by December 12th, then there will be no review, if you will, by the Constitution. Their claim seems to be at least Justice Breyer says that they intended to find -- to use that safe harbor provision. Now, what the majority says and the minority says, I will have to wait for a moment to be able to tell you more. But it's clear, at least, that there is a remand back to the Florida Supreme Court and the one thing we know for sure at least from what Charles Bierbauer has told is this case isn't over yet.
SHAW: Greta Van Susteren, another CNN legal analyst is on the telephone. Greta, you heard the headline.
GRETA VAN SUSTEREN, CNN LEGAL ANALYST: I did indeed, Bernie, and as I could see all my colleagues madly going through a decision trying to figuring out exactly what it means, trying to dissect it -- whether it means it's over for the Gore campaign or not. What it seems to say at this point is that we don't know for sure.
Obviously, the Gore campaign was hoping that the decision of the Florida Supreme Court would be affirmed. It has not been affirmed. It certainly has put a wrench in the works. What is unclear is whether or not it is totally over or not. It sounds like at least because this is a remand that it's going back to the Florida Supreme Court and there may be some opportunity for the Gore campaign, but this is not good news for the Gore campaign to have this not affirmed. So, to have it reversed and remanded certainly is a setback, but until the lawyers for both sides and this includes the lawyers for the Bush campaign and the Gore campaign can comb through this decision and see exactly what it is that the justices want, we still remain sort of in limbo. But I will say this, this is what oftentimes happens, decisions issue and lawyers madly race through and correspondent through this decision trying to decipher what we probably need 24 hours to determine.
SHAW: Well, Charles Bierbauer is reading but not madly. And he's not racing. He's reading very carefully. Let's revisit Charles now outside the Supreme Court as you continue to go through this major ruling.
BIERBAUER: Bernie, let me point out this is a per curiam ruling. That means it is a ruling for the court. But it has attached to it several concurrences and several dissents on various parts of this, including Justice Stevens, Ginsburg and Breyer.
In one of the dissents written by Justice Stevens, but in the per curiam, in the main ruling it says upon due consideration of the difficulties identified with regard to the estimated 110,000 of overvotes that were addressed in Florida, it says it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. These were key elements which the Bush campaign wanted to bring before this court. It was only able to do that in the arguments here yesterday.
Equal protection, all votes, all voters being treated equally. Due process of the law. These are federal constitutional grounds under which the Bush campaign wanted this court to address the Florida recount. And it was for that reason that so much of the questioning here yesterday dealt with what would be a fair way to count these ballots?
What would be a uniform standard to create across the state so that you didn't have different counting from county to county or as Justice Kennedy at one point in the argument said, from table to table even as vote counters from the same county tried to sort through the chad and the dimples and all those problems.
It doesn't lay down a specific recipe for going about this, but it does note that it would require not only -- I'm reading now -- not only the adoption of adequate statewide standards for determining what is legal vote and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. That is a way of taking it back through the Florida courts.
It says the secretary of state has advised that the recount of only a portion of the ballots requires vote tabulation equipment to be used to screen out undervotes. This is a little bit of technical stuff here. I'm trying to skip through -- that's the substantial portion dealing with the equal protection, and if I could page through to starting with -- here's Chief Justice Rehnquist concurrence. You see what we're going to have to wade through here. Justice Stevens in a dissent, says the Constitution assigns to the states the primary responsibility for determining the matter of selecting the presidential electors. On rare occasions, he says, however, either federal statute or the federal constitution may require federal judicial in state election.
From Justice Stevens' viewpoint this is a, quote, "this is not such an occasion." And this is a point on which Justice Stevens, Justice Ginsburg and Justice Breyer join in on dissent -- Justice Stevens who was very skeptical during the questioning said that the federal questions emerged are not substantial.
SHAW: Charles --
BIERBAUER: I'm reading through that, Bernie, it looks like three dissenters.
SHAW: Charles, because of the important nature of this story let's go back to the headline for viewers who just might be joining us for the first time and repeat the main element out of this and as you flip back to the front of the ruling, CNN's John King reports that Vice President Al Gore does not have a copy of the decision. That he is learning from CNN what the elements are in this basic ruling that has just come down from the nation's highest court. Please...
BIERBAUER: I want go back then, Bernie, to the bottom line where we started and the per curiam order from the court, where it says the judgment of the Supreme Court of Florida is reversed. That was the judgment by the Supreme Court of Florida that a statewide recount of the undervote could take place.
The case is remanded, that is sent back for further proceedings, not inconsistent with this opinions, and bearing in mind that was the strong reference we found here about the questions of equal protection under the federal Constitution. There's your bottom line, Bernie. The Florida court is going to have to address it again.
They are looking for a statewide standard for whatever recount may be considered to go on from here. It doesn't say they can't count them, but they've got to come up with a matter of doing that is uniform -- Bernie.
SHAW: OK, Charles, as you continue reading -- Judy.
WOODRUFF: Yes, I just have a question if Charles could hear me. We're trying to clarify what the high court has said, Charles, about the recount. Did we understand you just now correctly to say they're not ruling out a recount, they're just saying they need more from the Florida court and Florida officials before a recount could be resumed?
BIERBAUER: Yes, I think that's precisely what it says. And I'll go back, because it doesn't hurt to reread this, what it is saying -- it says, "The recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work." Going on to say, "It would require not only the adoption" -- in parentheses -- "(after opportunity for argument) of adequate statewide standards for determining what is a legal vote and practicable procedures to implement them."
And then it says, "But there should also be orderly judicial review of any disputed matters that might arise," bearing in mind that there is within the Florida Constitution and within the election procedures room for some judicial review. That was a concern raised by the Gore attorneys here. The two things seem to be -- have been given at least some balance here in that the Bush attorneys, the Bush argument was that equal protection should come before this court and should be required by this court in the Florida count, and by the Gore attorneys that there should be some allowance for judicial review, which is what the Florida state Supreme Court did.
But the heavier hand here would certainly seem to lie on the side of making sure that there is a uniform standard. That says you've got to come up with another plan and you don't have a whole lot of time to do it down in Florida. But we do know that, as we've been saying many times, that December 12 was not the magic date, it was a date on the calendar when something should have happened, but didn't have to happen -- Judy.
WOODRUFF: I think one of the questions we have, Charles, is when you say "recount can't be conducted without substantial additional work," are they saying a recount can be conducted at all?
All right, Roger Cossack, our legal analyst, you're looking deeper into this ruling, what are you finding?
COSSACK: Yes. Judy, I finally have the ruling, let me just hold it up so that our viewers can see it here, it is a booklet and it is quite thick. The -- let me just tell you the most interesting part that I find as a legal analyst. The first part of this opinion is written per curiam, that's an unsigned opinion which is an order of the court, per curium means for the court.
The remainder of this booklet is made up of dissents from the order of the court, so that a per curium, something that they all signed on to, they all dissent from in various and different parts. For example, here is Justice Rehnquist, Justice Scalia and Justice Thomas concurring with part of the per curium opinion, because -- and they talk about there are additional grounds to send back.
Then we have another part of this opinion, Justice Stevens, Ginsburg and Breyer joint dissenting. Then there is another part in which Souter, Breyer, Stevens and Ginsburg, they joined with regard to all but Part C to dissent.
Then you finally get to the end here, where Breyer with whom Stevens and Ginsburg join, accepts in part 1A and 1, and Souter joins as to part 1, dissenting -- dissenting to their whole per curium decision.
Now, why is that interesting? Because it's something that we have talked about on CNN a lot. The fact that this court has struggled and struggled and struggled to try and come up with something which they could all sign on to, but we knew that there was tremendous division within this court just in the way that they issued the stay, the stay in which there was a stinging majority and a stinging dissent as to with the stay. And so what they finally did was issue an order, sending it back to the Florida court with -- and ordered the Florida court to go ahead with things that were not inconsistent with the opinion and then they all dissented from this per curium. This is a highly unusual opinion and it shows the divisiveness and the difficulty they had in coming to.
WOODRUFF: But, Roger, can you make heads or tails out of the recount, any recount, whether it's permissible, is it ordered, I mean, what -- and I know we're asking you and Charles to do a lot, because you just got hold of this a few minutes ago.
COSSACK: Right. What -- and it's a highly confusing opinion and I -- and with so many dissents, I think it would be irresponsible of me to come out and give you definitive things, but let me tell you what at least at the first blush of it I think is what it said. What it has said done is one, it has reversed the Florida Supreme Court, but it has -- instead of issuing its own order, it has recognized the authority of the Florida Supreme Court, it has made some conclusions as to what the Florida Supreme Court intended to do. It then sent this case back to the Florida Supreme Court and said, you can then -- we're remanding it back to you, Florida Supreme Court, to do something not inconsistent with what this opinion tells you.
WOODRUFF: So are you saying, Roger, that it -- from what you're able to read a few minutes into just having this thing in your lap, it appears that a recount could still take place?
COSSACK: I would say this, that one of the things that -- yes, the answer to your question is yes, and I'm saying that with a small lie, Judy, because to be totally responsible and objective I would have to read this thing from the top to the bottom.
