|THE LEGAL LABYRINTH|
December 5, 2000
Terence Smith discusses the election battle with columnists Lee Cullum of The Dallas Morning News, Clarence Page of The Chicago Tribune, John Leo of U.S. News and World Report and Anthony Lewis of The New York Times.
SMITH: The four columnists joining us now are, Lee Cullum of the Dallas
Morning News, John Leo of U.S. News & World Report, Anthony
Lewis of the New York Times, and Clarence Page of the Chicago
Tribune. Welcome to you all. Tony Lewis, is this roller coaster coming
to an end?
ANTHONY LEWIS: Well, it looks like it. As the Congressmen said, we all have to wait for the Supreme Court of Florida and maybe more. Of course I was struck by the two Republican Congressmen's resolute, though somewhat wary refusal, to say that they would accept as final the decision of the Florida Supreme Court. They have that ace in the hole, the Florida legislature, which, you know, is talking about ignoring the voters and just declaring Bush the winner. I think that would have very grave consequences for the country and I hope they don't do it.
TERENCE SMITH: Why do you say that, Tony Lewis?
ANTHONY LEWIS: Well, it's all very well to play games and say that the Constitution designates the legislature in each state to set up the rules for appointing electors, which the Constitution does, but for a very long time now we have chosen the electors by popular vote. And suddenly after a hundred years and more, really since the Civil War, 140, 135 years, to come in and say, well, we the legislature are going to take over this process because we lost in the courts, I think the American public would not like that and it would be the opposite of the rule of law which everybody was just now talking about so reverently.
TERENCE SMITH: John Leo, is that your view of the Florida legislature?
JOHN LEO: Well, yes, but if I could just change the subject a bit here -- I'm worried about the Florida Supreme Court. I think that this is not a slam dunk as the Bush people seem to think; that if this court really believes in principle that David Boies is right, that Judge Sauls applied too rigorous a standard and that all you need to show is that it could affect the outcome, which he says an 1889 law shows, it would take extraordinary courage for this court to rule for Gore. They can't ... hide behind a non-partisan unanimous decision like the Supreme Court did. They're all Democrats. The Bush freight train is rolling so fast it's very unlikely, but I think there's a chance that they may rule for Gore.
TERENCE SMITH: Clarence page, what's your....
CLARENCE PAGE: John Leo raises a good point. Both my colleagues raise good points there. What's interesting here is that Judge Sauls, in his eloquent opinion, presented something of a Lewis Carroll bit of logic. He said, I am finding the evidence... Well, because of a lack of evidence that you have to show that there is a strong possibility that the results of the election are different, I'm going to rule that we're not going to have the recount -- whereas the whole purpose of the recount is to see if there's a possibility of evidence that the result would be different.
TERENCE SMITH: Verdict first, evidence second.
CLARENCE PAGE: Verdict first, evidence second, exactly. That's the Lewis Carroll approach. Judge Sauls did not look at the ballots. That's what Gore's lawyers are going to be arguing to the Florida Supreme Court. So there is a possibility that the Florida Supreme Court could rule against Bush in favor of Gore and the legal side of this whole episode could continue farther pressing us up against the deadline of next week with the electoral college. What's really interesting to me about this, Terry, is the language used by both sides. Both sides are speaking as if they believe that every vote counts. In fact, they also believe that the votes that are on their side count more. Al Gore does not want to count the votes of Seminole County. He's not entered into that suit -- or the other county where there's a possibility of having ballots thrown out which would leave Gore with a net-plus. At the same time, the Bush folks don't want the ballots counted that are going to benefit Gore. And New Mexico was brought up earlier in the program here where Republicans do like the idea of hand count but don't like the idea of hand counts in Florida right now. I think, Terry, this is why so much of this... of the public's reaction to the post election drama has been like the pre-election drama, pretty much half and half, 50-50.
|Down this road|
TERENCE SMITH: Lee Cullum, do you think that Vice President Gore was right to pursue this as he has down the legal road?
LEE CULLUM: Oh, Terry, I think he's on the verge of overplaying his hand, I really do. I suppose the moment for a graceful exit would have been when Katherine Harris certified the vote. But that moment has passed. I'd like to take an issue a bit... take issue a bit with Tony Lewis. I admire him and his knowledge of the law enormously. But you know the Florida legislature acting in this matter is legal. I think our founding fathers actually put their trust in what they considered somewhat elite groups such as the legislature, rather than in the whole mass of democracy. It would be legal. The Bush campaign has certainly been counting on this and planning this at least for three weeks. That was the first time I heard about it. I would prefer that it not come to that. I think it would be misunderstood in the country, and not helpful. Nonetheless I do think it's a legal move. For the Vice President, I think he might develop something that the writer Isak Dinesen called divine swank, which is flare in the face of adversity and the ability to laugh at bad fate. You know, Adlai Stevenson had it. I think Bob Dole has it. I think Al Gore might cultivate -- so might George Bush just in case.
TERENCE SMITH: Is that what we should we look for, Tony Lewis, a little divine swank?
