The Post's Bob Woodward on Recent Court Decisions Affecting the Presidency
Monday, December 11, 2000; 2 p.m. EST
Vice President Gore has new found hope with the recent Florida Supreme Court ruling ordering manual recounts of disputed ballots that may throw the election in favor of Gore. The ruling came shortly after two Florida circuit courts ruling in favor of George W. Bush concerning absentee ballots. Soon after, the Supreme Court ordered a stay on the recount and hearings in front of the court began again.
Bob Woodward, an author and an assistant managing editor, will join washingtonpost.com to discuss the recent court rulings affecting the presidential election, Monday, Dec. 11. The transcript follows.
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Thank you for taking the time to answer questions, Mr. Woodward. What would be the effect on the nation's perception of the Supreme Court ruling if the decision was not wholly unanimous, or split 5-4?
Bob Woodward: It looks like it will be split 5-4 because the U.S. Supreme Court last Saturday took the unusual step of stopping the recounts and the legal standard they have to be guided by, says that there is a high probability that recounting had to stop. That means they have almost decided the case. If the Supreme Court gives a temperant and extensive series of reasons for it's decision, it will be accepted.
Do the justices have some conference mechanism to air out questions they believe to be unsettled with their peers?
Bob Woodward: Yes. They can meet and exchange drafts and memos as much as they want. So, they adhere to their own time table and normally take a long time before issuing rulings. In this case they are under time pressure, but I suspect they are aware that it is important they explain themselves in a definitive and clear way.
I really don't see that a federal issue is involved here and that the U.S. Supreme Court has any jurisdiction in the ruling of the Florida Supreme Court decision to recount the votes. What is your opinion? Is there a real federal question involved here or is it just trumped up by the Bush side to have recourse and relief from the Florida Supreme Court ruling?
Bob Woodward: Five justices of the Supreme Court last Saturday determined they had jurisdiction. In terms of the plain language of the Constitution and federal law, there clearly are legitimate questions to be resolved. I don't think even Gore's lawyers are arguing that it's a trumped up case. I've followed and wrote a book about the Supreme Court 20 years ago and clearly this is one of the most difficult cases it has ever wrestled with. In a very short-hand way, the dispute involves, whether you take a so-called common sense approach (let's count the ballots by hand as the best evidence) verses the position taken by Bush's attorneys (that the election was held and the ballots were counted and the laws passed by the federal legislature in no way say that manual recounts are the exclusive or preferred way to establish legal votes). The point is simply that there is a strong case that both sides can make and it depends on your perspective. Common sense verses established law in Florida.
Dunn Loring, Va.:
What do you think are the most likely book titles to come out of this debacle? Things like, "How the Republicans/Democrats Stole the Presidency" seem obvious. Any surprising titles you can think of, and will you be one of the authors?
Bob Woodward: I have no current plans to write a book about the Florida aftermath. But I suspect that when passions and partisan sentiment cools the focus will be on the decision making by key players -- all of which may turn out to be quite reasonable. Everyone is acting in their own interest and the question is whether the U.S. Supreme Court can fashion a final decision even with the 5 to 4 vote that will clarify the reasoning -- though I expect not everyone will be in agreement. It also needs to be said, after listening to the oral argument, it's possible that two of the justices who dissented in this stay, Justices Souter and Breyer, could go along with the five who ordered the stay if the opinion centers on the argument that there were not and are not clear enough standards for counting some votes and discarding others. Just as Souter in one of his questions suggested this was possible, it is folly to predict Supreme Court rulings, but after the argument I could see a possible 7 to 2 vote in favor of Bush on this reasoning. On first hearing of the oral argument, I thought that was the most important hint that the court might find reasoning acceptable to two Saturday's dissenters.
The press has been very critical of the Supreme Court for issuing the stay and generally becoming involved in the election, suggesting that the best result is to count ballots. My understanding is that regardless of wins this election, the outcome is within the statistical margin of error. In that case it seems to me that the fairest result can be obtained by determining the winner based on rules that were in place on Election Day. Do you agree or disagree and why?
Bob Woodward: That is the argument that Bush's attorneys are making and at least up to this point with some success. The oral argument today also showed that Justice O'Connor seemed very perplexed that the Florida Supreme Court's ruling last Friday failed to address the U.S. Supreme Court's opinion that vacated the Florida Court's ruling on the certification dispute. The U.S. Supreme Court will be under some self-imposed pressure to now try to come up with a ruling that is not 5 to 4. Though a 5 to 4 ruling would still be the law of the land. I thought Ted Olsen, the attorney for Bush, at the end was pushing pretty hard on what is called the equal protection, due process issues -- namely that there were no standards on how to count ballots. It appears, and I underscore appears, that Olsen was standing before the court a winner and was looking for a way to win more than 5 votes. This is his potential route.
