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Speaker 1: Pushkin. Hey Leon here, Before we get to this episode,

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Speaker 1: I want to let you know that you can binge

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Speaker 1: the entire season of Fiasco Bush v. Gore right now

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Speaker 1: ad free by becoming a Pushkin Plus subscriber. Sign up

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Speaker 1: for Pushkin Plus on the Fiasco Apple podcast show page,

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Speaker 1: or visit Pushkin dot fm slash Plus. Now onto the episode.

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Speaker 1: Previously on Fiasco.

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Speaker 2: Voce wins one round, Gore wins the next.

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Speaker 3: It is a legal slugfest.

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Speaker 2: We've gone from protest certification last night and now contest.

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Speaker 4: Florida's ticking clock becomes a second adversary. December twelfth is

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Speaker 4: key the dave Florida certifies it's electors.

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Speaker 5: The Republican controlled state legislature scheduled a special session to

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Speaker 5: name electors just in case the state Supreme Court rules

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Speaker 5: against Cavador Borsch.

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Speaker 3: By a vote of four to three, the majority of

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Speaker 3: the court has ordered a manual recount of all under

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Speaker 3: votes in any Florida county where such a recount has

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Speaker 3: not yet occurred. The recount shall commence immediately.

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Speaker 6: If you do not like political chaos, it's about time

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Speaker 6: to head for the storm.

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Speaker 1: Cell Sandra Dey O'Connor had a lot on her plate

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Speaker 1: On November seventh, two thousand. It was election day, for

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Speaker 1: one thing, and she had plans to attend a watch

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Speaker 1: party at a friend's house. But first O'Connor was due

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Speaker 1: at the United States Supreme Court.

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Speaker 7: Well here argument now number ninety nine twelve fifty seven

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Speaker 7: Carol M. Browner VERSUS American Trucking Association.

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Speaker 1: Where she and the other eight justices were scheduled to

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Speaker 1: hear oral arguments in a case involving the Clean Water Act.

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Speaker 8: Now why would Congress want that advice on economic and

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Speaker 8: energy efficts.

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Speaker 1: O'Connor also had an important personal matter to attend to.

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Speaker 1: Her husband, John had been sick, and she was trying

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Speaker 1: to gather information in his condition.

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Speaker 9: On election day, Sandra O'Connor spoke to her husband's neurologist

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Speaker 9: for the first time about John's Alzheimer's.

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Speaker 1: This is journalist Evan Thomas. He's the author of First,

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Speaker 1: a Biography of Justice O'Connor, for which he interviewed her

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Speaker 1: family members and former clerks, as well as her husband's neurologist.

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Speaker 1: According to Thomas, John had been experiencing memory loss for

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Speaker 1: several years, but he had been hesitant to call it

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Speaker 1: what it was now. On the phone with his doctor,

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Speaker 1: Justice O'Connor was trying to get a handle on her

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Speaker 1: husband's diagnosis.

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Speaker 9: John had finally started using the word Alzheimer's to talk

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Speaker 9: about his condition, and she asked if there was perhaps

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Speaker 9: some experimental program that he could be put into to

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Speaker 9: keep the loss of memory away for as long as possible.

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Speaker 9: Was there some kind of experimental program that could by

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Speaker 9: him time?

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Speaker 1: Sandra Dey O'Connor had a decision to make. She and

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Speaker 1: her husband were both seventy years old, and she'd always

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Speaker 1: thought that eventually they would move back to Arizona, where

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Speaker 1: they had settled a few years into their marriage. If

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Speaker 1: the two of them wanted to do that before his

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Speaker 1: dementia got worse, O'Connor would need to retire from the

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Speaker 1: Supreme Court sooner rather than later. The question was whether

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Speaker 1: or not she could.

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Speaker 9: They had considered retirement as early as nineteen ninety six.

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Speaker 9: President Clinton was president, so they didn't want to retire

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Speaker 9: while there was a Democrat there.

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Speaker 1: O'Connor was a Republican, and if al Gore won the

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Speaker 1: two thousand election, she knew that she would face enormous

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Speaker 1: pressure to remain on the bench at least through his

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Speaker 1: first term.

