|HISTORY ON HOLD|
November 20, 2000
David Brooks of The Weekly Standard, David Broder of The Washington Post, and Tom Oliphant of the Boston Globe discuss the continuing election crisis.
| JIM LEHRER: Now, how it looks to Brooks, Broder, and Oliphant;
David Brooks of the "Weekly Standard," David Broder of the "Washington
Post," and Tom Oliphant of the "Boston Globe."
First, Tom, just in general terms, what was your impression of that hearing today?
TOM OLIPHANT: I thought it was remarkable. If ever there were an argument for allowing television cameras where Supreme Courts meet, whether it's federal or state, here you have it. Also, I thought the argument was very important because it enhanced the reputation of this Supreme Court, which is already considerable in the country in legal circles, but I think their careful questioning, their willingness to go really into detail and betray a very thorough understanding of the case already has enhanced their at least potential of delivering a decision that will provide a road map for the country. Now, they still have to do it. But I thought the hearing today was an excellent beginning.
JIM LEHRER: David Brooks, an excellent beginning?
DAVID BROOKS: Yeah, I thought it was an outstanding day. Finally somebody is in charge. We've had these weeks of partisans and spinners and hacks, all these people who would spin their grandmother out of the Thanksgiving turkey if that would help them win this election, and finally somebody -- the Justices were grappling with the serious issues, not only who was going to win this election, but the long-term issues, the central issues of authority, where does their authority come from, where does the secretary of state's authority come from? Where does the Florida legislature authority come from? These were long-term issues, which were really a reassertion of some sense that somebody is in charge, that the whole process hasn't run out of control.
JIM LEHRER: David Broder?
DAVID BRODER: I have never seen these seven women and men before, Jim, but it struck me that they are a very confident group. You didn't get any sense that they wished that this were not on their doorstep. They looked to me like people who are prepared to take charge and to try to make some sense out of this real hash of a situation.
JIM LEHRER: David Broder, do you agree with Tom that they established -- at least took a step today toward establishing a credibility so when they do come up with a decision that both sides will have trouble moving on?
DAVID BRODER: Well, I think that's right, but it's very clear that
they are prepared to say and indeed assume that their word will not
be the final word. What was really striking to me was that beginning
with the Chief Justice in his first question, they started working their
way backward from that December 12 date when Florida is required to
choose a set of electors to cast its 25 votes in the electoral college,
and they seemed to assume that whatever the determination that they
or the secretary of state make, there will be further contest of that.
So my impression is that they think we're going to go right up to that
JIM LEHRER: David Brooks, do you have the same impression?
DAVID BROOKS: Yeah. I do have that impression. I must say for a Republican's hearing of an all Democratic court it was something of a worry going into this if that's all you knew about this court. I wouldn't say one could see one way or the other where these people, who had appointed them or what partisan side they lay on. They were a bit like Democrats in that they were quite willing to cut people off to get their question; they were quite assertive. But it was a court that I thought if anything pressed the Democratic side a little harder than the Republican side but they really pressed both sides forcefully and quite equally.
JIM LEHRER: Where did you think they pressed the Democrats -- the most effective places - at least from your point of view?
DAVID BROOKS: At the very end -- with David Boies when they said where does our authority lie -- do you want us to go freelancing here? That was a tough line.
JIM LEHRER: Do you agree, Tom, that that's the most difficult line for the Democrats, they're asking these Justices to do more than what's written on some piece of paper?
TOM OLIPHANT: Absolutely. They consolidated, in effect, most of the cases that were building their way up through the Florida system last Friday when they made their order. And I still the question is whether the court's opinion will have a comprehensiveness to it that is worthy of that act of consolidation. The danger, I think, is less the pressure that they put on the people doing the arguing today because I think Justices do that routinely, sometimes just for fun. The real question -- though -- is whether they can avoid the kind of narrow decision that splits so many hairs and creates so many new controversies that political turmoil dominates the news in the days ahead. The question right now, I think, is whether somebody can emerge out of this mess to provide leadership to the country even if it is from the bench.
JIM LEHRER: Go ahead, David.
DAVID BRODER: On the other side of Tom's point, Jim, is that the broader the opinion, the more prescriptive they are, the more issues they try to settle, the more the critics will say, you are behaving as if you were the legislature of Florida, not the Supreme Court of Florida, and I expect they want to avoid that label as well.