But what I believe they are saying is you have to come up with a standard that satisfies the equal protection clause. Now, they are -- whether or not that standard is a statewide standard, or a standard that has 67 different standards for 67 different counties, but would be equitable and fair -- I can't tell you yet. But I can tell you that it -- I think that what they are saying is you have to, first of all, comply with the safe harbor, which is what you wanted to do, and therefore you have to act in a certain way; with that in mind, you have to then go back and rethink what you've done, Florida Supreme Court.
SHAW: Roger, based on what we've reported tonight here on CNN, am I correct in concluding that tonight the United States Supreme Court justices stepped back from deciding the next president of the United States?
COSSACK: It would appear, Bernie, that, that is what has happened. I don't mean to be hedging my bets with you tonight, but I think it -- as I say, it would be irresponsible for me to give you definitive statements without having totally read this opinion, but in glancing through it, it appears that they have not said, Bush you win, Gore you win, what they have said is, Florida Supreme Court, see if you can come up with a better solution than the one you have right now.
SHAW: Thank you.
WOODRUFF: All right, Roger, we're going to -- we want you, of course, to stand by and you can continue to look through that opinion you have, and Charles Bierbauer, the same to you.
We have here with us in the Washington studio, Ken Gross, election law expert.
Ken, based on these fragmentary reports that we're getting, what do you think the justices are saying?
KENNETH GROSS, CNN ELECTION LAW ANALYST: Well, what we do know is that it is a reversal, and what the court was doing -- what the Florida Supreme Court ordered was a limited recount of underballots, that's what was happening and that's what was stayed and stopped, and that's been reversed. So whatever process was undertaken there is now not going to happen again. I think there's concern about the overvotes, there was a specific reference in what Charles read about the 110,000 overvotes that weren't accounted for by the Florida Supreme Court. So it's difficult to parse it totally with this information, but it's sounding like on some possible basis there may be a recount under different standards to comply with the equal protection clause of the Constitution.
WOODRUFF: And yet we also hear Roger Cossack saying that the court is expected to do this within the so-called "safe harbor provision," which is a very tight time frame, we're talking today is December the 12th, December the 18th is the day when electors are to vote for president.
GROSS: Yes, and that's the part that we just -- we have to sort through this, because we're -- as you say, December 18 is the electors' date, the safe harbor date is really December -- is today. I mean, they can't possibly undertake what they're talking about in the short time frames that we're looking at, it doesn't sound like, I don't know without having read the opinion, of course.
SHAW: As all this unfolds, we're standing by trying to get reaction from the Bush and Gore camps.
As CNN senior White House correspondent John King told me in a computer message just moments ago, Vice President Gore here in Washington did not have a copy of this ruling, he was getting the basic initial information from CNN as he's watching television.
We're going to go back to you, Jeff Greenfield in New York.
GREENFIELD: Here's some questions that I think we need our trio of legal experts to inform us about as soon as they can get through this opinion, because what they're presenting seems to be a decision by the Supreme Court that runs smack against the calendar, as Judy Woodruff just said.
It is now the evening of December 12, this court has apparently said to the Florida Supreme Court, if you want to come up with a recount, you're going to have to devise standards that meet the equal protection and due process clause, you're going to have to permit the contestants in this case to argue that, you're going to have to leave time for judicial review of these standards and the process, and on December 18, the electors of Florida are going to go to Tallahassee into the state capitol and vote.
And one of the questions I think that needs answering is if, in fact, there is room for the Gore campaign to say, well, we think we can get a recount out of this, how is all of this supposed to happen between the evening of December 12, and the morning or afternoon of December 18? Or is what the Supreme Court doing appearing to create the prospect of a recount, but imposing the kind of restrictions on it that make it practically impossible for the Florida Supreme Court and the other institutions in Florida to actually do this?
WOODRUFF: Here is -- Bernie, if I could just read a line. The Associated Press and our own reporters and analysts are telling us -- this is a line from the opinion, quoting: "Because it is evident that any recount seeking to meet the December 12th date will be unconstitutional, we therefore reverse the judgment of the Florida Supreme Court."
SHAW: And let me report this: CNN's John King is messaging me that Vice President Gore's legal team is on a conference call right now trying to figure out what this ruling from the nation's highest court tonight means.
Jeff Greenfield, I ask you the question, as I asked Roger Cossack outside the Supreme Court. There's been a lot of speculation about what these nine justices of the highest court would do about this election, but I deduce that these nine justices tonight pulled back from deciding the next president of the United States.
GREENFIELD: Well, it's -- they have not, in so many words, decided the next president, but that's why the questions that I pose I think are going to give us the real answer to that. If there's a scenario that they sketched out that is practically impossible to meet, then there will be no recount under any standards. And part of what we are going to be finding out -- I think, you know, I think we've all learned not to speculate before we actually know the facts.
What we need to find out in the heart of this opinion is whether or not the Supreme Court has created a structure which the state institutions in Florida will somehow be able to meet before the electors vote.
I mean, one theory before this decision was that somehow the Supreme Court of the United States was going to step in and actually structure the mechanism for a recount, maybe even say to somehow to the electors of Florida, well, if you have to wait a few days before you vote, we can figure that out. If that's not what happened -- and it doesn't sound like it -- the question is, is there even in place the standards for a mechanism that can practically be met by the state of Florida. And the honest statement right now, Bernie, at this hour, about 22 after 10:00, is we don't know yet.
SHAW: Let's go back out into Washington's cold and our correspondent Charles Bierbauer, who continues reading this decision.
Charles, what about the breakdown of the justices in terms of the vote?
BIERBAUER: Let me get to that, but let me answer what Jeff just posed, because I think that's a critical question. And we've come back to that element in this a couple of times, but it is that reference to the equal protection clause, where it says that the standard, without spelling it out in precise terms, but in the general term is -- and this is a quote -- "adequate statewide standards for determining what is a legal vote and practicable procedures to implement them."
This court is not going to say what they are, but it is saying that they have to be -- they have to be adequate and uniform.
I can flip back to another element here, in part to answer your question as to what the breakdown of the court is. Roger indicated that the justices Breyer, Souter, Ginsburg and Stevens have each written a dissent to which the others have signed on, either all or in part. So there are four dissenting justices to this, the four that were reluctant to take this in the first place.
And the bottom line in Justice Breyer's dissent, Justice Stephen Breyer is to say, "What it does today the court should have left undone, but I would repair the damage done as best we now can by permitting the Florida recount to continue under uniform standards." That is what they're asking.
WOODRUFF: Now, Charles -- Charles, if I can interrupt. At the end of the per curiam -- Bernie and I have just gotten our own copies here in the studio. At the very end of the per curiam portion of this opinion, let me just read -- and this is a direct response to what you just said, which is part of Justice Breyer's dissent.
It says: "Justice Breyer's proposed remedy, remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18th, contemplates action in violation of the Florida election code, and hence could not be part of an appropriate order authorized by the Florida statute."
Seems to me -- and we're all sitting around here trying to figure this out; Ken Gross, you're here as well -- it sounds to me as if they're saying the remedy proposed by Justice Breyer doesn't work.
BIERBAUER: Well, I have not read all of Justice Breyer's dissent, so I'm going to have to extract that. Why don't you talk to Ken while I look for it? GROSS: Well, that is part of the per curiam opinion, part of the majority opinion, and it does say that the relief that's rendered here would not comply with the safe harbor provisions. And that is a problem, and I guess we're still grappling with whether there's any way, legally, a recount can actually occur consistent with these new standards. And it's just -- the way it's written here it's not entirely clear.
WOODRUFF: And the language just ahead of that, Bernie, where they say, "We reverse the judgment of the Supreme Court of Florida, ordering a recount to proceed" -- again, if you pick up pieces of this, it sounds like they're saying a recount cannot continue.
Charles Bierbauer and...
BIERBAUER: I'm not sure I agree -- I'm not sure I agree with that, Judy, because it says to proceed -- proceed not inconsistent with this opinion.
We have much discussed this safe harbor aspect of the December 12th deadline when electors are supposed to be chosen so that they can vote on December 18th. But we are also mindful, at least in one circumstance, the 1960 election, in which Hawaii did a recount and found well into December -- I think it was December 28th -- that they had a recount total that switched their votes from Richard Nixon to John Kennedy.
Now, that didn't swing the election, but that change was made and it was made before the votes were counted in Congress in January.
So if there is that degree of elasticity here, there is room for something to be done. I don't want to suggest it's there if it isn't, but it would seem to be they're saying you've got to come up with a different standard.
What their objection to Breyer is, I'll have to keep working on that.
WOODRUFF: Roger Cossack, you're there looking -- pouring over this as well.
COSSACK: In the per curiam decision -- I think this is illustrative of what this is about -- there is this written. "There is no difference between the two sides of the present controversy on the basic propositions. Respondents say the very purpose of vindicating the right to vote before us justifies the procedures now at issue. The question before us, however, is whether the recounts procedures the Florida Supreme Court has adopted are consistent with its obligations to avoid arbitrary and disparate treatments of the members of its electorate." And so once again what they are saying is we have to find some standard.
Now what's interesting is in the dissent written by Rehnquist and signed onto by Scalia, and also by Justice Thomas -- and they are of course the most conservative members of the court -- they say that it seems that -- and they quote from the Florida Supreme Court, from the dissent of the Florida Supreme Court -- that they talk about that all that will happen here is the remedy, which would be impossible to achieve and will ultimately lead to chaos. And their feeling, of course, is that you can't get this done.