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Speaker 9: According to her son Scott, they were at least thinking

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Speaker 9: about retiring if there was a Republican president if Bush won.

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Speaker 10: Good evening, President Reagan today named a woman to the

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Speaker 10: Supreme Court and another barrier fell.

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Speaker 1: O'Connor had been a justice for nineteen years. She was

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Speaker 1: the first woman ever nominated at the Supreme Court.

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Speaker 11: She is truly a person for all seasons, possessing those

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Speaker 11: unique qualities of temperament, fairness, intellectual capacity, and devotion to

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Speaker 11: the public.

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Speaker 1: For years, O'Connor was a reliable member of the Court's

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Speaker 1: conservative flank, but as the Court moved to the right

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Speaker 1: under Reagan and George H. W. Bush, she increasingly found

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Speaker 1: herself occupying the court's ideological center, and that was a

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Speaker 1: powerful place to be.

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Speaker 12: When Senator O'Connor was on the Court for many years,

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Speaker 12: she simply was the swing justice at the Court.

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Speaker 1: This is Dalia Lithwick, who writes about the law for Slate.

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Speaker 1: Lithwick started covering the Supreme Court in nineteen ninety nine.

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Speaker 12: She was a Reagan appointee who taxed left on affirmative action,

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Speaker 12: on abortion, on church state separation. There was no case

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Speaker 12: that wasn't decided in some ways by O'Connor if it

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Speaker 12: was a five to four case.

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Speaker 1: According to Lithwick, O'Connor didn't get a lot of respect

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Speaker 1: from legal.

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Speaker 12: Schot She was derided often in polls by snotty law

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Speaker 12: students as the stupidest justice. I mean, people really didn't

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Speaker 12: think she was, as a doctrinal matter, the smartest justice.

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Speaker 12: But what she was was a pragmatist, and so she

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Speaker 12: tended to sort of stand in the middle, four four

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Speaker 12: on either side and say, what's going to fix this.

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Speaker 1: O'Connor didn't like to be thought of as some unprincipled

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Speaker 1: weather vane who turned whichever way the wind was blowing.

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Speaker 1: Here again is Evan Thomas justice.

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Speaker 9: O'Connor cared about the practical impact of the Supreme Court decision.

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Speaker 9: She wasn't in love with doctrine. She didn't look closely

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Speaker 9: at doctrinal consistency. Was she really cared about was the

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Speaker 9: practical impact. How is this going to play in the

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Speaker 9: real world.

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Speaker 1: On election night two thousand, the O'Connors went to their

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Speaker 1: friend's party and watched the returns on a television set

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Speaker 1: in the basement den. Shortly before eight o'clock, the networks

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Speaker 1: called Florida for Gore, a big.

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Speaker 8: Call to make. CNN announces that we call Florida in

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Speaker 8: the Al Gore column.

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Speaker 6: This is a roadblock the size of a boulder to

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Speaker 6: George W.

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Speaker 10: Bush's path to.

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Speaker 1: The White Given the rest of the electoral map, it

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Speaker 1: looked like Gore was about to clinch the presidency. Two

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Speaker 1: witnesses later told Newsweek that Justice O'Connor was visibly disappointed.

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Speaker 1: This is terrible, she said, before leaving to get a

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Speaker 1: plate of food. According to Newsweek, John O'Connor tried to

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Speaker 1: clarify for the people still in the room that his

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Speaker 1: wife was only upset because a Gore presidency would force

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Speaker 1: her to wait another four years before retiring. But Gore

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Speaker 1: was not elected president that night, and later, as all

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Speaker 1: the lawsuits being filed in Florida were winding their way

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Speaker 1: through county and circuit courts, O'Connor's son suggested to his

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Speaker 1: mother that the recount battle could end up in front

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Speaker 1: of the Supreme Court. It was a jarring thought. The

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Speaker 1: Supreme Court was supposed to stay above politics. That was

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Speaker 1: the premise of legitimacy as an institution. If O'Connor's son

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Speaker 1: was right. If the Court got involved in a case

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Speaker 1: that directly affected which party took control of the White House,

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Speaker 1: that premise would be tested in dramatic fashion. But Justice

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Speaker 1: O'Connor did not think that was going to happen, and

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Speaker 1: she told her son he was being ridiculous. I'm leon

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Speaker 1: Neefok from Prologue Projects and Pushkin Industries. This is fiasco

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Speaker 1: Bush v.

