Here we are in the midst of sorting through another close election. We asked you because youve been covering this Supreme Court since 1986 to come back and look back in time with us at that 2000 election. What we were going through then as comparison to whats happening now and also some of the lessons that were learned. Lets start with the court itself in 2000. Nine members of the court and seven of them have been appointed by republican president s. But how do they align id logically . David its sort of a 54 conservative court. Rehnquist was a leader. Justice scalia was a leader of that court. Ohn stephens, david sutter and Ruth Ginsburg and steven briar, on the left. So it leaned conservative. But it was also an interesting you know, the court the court is never 100 predictable. I found that Justice Kennedy and Justice Connor were middle of the road conservatives. And you could not predict them in all sorts of cases. Would you say a bit more about William Rehnquist and his approach to leading the court . David well, he had you know he had been on the court for a lot of years before he became a chief justice. He was a person of very strong and very clear views. I got to know him. I would go to lunch with him. I always found him a most interesting person. He could talk about a lot of interesting subjects. If he wanted to talk about sports, politics or the weather,or whatever, hes a person that liked to talk to people. He also was a very good leader. The justices really appreciated that rehnquist was very straight forward and clear. He respected their views. He knew people had different views. But he was a very good leader for the court. And he also had a sort of he really was a sort of ideological leader. He had strong views about the separate states having authority and all that that the federal courts wouldnt be overbearing. Over a lot of years, he moved the court in his direction. So he was a states right oriented in his philosophy. Among the appointees in addition to Antonin Scalia and clarence homas, were there any of ideology . David Justice Kennedy and rehnquist were conservatives. Really rnist were Justice Scalia and thomas. Just as conor and kennedy basically thought we had 200 years of unprecedented things like due process of law that were not defined in 1787, and they didnt have a lot of regard to figure out what the understanding of all those questions. So it was not a court that was ominated by notions of originism as it is now. Well come back to them as the events play out. So just this week, the morning after the election in 2000, neither candidate al gore nor george bush had achieved 200 electoral votes. President bush then governor bush won 29 states. 246 electoral votes. Vice president al gore 18 states plus d. C. With 260. And the focus then turned to florida which at the time had 25, now 29 Electoral College votes. So the teams can we assume that they had established legal strategies long before election day . David no. No. I actually i think both sides re sort of left scrambling because you can never you know, i think back about it, then it was obvious i suppose even then that the single biggest fact was that george bush was ahead by a couple hundred votes on Election Night and the next day after all the ballots had gone through the counting machines. So from the very beginning, james baker leading the team for bush said, governor bush has won the vote. Its all over with. He won. Al gores team was then left with saying, ok, what do we do . Were only like 500 votes behind. There were nearly 6 million ballots cast. We need to go back and see if there were votes the margin is so close. So i dont think they had any great legal strategy prior to election day. But both sides had a clear strategy. The republican strategy was its all over. Its time to stop counting. Overnor bush has won the gore strategy is we need to look at all the votes. Do some recounts. This is very close. We should keep counting. We should not quit. Along the way where there are comparisons to today theyd be helpfulful today, as we understand from reading both campaigns have had legal strategies in place for quite a while. Is that your understanding as well . David yes, i mean, everybody yes, both sides were on notice and preparing themselves on state laws for example because a lot of this turns on the technicalities of state law. If youre a washington lawyer and you dont know that, so you need to get people in all the states, get them very much up to speed. But then your strategy becomes, again, wheres your candidate . Is he ahead or behind . And that determines a lot of the legal strategy from then on out. Two other notice about the 2000 legal teams. First of all, as you mention the bush team was led by james baker former second they of state. And al gore selected Warren Christopher to be the head of his legal team. How important was it i think to Public Confidence in the process to have two people at this stature at the head of the legal teams . Well, both of them as you say were impressive people, sort of wise men of their time and their party, very different approach, very different strategy. James baker was very much standing before the cameras being very public and saying as i said governor bush has won. Its time for this to end. Warren christopher was much more of a reserved sort of lawyers lawyer, but not one to spend a lot of time before the cameras. And was very much more reserved figure. To some degree, it affected the strategy that bushs team seemed much more aggressive and sort of running a sort of a Public Campaign to say, hey, our candidate won. Its time for this to end. That was their consistent message for six weeks. And i think it had some effect. Three names of note of interest pop out. And that is roberts, kavanaugh