All eyes on Kennedy, O'Connor

One nervous lawyer forgets which justice is which, but there's no question which ones are being studied most closely.

By Jake Tapper
December 12, 2000 2:43AM (UTC)
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Throughout the Supreme Court's 90-minute hearing of oral arguments Monday -- 35 minutes for Bush attorney Theodore Olson, 10 minutes for Joe Klock, the attorney for Florida Secretary of State Katherine Harris, and 45 minutes for Gore attorney David Boies -- Justice Sandra Day O'Connor and Justice Anthony Kennedy held their heads in their hands. Perhaps they were just trying really hard to concentrate. But it looked as though the burdens of their pending decisions were literally weighing them down.

The court's 5-4 ruling Saturday, which halted the manual recount in Florida mandated by that state's high court, indicated to court-watchers that conservatives like Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas were inclined to whack Tallahassee's activist judges, favoring strict election rules and deadlines over the principle of counting every vote. More liberal justices like John Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer seem inclined to defer to the Florida court's rulings.


That means that for Vice President Al Gore's hope -- the continuance of the hand recount -- to prevail, either Justice Kennedy or O'Connor, each of whom occupies something of a middle ground in this conservative court, needs to switch sides. So Monday, all eyes were on the two seats to the right of Rehnquist.

They offered conflicting clues.

"Where's the federal issue here?" was the first question of the day, from Kennedy, interrupting Olson.


Kennedy and O'Connor both seemed skeptical of -- or at least reluctant to embrace -- Olson's proposition that this was obviously a federal issue. Both also seemed concerned that the "equal protection" clause of the Constitution has been violated by any statewide manual recount in Florida, since each county's canvassing board had its own standards for assessing "undervotes."

A few minutes later, Justice Sandra Day O'Connor gave Boies the same business.

"You are responding as though there were no special burden to show some deference to legislative choices in this one context," O'Connor said to Boies, suggesting the Florida Supreme Court rewrote Florida law when it extended the vote certification deadline. "Not when courts review laws generally, for general elections, but in the context of selection of presidential electors, isn't there a big red flag up there, 'Watch Out'?"


Whether or not the Florida court acted properly is "a concern that we have," O'Connor said.

Not that the state court had even bothered to respond to the Supreme Court's previous concerns, which caused it to vacate the Florida court's extension. "I did not find, really, a response by the Florida Supreme Court to this court's remand in the case a week ago," O'Connor said. "It just seemed to kind of bypass it and assume that all those changes in deadlines were just fine, and they'd go ahead and adhere to them. And I found that troublesome."


At the Supreme Court's previous hearing, it seemed a majority of the justices were concerned the Florida court had rewritten law out of whole cloth, while at the same time a majority also seemed skeptical that this was a "federal issue" that warranted a federal court's meddling. Its subsequent unanimous ruling, which asked the Florida court to better justify its action based on Florida law, seemed a reasonable middle ground.

There are no such options here. Tuesday is the "safe harbor" deadline for Florida to name its electors, and Dec. 18 is the day that the electors vote. The tick-tocks from Tallahassee are deafening, and the very fact that the court put a stop to the manual recount of Florida's approximately 60,000 "undervotes" seems to indicate to most court observers its disapproval of its Sunshine State counterparts.

The Bush team slammed Florida's election law for essentially being ruled by chaos. But, one could counter, was it Al Gore's fault that Gov. Jeb Bush, Harris and the GOP-controlled state Legislature had allowed that law to remain without clarification? But fairness is seldom at issue when it comes to debating law.


"That's very general," Kennedy said of the Florida standard of ascertaining "intent of the voter."

"Even a dog knows the difference in being stumbled over and being kicked," he said. "You would say that, from the standpoint of the equal protection clause, each -- could each county give their own interpretation to what 'intent' means, so long as they are in good faith and with some reasonable basis finding intent? Could that vary from county to county?"

"I think it can vary from individual to individual," Boies acknowledged.


The few moments of levity came when the somewhat-unpolished Klock twice referred to justices by the wrong names. He called Stevens "Justice Brennan," a reference to the legendary jurist who died in 1997. He called Souter "Justice Breyer." It got to the point that when Scalia came forward with a question for Klock, he felt the need to introduce himself.