It seems strange that with all of the voter fraud and so-called misconduct in the Florida election that no one is in handcuffs.
If there was any fact to the allegations of fraud or misconduct, someone would be arrested by now.
Bob Woodward: That may point to the weakness of the arguments which are not issues that are currently before the U.S. Supreme Court.
Justice Scalia has a son working as an attorney for a Florida based law firm representing the Republican Party in the current electoral dispute? Do you feel because of this fact Mr. Scalia should have recused himself in the current matter before the U.S. Supreme Court?
Bob Woodward: Experts in legal ethics have said they don't think it necessarily amounts to grounds for Justice Scalia to take himself out of the case. They are a giant law firm with many cases and the son has said he is not involved in this matter. More interestingly overall in this case the justices are in a way, albeit indirectly, picking their future brethern, or colleagues because it is possible the new president will name one or more justices to the court. It's possible to argue that the should all recuse themselves, but I noticed that none have.
As someone who has so much insight into the "Brethern" as anyone, do you think the seemingly political decision taken by the U.S. Supreme Court on Saturday seriously diminishes the Court's credibility? If so, why are they willing to risk their own credibility in a transparent attempt to elect a tainted president?
Bob Woodward: Notice that all nine justices are working on and voting on the case, at least so far. I suspect they all think they have an obligation to take and decide the issue. Clearly all feel strongly about it and even Gore's lawyer, David Boies, has said a Supreme Court decision will be obeyed and likely end the matter.
Do you know of any significant Democratic groups, or leaders that favor the Bush position of stopping the recount? And do you know of any Republican groups or leaders that favor the Gore positions on a recount?
If so, why does the press not cover these groups?
If not, has the press made enough effort to try and find crossover groups or crossover political leaders?
Otherwise, we're left with a purely partisan squabble similar to the impeach trial. There's no credible source because their views always align with their party interests. Now, even courts appear to have this political bias.
Bob Woodward: That is a super question. As best I can tell, the arguments have been largely partisan though there are a few law professors who seem to be taking different sides. Among other things, I think this shows not just how partisan the issue is but how close it is -- namely there are reasonable and powerful arguments on both sides. But the legal argument which seemed to be more on Bush's side are going to be more difficult to grasp and go along with by non-lawyers and others who are convinced of the common sense argument: count all the votes in a reasonable way by hand.
In your opinion, will the U.S. Supreme Court be tainted by politics or will the decision be based truly on constitutional law?
Also, a piece written in the Outlook section of yesterday's Post criticized Gore for not living to his purported convictions concerning using lawyers and courts -- do you agree with this analysis?
"Counting to Infinity" By Andrew Sullivan (The Washington Post, Dec. 10)
Bob Woodward: The leadership of the Supreme Court is now going to be tested and the chief justice and others in Saturday's majority I suspect are hunting for votes and looking for a way to have a broad decision based in a constitutional ruling that will start to be accepted by a broad spectrum of the public. On the other hand, do not overlook the possibility that the four who dissented in Saturday's ruling may find some way to convince and win over a fifth vote for their side. The dynamic within the Supreme Court is like no other institution. And the nature of the relationships, the level of effort, the depth of feeling and the willingness to have an open mind are all factors that will only be clearer when the details about the internal history of the court are written.
If the current scenario concludes the way it appears (a pro-Bush partisan vote by the Supreme Court), he will be the person standing up on January 20th. When the inevitable recounts are conducted by the media and it is determined Gore garnered the most votes in Florida, how do you think the mainstream media will respond to the "legitimacy" of the Bush presidency?
Bob Woodward: If Bush is declared the winner and takes the oath of offices, he has automatic legitimacy. It will be embarrassing to say the least if an objective hand count of disputed ballots by the media or others shows that he didn't win. That would only become an issue if Bush failed in some dramatic way as president. Then it would be a reinforcing argument. Though common sense strongly suggests that a hand count in review of disputed ballots would be the best evidence, the election has been so close that people probably realize that any count of the votes is only an approximation. As one of the Florida justices said, the margin of error in any count is greater than the margin of victory. So if the Supreme Court weighs-in in a convincing way and Bush delivers on his promise to be a consensus builder and work with Democrats, things may settle down.
Okay, my glasses may be unduly rose-colored, but the Supreme Court was designed to rise above the general partisan din that reverberates in every other corner of the nation's capital. Why would the justices be willing to sully the reputation of the institution they certainly cherish in such a brazen manner?