and barrett. Youngish lawyers at that particular time. Are they other than a footnote to the story an important thing to note at this point . David well, they are a footnote for the reason that you know and i know. I dont think they had very big rolls at that time. It was the case with where both sides had sort of the army of Young Lawyers op the republican side or the democratic side. They basically said rush to florida and get involved in. The news business, we all know that a lot of reporters and journalists rush a lot of people to florida. There are a lot of Young Lawyers went to florida and immediately went to help out. But i dont think john roberts or certainly amy barrett and Brett Kavanaugh had enormous roles. They were people to help out and chip in. They were not the key figures leading the legal fight. So the days between november 8th, the day after the election and the first appeal to the Supreme Court were just full of legal arguments that those at those local and state levels. And the first involvement in the Supreme Court happened on november 22nd, a couple of weeks later. What if you had to summarize anything of note between all of the legal wrangling that happened during the first couple of weeks, is there anything that stands out . David well, tell you what i remember. Which i started reading a lot of florida Supreme Court opinions. And i realized right away that the Florida Courts were very much of the view of count all the votes. They had had a lot of election problems in florida and in miami in various races. And they had a philosophy and approach to the election law to say, its important to get the result right, to count all the ballots. There had been disputed elections in miami. I even think they ordered some new elections. So they were very as a court very open to the argument of saying, hey, we need to this is a very close election. We need to make sure all the votes were counted, all the votes were counted fairly that there was no fraud. And so they were as a court very open to the argument that gores team was making, which was, this is a razorthin margin, and we should not rush to end this. We should go back at least be willing to look at recounting votes. The main legal dispute early on was, there was a provision in the florida law that said if theres an error in the vote tabulation that could have determined the outcome, thats that could be grounds for doing recounts or reopening the election. Now, that what does the frazier in the vote tabulation means . Well, from the republicans point of view. And i remember chief Justice Rehnquist had that point of view. Suppose that the computers had been programmed in some wrong way, and in your county, a couple of precincts were left out. And they turn in the vote and they say, hey, wait a minute, we made an error in the vote tabulations, the votes from so and so didnt get counted. So were going to correct that error, recertify and change our numbers. Or there was a power outage on election day. And there was some error that, you know, made some big difference. And so youd fix it. But al gores team took the view hat the punch card ballots failed to count a certain number of votes just because they werent punched clearly through. And it was sometimes a half of a percent, even 1 . It wouldnt be counted. They said, see, thats an error in the vote tabulation that could determine the outcome here. We should go back and reexamine hand by hand those ballots. And so for the first week or two, the really big issue that sort of moved its way through the Florida Courts and then up to the Supreme Court was what does the frazier in vote tabulation means, and does it authorize the counting or recounting these paper ballots or not . The republican view was no there are no grounds for continuing this recount. The gore team and the democratic view was, yes, its really close. We should continue the recounting these these paper ballots. And as youre describing the that, im sure people are remembering the images of hanging chads and dimpled chads and magnifying classes trying to decertain the intent of the voters as those weeks moved on. On november 24th, scow us the announced that it would hear arguments. So was this decision that they the first time that they would get involved surprised Court Watchers . David it was a surprise to many people, many lawyers around the country. It wasnt a surprise to me. And a few of my friends at the court. I remember those weeks in early november talking with some of the people around the Court Building who were talking to the justices upstairs and basically said, theyre watching this very closely. And if this recount continues, they are going to be very willing to jump in. And i remember lawyers around the country saying, oh, theres no way the u. S. Supreme court would get involved. And i thought thats not correct. If there are five of them that sort of took the republican view that governor bush had won the count, and there was no need for this weeks of going through these paper ballots and when it was ted ohlsson appealed it to the Supreme Court, they moved very quickly to take up the case. And they were going to reconsider basically that question that i said, which was the error in the vote tabulation, did that really justify the florida Supreme Court ordering all these recounts . Rehnquist and scalia were very skeptical of that and and so a lot of people were surprised they jumped in. But there was one technicality, susan, that this was still in the phase of Something Like the certification phase where they were tabulating the votes within florida. Everybody thought that was going to be that Supreme Court case was going to decide everything. And as you know, it really didnt. It was just sort of a preliminary first stage ruling