"Mr. Klock? I'm Scalia," he said mischievously, to much laughter from the VIP crowd -- which included former Sen. Bob Dole and the Rev. Jesse Jackson; Republican Sens. John Warner of Virginia, Arlen Specter of Pennsylvania, Orrin Hatch of Utah and Judd Gregg of New Hampshire; Democratic Sens. John Kerry of Massachusetts, Patrick Leahy of Vermont, Harry Reid of Nevada and Chris Dodd of Connecticut; Gore campaign chair Bill Daley; and Bush campaign chair Don Evans, among others.

Democrats take heart in the fact that Olson was only 125 words into his opening argument when Kennedy grabbed the Achilles' heel of his case.

"Can you begin by telling us our federal jurisdiction?" he asked.


O'Connor soon chirped in. "I have the same problem Justice Kennedy does, apparently," she told Olson. Article II of the Constitution, which sets out the rules for assigning electors, "certainly creates a presumption that the scheme the legislature has set out will be followed, even by judicial review in election matters."

"I would have thought that that would be sufficient," O'Connor said, rather than to make a federal case out of it.

Olson replied that "there is a breakout with respect to various aspects of Florida statute and Florida election law. There's a specific grant of authority to the circuit courts. There's no reference to an appellate jurisdiction."

"It may not be the most powerful argument we bring to the Supreme Court," Olson allowed.


"I think that's right," Kennedy said, to laughter from the crowd.

Olson refered to Friday's ruling by the Florida court as "a major, major revision" of Florida law.

Stevens took issue with that, asking why Olson's arguments "rely very heavily on the dissenting opinion in the Florida Supreme Court" by Florida Chief Justice Charles Wells. Wells slammed his colleagues for a ruling that had, in his rather excited opinion, "no foundation in the law of Florida as it existed on November 7, 2000," which could propel "this country and this state into an unprecedented and unnecessary constitutional crisis (which) ... will do substantial damage to our country, our state, and to this Court as an institution."

So who cares what Wells wrote in his one-man dissent, Stevens asked. "Which opinion do we normally look to for issues of state law?" he asked.


More important, Olson is asked by Breyer, if the court were to allow the recounts to continue, "What in your opinion would be a fair standard, on the assumption that it starts up missing the 12th deadline but before the 18th?"

Olson didn't really have an answer for this except to say that he would hope that the standard would be uniform. "At minimum, Justice Breyer, the penetration of the ballot card would be required," he said. When asked, he seemed perfectly willing to let Harris set a standard. This apparent hypocrisy -- Olson giving a rah-rah to the idea of Harris setting a post-election standard while objecting to the Florida court's post-election rulings, saying the court changed the rules after the game -- got Ginsburg's back up.

"You have said the intent of the voter simply won't do. It's too vague, it's too subjective," she said. "But at least those words, 'intent of the voter,' come from the Legislature. Wouldn't anything added to that be -- wouldn't you be objecting much more fiercely than you are now if something were added to the words that the all-powerful Legislature put in the statute?"

Florida statute, after all, allows for "the circuit judge" to "fashion any order he or she deems necessary to prevent or correct any wrong, and to provide any relief appropriate under the circumstances," she said. "I couldn't imagine a greater conferral of authority by the Legislature to the circuit judge."

Olson was also taken to task by the left wing of the court after he asserted that "undervotes" are actually not votes since the machine didn't read them as such.

"As to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn't pick up, the majority of the Florida Supreme Court says you're wrong," Souter said. "They interpreted the statute otherwise. Are you saying here that their interpretation was so far unreasonable in defining legal vote as not to be a judicial act entitled in effect, to the presumption of reasonable interpretation under Article II?"

"Yes, that is our contention," Olson replied.

"Very well, Mr. Olson," Rehnquist said.

After Klock's entertaining name-fumbling, Boies stepped up, replacing Harvard professor Lawrence Tribe, who repped Gore in the last SCOTUS go-round. Former Secretary of State Warren Christopher, who along with Daley is helming the Gore recount effort, thought that Boies would do better since, he anticipated, so much of the questioning would focus on the Florida law in which Boies has been immersed since the second week in November.

In only his second Supreme Court outing, Boies got only 26 words in before Kennedy interrupted and asked him about the jurisdictional issue. He then ripped Boies for defending what much of the court clearly sees as the Florida court's post-election formulation of law.