What I think this, perhaps, is leading to is of course an instruction to the Florida Supreme Court to come up with a better plan which would be constitutional. But I'm afraid that that leads to the question of, does the Supreme Court then have to review the better plan to decide whether it's constitutional, and if that's the case, when does this end?
WOODRUFF: Yes, what we're wrestling with, among other things here, is determining to what extent have they ordered a recount, if -- it appears that at one point they -- more than one point they are saying, we want the Florida Supreme Court to take another look at this, but in the very same page and in other places they are saying such a remedy would not be consistent with Florida law -- Bernie.
SHAW: There's one thing. The very last three paragraphs in the per curiam on page 13. Listen to this languages from the justices.
"None are more conscious of the vital limits on judicial authority than are the members of this court, and none stand more in admiration of the Constitution's design to leave the selection of the president to the people, through their legislatures, and to the political sphere.
"When contending parties in both the process of the courts, however, it becomes our unsought" -- "our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.
"The judgment of the Supreme Court of Florida is reversed and the case is remanded for further proceedings not inconsistent with this opinion."
COSSACK: Yes, and what's interesting, again, I just want to point out, Bernie, is that in the dissent signed on by Rehnquist, Thomas and Scalia, they end up by saying that the Florida legislature -- "The Florida Supreme Court wanted to bring Florida into safe harbor" -- the remedy prescribed by the Supreme Court of Florida, and that it "significantly departed from it." And therefore -- "And it authorized open-ended further proceedings, which could not be completed by December 12th, thereby preventing a final determination by that date. For these reasons in addition we would reverse..."
And I think that what they're saying is that in fact they have violated the federal law, the safe harbor law, the safe harbor law, they would reverse, and they do not believe, at least these three members of the dissent, that you could -- that the Florida Supreme Court can come in within the safe harbor provision, because the dates have come and gone.
Now, there are others clearly believe -- and I think from just seeing Justice Breyer, it's his dissent -- they probably -- I think his position is they shouldn't have even gotten involved in this case. But as you can tell, they are all over the board on this case.
WOODRUFF: Roger, if I can just read to you from a portion of the dissent from Justice Stevens, John Stevens, and again, dissenting -- and I'm reading here in part. He says: "In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent and are therefore legal votes under state law, but were for some reason rejected by ballot counting machines."
And he goes on to say -- Justice Stevens goes on to say: "It does so on the basis of the deadlines set forth in Title 3 of the United States Code, but as I have already noted, those provision merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors." It sounds like he is saying the majority has chosen not to count these votes, not to conduct a recount despite what we're reading elsewhere.
COSSACK: Well, what's it's saying, I think, it's the safe harbor provision which says that everything has to be done by December 12th. In But in fact there are different way around that. I think that what they're saying is that the Florida -- we believe that Florida Supreme Court and Florida legislature wanted to come within that safe harbor provision, that means it has to be over by December 12th. We're sending is back to the Florida Supreme Court to be consistent with that date. Now, how the Florida Supreme Court interprets it, you know, we just don't know yet.
SHAW: Let me just jump in here quickly, Judy, to so some reporting. CNN's John King covering the Gore team says that the Gore team has just a moment ago got a hard copy of this ruling that we've been reviewing. They are now reviewing it and a senior member of Vice President Gore's legal team says, quote: "It doesn't look encouraging," unquote. That from our man, John King -- Judy.
WOODRUFF: Greta Van Susteren with us, I believe on the telephone. Greta, based on what you are seeing -- I think you now have a copy of this, what are you reading here?
VAN SUSTEREN: Judy, let me tell you what I think is so interesting here. You have the Florida Supreme Court reversed and the big question is in light of reversal can Florida come up with a solution? And I think what we have to do is step back for a second and look at what Justice Breyer asked Ted Olson on Monday at the hearing.
What he said was hypothetically, if we send it back to Florida, send it back to the Florida Supreme Court and the Florida Supreme Court sends it back to the trial court to Judge Lewis in Tallahassee, if Judge Lewis solicits a standard from the state -- from the secretary of state would that satisfy the equal protection clause and Ted Olson on behalf of Bush thought it would, that the secretary of state could set a standard. Now, we're under huge time constraints if indeed this is an order that people want to see effectuated, that a manual recount to go forward. But it's interesting because Justice Breyer sort of gave a tip to the state of Florida as to how it might be resolved that there might and way to standardize the solution, standardize the looking at the ballots. It wasn't necessarily going to the Supreme Court of Florida to do it, but rather to the secretary of state. So, it's interesting when you look back at the argument that there was a little bit of a hint, a tip from Justice Breyer in the oral argument.
SHAW: OK, we're going to go back outside now to Charles Bierbauer, who continues reading -- Charles.
BIERBAUER: Bernie, I wanted to make one point. We know that this is an opinion for the court -- that's what per curiam means and we see a very strong added concurrence here by Chief Justice Rehnquist, Justice Scalia and Justice Thomas. Interestingly, what we do not see is the hand of Justice Sandra Day O'Connor or Justice Anthony Kennedy in here. They would be represented in the per curiam brief.
They've chosen not to add any particular word of their own nor do they sign on to the chief justice's concurrence, which he used to provide additional grounds, as he suggests, requiring a reversal. Justice Kennedy and Justice O'Connor are always considered to be the center of this court, the movable center, perhaps that swings one way or another on this issue.
They were with the five who agreed to hear and agreed to put a temporary stay on the recounts. They are with the court in agreeing to this, but they have not given us any direct reasoning of their own for that. We know that they concur. We do not know whose hand is upon the per curiam brief itself or the per curiam opinion. We'll have to parse that for language that may reflect that.
But I think it's kind of interesting that they have stayed silent on this. They're questioning was very much concerned yesterday of course with the federal issues that this opinion here finds -- Bernie, Judy.
WOODRUFF: It is interesting, Charles. What you're saying and I think perhaps we can almost get a clearer understanding of what the majority has decided by reading from again a portion of a dissent. This from Justice Ginsburg. She starts out -- her final remarks at the end of her dissension. She says the court assumes that time will not permit orderly judicial review of any disputed matters that might arise, but she says no has doubted the good faith and diligence with which Florida election officials, attorneys for all sides of this controversy and the courts of law have performed their duties.
Continuing to read from Justice Ginsburg's dissent, notably she writes the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In some, this court conclusion that a constitutionally adequate recount is impractical is a prophecy the court's own judgment will not allow to be tested. She writes finally such an untested prophecy should not decide the presidency of the United States -- Roger Cossack. COSSACK: Yes, Judy, as I get more into this I'm beginning to see now exactly -- it's becoming a little clearer. What has happened here is a per curiam decision has said that as we have talked about all along, that it has to go back to the Florida Supreme Court, but they talk about the fact that because they believe that Florida wanted to become member of the safe harbor provision of the Constitution, that it has to be done by December 12th.
They talk about the fact that there is really no time, therefore, under the per curiam decision to have all of this done by December 12th. It would be self-fulfilling policy that we're sending it back to you. This is what believe you must do, Florida Supreme Court, and we don't believe there's enough time to do but we are sending back to you.
It's a little open-ended, but what the per curiam decision says is we're reversing the Florida Supreme Court decision. That's gone for sure. We're remanding it back to you but we believe that you have to come within these provisions and we don't think can you come within these previsions.
SHAW: Roger. Jeff Greenfield in New York.
GREENFIELD: I think Roger is dead on and I think when Judy read from Justice Ginsburg's dissent, there was the clue. And listen to what Justice Stevens says in his dissent, and you'll see why this is actually very bad news for Al Gore. Justice Stevens says: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the law."
And in fact, what this seems to suggest is seven justices said, look, there are constitutional problems with what the Florida Supreme Court did. Five justices -- that's a majority -- suggested that there is no way, obviously, to construct an appropriate remedy by the safe harbor date by which electors are supposed to be named, which is today.
And the tone of the Ginsburg and Stevens dissent suggests to you that they are looking at this decision and the decision of at least five of the justices, or rather five, not as simply a way to say, fix it in Florida. Seven were prepared to say fix it, but five justices said you can't fix it. Recount, to use one of the languages -- one of the phrases from the per curiam opinion, could not -- the recount could not be part of an appropriate remedy.
So we're going have to keep sifting through this decision. It is extremely complicated with all these concurrences and dissents, and I make no claim to be, you know, a legal expert after all these year away from it. But it sure sounds to me that the reason why that Gore person told John King that this is not good news is because there does not seem to be in this remand any room for the Florida state Supreme Court actually to construct a recount.
WOODRUFF: That's right, Jeff Greenfield and I think -- and again, you citing Justice Stevens, what I read a moment ago from Justice Ginsburg, again, just quickly, Justice Ginsburg -- I'm sorry, Justice Stevens. "Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain: We may never know" -- "Although we may never know with complete certainty the identity of the winner of this year's election, the identity of the loser is perfectly ..." And as you said, he said that's "the nation's confidence in the judge as an impartial guardian of the rule of law" -- Roger Cossack?
COSSACK: That's -- I'm pretty sure now what Jeff has said and I think that that's exactly what's happened. Safe harbor requires December 12th. December 12th is today. They have found that what the Florida Supreme Court has done was unconstitutional. They sent it back and said fix it, but fix it within the provisions of the safe harbor. You can't get it fixed by the provisions in the safe harbor.