that didnt resolve the matter. Susan the case was named bush vs. Florida canvas authority. The Supreme Court heard oral arguments for 90 minutes. What do you remember about the atmospherics of that day both inside and outside the court . David well, there was an enormous focus it was a decade or whatever, there was some case like there was a case a couple of years ago. It seems like the whole country was paying attention for at least one hour because it sure looked like the court was going to either weigh in and shut down this voting in which case governor bush would win. Everybody thought theres a good chance this is the Supreme Court that theyre going to decide the election in this case. So there was an enormous amount of focus. It was you know, it was not a very interesting or it was not a great compelling legal story because youre sort of falling all over. What is the phrase error in vote tabulation means . And who is to decide that . Does the state court decide that or can the federal judges say, wait a minute, thats not what state election laws are . Even though rehnquist and scalia were states rights people, they were suggesting that the u. S. Supreme court should step in and overrule the state florida judges on the meaning of florida law. And that seemed to a lot of people like where did that come from . That seemed a little bit aggressive. But thats thats where they were. Susan so the lawyer arguing for governor bush, you mentioned him, theodore ted olson. Ell people the view of ted olson about his arguing about this case. David well, hes a great guy. He came with the Reagan Administration in the early 1980s and worked in the Reagan Justice department for a few years. Ted is a very you know, i dont know anybody that doesnt like ted olson. Hes a very likable person, a person who knew all the justices. Hes got that clear view and sort of presses ahead. And he was also the guy who, you know, played the main role of getting these cases before the Supreme Court. I think his instinct early on was quite correct, which was to say, hey, we may not do too well in the florida Supreme Court. They had this view that i mentioned earlier of lets count all the votes and keep counting. He thought we may need to go to the u. S. Supreme court if this keeps on. And so he was the guy who kept pressing these issues into the before the u. S. Supreme court. He was the right lawyer for the right case. Susan al gores legal representation was done by lawrence trot. Who is he . David famous law professor, one of the best known and highly regarded sort of liberal law professor, had written great constitutional law textbooks. I remember him early on as an advocate in the Supreme Court. He had some very good arguments and some not so good arguments. The good thing about larry trot was that he was really so smart and so learned on constitutional law that there were certain amount of case where is the justices would sit back and listen to him, which they dont do too often. He was a liberal professor. And he was not going to have a lot of sway with the conservative justices. And so he was in many cases he had run into a real clash with rehnquist and scalia and the conservative members of the court. Susan the court as i hope most cspan listeners and viewers know does not allow video of its proceedings. But even at the time they were audiotaping their oral arguments. And we have a clip of ted olson and lawrence trot making their arguments before the 2000 Rehnquist Court on bush vs. Palm beach county canvasing authority. Lets listen and have you talk about the arguments they made. Two weeks after the november 7 president ial election, the florida Supreme Court overturned and materially rewrote portions of the carefully formulated law enacted by floridas legislature to govern the conduct of that election and the determination of controversies with respect to who prefailed prevailed on november 7. Although it is part of the Popular Culture to talk about how unfair it is to change the rules of the game, i think that misses the point when the game is over. And when its over in a kind of photo finish that leaves people unsure who won. And then the question is how do you develop great sort of greater certainty and the rather common technique is a recount, sometimes a manual recount, sometime taking more time. Susan so thats a bet of their 90minute argument before the court. What was the essential part of the argument on both sides . David well, you see ted olson was maybing the argument that the florida Supreme Court has botched florida law, that rather than sticking with the law as it was on election day, they changed it. Their view was we were interpreting florida law. Were not throwing it out. But ted olson was making the argument that the florida law basically called for certifying the results within a week or so, as i said unless theres some clinch, you er basically certify if results and he thought he should certify the results. But instead the florida Supreme Court allowed this counting. He was making the argument that the florida Supreme Court got florida law wrong and viewed that the u. S. Supreme court should change it. And larry tribe has to make the argument, look, its a very close election. And and and the florida judges correctly want to make sure that all the votes, all the legal votes were counted and that we should count you make sure we count all the votes before we decide who on who won the election. Three days later, the court returned a percuriam election. What does that mean . Its an opinion of the court that wasnt signed, basically. You may know this detail more than me, susan. But i think what happened in a day or so after that, the result was certified in florida and governor bush won. And so in a sense, the Supreme Court didnt