Divot, savage, is the 20th anniversary of bush versus gore. We ask you, since you have been , toring the Supreme Court look back at the 2000 election. What we were going through that as compared to what is happening now and also some of the lessons learned. Lets start with the court itself. Themmembers, and seven of appointed by republican president s but how did they align ideologically . It was pretty much a 54 pretty much a 54 vote. There were several moderate republicans. Souter, ruthd ginsburg, and Stephen Breyer were the four on the left. , but alsoconservative an interesting era. Justice kennedy and justice were conservatives and you could not predict them in cases. You say more about chief Justice William rehnquist and his approach to leaving the court . He had been on the court for a lot of years. He had strong, clear views. I got lunch with them every year. I found him very interesting but he could talk about all sorts of subjects. Want to talk about sports or politics, the weather, whatever, he was a person who liked to get out and talk to people. He also was a very good leader. The justices really appreciated it. He knew people have different views, but he was a very good leader. Really was an ideological leader. He had strong views about the separate states having authority. Years, he lot of leaned the court in this direction. Among the republican appointees, in addition to antonin scalia, were there other ideologies were someone was textual list or originalist . No. Justice kennedy and Justice Oconnor were moderate, but originalist some was pretty much the province of Justice Scalia and justice thomas. Connor justices weonnor and kennedy thought had 200 years and questions like equal protection of the law were and they didn 1787 not have a lot of regard for train to figure out what the understanding was about this questions. So, it was not or dominated by notions of original is him as it is now. We will come back to these questions as infants play out. The morning after the election in 2000, neither candidate, al gore, nor george w. Bush had achieved the hundred 90 Electoral College 290 Electoral College votes. Vice president al gore, 18th dates, d. C. , 260 and the focus turned to florida, which at the time had 25, now 29, Electoral College votes. We assume they establish legal strategies long before election day . No. No, i think both sides were sort because ibling think back about it, then it was obvious, i suppose, even then that the single biggest fact was george bush was ahead by a couple hundred votes on Election Night. After all the ballots had gone through the counting machines. , leaving the team for bush, said governor bush led the vote. Its all over. He won. Ill was his team was left with, what do we do . Were only 500 votes behind. There were nearly 6 million ballots cast. We need to go back and he if there were votes the margin was so close. I dont think they had any great legal strategy prior to election had a clearh sides strategy. The republican strategy was, its all over. Governor bush one. They wanted to go back, do some recounts, this is very close. Way, where there are comparisons to today, today, both campaigns of have legal strategies in place for quite a while. Is that your understanding as well . Yes. The new there was they knew that there was a possibility litigation. And sides are on notice they are preparing themselves. Theof this turns on technicality of state laws. Then your strategy becomes where is your candidate. Is he ahead or behind. Two other notes about the 2000 legal team. The bush team was led by former secretary of state james baker and al gore selected former secretary of state warren christopher. How important was it for the Public Confidence in the process to have two people of the stature as head of the legal teams . Both of them were impressive people, wise men of the time, very different approach, very different strategy. Was standing before the cameras, being very public in saying, as i said, governor bush has one. Its time for us this to end has won. Its time for this and. More christopher was much more reserved. And he was very much a more reserved figure. It affected the strategy. This is much more aggressive. Our candidate one. Its time for this to end. I think it had some effect. Three names of note, of pop up. Carry roberts, kavanaugh, and bear it. Are they anything other than a footnote to the story . They are a footnote for the reason that you know and i know, but i dont think they had it was the kind of case where the army of Young Lawyers, they basically said rush to florida and get involved. We all know a lot of reporters and journalists said there were a lot of Young Lawyers who immediately went to help out, but i dont think john roberts or certainly Amy Coney Barrett or Brett Kavanaugh had in or miss roles. In or miss roles. They were there to help out or chicken. So the days between the first appeal and the Supreme Court were full of legal argument. Arguments. The first involvement of the Supreme Court happened november 22. If you had to summarize, the legal wrangling, is there anything that stands out . I will tell you what i remember. It was very much count all the votes. They had a philosophy and an approach to the election law. It is important to get the race right. Count all the ballots. Very open to the argument of saying, this is a very close election. We need to make sure all the votes are counted. They were very open to the argument that gores team was making which is this is a razor thin margin. We should look at recounting vote. On main legal dispute early was it was a provision and the florida law that said if there is an error in the vote tabulation that could have determined the vote outcome that could be grounds for doing recounts. Phrase error in the vote tabulation mean . Point ofrepublicans view and i remember chief Justice Rehnquist had this very strong view if it was supposed to be program in some they said, hey, wait a minute. We made an error. We will correct that error and recertified and change her numbers. Thathere