In fact, he says in the per curiam -- they say that statute in turn "... requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12th. That date is upon us and there is no recount procedure in place under the state Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12th date will be unconstitutional for the reasons we discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed." So what they have done is sort of set up their own guidelines. They have determined that they violated the Constitution. They said see if you can fix it by December 12th. Unfortunately, today is December 12th.
WOODRUFF: Roger, you know, Jeff Greenfield pointed out we don't hear from -- or maybe it was you -- I'm sorry, I want to give credit where credit is due -- that we don't hear here from the justices who had been perceived to be the swing justices, O'Connor and Justice Kennedy, and one wonders about the burden that any one or more of these justices wanted to carry with the full force and effect of this decision.
COSSACK: Well, you know, I think it was Jeff that pointed that out and I think that the -- their silence -- I suppose the volume is very high on their silence.
The Gore people felt all along that they had to get one of those two, perhaps both of them to win this case, they did not write, we can only assume that they are part of the per curium decision, which is not good for Vice President Gore. Apparently, they were unable to swing either one of those two to their side. The dissents, I think in some ways -- in my brief reading of them, in some ways attack the majority or the per curium opinion as somewhat hypocritical, of reversing, sending it back, but finding the constitutional violation, the safe harbor provision, and then saying which, of course, requires things be done by December 12, and that is why you hear Justice Stevens saying things like he is saying that history -- we know who the loser is and we know who the winner is, and perhaps history will talk about us some day, because in fact, what is -- what he is unhappy about is the notion that these votes will never be counted, even though apparently they could have been counted, or at least an attempt could have been made.
SHAW: Roger, we are going to call in now our senior White House correspondent John King, who has been keeping a very close eye on Vice President Al Gore and his team -- John.
KING: Well, Bernie, as we reported earlier, they are just reading this decision now, the legal team in Tallahassee, just within the last 15 minutes are so, actually getting a hard paper copy of the decision. The initial reading, though, as we are reporting, the initial reading from the Gore legal team is that this is not encouraging, one senior official just moments ago saying it appears to be quite devastating. But they are still reading it, and they are focusing very much on the language we are focusing on.
In the per curium decision, the court's main decision, the court says that the process ordered by the Florida Supreme Court is unconstitutional, it quotes the Florida election law, as Roger was just saying, the December 12 date, it says that date is upon us and there is no recount procedure in place, under the state Supreme Court's order, that comports with minimal constitutional standards, in the -- it is the opinion of the Gore campaign now that this has been thrown back to the Florida Supreme Court, they have been ruled now twice, their decisions vacated and remanded by the U.S. Supreme Court. The 12th is upon us and is almost past us.
The only hope for the Gore campaign now, in the view of the Gore camp, is for the Florida Supreme Court to say, we will try again, we will do another recount, we will adopt a statewide standard for counting those ballots, and we think we could get it done by December 18, by the time the elector's vote, and then of course, that decision would be challenged. So essentially the Gore campaign's last hope now in the hands of the Florida Supreme Court. The expectations of many Democrats is that the Florida Supreme Court will take this and say, we have done our best, we surrender. The Gore campaign hoping they would come up with another option, but not terribly optimistic, as they pore through this decision at this hour.
WOODRUFF: Well, John King, let's take that analysis we've just heard from you, go down to Tallahassee to former Florida elections official analyst David Cardwell.
David, you heard what John King was saying, and if this opinion can be interpreted that way, that the Florida Supreme Court being given, in effect, one last chance to to get it right before December 18, is that even feasible?
DAVID CARDWELL, CNN ELECTION LAW ANALYST: Well, we think it's feasible, because at the time that the recounts stopped this past weekend, many of them thought that they can complete those recounts within a matter of hours. So if they can get the instruction to go ahead and proceed now, they can get those finished by the 18th.
But what we have to look at this, as we are hearing the opinion coming out, is that there is a need for the Florida Supreme Court to establish a statewide standard, that was something we thought when we heard the oral argument that the justices were concerned about, is that can we have a standard that all the canvassing boards will follow as they recount these ballots. If that can be done in a timely manner, and that means like, you know, tomorrow, then the recounts can begin and they can be completed by the 18th, based on where the counties were at the time that they stopped.
WOODRUFF: But David, the standard is the big sticking point all along, that's the whole -- isn't that the big part of the reason they were raising the equal protection question to the Supreme Court of the United States?
CARDWELL: Judy, great point, that has been the issue from the beginning of this election and it's never been resolved. The courts have not yet told us what the standard is, and in Florida under the statute, it says you identify the clear intent of the voter, but then, as has been pointed out, that can change from one counting table to the next when you are looking at, is a dimple counted here, a dimple not counted there.
We may be right back where we started, and it may be up to the Florida Supreme Court, when they get this remand back from the U.S. Supreme Court, to try to resolve this, but they've got to do it quickly.
SAVIDGE: Judy, can I bring out a quick point here?
SAVIDGE: Something that we saw down here in the Florida Supreme Court, you may remember 4:00 this afternoon, we had the rulings that came down on the Martin and Seminole cases.
SAVIDGE: Essentially, what the Florida Supreme Court may have been doing and may have actually been forewarned that this ruling was coming and coming back their way, was that they have legally sort of cleared the decks so that they could be prepared and perhaps in a streamline position so that they could respond. We also know that there was telephone communication between this court and the U.S. Supreme Court shortly before they announced their decisions on the Martin Seminole case. So there again, we know that the two courts were talking between one another. In fact, it was indicated that perhaps there was a belief from this court, the ruling was going to come earlier in the day. In fact, they thought their ruling might conflict with the timetable that the U.S. Supreme Court had. So there are subtle indications from Tallahassee that this court may have had an earlier heads up, hours ago perhaps, to get ready and, in fact, that's what's happened here.
CARDWELL: That's right, that's right. It could be.
These courts do pay attention what each other is doing, and I think you are right, Marty. I think that there was some direct communication, what we have heard, it was Craig Waters to the public information office of the Supreme Court, they wanted to make sure they were not overlapping each other. SAVIDGE: David Cardwell, thank you very much -- Judy.
WOODRUFF: All right, David Cardwell and Martin, we thank you both.
We want to -- we appreciate that clarification.
And, Bernie, you want to talk to John King.
SHAW: Let's go up to Jeff Greenfield again -- Jeff.
GREENFIELD: Just one quick point, the opinion of the court specifically rules out the idea of going to December 18 for the standard. Let me just read this and then let's go to John King, the per curium opinion says "seven justices of the court agree there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. The only disagreement is as to the remedy." And here is the key: "Because the Florida Supreme Court has said the Florida legislature intended to obtain the safe harbor benefits of the federal law, Justice Breyer's proposed remedy remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18 contemplates action in violation of the Florida election code, and hence could not be part of an appropriate order authorized by Florida law."
In other words, five justices within this seven men and women majority specifically are telling Florida, forget about extending it to the 18th, you can't do that. So if there is any room for the Florida Supreme Court to take any action to structure a recount in the next six days, I can't find it in what the court has just said.
SHAW: OK, Jeff, let's go quickly to John King with -- go ahead, John, you do the reporting on this one.
KING: I think to follow up on that point, Bernie, the pessimism that we are getting from the Gore campaign reflected not only in what Jeff just said, but if you continue to read on it is the very high bar the U.S. Supreme Court set as it sent this back to the Florida Supreme Court.
It says, No. 1, if there were to be a recount, you would need to have a statewide standard. It says, No. 2, that standard would have to be subject to challenge. It would require not only the adoption after opportunity for argument of adequate statewide standards. Then it said the secretary of state would have to approve any software, any equipment used in that recount, and then of course, that recount would have to be conducted and completed, obviously, very quickly.
So a very high bar here, as the U.S. Supreme Court sends this back to the Florida Supreme Court, and the early interpretation from those reading it, especially the Democrats reading it here in Washington, is that the U.S. Supreme Court has sent this back to the Florida Supreme Court for the Florida Supreme Court to make the final decision, but most Democrats reading it now believe that final decision will be that they will simply pack in after being now reversed by the U.S. Supreme Court, or at least remanded by the U.S. Supreme Court twice.
WOODRUFF: Well, what is bad news for Al Gore is good news for Governor George W. Bush. And for more on reaction in Austin, let's go there right away to our Candy Crowley -- Candy.
CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Judy, it is indeed the other side of this legal coin. In Tallahassee, the governor's lawyers are behind closed doors going over this opinion page by page, but I am told that there is a preliminary sense of confidence that this is a victory for the Bush team and that the vice president has now exhausted all of his legal avenues.
So you are hearing just the mirror of what John is reporting and that is that within the Bush legal camp there is a feeling that they do have a victory here. Obviously, this a complicated ruling they are going over page by page, but they believe that this is a win and obviously a big win for them. Here at headquarters, people are either gathered around the TV set watching this or they are reading again this very sort of lengthy document. But the feeling from the legal team at this point is that preliminarily this looks like victory for them -- Judy.
WOODRUFF: Candy, just so that we know, where is the governor himself, this evening, and where are the -- where's the legal team? Are they in Florida or are any of them in Texas?
CROWLEY: The legal team is in Tallahassee and in fact a lot of his political team is as well. Campaign chairman Don Evans is down there. A lot of them had gone to oversee the recount before the U.S. Supreme Court stayed that recount.