JIM LEHRER: But, David Broder, let's take... let's be specific. Let's say they side with the Republicans on the secretary of state and, say, okay, in order to get all this work done, you can go ahead and certify. Then if anybody wants to contest, the Gore folks want to contest, they can do so. Does this court have enough credibility, do you think, to make that stick? I'm talking politically now -- not legally. But did the Gore people have to kind of back off and say, okay, that's it, we lost?
DAVID BRODER: No, it's clear that the Gore people don't intend to do that and that the court assumes they will not do that. What they are trying to do is carve out a space of time, eight days, ten days or something, leading up to that December 12 deadline where there can be a whole new round of litigation in the form of a contest of the certified results.
JIM LEHRER: And your impression is, David, that if the Democrats lose this, they will, in fact, continue the litigation?
DAVID BRODER: I see no signs of either side backing off.
JIM LEHRER: David Brooks, do you agree from a Republican point of view if this court goes the other way and goes with the Democrats and says, okay, you've got to hold certification by the hand count goes on and then you have to include those in the final total -- will the Republicans back off or will they proceed on the legal side?
DAVID BROOKS: I think they'll proceed simply because they see that the people have appointed themselves to the Florida state legislature. They've taken over, as Tom said before. The one fluid element in this is though the hand count. If the hand count does not produce any kind of results as we get the results as they trickle out that the Gore camp wants, there could be some pressure inside the Democratic Party to say, even if we get the hand count, you're not going to get the votes, you're not going to win this thing, we're going to have more military votes perhaps coming in and it's bad for the country, so that's the one fluid element here, but I agree with David that we're probably looking at, you know, getting up to Hanukkah time.
JIM LEHRER: Do you see any fluid elements here, Tom?
TOM OLIPHANT: Yes, two. First of all, on the hand count results, they're not going to mean anything for a while because the nature of them is still in dispute. I mean, there are piles of votes that overhang the counting process right now and it really depends on how you judge them.
JIM LEHRER: Explain that because, they put some in this middle pile they talk about... well, you explain it.
TOM OLIPHANT: Well, it really can't be explained in the ultimate sense. But there are contests and challenges being made of ballots where the chad, so- called, is only a little way through the hole, where there's an indentation on it. And until these challenged ballots are what I think the Chief Justice of the court called "the pile in the middle" the result, you have no way of predicting who is going to come out ahead, but I think there's another element in the fluidity here that is very important. That is the question of which party wants to go beyond Florida? And right now, it is the Bush campaign that has an appeal possibly pending in federal appellate court in Atlanta on its way up here to the Supreme Court. And....
JIM LEHRER: But that challenges that challenges the legality of the hand counting, right?
TOM OLIPHANT: Indeed it challenges basically the legality of the process in Florida.
JIM LEHRER: Exactly.
TOM OLIPHANT: And then finally the question of would anybody bring this matter to the Florida legislature or to the United States Congress later on? Again it is the Bush campaign that retains that option. I think Vice President Gore is confined to the box in Florida.
JIM LEHRER: David Broder, you don't agree?
DAVID BRODER: Well, he's confined to the box in Florida in one respect because he's put so much reliance on this court proceeding that we saw today that I think psychologically and politically it's difficult for him to go beyond that, but he clearly still has one more round of litigation available to him in Florida before this is settled. If the count should go against him, he can still contest that count.
JIM LEHRER: David Brooks, where is the psychology in the Bush campaign right now as to what they can do, what their flexibility is coming out of this?
DAVID BROOKS: Well, I think they'll wait and see for this result, but I think they're hoping for an erosion on the Democratic side. I think they're hoping that once if the...if they can get the certification, which -- a positive result here, then there would be a psychological threshold they will have crashed and you'll see erosion among the so called wise men on the Democratic side. I think they're also hoping for a level of impatience. Being down here in Florida the level of menagerie surrounding each of the court houses -- the Dade County courthouses, you've got your unholy alliance of lawyers and TV cameras and then all sorts of people who are using this as their psychotherapy, public psychotherapy session and it's just distasteful to be around. And I think they're relying on that, just the public distaste, the desire to get this over with, hopefully combined with some sort of positive result from this court to just get people to say enough is enough and therefore that sort of slow drip psychological pressure being on their side.
JIM LEHRER: Tom, you agree with Professor Karlan that the end of the beginning is there?
TOM OLIPHANT: I think it's further than that. I think this is the middle, because certainly for Vice President Gore, I can't see a process outside of Florida, while I can for Governor Bush.
JIM LEHRER: All right. Thank you all three very much.