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Speaker 13: Gore, the lawyers for hold Gore and George W. Bush,

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Speaker 13: pedant of the US Supreme Court.

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Speaker 9: She was trying to save the country from what she

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Speaker 9: saw as a car crack.

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Speaker 1: Just as probably the most significant decision in thirty years.

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Speaker 2: You cannot imagine a more chance, pressure packed moment.

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Speaker 1: Episode six, our season finale. No Precedent How the two

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Speaker 1: thousand election was put to rest in a Supreme Court

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Speaker 1: case called Bush v. Gole, and how a ruling that

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Speaker 1: was explicitly designed to set no precedent ended up changing everything.

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Speaker 1: I didn't know this before I started researching the two

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Speaker 1: thousand election, But Bush v. Gore was not the first

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Speaker 1: lawsuit to crawl out of the swamps of the Florida

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Speaker 1: recount and reach the U. S Supreme Court. I had

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Speaker 1: always thought the Court swooped in at the very end,

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Speaker 1: but this earlier case preceded Bush v. Gore by a

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Speaker 1: full fifteen days.

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Speaker 6: Drawing on very rarely used legal powers, the Supreme Court has,

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Speaker 6: for the first time in American history, decided to step

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Speaker 6: into a legal dispute in the midst of a presidential election.

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Speaker 1: The case centered on the first big ruling handed down

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Speaker 1: by the Florida Supreme Court during the recount. This was

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Speaker 1: the one you heard about in episode three, the one

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Speaker 1: that forced Secretary of State Catherine Harris to wait nearly

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Speaker 1: two extra weeks before certifying the election results.

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Speaker 10: Here's the latest.

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Speaker 14: Florida's highest state court has blocked the Secretary of State certain.

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Speaker 13: What it basically means in an opinion that justice has

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Speaker 13: reached unanimously is that the hand counts continue, and the

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Speaker 13: hand counts count.

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Speaker 2: But the justice.

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Speaker 1: The new deadline set by the Florida Supreme Court had

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Speaker 1: briefly given the Gore campaign reason for hope. But the

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Speaker 1: Bush team quickly appealed the ruling, and this time there

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Speaker 1: was only one place left for the case to go.

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Speaker 15: To, the U. S.

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Speaker 16: Supreme Court.

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Speaker 17: Bush is arguing that the state court overreached its authority

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Speaker 17: and rewrote election law in a way that violates the

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Speaker 17: US Constitution.

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Speaker 1: In their petition to the U s Supreme Court, Bush's

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Speaker 1: lawyers argued that by pushing back the certification deadline, the

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Speaker 1: Florida Supreme Court had improperly changed an election law put

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Speaker 1: in place by the Florida state legislature. In doing so,

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Speaker 1: they had violated Article two of the Constitution and Title three,

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Speaker 1: Section five of the US Federal Code. On November twenty fourth,

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Speaker 1: the Supreme Court agreed to hear the case.

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Speaker 6: A huge legal gamble pays off for the Bush campaign.

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Speaker 1: Oral arguments were scheduled for December first, The battle for.

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Speaker 5: The White House goes before the US Supreme Court, Bush gore,

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Speaker 5: and a day for the history books.

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Speaker 1: There was something momentous about the Supreme Court intervening in

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Speaker 1: a presidential election. But by the time oral arguments rolled

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Speaker 1: around in December first, the case had lost a lot

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Speaker 1: of its urgency. The certification had come and gone. Catherine

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Speaker 1: Harris had already declared Bush the winner. What difference did

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Speaker 1: it make now whether the Florida Supreme Court had been

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Speaker 1: wrong to set the new deadline. But Bush did not

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Speaker 1: want to drop the case, and the Supreme Court kept

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Speaker 1: it on the docket.

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Speaker 7: We'll hear i arguement this morning in number eight thirty

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Speaker 7: six George W. Bush versus the Palm Beach County Canvas.

