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. The Rehnquist Court. Nine members of the court and seven of them have been appointed by republican president s. But how do they align ideologically . David its sort of a 54 conservative court. Rehnquist was a leader. Justice scalia was a prominent figure. It leans right. There were several moderate republicans. John stephens, david souter and Ruth Ginsburg and stephen breyer, four 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 Oconnor were middle of the road conservatives. And you could not predict them in all sorts of cases. Susan would you say a bit more about the chief Justice 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. He was sort of an ideal lunch guess. If he wanted to talk about sports, politics or the weather, or whatever, hes a person that liked to talk to people. He was a person who likes to get out of the court. 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. Susan so he was a states right oriented in his philosophy. Among the republican appointees in addition to Antonin Scalia and clarence thomas, were there any of ideology . Of textualist and originalist. No. D Justice Kennedy and rehnquist were conservatives. Were reallyism Justice Scalia and thomas. Justice oconnor and kennedy basically thought we had 200 years of unprecedented things like equal protection of the law and due process of law that were not defined in 1787, and they didnt have a lot of regard to figure out what the understanding was of all those questions. So no, it was not a court that was dominated by notions of originalism as it is now. Susan these questions are important in understanding how the decisions unfolded. 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. [laughter] i actually i think both sides were 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 if there were votes that were the margin is so close. So i dont think they had any great legal strategy prior to election day. But after election day, both sides had a clear strategy. The republican strategy was its all over. Its time to stop counting. Governor bush has won. The gore strategy was we need to look at all the votes. Do some recounts. This is very close. We should keep counting. We should not quit. Susan along the way were there are comparisons to today theyd be helpful 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 Knows notice 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 or whatever 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. Susan two other notice about about ther notes 2000 legal teams. First of all, as you mention the bush team was led by james baker former secondaries former secretary 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 . Susan 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. Susan there were hundreds of lawyers involved, legal teams. 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. But i dont think they had very roles at that time. It was the case with where both sides had sort of the army of Young Lawyers on 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 were 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. But they were not the key figures leading the legal fight. Susan 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 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, i will 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 phrase error in the vote tabulation mean . 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, go back and 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 that 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. And so 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 phrase error 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 paper ballots. Susan and as youre describing that, im sure people are remembering the images of hanging chads and dimpled chads and magnifying glasses trying to discern the intent of the voters as those weeks moved. On november 24th, scotus 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 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 actually finally resolve the matter. Susan the case was named bush vs. Palm beach 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 step in and say, wait a minute, thats not what state election laws are . You alluded to this earlier. 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. Ted olsoniewers about and his background and experience that he brought to 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. He is a very good advocate. 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. So he was the right lawyer for the right case. Susan al gores legal representation before the court was done by lawrence trot. Who is he . David famous law professor, one of the best known and highly regarded sort of liberal law professors of his era 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 cases where 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 both 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 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 that is a bit 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 making 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. Of course, 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 sort of computer clinch, you basically certified the results and he thought he should certify the results and say that governor bush had won. 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 the florida judges correctly want to make sure that all the v