need to resolve the issue that they thought they were going to have to resolve. And so they basically wrote an opinion for the court that that said rehnquist view of this which was the constitution from the beginning said that the electors shall be graded shall be chosen based by the manner set by the legislatures of the states. This was the view in 1787 if you were going to allow the legislators to pick the electors. Rehnquists view was that the Florida Legislature had set the law and that the florida Supreme Court had they had really no basis for changing that law. Normally state courts determine their own state law but ehnquist kept saying federal elections are different. He laid that out in a few paragraphs, a few pages. Were a little bit unclear what the basis of the so they found a way to write an opinion, make the case go away because at that time, they realized they didnt need to resolve it because the certification had ended and governor bush at that point had won. Susan except it didnt end it. And events move very quickly over the next couple of days. So much so that i asked our producer to put it on a timeline. So we can go through it quickly. In december, they announce theyd would convene for the process of choosing new electors. On december 7th, the gore legal team makes arguments in the florida Supreme Court. A lot happened on december 8th of that year. The florida Supreme Court ordered manual recounts in a 43 decision. At the same time the bush team seeks a recount injunction from the Supreme Court. And then the Florida Legislature starts its meeting process to choose new look or thes. One day later, december 9th, the Supreme Court stepped in to halt the manual recounts anisette a date for a hearing. Two days later, the arguments were heard in bush v. Gore and one day later, the Supreme Court announced the decision whichened in a 54 decision. First of all, why was speed of such essence . Why did events have to move so quickly . David well, two things. After the case back in florida, there is a provision of florida law that says after the results been certified, the losing candidate can contest the result. Thats why gore was back before the florida Supreme Court saying were contesting the results. There are thousands of these punch card ballot, some of them didnt register votes. They should be counting. So he was contesting that. The time issue was there is a provision in the federal law that says theres sort of a period where if a state gets its electors and decided and i believe its december 12th, then theyre subject to it in further challenge when they go to congress. Theres a lot of debate about this. But basically the view was december 12th was the day the state needed to resolve this. So there was, as you say, sort of a realtime pressure. The florida Supreme Court on that friday handed down this 43 decision. I think they said, theres Something Like 40,000 of these ballots that are punch card ballots that went through the machine, didnt register a vote. They should all be counted. And i think their view was they could be counted friday, saturday, sunday, and monday. And the count would be completed by the the date early next week. I think it was always the case the bush team side was they were very worried that if the count proceeded that gore could go ahead and then that would change everything. If gore were suddenly ahead in the vote, you know, then then theyre in bad shape because they have to keep saying, wait a minute, keep counting. So they did not want that count to continue. And that was part of their driving force. When the florida Supreme Court decided that on a friday, ted olson was ready on friday night to appeal, file an emergency appeal with the Supreme Court, u. S. Supreme court and say stop issue an order, stop the count. Susan is it a simple majority opinion . David yes, it takes five votes to issue an order that within the court within the grant review of the case. If an injunction is in order to stop doing what youre doing and joining the action, it takes five. Susan do you recall the vote on the injunction . Was that a 54 vote . David it sure was. And it was in my view it was the decision it decided the matter. The split was career. And once they decided it was over with, i i covered like the rest of the world what went on sunday, monday, and tuesday. But in my view, it was over about noon on when they handed down the injunction. It was rehnquist, scalia, thomas and kennedy and oconnor. We know that before john sut ens, justice ginsburg, or the and briar issued a decent. And they knew they were astonished that on that friday night that ted olson that it was actually a possibility that the court would intervene to stop the count. I remember years later, they talked about being in plays at holiday parties and being astonished to know that the court was going to meet and that they could possibly defy the five on the right would jump quickly to shut down the counting. The. The five on the t would jump quickly to shut down the counting in florida but that is what happened. On saturday afternoon. All across florida there were teams going on punch card ballots. The Supreme Court on a 54 ballot said stop accounting. Stop the accounting. And we will agree to hear the case on a fasttrack. Everybody understood it had to be done by december 12. This was saturday afternoon. Tuesday the time would run out. When the Supreme Court stepped in and stopped the boat stopped the vote, you would only do that if you had your mind made up. Five of them have their mind made up, they were not going to allow the recount to continue. 