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Speaker 1: In oral arguments, the Gore side made the case that

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Speaker 1: extending the deadline did not amount to passing a new law.

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Speaker 1: It was merely a judicial interpretation of an existing law,

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Speaker 1: something judges did all the time.

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Speaker 4: As a way of shedding light on the provisions that

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Speaker 4: are in conflict, so long as it's not done in

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Speaker 4: a way that conflicts with a federal man.

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Speaker 1: The Bush side made the opposite point. What if it

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Speaker 1: had been the Florida State legislature that decided to change

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Speaker 1: the date of the certification deadline, wouldn't that be considered

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Speaker 1: a new law? Why was it any less of a

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Speaker 1: new law just because it came from the Florida Supreme Court.

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Speaker 1: Here's Ted Olsen speaking in oral arguments.

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Speaker 18: I would emphasize that what the Florida Supreme Court did

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Speaker 18: is basically essentially say rewriting the statute, were changing it.

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Speaker 1: When they issued their ruing three days after oral arguments,

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Speaker 1: the Supreme Court showed a reluctance to interfere with the

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Speaker 1: proceedings in Florida.

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Speaker 19: The case is submitted.

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Speaker 20: The Supreme Court's historic hearing ended with a less than

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Speaker 20: historic decision.

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Speaker 1: Instead of weighing in on the constitutional issues at hand,

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Speaker 1: the Court sent the case back to the Florida Supreme

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Speaker 1: Court and asked them to provide an explanation of how

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Speaker 1: they had reached their decision. Florida Supreme Court Chief Justice

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Speaker 1: Charles Wells was puzzled by the request. The timing just

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Speaker 1: didn't make sense to him.

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Speaker 19: I talked the whole week before they their order that

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Speaker 19: they were going to enter in order. Finding that the

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Speaker 19: case had become moot, just dismissed that appeal.

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Speaker 1: Instead, the Supreme Court was asking Wells and his colleagues

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Speaker 1: to go back to the case and take another stab

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Speaker 1: at it.

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Speaker 19: They wanted us to revisit it, but we were busy

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Speaker 19: visiting other something else at that point.

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Speaker 1: You heard about the something else the Florida Supreme Court

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Speaker 1: was busy with in our last episode. It was the

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Speaker 1: contest lawsuit that the Gore team filed on November twenty seventh,

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Speaker 1: after Catherine Harris certified the election for Bush.

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Speaker 10: Good evening. It was like an earthquake in Florida. This afternoon,

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Speaker 10: the Florida Supreme Court did a life saving exercise on

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Speaker 10: al Gore's campaign to be president.

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Speaker 1: This was the big one, the one that culminated on Friday,

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Speaker 1: December eighth, in the Florida Court shocking both campaigns by

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Speaker 1: ordering a last minute hand recount of every undervote in

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Speaker 1: the state.

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Speaker 10: A manual recount of the so called under votes, and

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Speaker 10: they wanted in every part of the states sixty four counties,

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Speaker 10: more than forty three thousand votes.

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Speaker 1: Under votes, as you'll recall, refers to ballots that didn't

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Speaker 1: register a vote for president, often because someone didn't punch

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Speaker 1: through their ballot all the way. The Florida Court's ruling

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Speaker 1: to manually review all these undervotes created instant uncertainty. With

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Speaker 1: so many potential new votes, the race was anybody's game

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Speaker 1: for the first time since election Day. The Bush team

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Speaker 1: once again turned to the US Supreme Court, this time

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Speaker 1: to file an emergency petition to halt the recount.

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Speaker 6: The Bush campaign responds instantly, preparing a broad legal counter attack,

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Speaker 6: hoping to stop the court ordered recount before it even begins.

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Speaker 1: Ted Olsen, a Bush lawyer with years of experience, arguing

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Speaker 1: before the Supreme Court thought it was obvious that the

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Speaker 1: statewide manual recount could not be done fairly or quickly

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Speaker 1: enough to make the electoral College deadline of December twelfth.