So, not only is the legal team down there, but so is the political team. The governor himself is in his mansion. He's been in his mansion all day. I don't expect to see him out. For one thing, there is freezing rain here and the streets are slick but beyond that, I don't expect until his lawyers have really, you know, watched all the T's and dotted all the I's and all of that and know exactly what they're doing, I don't expect we will hear from George Bush this evening.
WOODRUFF: All right, Candy Crowley in Austin -- Bernie.
SHAW: Two members of the United States Senate we'd like to hear from right now, Republican Senator John Warner of Virginia in our CNN Washington bureau, and California Democratic Senator Dianne Feinstein. First, to you, Senator Warner, your interpretation of what you're hearing in the reporting on this decision tonight?
SEN. JOHN WARNER (R), VIRGINIA: ... It got reversed on the very constitutional grounds that were... (AUDIO GAP)
SHAW: Senator Feinstein.
(CROSSTALK) WARNER: ... out of this is quite confusing. We'll take some time to sort it out, but listening to your colleagues here, it looks as if it's an impossible situation. So I think, although it's a strange way to end this thing, it looks to me that we are now seeing the beginning of the end.
SHAW: Senator Feinstein, your read on this?
SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Well, my read is that it's kind of a gotcha opinion, and we're just reading it. We're just trying to decipher it. I agree with Senator Warner on his conclusion about it, but it seems to say we're reversing the court. We're remanding it back. If there is a way you can comply, go ahead and set it up.
But then it sets the timeline as the 12th, as I understand it. If the timeline turns out actually to be 18th, and there is a way to meet the equal protection such as recounting the votes of the entire state and setting standards for those votes which meet constitutional terms, it's possible. So it's kind of gotcha because you can't do it by the 12th, because you're an hour -- well, you're an hour from the end of the 12th.
SHAW: What would you advise the vice president to do?
FEINSTEIN: Oh, I'm not in a position to give the vice president advice at this time. He's got very good counsel. He's surrounded by family, I'm sure. But it looks to me like this opinion is not a favorable one.
SHAW: Senator Warner...
WARNER: I know the vice president. Both of us do. We served in the Senate. He was on my committee, the Armed Services Committee. I'm confident that Al Gore will do the right thing at the right time.
SHAW: What does that mean?
WARNER: I stop at that. He will do the right thing at the right time. I think as you look through this decision, I agree with my colleague, it poses an impossible situation, and I believe that he will recognize that, but let's give him the right on his own initiative to do it when he thinks it's proper time.
SHAW: What do each of you hope will come out of this?
WARNER: Well -- go ahead, Dianne.
FEINSTEIN: Well, see, I looked at this opinion or thought that the opinion would really bring people together, that it would be an opportunity for us to say we respect the highest court of the land. This is an opinion, it is an opinion by a majority of the court. It's not entirely clear as to what the opinion means on its first reading.
And that's what's kind of perplexing to me because I wish it were. As Mr. Foley of the Florida House said, if the court is explicit. In this case, the court isn't directly explicit, it's implicit. And you have to sort of derive from the words what those words actually mean. And I don't think we've gotten entirely there. But, I agree that the first reading certainly doesn't look good.
WOODRUFF: Senator Feinstein -- go ahead.
WARNER: I think the Supreme Court acted within the confines of its authority of the Constitution of the United States and the integrity of the Constitution, the rule of law, has been preserved, although somewhat difficult to follow all of the reasoning.
WOODRUFF: Senator Feinstein, it's Judy Woodruff.
FEINSTEIN: Hi, Judy.
WARNER: If it does appear -- if it is as it appears here, and some of us, of course, are working our way through this, but if it is the case that in remanding it, the Supreme Court is saying there is not enough time to come up with a standard to conduct a recount, is it your view that the United States Supreme Court was entirely within its authority to take such an unprecedented step in determining the outcome of a presidential election?
FEINSTEIN: I know of no reason, Judy, why it wouldn't be within its authority. I think the Supreme Court certainly has the authority to do that. I kind of wish they just came down, you know, and said definitively what they thought, but I infer from this that a) there isn't time, b) there are enormous legal obstacles, not the least of which is Florida law, which says the 12th is definitive, and therefore, it says if you do certain things, you could have a recount, but it's impossible to do those things. Now maybe some greater mind will find a way that it isn't impossible to do those things.
SHAW: Senators Feinstein and Warner, thank you very much.
WARNER: Thank you.
FEINSTEIN: Thank you.
SHAW: You're quite welcome. John King, back to you.
KING: Well, Bernie, as the Gore campaign team and the legal team reviews this, we're getting more of a pessimistic outlook from them. We are told by sources within the Gore campaign that among the vice president's legal advisers, the Harvard constitutional scholar Laurence Tribe characterizing this as complete defeat and that his advice that is vice president should concede.
We should make clear, now, David Boies argued the second case before the Supreme Court. Mr. Tribe by no means a part of the vice president's inner circle, but he is a member of the legal team. His advice, we are told, is that the vice president should concede. Other terms being used by members of the Gore political and legal hierarchy: it looks pretty devastating; it's bleak; it's confusing but not very encouraging. And we should also remember that earlier this week, Senator Lieberman, the vice president's running mate, said that a defeat at U.S. Supreme Court would leave the vice president with nowhere go but to concede.
Still, we are awaiting official reaction, on the record reaction from the Gore campaign team. Both the legal and the political teams now on a conference call, analyzing this decision, and discussing their options. The initial reaction, of course, though, quite pessimistic as we await that official reaction.
WOODRUFF: Bernie, I wonder as we're sitting here in the studio in Washington with some of our finest legal minds, I want to bring Ken Gross into the discussion.
Ken, we just heard Senator Feinstein saying -- we're hearing everyone say is there some a way recount could be conducted under the very narrow description of what is legally available? And what do you see? I mean, you had now an opportunity to look this thing over.
KENNETH GROSS, CNN ELECTION LAW ANALYST: Well, from what I can see, is that the majority in this opinion does not really permit that recount to go forward. That they say you need to comply with the safe harbor provision which is today, December 12th. And that is...
WOODRUFF: It doesn't extend to 18th.
GROSS: It does not extend through the 18th and that is a suggestion of Justice Breyer and his dissent that we give through the 18th and he is disappointed, I think, that it wasn't given back to the Florida court to even fashion a remedy in these next six days to get that done.
SHAW: Souter also.
GROSS: And Souter -- Justice Souter, as well. In fact, Justice Breyer in his opinion is, you know, is very candid about it. And you know criticizes the majority for not giving that extra time.
WOODRUFF: What is the agreement about then? If there's a per curiam opinion that the majority was able to agree with, what is that it they've agreed to do? It sounds like there is an awful lot of disagreement among these justices.
GROSS: There is tremendous amount of disagreement. The agreement seems to be that the Florida Supreme Court erred -- was erroneous in not taking into account a more uniform equal protections standard. There seems to be seven justices who agree that the improper standard was used. However, they cannot agree on the remedy.
WOODRUFF: The Remedy is the disagreement. GROSS: That's where problem is -- yes, that's right. But there is enough votes here this five votes, for a remedy that doesn't satisfy what Vice President Gore is looking for.
SHAW: John King.
KING: Well, Bernie, a sense of the tensions and the disagreements and in fact the confusion among senior Democrats at this, Ed Rendell who is the general chairman of the Democratic National Committee already being quoted on another network as saying it's time for the vice president to concede. In reaction to that, Joe Andrew, who is the chairman of the party -- the day-to-day chairman of the party, send word to our Jonathan Karl through his spokeswoman saying that Mr. Rendell does not speak for the Democratic National Committee and if he is calling on the vice president to concede he is speaking in a personal capacity, not on behalf of the party.
Now, again, the Gore campaign team and Democratic strategists huddling to decide what to do next reaction, their quite pessimistic, but already some consternation from the Democratic Party chairman, that Ed Rendell is already out there and speaking in his role as general chairman of the party, the party quickly saying he is speaking for himself, So a disagreement among the Democrats as all this plays out in a very confusing, very tense, and obviously very high stakes political environment for the vice president.
WOODRUFF: As classic a case of the right arm not knowing what the left arm is up to, as we have seen.
Now, Charles Bierbauer, you are at the Supreme Court, you had in the fullness of time, an opportunity to digest what the court is saying.
What can you tell us now?
BIERBAUER: Well, what we seem to be coming to, is a concurrence of our own, here, Judy and that is that the majority of this court, as you put the numbers together, certainly seven of the justices found considerable problems, and five of them discerned that there was not a good remedy at this point. And that in fact what they are saying to the Florida Supreme Court, in vacating and remanding, is that there is a safe harbor provision, which the Florida legislature has sought to maintain, that safe harbor meaning that terminology under which the choice of the electors is unassailable, and, that they should stay in that safe harbor, don't venture forth on to the rough seas of trying to construct something in these waning days. Here it is now December 12th, and December 18th is the date for counting,
I sense that there is that slimmest of margins there where they say you would have to have a counting procedure that would be uniform across the state, and then they lay out some of these concerns, about voting machines, and tabulating, and bringing it back before the court itself. So that they have said that the window out of the harbor is so narrow that you probably shouldn't try it. And, that seems to be the strongest message that they convey, of course the message. WOODRUFF: Charles, I was going to ask, going back to 5 to 4 split, that provided us with the stay, that called a halt to that manual recount, on Friday, these are the same five who have decided against the feasibility of recount today; right? I mean, we are really looking at the same outlines from the court.