54wo underscore, the injunction vote presaged for you what was ultimately going to bush v gore in the oral argument. Thats, i remember afternoon, some news accounts said this was a temporary order toa temperate keep things on hold until tuesday. I said yes that is one way to put it. But the truth is, this is the end. This is the main decision. You would not stop the boat counting vote counting for the full weekend, until early next week, unless you had decided, the vote count was going to end. Sunday and monday on it was only a question of the courts conservatives had to think of a reason for deciding what they had already decided. That is, they knew the decision that this manual recount would come to an end. It has been a month. We should call this off and ended. Scalia later talked about, this is a national embarrassment. An embarrassment to the nation that we have not resolved the presidency. They were very frustrated that the count had continued. They had made their decision. They then heard some arguments monday and tuesday but really, to try to come up with a legal sounding reason for explain why the count should and. But by saturday afternoon the decision had been made. Still interesting to listen to the case and some questions even though as you say their minds were already made up. On december 11, when the kids happen, were you in the courtroom . Yes. What you are member about the atmosphere that day . David boyce was arguing for gore. His a very good advocate, a terrific trial lawyer before juries. But he had made no headway with the justices. I am sorry if im repeating myself. I really thought they had in their minds made up their minds. Justice kennedy and Justice Oconnor were fishing around for a reason, and kennedy had lash onto the idea in his mind that was it was some sort of equal protection violation. Because in theory, what if you have a situation where poppys county is saying, we are going to count every vote where there is an indented punch on the ballot as long as we can see where if there is a punch next to bushs name . And then the next county has a very strict standard, that says, you are not going to count it unless it has been pushed all the way through . And so kennedys view is, it would violate the equal protection clause in the constitution, to have these different counting standards in different localities. Nobody i dont think really made the argument, that they had set this up to discriminate against that they were going to be easy for al gore or hard for george bush, it was because there was no agreedupon uniform standard, that it could differ county by county. And kennedy tried out the view and said you know, he was fishing around, or trying to get clear in his own mind, what was a good reason for saying, this recount could and end. That is what i remember, them good sort of going back and forth on this. And ted olson had a much easier time of basically saying, again, that governor bush had one, the florida Supreme Court is sort of making fools of all of us by continuing this endless recount procedure trying to find votes and these punch cards it is time for this to and. We are going to listen to clips from, the oral arguments that day. I want to do a media note. This case was the first time the chief justice granted sameday release of an oral argument before the Supreme Court petition that have been made to the court by cspan and followed by others in the media. As soon as the hearing was over, the audio was released so the country out of the world could hear what was happened what had happened that day. A practice the court has continued throughout, since that day in 2000. Lets listen first to david boyce and the argument he made on bush igor summer 11, 2000 december 11,v gore 2000. [video clip] the florida Supreme Court has held where a voters intent can be discerned even if they do not do what they are told, that is supposed to be counted. The thing i want to say about the cases that was a case that used optical ballots. Voters were told fill it in with a number two pencil. Several thousand did not. They used Everything Else but not a number two pencil. So the machine would not rate it. It was voter error. Wellupreme court in 1998, before this election, set you have to count those votes. Teamy with a gore legal make a change in the attorneys arguing the case . Sure, but iknow for think having listened to both larry was given a tough time in the first round of arguments. Was not makinghe a lot of headway with the courts conservatives and boyce had done the argument in the Supreme Court and had done very well and sort of one so i assume that people, al gore and the people around him said well, boyce had done so well arguing this case and the florida Supreme Court, why not have him carry on and make the argument in the u. S. Supreme court. Lets listen to ted olson. [video clip] with respect to punchcard ballots, there are different standards for evaluating those ballots from county to county. And it is a documented history, in this case, that there have been different standards between november 7 at the present three respect to how those punchcard pallets are evaluated. Palm springs is the best example. They started with a clear role, which had been articulated and explained to voters, as of 1990. Then they got into the process of evaluating these ballots and changed the standard from moment to moment during the first day and they evolved from the standard that the chad had to be punched through to this socalled doubled ballot standard, indentations on the ballot. There was an indentation there was a reason why this was done. There is pressure on to change the standards. With arguments he made this time around essentially the same he made in Palm Beach County case. Yes. Those are good clips of that competing views. Say that correct to the florida law said the intent of the voter. If you had a punch and it was unclear whether a whole had been punched through and