Bob Woodward: The justices argue that they are only ruling on the law. And, if there were brazen partisan politics involved here, there would be no strong arguments one way or the other. But I emphasize if you look at this neutrally realizing how difficult that is, there are some strong arguments both ways. If this were only partisan politics and it were provable, I suspect one of the justices would resign and blow the whistle on his or her colleagues. The lawyers and the legal experts and the law professors and the public are very divided on this issue for the central reason that it is hard. I wouldn't worry too much about the Supreme Court. They know how to take care of themselves, though I do agree their reputation for neutral reasoning is jeopardized because of the apparent partisan nature of the 5 to 4 split.
The Constitution is constructed to define and separate power. Whichever way the Courts rule, it will in effect select the next executive.
Putting aside the separation of powers question, won't this lead presidents to select judges in part based on their utility in deciding or defending electoral outcomes?
Bob Woodward: First of all it's possible if Gore wins in the U.S. Supreme Court and there is some kind of hand recount that he would not go ahead in the vote and win the election. Some have suggested that it may be in Bush's interest to adopt Gore's method of a recount. Then if Bush wins, fewer would question the legitimacy of the process and of Bush's presidency.
What is the possibility that an impartial entity will ever get to count the votes? Can a newspaper file under the Freedom of Information Act to get access to the votes? Do you think this will happen, and if it does what happens if a fair and objective recount shows that Gore won Florida?
Bob Woodward: Somebody will probably count the votes and then somebody will probably check their count. It may be an endless process. People going through that process are going to have to establish standards for dimples and hanging chads that probably no one can agree on. So each media objective count may come up with different numbers and conceivably different winners. The process of investigating and recounting may only clarify the very real dilemma of the election officials, judges and justices, politicians and lawyers who have wrestled with this question. It's possible that there will be no compelling, absolute certainty to this ever. If that occurred it might benefit the winner. The only really difficulty will be if someone can plausibly and convincingly prove that votes were stolen or that something was done outside the boudaries of the law, but that is not in the case before the Supreme Court.
Mr. Woodward: I purchased your latest work about Greenspan this weekend and want to tell you how much I am enjoying reading it. One question I have thought of is how does this current presidential "mess" play with future appointments to chair of the fed.? I would enjoy hearing your comments, and getting my book autographed someday in the future if we ever meet! Thank you.
Bob Woodward: (The book is called, "Maestro, Greenspans Fad and the American Boom"). Send the book to me at The Washington Post with return book mailing and I will sign it and send it back. Greenspan is appointed Federal Reserve Chairman until 2004, when he will be age 78. I doubt he would seek another 4 year term, but who knows. He certainly has brought stability to the management of the economic conditions in a way that has impressed both Bush and Gore. I suspect whoever gets named president elect will soon be meeting with Greenspan.
One of the Bush arguments is that there is no unified standard for the manual recount authorized by the Florida Supreme Court. What is your opinion on a U.S. Supreme Court ruling which allows the recount to continue and at the same time establishes a unified standard set by the U.S. Supreme Court?
Bob Woodward: All indications are that the Supreme Court is not going to order the recount because the 5 justices who stopped it on Saturday have made it clear Bush has a high probability of winning. This Supreme Court with its make-up will be quite unlikely to set standards about chads and dimples themselves. One of the justices in the oral argument today, Justice Souter, suggested they could send it back to the trial Judge Sauls in Florida for such a determination. That seems unlikely, but anything is possible.
San Diego, Calif.:
Since you believe their are strong arguments on both sides, can you try to explain the Bush position and its legal merits? I am just not clear on why the recount cannot legally proceed.
Bob Woodward: There does seem to be something counter-intuitive about not looking at ballots in more detail with the hand recount. The core of the Bush argument is that the U.S. Constitution gives the power of selecting electors for president to the legislature of each state including Florida. The position is that the Florida Supreme Court decisions have over-hauled the election laws in ways expressfully reserved for the state legislature, and that the Florida Supreme Court is essentially engaged in a non-judicial act. And, therefore, their latest ruling should be overturned. The issue turns on hand recounts and the Bush lawyers are essentially saying that if the Florida Legislature thought that hand recounts would determine outcomes with more precision, the legislature would have required them. And Florida law permits them, but doesn't even say they are preferred. Therefore Bush won under the laws in place at the time of the election. I'm not saying I agree or disagree with the argument that as I understand it is the core of what Bush's attorneys are saying. They are also saying that the absence of standards for which ballots to count, such as dimples or hanging chads, means there is a Constitutional unfairness that violates the equal protection and due process clauses of the U.S. Constitution.
That was our last question for The Post's Bob Woodward. Thank you to Mr. Woodward and to all who participated.
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