BIERBAUER: These are the same five, Chief Justice Rehnquist, Justices O'Connor, Kennedy, Scalia and Thomas, with the partial addition of Breyer and Souter, saying yes, there are problems, but Breyer and Souter think that they can be fixed, and Ginsburg, and Stephens don't think they should have gotten into this at all.
WOODRUFF: All right, Charles Bierbauer.
SHAW: Roger Cossack, what's the latest with you?
COSSACK: Well, I -- I think that I agree, of course, with Charles Bierbauer, and with what Jeff said earlier, after my review of now reading it, and looking at it, that is clearly what happened, the same five ended up in this with the same five, that is, they have decided that it was constitutional, once they made that finding of the safe harbor, it pretty much was all over, because, there is really no way around it.
Now there is going to be great cries of hypocrisy, which said look there is no way around this, because you stopped us from doing this count, a couple of days ago, if you let us finish, everything would have been all right. But then there is that equal protection argument and the standard argument.
It is almost when you read this you see, you almost feel the frustration of four dissenters, in their inability to really crack that center that we have talked about, to get justice -- either Kennedy or O'Connor to come over to their side. But nevertheless, once they find there is a safe harbor and the date is December 12, what room is there?
We talk about wiggle room for the Florida legislature or Florida Supreme Court but I don't think there is any, because there has been a finding by the supreme court that it has been the intent of the Florida legislature, to get within that safe harbor, therefore you end up with that December 12 date, and I'm afraid it just doesn't look very good for Vice President Gore.
WOODRUFF: Roger, just quickly, what gives you the sense that there is a strong frustration on the part of the four who couldn't sway their colleagues?
COSSACK: First of all, from the stay that we saw the other day, very rarely do you see a stay in which there is two opinions that were written so diametrically to each other, that was need to be published, with a need each side come out and say what was on their mind. So right from the beginning, you had this sense of strong divisiveness, and here you have an opinion, which is a per curiam opinion, where you have three of the most conservative members of the court, writing a dissent, and saying there is just no way around it. The per curiam, therefore, because we don't hear from the other two, has to include, as I said O'Connor and Kennedy, there is the five. Then you see these four other, in each way fighting, you know, Ginsburg saying we shouldn't be involved in this in the first place, Breyer and Souter saying, you know, there could be a recount, we could do -- the Florida court could do this, and Stevens with this absolute frustration of, there are votes, there are people who have voted who will never have their votes counted. You just sense that frustration.
SHAW: Roger, I'm looking at one note, Justice John Paul Stevens was very blistering in his attack.
SHAW: He called the Bush legal appeal a, quote, "federal assault on the laws of the state of Florida."
COSSACK: That is right, and that whole notion that you saw and you can see, Bernie, that notion of votes not being able to be counted, really offended Justice Stevens, and you see that he feels I think and, at least my sense is, that the four who were in the dissent in this, just have a real sense that the five who took over just clearly stopped -- swung the election in some ways and just stopped something from going forward, which is sacred, which is vote counting.
WOODRUFF: I was just going say, Bernie and Roger, is you don't think there are some strong opinions here, let me just read you the first two sentences of Justice Breyer's dissent. He said flatly "The court was wrong to take this case, it was wrong to grant a stay, it should now vacate that stay, and permit the Florida Supreme Court to decide whether the recount should resume.?
SHAW: We are standing by, very shortly we are told in Tallahassee, Florida, James Baker, representing Governor Bush's team, there in Tallahassee will be making a statement. When does, we'll take it live.
Jeff Greenfield, in New York.
GREENFIELD: One of the things that we are learning is that doing legal analysis on the fly ought to be an Olympic sport with a degree of difficulty of 10, but one of the keys you can always tell about what a majority is saying when it is confusing is look at what the dissenters are objecting to, as Judy just did, and as you just did Bernie. It turns out that all of the things we were looking at at the very top, what would be required to have a fair and constitutional recount is what the majority of the court was saying couldn't be done in time. And that is why Justice Ginsburg says, "The court assumes that time will not permit orderly judicial review of any disputed matters that might arise." And then she says, and I think we quoted this earlier, "The court's conclusion that a constitutionally adequate recount is impractical is a prophecy the court's own judgment will not allow to be tested. Such an untested prophecy should not decide the presidency of the United States." So that is the frustration I think that Roger was talking about.
The dissenters are saying, you guys are not letting the Florida Supreme Court come up with any solution, even though in past years we have had certifications of electors, as in Hawaii that went on way past December 18th, but you will not allow it to happen. And the more I look at this, the more it seems to me that we are -- that what we said a few moments ago is it. There is no way out for Al Gore, according to five of the nine justice of the Supreme Court.
SHAW: Just to buttress what you just reported Jeff, listen to Justice Souter now dissenting, "Unlike the majority, I see no warrant for this court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors December 18th. To recount these manually would be a tall order, but before this court stayed the effort to do that, the courts of Florida were ready to do their best to get that job done. There is no justification for denying the state the opportunity to try to count all disputed ballots now. I respectfully dissent."
GREENFIELD: That is my point is that all these dissenters are objecting, very strenuously some to them, to the clear majority of the court, this 5-person majority, that is saying: Not only was the Florida Supreme Court wrong to order those manual recounts, but it must stop now.
And this is, it seems to me, at least for five of nine of them, a final decision. There is nothing you can do about this, forget the idea of trying to do a recount, December 12th is the date, that is it. I think that is why John King's report of all that pessimism in the Gore campaign, is only going to get stronger.
SHAW: OK, Jonathan Karl.
JONATHAN KARL, CNN CORRESPONDENT: Yes, as a matter of fact, there is a little bit of a stampede effect going on, along in the Gore campaign and among Democrats friendly to the vice president, saying this is a conclusive defeat, perhaps it is time for the vice president to concede. You had Ed Rendell, the general chairman of the Democratic National Committee, out there, saying, on MSNBC that he thinks that it is time for Gore to concede. You also had Larry Tribe suggest the same thing, Larry Tribe the -- of course the attorney who argued the first case, for Gore, before the Supreme Court.
But within the legal team, they are poring over this decision, some are saying it looks pretty bleak, but one member of the legal team told me, look, it is a long complicated opinion, it is a very fractious opinion, we are going to take our time with this. We are not sure exactly what this means, it is being remanded, is these some wiggle room? Is there open door to go to the Florida Supreme Court and say, yes, a recount under these terms can be done. So the Gore legal team not ready to wave the white flag yet, even if some very prominent Democrats are. As a matter of fact, another member of the legal team saying: Look, it is simply too important to rush, we are going take our time.
SHAW: OK, thank you, Jonathan Karl -- Judy.
WOODRUFF: All right and we want to go back now to Austin, CNN Candy Crowley in touch with Bush camp -- Candy. CROWLEY: Judy, what we know is that the legal team gathered in Tallahassee, as along with some of the political members of the Bush camp, have gone over this, as the Gore camp has, page by page, and their preliminary reading, and I'm sure we will hear the final reading from James Baker soon, is that this is a victory for the Bush team. They think, further, that the vice president has exhausted his legal avenues. So there is a very preliminary reading, but one that has a sense of confidence that this is indeed a victory, for George W. Bush in Florida. And as we all know that would mean, of course, assuming that the Gore camp also reads it that way, and we go through various steps, that Florida of course would give George Bush the presidency.
The governor, himself, is in his mansion. He has been there all day. We know that his campaign headquarters is up and working. They also talking to their team in Tallahassee. We will get the first definitive word from James Baker -- Judy.
WOODRUFF: It was five weeks ago tonight that CNN and other networks took the state of Florida out of the Al Gore column, put it into the too close to call column, it appears that exactly five weeks later, at about 11:00 Eastern time, we are saying that Florida is -- we are taking it out of the grasp of the Al Gore, at least by all appearances, and not into the too close to call, but pretty firmly into the grasp of Texas Gov. George W. Bush.
SHAW: And Martin Savidge is in Tallahassee -- Marty.
SAVIDGE: Bernie, we have been waiting to see if there was going to be any reaction to this from the Florida Supreme Court, whether the podium, which is usually an indication, might come out of the building, no indication of that. However, we were told that, when Craig Waters left the court, he's the spokesperson for the court, earlier this evening, he was told to keep his cell phone on, now it is clear exactly why.
I want to bring in David Cardwell. Wed want to talk about, in the hour that is left, if they say -- It's 45 minutes -- Is there anything the Florida Supreme Court can do?
CARDWELL: They could issue an order, if they could get them all together, but if they issue an order, there is no way they can get out to all of the counties and all the supervisors of elections, and all of the canvassing boards, and say recount by midnight tonight.
If what the Supreme Court said was, it has got to be within the safe harbor provision, they can't do it tonight.
SAVIDGE: Here's the issue of the safe harbor is that, obviously, the Supreme Court can't meet it tonight. The Florida legislature is not going to meet it. The Senate is going to be debating it tomorrow. They may vote on it tomorrow. They may be voting on it on Thursday. They are beyond the realms.