some of wrote and with a crown, bush, you can look at that ballot and say, it was clear this voter intended to vote for governor bush, so we should rely on the intent of the butter, is not something you, it has been florida law and it is reasonable to take each ballot and say this is a legal vote if we can discern what this voter wanted to do. That was the sort of liberal, prorecount argument. The what was making turned out to be the very good winning argument, which was, look, there are counties all across florida. They do not have an agreedupon standard. It is going to differ county to county. It may even differ he said in this example where they are heing to change the standard said, he suggested in hopes of finding more votes. And it seems like something unfair about that if youre going to sort of manipulate the standard to try to, in effect, manufacture more votes. So i think both of them did a good job sort of laying out the argument that they want to the court to accept. To give our viewers a sense of what it was like on the bench, lets listen to Justice Scalia questioning david boies. [video clip] the florida Supreme Court said there shall be added to the certification these additional. That is true in any contest. Every contest. It is not added to the certification. You made to a review of ballots and at more numbers. As i read the florida Supreme Court opinion it says the secretary of state will certify these additional. Procedure toe a contest the certification. What you are doing is saying the certification is wrong, change it. Florida Supreme Court was saying after this trial, is yes, you prove, that this certification is missing. A certification rendered by the secretary of state did not include those additional ballots for your client. And the Supreme Court directed that the certification would be changed to include those. But your honor, that is what happens every time there is a successful contest. The contest is a contest published certification. You have that does not make any certification, you have a certification may by the secretary of state, that is what is contested. To get people a flavor of the other side lets listen to Justice Ruth Bader ginsburg questioning ted olson. [video clip] mr. Olson, he said the intent of the vote will not do it is too vague or subjective. But at least, at least, both the intent of the voter, the legislature. What if anything added to that be, wouldnt you be objecting much more fiercely than you are added toomething were the words that the allpowerful legislature put in the statute . I think we have to distinguish whether we are talking about a perspective, uniform standard, as opposed to something that changes the process in the middle of the counting and evaluating of disputes. But if you are talking about if we are caught talking about as contest, the statute Justice Souter pointed out speaks with amazing breadth. It says the circuit judge, this is the text, shall fashion any order he or she deems necessary, to prevent or correct any wrong, and to provide any relief, appropriate to the circumstances. I cannot imagine a Greater Authority by the legislature to the certifiers. What can we take away from both of those exchanges . Well, that exchange with Ruth Ginsburg, she was a very smart lawyer. And always, always smart and very well prepared. And she is drying back to ted olson the argument he is making. She is saying, you are arguing that the Florida Courts were changing floor the law. And she says float a law says, the intent of the voter is he says florida law says the intent of the voter is what counts. Florida law has a liberal provision for going back and contesting results. And all the Florida Courts were doing is abiding by that. Why isnt that, why arent you asking us to change florida law which you say you do not want us to do . I thought it was a very good counter to the arguments that he was making. , there was these two parts of the florida law. First the certification and then the contesting the results afterwards. I am not sure, i guess there was some part of the floor to Supreme Court opinion that said, these extra ballots have been certified, and add those to the total. And Justice Scalia had a lot of doubts, was skeptical of this procedure and just adding votes to the certification, which was in his you another example of what is going wrong in the Florida Court. The court issued its opinion at 10 00 p. M. The following day, december 12. We have a headline of your december 13 story on the outcome of that case. There were two rulings in the case with different sets of votes. Understandan help us the significance. First the 72 per curiam. He told us before the per curiam is the opinion of the court this was split. And then there was the final 54 decision. What should we know about those two decisions . Well, so, i presume date, after the argument, met in a conference, and cast their votes and there were five to end the recount, on the grounds that it was unconstitutional. Either that it violated equal protection, which was kennedys you, or that requestscully of had that the Florida Court wrongly changed state law after the election which violates federal law. The constitution says the legislature it sets the way of choosing the electric. Dusty electorate. On the liberal side, both priore souter and Justice Justice breyer made clear during the argument, they were looking for some sort of middle position. And they were willing to say, and willing to go along with kennedys view, ok, if your , thatm is that we have the Florida Courts have not set a very precise, clear standard that says, you have to punch a card all the way through, have a whole for it to count, Say Something more specific about what is a legal vote, they were willing to go along with an