ANTHONY LEWIS: I wouldn't mind that at all. I agree. A little humor would be well placed at this point. But I just want to repeat so that -- maybe I didn't make my point entirely clear. I wasn't making a legal point about the legislature. The Constitution does say that the legislatures may decide how electors in each state, presidential electors, are to be appointed. But the Constitution as it was originally written has, in fact, been overtaken by a process that the framers-- wise and wonderful though they were-- did not anticipate: Partisan politics. They did not anticipate parties. And very soon we had parties and we had elections instead of appointments by legislatures. And I just don't think the public, quite rightly, would understand or accept the notion that a Republican legislature and a Republican Governor, the brother of the candidate, would set aside what the voters of Florida had done and make that candidate the president. I think that would be regarded rightly and widely as a raw deal.
|Envisioning a solution|
TERENCE SMITH: John Leo, as we are in the midst of all the legal wrangling, can you envision a good solution to this that will make people feel satisfied about the result?
JOHN LEO: Sure. I think that's one thing that's probably likely to happen in the courts. I think the closer we get to the inevitably of a Bush presidency, the more courts and I think reasonable legislators will react to that and try to build legitimacy. You just can't have the country torn apart about this. So I think that's another reason why the Florida court is in such a difficult spot. Tony Lewis could check me on this, but if they were to rule for Gore, my understanding is they would probably kick it back to Judge Sauls and it would go around the track one more time. And time is running out. They're probably likely to take account of that, that the partisan fever would get so high if an all Democratic appointed court ruled for Gore that the politics of the situation, if not the law, seemed to be behind the Bush side.
ANTHONY LEWIS: John, you asked my opinion. I will say that I think that's absolutely right. I think it will take, as you put it, extraordinary courage on the part of those judges on the Florida court, if they think the Gore position is correct, to say so because they will surely be criticized as partisan.
TERENCE SMITH: Clarence Page, do you agree with that? And the scenario that John Leo just sketched out could very well carry on beyond December 12.
CLARENCE PAGE: Yes, it could. There's a certain weariness factor that begins to set in on the part of the public which they haven't shown much of up until now, at least I should say except for the Bush supporters. And they're the ones who are most vociferous in wanting it all to be over. Other Americans seem to be remarkably patient at least up until yesterday. I'll be interested to see how the polling looks now in the next few days. Judge Sauls has kind of shifted the debate a little bit. He's given a real legitimacy to the critics of Al Gore with blow after blow against the Gore position. It will take courage for the Florida Supreme Court to go the other way should they so decide. And there are practical matters here. I think what is likely to happen is Tony Lewis is right that the public, much of the public will resent the Florida legislature stepping in. Lee Cullum is also right -- it's legal. But a lot of people were arguing that just because something is legal doesn't mean it's moral - doesn't mean it's legitimate. There's a lot of repair work to be done in coming weeks. But we Americans tend to tire of fighting each other for too long, especially over something where the stakes don't appear to be that large. Most Americans have not really felt that deeply dug in -- that there's that strong of a contrast between these two candidates.
TERENCE SMITH: Lee Cullum, I'll bet that John Leo scenario is not very appetizing to you.
LEE CULLUM: Well, you're absolutely right, Terry. And, you know, I want to agree with Clarence Page. I do think that American people will be resilient. I heard someone say back on November 10 or November 11 when all this was beginning in Tallahassee, someone close to the Bush situation, that the American people do have a way of adapting and moving on to the next event. You know, there are those who say this is going to reverberate for months and it's going to be horrible. Think back to 1960. How many nights did we lie awake worrying about those dead men voting in Duval County for the Democrats, worrying about Illinois? You know, this year I read there were convicted felons who voted in Florida. At least they were alive. I do feel that we will be able to put together a centrist coalition in Congress. I hope so. I hope Jennifer Dunn and the others who were just on can manage that and that we can get some productive work done no matter who is President.
|A centrist government?|
TERENCE SMITH: Tony Lewis, can you imagine a productive centrist coalition in Congress after an election this close?
ANTHONY LEWIS: I can. If the word of the court-- whichever way it goes, if the Florida Supreme Court's decision is accepted and produces the result, and that result is accepted, I think it can be. And I entirely agree with Lee Cullum that the country will survive, you know. We've all been at the start people were a little hysterical but we've all settled in. We understand it's very important, but the country is going to go on. If, however, I don't want to be repetitious, but I think if the legislature takes over and reverses a court decision in Florida, I think it will be impossible to produce a centrist coalition.
JOHN LEO: No, I don't think it's a real-world idea at all. I mean, any Republican who goes into a Democratic administration or vice versa is simply an apostate who leaves the party to help out the other side. I don't think it really brings the equivalent of a coalition government in parliamentary form.
TERENCE SMITH: Clarence, do you agree with that under these circumstances?
CLARENCE PAGE: We saw Secretary of Defense Cohen who is a Republican now in the Clinton cabinet. I'm already hearing on Capitol Hill-- John Leo makes a point here-- I'm already hearing some Democrats say, well, Bush wants to bring in Democratic Senators in states that have Republican governors so that maybe a Republican Senator will be appointed to replace them and thus the ballots will tilt in the Senate. Bush has a lot of repair work to do as far as his own credibility.
TERENCE SMITH: That would be convenient, wouldn't it? We're out of time. Thank you all four very much.