CARDWELL: Good point. The safe harbor seems to merely something that is in federal law that says, if you have your electors chosen by December 12, six days before when they vote, then they are conclusive. It does not say that that is a hard and fast deadline. In fact, as you point out, the Florida legislature is saying, we are moving right past the safe harbor. We are not going the act until the 13th or 14th. And so they are already anticipating that they are going to be past the safe harbor.
So the Supreme Court, putting all their reliance on the safe harbor provision tonight, in their opinion, seems to be something that's not being followed by the Florida Legislature, and something that is really beyond what that statute seems to say. Because the statute, as I read it, says, if you're in by the 12th. you are conclusive, you can't be challenged. If you got to the 18th and the time that you vote to actually have your slate of electors picked.
SAVIDGE: Now, is the Supreme Court essentially saying that the electors that were in place, that were certified back on the 14th, are they the ones that now are going to be the official electors?
CARDWELL; Good question. The ones that were selected under the current certificate signed by Jeb Bush, the governor, were done based on the now vacated ruling of the Supreme Court, which went back up to the U.S. Supreme Court and they have not ruled on that yet. There was an asterisk to that that said: If there was still a challenge we could go back to the original certification that was right after the election on November 7, and that is why the legislature is saying they have got to now pick a slate of electors. There's a question as to whether or not the slate that has already been sent up there is valid or not. Once again. we're in uncharted waters.
SAVIDGE: The legislature moves forward, they come up with their own slate, or affirm the slate that exists now, essentially two lists go up to Washington, D.C. And probably, maybe, a challenge coming out of Congress.
CARDWELL; There is going to be a challenge, we know, from the Democrats to the special session that is going on now. I don't think the legal maneuvering is over yet. There is going to be a challenge to the slate that comes out of the special session, and there may be a challenge to the slate that is up there now, on the grounds that the U.S. Supreme Court is not yet reinstated the Florida Supreme Court decision that was vacated -- that was the basis for that original certification.
If you are confused, I am confused.
SAVIDGE: Bernie, one of the things pointed out there is that the Democrats do plan to challenge that special session and it will be in court.
SHAW: OK, thank you very much, Marty and David.
We remind you, our viewers around the world, that former Secretary of State James baker will be making a statement in Tallahassee on behalf of Texas Gov. George W. Bush. Looking at the clock, it could come up any moment. When he speaks we will report it live -- Judy. WOODRUFF: Bernie, we are also getting some word that there may be a statement coming from the Gore camp. We have no more details than that. But of course we wouldn't be surprised if that were to came along.
We do know that both camps are pouring over this decision, line by line to make sure they understand the full implications of it.
CNN's political analyst Bill Schneider is here with us in Washington.
Bill, whether the justices wanted to wade in to the presidential election or not, they have weighed in and their ruling may well be determinative.
SCHNEIDER: Yes, it is, and I have read this per curiam brief, which is the decision that the whole court has agreed on, with all the dissents around it. I tried to make political sense out of this, as political analyst, and it -- it makes a certain amount of common sense. It is a delicate political compromise.
What the court has said is no recount, the way it was ordered by the Florida Supreme court, that much is clear. It said, the idea of a recount is fine. They didn't want to dismiss the idea that you shouldn't recount the ballots by hand. That said that is a fine idea, but it must be done right. Florida does not have the procedures in place to do it right.
Adequate statewide standards are needed that are uniform for the entire state, they are not there, and they said there has to be a procedure for orderly judicial review of those standards.
Now the key sentence that I read is on page 11, when they said "It is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work."
So it sent it back to the Florida Supreme Court and said: We think what you wanted to do was fine. But you don't have the procedures in place to do it. You are going to have to do a lot of work to put those procedures in place, and it has to be done within the safe harbor provision by December 18th not the 12th, which would be absurd. But the question, could it even be done by then? Is it at all practical?
That is a political reading of what they said.
WOODRUFF: And Bill, the bottom line politically is that five 5 of the justices have determined that it is virtually impossible for Al Gore to get the recount that he needs.
SCHNEIDER: Well, they have sent it back. They have remanded it to the state supreme court, and I think their reading is that it cannot be done within the safe harbor provision. Which is a way of saying, we agree with the principle that the Florida Supreme Court was trying to impose, that you should have a recount of the ballots, but it simply cannot be done as a practical matter. The procedures are not in place in the state of Florida.
WOODRUFF: But of course to Al Gore it's the practical affect of it that matters.
SCHNEIDER: That is exactly why all those Democrats are putting pressure on Gore. You might as well concede, this cannot be done.
SHAW: The Associated Police right now is quoting a Gore attorney. Dexter Douglass, as saying, quote, "It sounds like we lost. What else can we do," he said, "it means we can't do the recount."
Charles Bierbauer remains outside the Supreme Court, where he has been reading this ruling that came down about an hour ago -- Charles.
BIERBAUER: Well, Bernie, we've gone through it a couple of times. I am sure there is a lot more in there that we haven't pulled out yet.
This question of whether this is a judicial or a political ruling, it is of course first and foremost a judicial ruling. There will certainly be those who say it is political on the part of the justices here, and the stinging dissents from Justice Ginsburg and Justice Stevens suggest that the country has paid a price for this ruling.
There is also in the per curiam opinion itself, these lines. "It says none stand more in admiration of the Constitution's design to leave the selection of the president to the people through their legislatures and the political sphere."
But the justices go on to say, "When contending parties invoke the process of the courts," -- contending parties the Bush and Gore campaigns -- "it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."
The justices found very clearly in their minds that there was a constitutional issue here, that there was an equal protection matter. And even beyond that, in the concurrence of the three justices, Justice Rehnquist, Scalia and Thomas, additional concerns about the constitutional provisions of Article II as to the way in which the electors are being chosen.
It would seem that there is a very conscious awareness of the burden that this court has had placed upon it, and that it assumes with this, in this highly political arena -- Bernie.
SHAW: Charles, please stand by. We are looking at a live picture. This is podium at which former Secretary of State James Baker will appear very, very shortly, and he will react to this Supreme Court ruling.
Jeff Greenfield, as we wait, back to you in New York.
GREENFIELD: Just the to make this as clear as I think the court tried to do. It may seem, what Bill Schneider said, in terms of a political overcast, is sound. But the court specifically looked at Justice Breyer's proposal that in fact they do create a recount provision that would go to December 18th, and the majority of the court said that would violate the Florida Election Code and could not be part of an appropriate authorized by state law.
The 5-member majority in this opinion specifically said: Forget December 18th. The deadline is December 12th. You might be able to come up with a constitutionally sound recount provision, with judicial review and all those things, but you can't do it by December 12th because this is December 12th. So forget it.
That is why, in looking at this opinion, the more you look at it, the bleaker it looks for Al Gore. The language at times suggest they are trying to come up with a remedy, but in fact they saying, you know what, there is no remedy that fits the safe harbor.
WOODRUFF: That's, as you can tell, that's James Baker coming out.
As we listen up for James Baker, let me just further underline just how bleak the new is for the vice president, and how good it is for Governor Bush.
In concluding his dissent, Justice Breyer, quote, "I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary check upon our own exercise of power, our own sense of self-restraints."
Justice Breyer, he is quoting Justice Brandeis, "The most important thing we do is not doing."
And Justice Breyer concludes, "What it does today, the court should have left undone."
GREENFIELD: Exactly. What you're hearing is four justices who are thought of as relatively activist, telling the five judges who are normally thought of as strict constitutionalists, you guys exercised your power to shut off a presidential election.
WOODRUFF: Jeff, we are going to listen up now for James Baker.
JAMES BAKER, OBSERVER FOR BUSH CAMPAIGN: Good evening, ladies and gentlemen, I've just spoken to Governor Bush and Secretary Cheney. They are of course very pleased and gratified that seven justices of the United States Supreme Court agreed that there were constitutional problems with the recount ordered by the Florida Supreme Court. They wanted me to once again express their appreciation to the fine legal team, and the hundreds of volunteers who have worked here in Florida on their behalf for the last 35 days. This has been a long, and arduous process for everyone involved on both sides.
Thank you. And good evening.
WOODRUFF: A surprisingly brief statement by James Baker. But maybe not so surprisingly, his last words, it's been a long and arduous process for everyone involved on both sides. He started out saying he had just spoken to Governor Bush and to Dick Cheney, and he said they are very pleased, in his words, that seven justices agreed that there were constitutional problems with that recount ordered by the Florida Supreme Court.
SHAW: Roger Cossack you continue reading this document. What do you have?
COSSACK: I want to respond to what David Cardwell said earlier. The notion that the 18th, there may be some room to get to the 18th, I really don't think there is, and the reason is is there was a finding by these five members, this majority, that the safe harbor date means December 12.
Since the United States Supreme Court took jurisdiction in this case and we just heard Jeff talk about and Charles talk about things that perhaps -- what the dissenters say, perhaps they shouldn't have, but they did. We all say the Supreme Court can do what they want to. They have defined is as, we have taken jurisdiction. The Florida Legislature intended to be in the safe harbor, the safe harbor ends December 12, and seven of us believe there is constitutional problems. There is no way to set up a recount because You have nothing in place to set that recount up.
They just defined away whatever the problems are. I think that there is very little room, and I don't see what the Florida Supreme Court could do. I think the Supreme Court has effectively cut them off.
WOODRUFF: All right, Roger Cossack. Back to Austin, Texas to Candy Crowley.