opinion that would say, ok, send this back to florida. With the requirement that they would set a more specific standard, and then finish the count. But it turned out that kennedy and oconnor were not in favor of sending it back and finishing the count. They were interested in ending the count. And shutting it down. And so, i was viewed that really as a 54 opinion. There was a 54 split saturday. It went back and considered it tuesday. Curiumded up with a pro where it is an unsigned opinion, an opinion for the court, and dissents,issents 4 stevens, ginsburg, breyer and souter each wrote dissents. Souter said we never should have taken this case. We never should have intervened. We should not have shut down the account. The count. Now we have wrongly ended the case. Justice breyer said the same thing. I was going to go along with something that would allow recount to continue. But there is no justification for ending this and shutting it down. So as i said, it was in my opinion, it was basically a 54 split on saturday. And it 54 split tuesday night. The majority not speaking, everybody understands Justice Kennedy drafted most of that. It made his equal protection argument that you cannot have a recount statewide with all of these counting teams and no clear standard as to what counts as a specific agreement on what counts as a valid vote, and therefore it is unconstitutional, and time is up on december 12, therefore it is over. Susan and al gore came to that conclusion as well . Lets listen to a statement to sever 13, 2000. Let there be no doubt that while i strongly disagree with the courts decision, i accepted. I accept it. I accept the finale of this outcome which will be ratified monday in the Electoral College. Tonight, for the sake of our unity as a people and the strength of our democracy i offer my concession. This is america. Just as we fight hard when the stakes are high, we close ranks and come together when the contest is done. And while there will be time enough to debate our continuing differences, now is the time to recognize that that which unites us is greater than that which divides us. Hold and do not yield our opposing beliefs, there is a higher duty than the one we out to the political party. This is america and we put country before party. We will stand together behind already present. Susan david savage, in my case, i took this away the understanding that the court meant this to be a single or decision. A circumstance at the time. But in fact has it created precedent and has bush v gore been cited in ensuing election cases with frequency . Well, i think you are correct on your first thought. The court and they said this in the opinion, this is basically we are deciding this issue but say thatid not want to there is this equal protection standard applies to all elections because everybody in every case could make that argument. Jesse jackson used to always say, the boat systems in the africanamerican precincts are not as good as in the majority white. They miss more about. Therefore it they miss more votes. The court did not want to entertain those claims. Therefore they basically said we are deciding this case and it is not a precedent that should be excited widely. However that should be cited widely. However it is true in recent years lawyers and cases have increasingly cited was to be gore under the proposition, actually both propositions, that sometimes they say hey, the legislature in this state and the courts in the state are not following the rules set by the legislature. This test, during this pandemic. Says,e the state law alice have to be, you can mill your ballot in but it has to be in on election day, and some judges, some courts, some state courts have said, well, because of that male problems and because mail problems and the ,ush of late mail ballots particularly because of the primary in the spring, the may arrive late but as long as theyre postmarked on election day, they will count. People on the other site said you are changing the law set by the legislature, see bush versus gore you cannot do that. There are also sometimes there has been an argument that something is different in one county or another. Or a particular county. Particular state has a particular role and some smaller counties do something else. Some republican lawyers have said you cannot do that, that is an unequal rule for about counting and therefore it violates bush versus gore. So it is true that bush versus gore has shown up in recent months and a lot of the argument and a lot of discussion. Brett kavanaugh quoted it recently in one decision. But it has not been, the Supreme Court has not cited it as the basis for a really. 48. For a ruling. So it has not been a precedent the Supreme Court relies on for its decisions. After the 2020 election we have two candidates in close races and none has achieved as of the time we are taking the requisite 270 electoral votes. On Election Night the sitting president announce at 2 00 in the morning he would ask the Supreme Court to intervene. Lets listen to what he had to say. This is a fraud on the american public, this is an embarrassment, to our country, we were getting ready to win this election, frankly, we did win this election. Our goal now is to ensure the integrity for the good of this nation, this is a very big moment, this is a major fraud on the law to we want be used in a proper manner so we will be going to the u. S. Supreme court, we want all voting to stop. We do not want then to find any ballots at 4 00 in the morning and add them to the list. Ok . It is a very sad, it is a very sad moment, to me this is a very sad moment, and we will win this , and as far as i am concerned we already have one it. You have just filed a story about the comparisons between bush