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Speaker 2: It couldn't possibly be done. The earlier recount procedures of

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Speaker 2: just four counties had been moving along very slowly. There

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Speaker 2: was no chance that a statewide recount could be done

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Speaker 2: by the time of that deadline, And so my concern

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Speaker 2: was that the Florida Supreme Court was either ignoring those

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Speaker 2: deadlines or wasn't paying sufficient attention to the legal impact

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Speaker 2: of those deadlines.

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Speaker 1: Bush's forty two page petition was filed at nine to

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Speaker 1: eighteen pm on Friday, December eighth, mere hours after the

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Speaker 1: Florida Supreme Court ruling was announced. When the petition reached

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Speaker 1: the US Supreme Court, it fell to Justice Anthony Kennedy

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Speaker 1: to decide what to do with it.

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Speaker 6: The first step an emergency request to Justice Anthony Kennedy,

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Speaker 6: who was assigned to that region, asking him to block

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Speaker 6: the recount while the Court considers whether to take the case.

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Speaker 1: Justice Kennedy was a Republican appointee with an independent streak,

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Speaker 1: like Justice O'Connor, Kennedy was often a swing vote, though

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Speaker 1: he was traditionally conservative on a lot of issues. He

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Speaker 1: also liked to surprise people. Here again is Dahalia Liithwick.

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Speaker 12: I think the two of them were very much what

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Speaker 12: I would call now kind of country club Republicans, the

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Speaker 12: kind of eighties Republicans who were socially conservative but not

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Speaker 12: rabid movement conservatives the way we've seen. But Kennedy as

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Speaker 12: a swing justice was very different. Kennedy was a reliable

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Speaker 12: vote for conservative outcomes, but on a handful of cases,

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Speaker 12: most notably you know the gay marriage case that came

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Speaker 12: about after Bush vy Corp. He would defect and vote

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Speaker 12: with the left wing of the Court.

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Speaker 1: After the Bush lawyers filed their petition, Justice Kennedy wanted

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Speaker 1: Chief Justice Ranquist to call conference as soon as possible

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Speaker 1: so they could discuss the case.

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Speaker 21: Well, I was in Washington in my office, and I

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Speaker 21: remember the Chief Justice called me and told me that

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Speaker 21: we should have a conference.

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Speaker 1: That's former Supreme Court Justice John Paul Stevens. Stevens retired

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Speaker 1: from the Court in twenty ten. I interviewed him in

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Speaker 1: twenty nine nineteen, just a few months before he died

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Speaker 1: at the age of ninety nine.

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Speaker 21: During the year I came down here to Florida and

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Speaker 21: we had this place down here, and my wife and

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Speaker 21: two daughters were planning to fly to Florida on that Saturdays.

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Speaker 1: I remember Stevens, who was one of the most liberal

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Speaker 1: members of the Court, was skeptical that they needed to

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Speaker 1: intervene in the Florida recount. The only justification for doing

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Speaker 1: so would be if Bush, the petitioner, was at risk

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Speaker 1: of suffering irreparable harm if the vote counting were allowed

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Speaker 1: to go on. Stephens didn't see how that was possible,

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Speaker 1: and he made his feelings clear to Chief Justice Reanquist

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Speaker 1: on Friday evening.

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Speaker 21: I told him that the request for a stay did

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Speaker 21: the same to have any merit because there was no

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Speaker 21: showing a veryrreal injury, and I thought I would like

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Speaker 21: to go ahead with my plans and my family.

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Speaker 1: Ranquist told Stephens that their conservative colleague Anthony Scalia, known

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Speaker 1: to his friends as Nino, felt strongly that the petition

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Speaker 1: should get a hearing right away.

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Speaker 21: He told me, as I remember that Nino thought the

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Speaker 21: issue was a serious one and we ought to have

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Speaker 21: a conference on it. So we should plan on meeting

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Speaker 21: the following morning.

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Speaker 1: Justice stevens vacation was canceled. He wasn't going to Florida.

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Speaker 1: Florida was coming to him. On the morning of Saturday,

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Speaker 1: December ninth, county canvassing boards all over Florida pulled out

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Speaker 1: their boxes of month old ballots, plugged in their vote

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Speaker 1: counting machines, and started the process of separating out their undervotes.