CROWLEY: Judy, just an observation about what we heard from James Baker, Bush's point man in Tallahassee. It reminds me very much of where we were last week leading up to the Florida Supreme Court decision, which many people thought would go Bush's way and would end it.
What we saw then, in the days leading up to that, was a very definitive backing off of claims of victory, of you know Al Gore should give it up, of any of that. What they were trying to do at that time. and what I think they are trying to do here, we did not hear from Baker any claim of victory, any claim of it's now all over. Just a, well, we're really happy with this decision from the seven justices, that there were constitutional problems, and the governor and Dick Cheney want to thank everybody.
What we did not hear were the words, this is a victory, and we have won. I think what they want to do is clear the stage and leave the vice president some breathing room here to make up his own mind about what he's going to do next before the Bush team does anything about publicly pushing anything to do anything. I think that is what we are seeing now is the beginning of the kind of backing off stage, and giving Al Gore some room to figure this out.
WOODRUFF: All right Candy Crowley -- Bernie.
SHAW: Bill Schneider.
SCHNEIDER: Quick comment about James Baker. It just really agrees with Candy. What he was doing was very clearly saying this is not our decision. This is Al Gore's decision. He has read this opinion, we think that the justices have our side. We are not claiming victory. We are not pressuring anyone. We are not demanding any concession. We simply feel, a simple statement, Al Gore now has to make his decision, and we are not going to comment on it. We are not going to recommend what he should do.
They believe clearly that the court, in what it's mandated, and if the reading is correct that it is in fact December 12th is the deadline that is half an hour away. They are not going the recount the ballots in the next half an hour. Clearly, they see no way out, and they are simply waiting for Gore to recognize the inevitable without appearing to put any pressure on him, and without appearing to be triumphant in celebration of this decision.
SHAW: Thank you, Bill Schneider -- Jonathan Karl.
KARL: The Gore team also wants to make sure they get some breathing room from fellow Democrats. As we mentioned earlier, you know, Ed Rendell, general chairman of the party, coming out and saying, it's time for Gore to concede. Well, Joe Andrew has hastily come forward. Joe Andrew is the chairman of the Democratic Party and saying, no, no official statement yet. That is not the words of the Democratic Party.
So the vice president's legal team very much pouring over this. He's been on the phone with Ron Klain, his lead lawyer on this down in Tallahassee. They have been going over this. To a person, the people on the legal team say, look, it looks bleak. Somebody said this would be Herculean for us to get over this, to be able to pull this off. Clearly, a sense, to a person on the Gore team, this is a bad decision for them, but they are falling far short of saying it is over.
SHAW: John, do you get a sense that William Daley might be making a statement tonight on the vice president's behalf?
KARL; We had heard that there would a statement coming from the vice president's camp, a statement not from the vice president himself. It would be speculation at this point, but given the late hour, it would be very surprising in my mind to see them come out and say something definitive tonight. Perhaps something.
SHAW: I don't mean definitive, but we've seen Governor Bush's man come out and make a statement, and we know what that is about. The newspapers tomorrow morning are going to press right now, and that's very important. They want that picture there. That want that text there, and I was just wondering.
KARL: We had been advised earlier there would be a statement imminently coming from the Gore camp. We have not seen anything yet. They are very much in a state of -- I don't want to say confusion -- but they are trying to figure out what's going on with this decision, trying to sketch out their options under extremely high pressure situation here.
SHAW: Thank you. Judy.
WOODRUFF: We want to go down to Tallahassee to CNN's Mike Boettcher, who for the last several days has been keeping a close watch over the Florida Legislature. There today the Florida State House of Representatives voted to accept a slate of electors committed to George W. Bush.
Any sense, Mike, at this late hour, how what the United States Supreme Court has done might affect what the Florida Legislature does or does it make it null and void and unnecessary now?
MIKE BOETTCHER, CNN CORRESPONDENT: They will are going to go ahead. Lawyers down here are looking at this, trying to figure out how they should proceed. You have to look at this with the backdrop of all of this legislative activity. There is still uncertainty. All of us aren't sure what's going on. They are not sure what's going on. That's the reason the legislature will proceed.
But with the backdrop of all of this legislative activity is the potential of a legal challenge from the Gore campaign to this new resolution by the legislature of Florida naming those 25 electors for Bush.
This, as Jonathan Karl has reported over the last few days, is the most secret aspect of the Gore campaign legal challenge, what they will do in terms of trying to challenge this in court. And this is something.
SHAW: Mike Boettcher, I need the interrupt you, however rudely. We want to go quickly to John King.
KING: Bernie, anyone looking for a resolution of this tonight from the vice president's camp will not get it.
Let me read you a statement just sent to me, and excuse me for being awkward, I need to look down to read this on my pager, this a statement from William Daley, the Gore campaign chairman. He sets quote, "Al Gore and Joe Lieberman are now reviewing the decision issued tonight by the United States Supreme Court. The decision is both complex and lengthy. It will take time to completely analyze this opinion. We will address the court's decision in full detail at a time to be determined tomorrow."
Now we do know this statement being issued, not yet released publicly, being issued after a conference call involving the Gore legal team and the Gore political team. We are told from several sources, some speaking to myself, some to Jonathan Karl, some as well to CNN's Chris Black, some on that call very pessimistic about the legal terms in this decision. But we are also told, some of the operatives on the ground in Florida, saying they believe the vice president should hang in there and fight, and at least take this back to the Florida Supreme Court one more time, and see if they can convince the Florida Supreme Court to go ahead with another recount, accepting and adopting the standards, the very hard standards, they acknowledge, set in tonight's Supreme Court decision.
We are told the vice president is at home with just his family. He did participate in some of the conference calls with his staff, and again this statement we have just received from the campaign Chairman Bill Daley indicating their full and official reaction will not come until tomorrow.
SHAW: John, might William Daily deliver the statement you just quoted him as having made, will he deliver that in person before cameras?
KING: I don't know the answer to that, Bernie. I asked them to rush me a statement as soon as they could get one. They sent it to me via e-mail over my pager and I rushed in here. They do know we are quite interested in hearing from them, of course. But Mr. Daley among those on the conference calls that continue.
We know the vice president was sent a copy of this decision, Sen. Lieberman as well. Then you have a larger conference call, involving all the lawyers. Many smaller discuss among the political and legal advisers. Again, some very pessimistic. They have read this decision. They are using terms like bleak, devastating, confusing, but not encouraging.
We are also told by those who have been on the ground fighting for more than a month now -- some of them are recommending: Do not fold until we can go back into the Supreme Court, they argue, and see what the Florida Supreme Court says, after it revues this decision.
SHAW: And to repeat briefly, William Daley's essential reaction in the statement you just quoted.
KING: He says this is a very complex and lengthy decision. He makes no characterization, does not say positive or negative. Secretary Baker, who we heard from, obviously was encouraged by this, no such characterization from the Gore campaign. They are just saying tonight, at least initially, that they view this as a complex and lengthy decision. They will analyze it tonight, and offer a new and more full and thorough reaction tomorrow.
SHAW: Thank you, John King -- Judy.
WOODRUFF: Well, to Jeff Greenfield in New York.
Jeff, it sounds as if the United States Supreme Court has put the equivalent of a political Mount Everest in front of Al Gore and said: Here, try to climb it if you will, but you are going to have to do it very quickly, you are going to have to meet certain standards. And otherwise forget it.
GREENFIELD: I thinks that is the optimistic view from the Gore camp. As it happens, I spent this morning with one of the Most prominent folks involved in the Gore campaign. And I asked him, was there any time in the last 35 days, you thought you might actually win this things? And he thought for a minute, and he said, yes, for about a minute and a half after that first Florida Supreme Court ruling that extended the certification deadline. I was cheering and thinking we were going to win. As soon as I heard the deadline, I stopped in my tracks and said, you know, there won't be enough time for that count. Expect for that minute and a half, he said, he was looking at this as, at best, an uphill battle.
He also said to me, think about Al Gore, who believes not only that he may well have, in a sense, won in Florida, but that if he lost, it was because of some of his key supporters in Duval County and Palm Beach, confused by the ballot, thousands of votes, not because of any conspiracy, but because of a bad voting practice, instructed in one case by Gore supporters to vote incorrectly.
Imagine if you are Al Gore, you are thinking you lost the presidency by that narrow a margin. And he said to me, people think of Al Gore as a man of government, which he is; he's also a man of faith. I think the only thing that may be sustaining him now is the feeling that this must be happening for some bigger reason.
WOODRUFF: Jeff, is there any consolation for the vice president in that the Supreme Court of the United States seems to be so, I don't want to say bitterly divided, but vigorously divided in there opinion?
GREENFIELD: Well, I don't know. There's an old saying, and I think it's true in politics, that close only counts in hand grenades and horse shoes. The fact that Al Gore won the popular vote and lost the electoral vote so close, and it was a one-vote margin in the Supreme Court. Instead of being president of the United States, he almost certainly will be a private citizen. Would you find consolation in that? I don't know. I know how I would feel, and it would not be in a very consoled mood.
WOODRUFF: Jeff Greenfield in New York.
We are going to, when we come back in just a moment. We are going to take a short break. When we come back, we are going to sum up some of the truly extraordinary events of this evening. The United States Supreme Court ruling about an hour and a half ago that a recount most likely cannot take place. Setting down very difficult standards and guidelines for such a recount to take place. We will be right back.
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