igor in 2000 wish v gore 2000, and you in quoted a law professor saying President Trump did not help his cause by suggesting the Supreme Court is ready to ride to his rescue. The justices are all aware that the bush v gore really did damage to the courts legitimacy. David i think they all know the court has a certain legitimacy and respect that as the arbiters of the constitution. And they care very much about preserving the reputation of the court. A lot of them will say one thing they most think about throughout their career, is that they do not want to do anything that would damage the court. They want to leave the court in as good a place as it was when they arrived. , that partisan election cases, are some of the most treacherous territory. Because youre almost sure to error take 50 of the people to think you were partisan you are almost sure to irritate 50 of the people who think you are partisan and wrong. They all know that the bush v. Gore decision was controversial and much disputed. Justice scalia would say get over it but they all knew it was very controversial, and they did not want to be in the position of seeming, being seen as partisan actors. And so they are not anxious to go into that again. At President Trump is very willing to invoke the Supreme Court and say im going to the Supreme Court. It is unclear to me when he said that what he meant by that. He said something about stop the voting. Footing was already over. Voting was already over. And they were counting ballots in the state. The Supreme Court is not going to jump in and say stop counting the mailin ballots. And trumps lawyers did not ask the court for Something Like that. So it was a peculiar invocation of saying, im going to the Supreme Court. ,ho knows what will happen weeks from now . But i do not think the Supreme Court is anxious and ready to jump in at the first opportunity and decide some aspect of this election. Susan so your instincts, in the middle of december and 2000, in no people were saying they were not, the court would ultimately get involved. Your professional instincts at this point is that that court is hesitant . To get involved, correct . David yes, i think it is unlikely they will get involved. It is possible. Some it is possible some issue will arise that would know, the state courts would decide, and the Supreme Court would get a petition from ismps lawyers and say this clearly not state law and it is clearly unfair. But i do not see that case at the moment. I have tried to watch the litigation. Case that hasding come up from pennsylvania. But it only involves the ballots that arrived after november 3. And in pennsylvania, they have been counting some extraordinary number, one million plus ballots that were already in. So the issue that the trump team is raising, really involved a small number of ballots that are not even part of the current count. So i mean, if pennsylvania would biden ended upy, revealing by 5000 votes, and it included those late ballots, then yes, i can see that Truck Campaign could go back to the Supreme Court and say, see, we believed all along these late arriving ballots should not have been counted because the state legislature did not want them to be counted in therefore you should intervene. It is possible, but i think that is very much a long shot, because the result is going to be settled. And those ballots are not going to affect the outcome. And so there is not therefore no reason for the Supreme Court to get involved. Susan we have one minute left with the benefit of 20 years hindsight. How should we look back at the case of bush v. Gore in 2000 . Once in al, it was a generation case where, as i say, from the beginning, there were five mappers of the court, five republicans, who sort of took the view of the bush team, which was, gee, all of the votes have been counted in florida, and governor bush has one,. , that is this story the position President Trump is in now, that al gore was in. To say once you have lost, once the votes have been counted and you have lost, it is very hard to go to court and persuade a court that, too essentially, step in, jump in, change the rules, and overturned that result. And it turns out the Supreme Court was not willing to allow 2000, and itnue in would be interesting to see if it happens again, but i think it is the kind of precedent that it was an important, obviously decisive case at the time. I do not think the court is anxious to quickly repeat that experience. Susan david savage, few people in the country have more experience observing the Supreme Court then you with your part of the Los Angeles Times doing this job since. 1986 thank you for sharing your memories and analysis of 20 years ago. David it was great to go through it, susan, thank you very much. All q a programs are available on our website or as a podcast at cspan. Org. If you missed any of this weeks q a with los angeles time Supreme Court reporter david savage on the 2000 bush versus gore Supreme Court case, you can watch it sunday at 8 00 p. M. Eastern here on cspan. Use your mobile device, laptop, or phone, to follow Election Results at cspan. Org election. Maps for the Electoral College account and popular vote tally statebystate. Ballots of power in congress, the on demand from candidates, and the election process. Go to cspan. Org election. You are watching cspan, your unfiltered view of government, crated by americas Cable Television companies, as a public service. And brought to you today by your television provider. This week on the communicators, a discussion of a growing form of telecommunications, telemedicine. , joining us dr. , joseph kvedar, of the american telemedicine association. And Harvard Medical School as well as our guest reporter. Dr. , how long has telemedicine be