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| COURT ANALYSIS | |
 December 7, 2000  |
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Three experts discuss the legal arguments before the Florida Supreme Court and in Seminole and Martin Counties.
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Welcome to you all. Let's start at the beginning. As you all saw, as we all heard, David Boies didn't say a word before suddenly the chief justice jumped him with this question about whether the Florida Supreme Court even has authority to overrule the trial court in this case. Professor Gerken, translate that for us. What was the concern of Justice Wells? What was the court driving at there?
MARGARET WARNER: Professor Yoo, do you see it that way, that the U.S. Supreme Court ruling from Monday really was looming over the court today?
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| Constricted by the U.S. Supreme Court ruling | ||||||||||||||||||||
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MARGARET WARNER: Justice Kogan, how constricted did it seem to you that these justices felt by the U.S. Supreme Court ruling, as you watched today?
MARGARET WARNER: So, Heather Gerken, do you think -- and I know it's always very hard to judge from justices' questions -- but how overreaching do you think or overriding was this concern, just about whether they had jurisdiction? Could you tell? HEATHER GERKEN: Yes. There was a different sense to the arguments today than there was the last time they looked at this question. And I guess it's not surprising. The state Supreme Court usually doesn't have the experience of a lower court of getting essentially reversed or, in this case, partially reversed by a court above them. And so it's their first opportunity to get a feel for what it's like to have someone looking over your shoulder. And you could definitely sense from their questions that they were treading very cautiously on these issues. MARGARET WARNER: All right, Professor Yoo, let's go now to the merits of the appeal to Judge Sauls' ruling. What seemed of most concern to the justices, just from their questions today?
MARGARET WARNER: So Justice Kogan, in a broad sense, to what degree did it seem to you that these justices saw some merit in at least some of the arguments raised by the Gore attorneys on just the merits of the Sauls appeal? |
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| Merit in the Gore position | ||||||||||||||||||||
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MARGARET WARNER: Now, on the other hand, Heather Gerken, what did you make of the rather extended discussion on whether maybe Judge Sauls was right when he said, if you do a recount in part of the state, you have to do a hand recount everywhere? HEATHER GERKEN: Well, that was really the issue that was of greatest concern I think to many of the justices. It's a really tough question to figure out under this statutory scheme -- whether it is acceptable to count only some of the ballots in these counties or whether you must count all of them. Now, David Boies responds by saying, well, in every other case that you've looked at, you only counted the ballots that were challenged. But of course in that case it was pretty easy to divide the ballots because the ballots that were being challenged were absentee ballots. Here we're talking about the same type of ballot being cast, and so the justices might well think that this is a different case in front of them. MARGARET WARNER: And, John Yoo, what did you make of their questions about was Judge Sauls right not to examine the ballots? We know that of course the Gore team argued that he should have, that that should have been evidence. But what could you read into their questions on that? JOHN YOO: Well, certainly there's some frustration by some of the justices that there was this amount of evidence entered into the record, i.e., all these ballots, but Judge Sauls apparently made a ruling or decided that he wasn't going to look at them, and that's certainly quite unusual. And so some of the justices you could see might want to issue an order saying at least count the ballots before you make any kind of determination under the law that there was no chance that the voting irregularities actually changed the outcome of the election.
GERALD KOGAN: Well, again, it all depends upon what their initial philosophy has been concerning this case, and that is to have every vote count. Now, if that's the case, obviously, they're going to have to have some of these votes recounted by hand in Miami-Dade County. Palm Beach has already finished with their recount. And what they're going to have to do is they can't have all those votes counted because it's not going to be possible to get that done in time for the December 12 deadline. So I think they would fashion a remedy if they chose to do so, by having a hand recount of those undercounted ballots in Dade County, of which I think there's something like 9,000 or 10,000. And that's going to have to be done very, very quickly because, after that's done, there are going to have to be further proceedings by the court. For example, if that recount should show that in fact Gore has carried the state of Florida, then the proposition arises where the Supreme Court will have to order Katherine Harris to withdraw her certification of Bush being the winner in Florida and substitute Gore's electors instead. |
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| The pressure | ||||||||||||||||||||
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MARGARET WARNER: Professor Gerken, talk to us about what you think they have to juggle in terms of a remedy. And also, the question of how much... I mean you've clerked for the U.S. Supreme Court. How much does the pressure of knowing what rides on this, to what degree do you think that can affect justices in this case? In other words, would they be inclined or disinclined to, say, come up with a decision that might upset the whole apple cart?
MARGARET WARNER: Professor Yoo, how do you see what they have to weigh on this remedy issue?
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| Dec. 12 trumps everything | ||||||||||||||||||||
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MARGARET WARNER: Do you agree, Justice Kogan, that December 12 trumps everything? GERALD KOGAN: Oh, absolutely. And even the chief justice and some of the justices today, during the arguments and even the attorneys, all agree that the cutoff date is December 12.