is some error makes a big difference. But al gores team took the view ballot failedcard to count a certain number of votes because it was not punched clearly through. They said, see, that is an error in the vote tabulation that could determine the outcome. We should go back and reexamine those ballots. Issue was what does the phrase error in vote tabulation mean and doesnt authorize recounting all of. Hese paper ballots or not there was no grounds for continuing the recount. Host as you are describing, i am sure that people are remembering the hanging chads. Of the hanging chest. The Supreme Court said that they would hear arguments. What was the position that they . Ould get involved it was a surprise to many lawyers around the country. Andas not a surprise to me a few of my friends of the court. Weeks in earlye the peoplealking to and they said basically they are watching this very closely and there will beues very willing to jump in. I remember lawyers saying theres no way the Supreme Court would get involved. I said, that is not correct. They took the republican view bush had won this and there is no need for going through these paper ballots and when ted olson appealed it to the Supreme Court, they moved casequickly to take up the and they were going to reconsider basically the question, does the error in the vote tabulation really justify the florida Supreme Court ordering all of these recounts. Rehnquist and scalia were very. Keptical a lot of people were surprised. They jumped in. There was one technicality. This was still in Something Like the certification phase where they were tabulating the boats within florida. Everyone thought it would decide everything, and as you know, it really didnt. It was a preliminary first stage ruling that did not finally resolve the matter. Host the Supreme Court heard the oral arguments for 90 minutes. What do you remember about the actress . Both inside and outside the court. There was an enormous focus. Every decade it seems like the whole country is paying attention for at least one hour because it looked like the Court Everyone thought that there was a good chance they were going to decide the election in this case, so there was in a normas amount of focus. Its not in a normas amount of focus. Its not a great, compelling legal story. Error inhe phrase vote tabulation, and who is to decide that . Can the federal judges step in and say, wait a minute . Thats not what state election law is. And you alluded to this earlier. Even the rehnquist and scalia were states rights people, they were suggesting the federal judges, the u. S. Supreme court should step in and overrule the judges on the meaning of florida law and it seemed to a lot of people like, where did that come from . That seemed aggressive. Thats where they were. The lawyer arguing for governor bush, you mentioned him, tell our viewers about ted olson. Hes a great guy. He it come to washington with administration from Southern California and worked in the Reagan Justice department. Ill know anybody who does not like ted olson. Hes a very outgoing person, a person who knew all of the justices. Hes a very good advocate. Know, also the guy, you who played the main role in getting these cases before the Supreme Court. We may not do too well they , we mayhave mentioned need to go to the u. S. Supreme court. He kept pressing these issues. Legalal gores representation was done by laurence tribe. Who is he . Famous harvard law professor. One of the rest no and highly regarded liberal law professors of his era. He had very good arguments. The good thing was he was so smart. There were certain amount of he was a fairly liberal law professor and it was not necessarily going to have a lot of sway with the conservative and in many cases he run into a real the Supreme Court does not allow video of its proceedings. But we have a clip. Ted olson and lawrence drive, about a minute long, making their arguments. Bush versus Palm Beach County canvassing authority. Lets listen and have you talk about the arguments they made. Laurence tribe. The novemberafter president ial election the florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by floridas legislature to govern the conduct of that election. Of who determination prevailed on november 7. Part of ourit is culture to talk about how unfair it is to change the rules of the game, i think this is the point when the game is over. When the game is over theres a photo finish, and the question is, how do you develop with greater certainty and sometimes there is a manual recount. Sometimes taking more time. What was the central part of the argument on both sides . Olson was making the argument that the florida Supreme Court has botched florida law, rather than sticking with the law on election day, they changed it. Of their view was, we were interpreting florida law, not throwing it out. Basically called for certifying the results within a is aor so, unless there computer glitch. They should certify the results. But the Supreme Court allowed instead recounting. He was making this argument. They said the Supreme Court should step in and change it. Close election. Lets make sure we count all of the votes before we decide who won the election. Three days later what does that mean . It basically just means its an opinion of the court. 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 rehnquist 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. 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 . 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 on 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. Is it a simple majority opinion . 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. Do you recall the vote on the injunction . Was that a 54 vote . 00 28 19 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 stephens, justice ginsburg, suitor 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 right 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 the counting. 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 vote, you would only do that if you ha