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U.S. Supreme Court: "The case is submitted"
Justices consider whether Florida's high court overstepped, and if it did, whether it's a federal matter.

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By Jake Tapper

Dec. 1, 2000 | WASHINGTON -- It's the place to be Friday morning. An A-list affair with lines down the block to get in.

One pew alone features, from left to right: Bill Daley and Warren Christopher of Vice President Al Gore's team; former GOP Senate Majority Leader Howard Baker of Tennessee; Sen. Fred Thompson, R-Tenn.; Barbara Olson, conservative activist and the wife of Gov. George W. Bush's lead attorney; and Sen. Ted Kennedy, D-Mass.




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Karenna Gore Schiff is in the house, as is the Republican governor of Michigan, John Engler, and the chairman of the Palm Beach canvassing board, Judge Charles Burton. Florida GOP chairman Al Cardenas is here, with losing Senate candidate Rep. Bill McCollom, R-Fla., by his side. As are Gore veep short-lister Sen. John Edwards, D-N.C., and former Clinton Justice Department Microsoft nemesis Joel Klein.

In a show of solidarity, the chairman and ranking Democrat of the Senate Judiciary Committee, Sens. Orrin Hatch, R-Utah, and Patrick Leahy, D-Vt., walk over to the hearing together.

But Hatch and Leahy's brief bipartisan stroll ends at the U.S. Supreme Court building, and that's where any figurative common ground ends as well. The justices are here to consider arguments in a Bush petition maintaining that the Florida Supreme Court overstepped its bounds when it extended the final state ballot certification deadline from Nov. 14 to Nov. 26 so some counties could finish their manual recounts.

"The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States!" bellows the marshal. "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting! God save the United States and this Honorable Court!"

Sitting in the center, high atop the mahogany mountain, Chief Justice William Rehnquist gets right to business. "We'll hear arguments this morning in No. 00836, George W. Bush vs. the Palm Beach County Canvassing Board," he says. "Mr. Olson?"

Theodore Olson steps up and immediately addresses what many feel is the weakest claim in the Bush argument -- that the issue here involves a federal law and necessitates the court's attention.

"The election code that the Florida Legislature developed [for elections] conformed to Title 3, Section 5 of the United States Code," Olson says. "That provision invites states to devise rules in advance of an election to govern the counting of votes and the settling of election controversies." The Florida high court made new rules after the election, Olson argues.

But Olson is scarcely two minutes into his opening statement when Justice Sandra Day O'Connor, seated immediately to Rehnquist's left, jumps in.

"Well, Mr. Olson, isn't Section 5 sort of a safe-harbor provision for states?" she asks. "And do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section? I would have thought it was a section designed in the case some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute. I just don't quite understand how it would be independently enforceable."

After all, as Justice Anthony Kennedy, immediately to O'Connor's left, says, "We're looking for a federal issue."

Justices John Paul Stevens, Antonin Scalia and Stephen Breyer also get down in there, mixing it up, probing and poking and examining Olson's position. Scalia asks Olson if he would hold Florida to such a tough standard if this were a debate about speed limits and highway funding? Stevens points out that Olson's whole argument is "based on the premise that the Florida court overturned something that the statute had done. Is it not arguable, at least, that all they did was fill gaps that had not been addressed before?"

Justice Ruth Bader Ginsburg seems perhaps the least convinced that she and her colleagues should overrule their Florida counterparts. In "even the very cases that you cite, as I checked them," she notes, the high court ruled "that we owe the highest respect to the state court when it says what the state law is."

Olson responds with language perhaps better suited to a press conference than to the hallowed atmosphere in this historic room, with its maroon and golden curtains and sculpted marble portraits of, among others, Moses, Solomon, Confucius, Hammurabi and Charlemagne.

"I would emphasize that what the Florida Supreme Court did is basically, essentially, say, 'We're rewriting the statute. We're changing it,'" Olson says.

. Next page | Will humor earn Gore's team extra time to make its case?
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