"I'm not sure why if the Legislature does it, it's a new law, and when the Supreme Court does it, it isn't," Kennedy said pointedly.

Boies insisted that that's not the case, and reminded the court that "the standard" as to whether or not Florida Supreme Court justices overstepped their bounds should be "the standard this court has generally applied in giving deference to state Supreme Court decisions."

Potential swing vote O'Connor seemed doubtful of this. "But is it, in light of Article II?" she asked. "I'm not so sure."

Souter seemed even more concerned about Florida's shifting county-by-county rules for assessing disputed ballots. "There is no genuinely subjective indication beyond what can be viewed as either a dimple or a hanging chad," he said. It "varies, we're told, from county to county. Why shouldn't there be one objective rule for all counties? And if there isn't, why isn't it an equal protection violation?"

Assuredly making Gorebies everywhere shake in their Doc Martens, Souter said that this issue is "bothering Justice Kennedy, Justice Breyer, me and others."

After all, as Scalia said, "It was clear that Broward and Palm Beach counties had applied different criteria to dimpled ballots. One of them was counting all dimpled ballots; the other one plainly was not ... That's just not rational."

Providing a speck in an electron in an atom that's part of a glimmer of hope, Souter said that if the court responds to this issue then "we would have a responsibility to tell the Florida courts what to do about it." He asked Boies, "What would you tell them to do about it?"

For once, the brainiac motormouth was speechless.

"Well, I think that's a very hard question," he said.

"You'd tell them to count every vote," Souter joked, employing the Gore rhetoric pasted all over the signs of the protesters outside the court.

"I think I would say that if you're looking for a standard -- and I say that not because of the particular aspects of this election -- the Texas standard, if you wanted to specify something that was specific, it gives you a pretty good standard," Boies said.

But Kennedy soon rained on this, returning to the argument that the certification deadline was extended by the Florida court only by creating "a new law, a new scheme, a new system for recounting at this late date."

"I'm very troubled by that," potential swing-vote Kennedy said.

Boies tried to change the subject. "I think at this stage you have to leave [that] aside -- because at the contest stage, what you're doing is you're contesting specific ballots, whether or not they were included in the certification; it's absolutely clear under Florida law that that's what the contest is about. So at the contest stage, the only question is, can you complete the contest of the contested ballots in the time available?

"Everything that's in the record is that we could have, and indeed we still may be able to, if that count can go forward," Boies said.

But Rehnquist seemed skeptical. "Including appeals to the Supreme Court of Florida and the other petition to this court? If this all goes forward, there's going to be an appeal to the Supreme Court of Florida and likely another petition to this court. Surely that couldn't have been done by Dec. 12. ... Or could it?"

Boies said that it can be done, that briefs and arguments and a decision have been done so far in this fiasco "within 24 hours," and with a handful of exceptions most of the counties can finish up within a day or so. "As I understand it, some of them have taken advantage of the time --"

Rehnquist started to ask a question. But Boies, the smartest kid in the class, wasn't done speaking.

"Wouldn't the --" Rehnquist said.

" -- to get the procedures ready to count --" Boies continued.

There's no question who won this argument, however, over whose turn it was to speak.

"Just a minute, Mr. Boies," the chief justice intoned authoritatively, and Boies shut his mouth.

Souter tried again to get Boies to admit that there's something troubling about every county having its own ballot-reading standard. Boies tried a new argument -- that since Floridians vote differently county by county, optical ballots here, punch cards there, what he's asking for isn't such a big deal.

"There are five times as many undervotes in punch card ballot counties than in optical ballot counties," he said, so "some difference in how votes are being treated county by county" already exists. "That difference is much greater than the difference in how many votes are recovered in Palm Beach, or Broward, or Volusia or Miami-Dade. So that the differences of interpretation of the general standard are resulting in far fewer differences among counties than simply the differences in the machines that they have."

Soon enough, time's up. "The case is submitted," Rehnquist said. Leaving the courtroom, Sen. Tim Hutchinson, R-Ark., yawned. In the auditorium, Sens. Dodd, Specter and Tom Harkin, D-Iowa, huddled, trying to figure out what's going to happen. But even those esteemed senators are just as clueless as the rest of us.

Jake Tapper

Jake Tapper is the senior White House correspondent for ABC News.

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