GERALD KOGAN: Well, no. You're going to have to see what happens at the trial court level. And obviously, the losing side in those cases will take an appeal to the Florida Supreme Court. So the hearings before the Florida Supreme Court are not yet over. MARGARET WARNER: John Yoo, any shared concerns between -- Justices Clark and Lewis have to be taking into account that these justices are, or are they just totally different? JOHN YOO: No. I actually think that, if the Florida Supreme Court takes up the chief justice' argument that the Florida Supreme Court has no appellate review over any cases involving presidential electors, that essentially gives these two trial judges, Clark and Lewis, a free hand. They'll be the last word on these absentee ballot cases. And I would think that would be a great concern to the Bush campaign. And the Gore campaign might have missed a nice chance here to actually concede on the jurisdiction because that would have had a strong influence on whether Judge Clark or Lewis might find to throw out the absentee ballots. MARGARET WARNER: And Professor Gerken, your thoughts on that. Any shared concerns here?
MARGARET WARNER: But how do you think that might affect these trial court judges that are looking at these other two cases? HEATHER GERKEN: They are going to be incredibly cautious in making any ruling in Gore's favor right now because they want to make sure that, no matter what they do, it has a strong legal defense for their actions. MARGARET WARNER: All right, well, all three of you, thanks very much. |
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MARGARET
WARNER: For analysis of today's developments, we're joined by former
Florida Supreme Court Justice Gerald Kogan. He retired from the court
two years ago after 12 years, including two as chief justice. Also joining
us are two legal scholars who both clerked at the U.S. Supreme Court:
Heather Gerken, an assistant professor at Harvard Law School; and John
Yoo, a professor at Boalt Hall Law School at the University of California,
Berkeley. 
HEATHER
GERKEN: Well, this is of course a heart-stopper for any advocate coming
into a court to hear from the justices that they think that actually
may not even have the power to give him anything that he wants. And
that's exactly what the court was asking. They were concerned that they
might not have jurisdiction over this decision because they fear that
the legislature didn't give them authority to address this question.
Now, that fear of course comes from the decision we got from the United
States Supreme Court on Monday about who has the power to make the rules
regarding this particular election. 
JOHN
YOO: I think that argument shows what an impact the U.S. Supreme Court's
decision has had on the Florida Supreme Court. The argument essentially
that the chief justice was raising, that the only right to appeal to
the Florida Supreme Court is in the Florida constitution, and since
the Florida constitution can't regulate how state legislatures choose
that electors will be elected for president is the exact same argument
that the Bush campaign made to the Supreme Court of the United States
just last week. However, it has almost perverse effect here, which is
if the Florida Supreme Court doesn't have appellate review of this case,
it also won't have appellate review of the absentee ballot cases that
are going on at the trial level now, which I think would be quite harmful
to the Bush campaign in the end.
GERALD
KOGAN: Well, first of all, they were obviously unhappy by the fact that
neither the Bush nor the Gore attorneys, during the first hearing in
this matter, had informed them of the existence of the case cited by
the U.S. Supreme Court. And perhaps they were indicating, had that case
been cited to them, that perhaps their opinion might have been a little
different. Now, it's true that they inquired as to whether or not they
had jurisdiction, but I think that point is moot right now because Barry
Richard, the attorney for the Bush campaign, readily admitted that the
Supreme Court did have jurisdiction in this particular case. 
GERALD
KOGAN: Well, I think the comments to the effect that they might want
to fashion some sort of solution to this problem but did not have sufficient
time before December 12 in which to do it indicated that they did in
fact think that there may have been sufficient merit in the Gore position
for them to decide this in Gore's favor. But again, it's always difficult,
and you're always speculating what the court may be thinking by the
questions the court may ask or the comments that they may make. 
MARGARET
WARNER: All right, Justice Kogan, so that brings us to the question
of remedy. What can the justices do, or what do they have to take into
account in fashioning a remedy? 
HEATHER
GERKEN: Well, I think there's a huge amount of pressure on the justices,
and although they will do their very best to ignore it -- they don't
want if to effect their legal judgment -- I don't know how they can
avoid wondering about this. I mean every judge that's gotten this case
has tried to avoid deciding who is going to be president of the United
States. And in some ways, it has been thrust upon the state Supreme
Court, they're really the only ones left, and they really are going
to have to render a decision one way or another, so it's a very tough
time for them. In addition, this remedy problem is a huge problem for
the justices because they don't want to do anything that's embarrassing
or that's going to subject them to potential challenge at the United
States Supreme Court. So they're in a really tough place because, if
they think that Gore's challenge has any merit at all, as good judges,
they'll want to provide a remedy for that. But this may not be the kind
of instance where they're able to do so.