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Speaker 22: You are looking right now at a live picture of

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Speaker 22: the Leon County Library in Tallahassee, Florida. That's where a

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Speaker 22: manual recount of some nine thousand, so called under votes

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Speaker 22: from Miami Dade County is being counted.

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Speaker 1: At this hour, some counties had thousand of under votes

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Speaker 1: account while others had just a few dozen. The judge

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Speaker 1: overseeing the process gave them all until the following day

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Speaker 1: at two pm to get the job done. If the

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Speaker 1: recount could be completed by Sunday, December tenth, that would

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Speaker 1: leave Florida two whole days to seat its twenty five

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Speaker 1: electors before the Electoral College deadline. As recounts got underway,

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Speaker 1: representatives from the Bush and Gore campaigns fanned out across

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Speaker 1: the state to monitor the proceedings.

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Speaker 17: Demonstrators from both sides channed outside public buildings as public

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Speaker 17: servants count ballots on the inside.

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Speaker 1: Meanwhile, in Washington, the nine justices of the U. S.

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Speaker 1: Supreme Court met in their conference room to discuss the

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Speaker 1: Bush campaign's petition to stay the recount. It was obvious

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Speaker 1: right away that the room was split along ideological lines,

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Speaker 1: with Sandra Day O'Connor and Anthony Kennedy both joining the

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Speaker 1: Conservatives in support of granting the stay. According to Evan Thomas,

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Speaker 1: O'Connor was primarily motivated by desire to contain the chaos,

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Speaker 1: for it got worse.

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Speaker 9: In the moment. She was trying to save the country

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Speaker 9: from what she saw as a car crash. That if

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Speaker 9: the recount went on in the state of Florida, it

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Speaker 9: was possible that Gore would get ahead. Then you would

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Speaker 9: have two sets of electors.

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Speaker 1: In this scenario, there would be two competing sets of electors,

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Speaker 1: and the next president would be determined through partisan warfare

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Speaker 1: in Congress. That was something O'Connor wanted to avoid. As

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Speaker 1: the Supreme Court prepared to make the stay order, Public

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Speaker 1: Justice Stevens was dismayed.

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Speaker 21: I thought addressing this issue in this way would hurt

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Speaker 21: the Court's reputation. The Court generally avoids unnecessarily participating in

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Speaker 21: political controversies, and I thought here it was entering into

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Speaker 21: uncharged territory.

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Speaker 1: At two forty pm on Saturday, December tenth, news broke

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Speaker 1: that the Court had grant Did the stay?

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Speaker 23: Hang on one second, David.

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Speaker 6: They're interrupted me now.

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Speaker 13: Bob Franken at the US Supreme Court in Washington has

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Speaker 13: a bit of news. Bob, what are they saying up there?

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Speaker 4: Very big news. The US Supreme Court has agreed to

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Speaker 4: put a stay on the recount in Florida.

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Speaker 3: There are a few hundred county election workers across this

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Speaker 3: state rather bewildered right about now.

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Speaker 1: Most of the canvassing boards throughout Florida were still counting

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Speaker 1: at this point.

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Speaker 2: I understand this is a live pixture from Cager County, Florida,

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Speaker 2: where the recount has in fact stopped because of the

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Speaker 2: order of the US Supreme Court.

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Speaker 1: If it says stop, I'm going to stop.

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Speaker 24: In fact, we're stopping right now until I see if

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Speaker 24: we need to keep on stopping.

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Speaker 1: A few counties had finished, and a few had not

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Speaker 1: yet managed to start. David Boys, one of Gore's most

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Speaker 1: trusted attorneys, was at a sports bar called Andrews in

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Speaker 1: Tallahassee when he saw the news on one of the

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Speaker 1: TV screens, and I thought it was a mistake.

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Speaker 15: It just didn't seem possible that the United States Supreme

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Speaker 15: Court was going to inter in this election to pick

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Speaker 15: the winner, and to do so without even hearing argument.

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Speaker 15: They're going to stop the votes from being counted.

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Speaker 4: Was obviously presented by Justice Kennedy, Anthony Kennedy, who's in

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Speaker 4: charge of this area. I'm reading now it is ordered

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Speaker 4: that the mandate of the Floria State Supreme Court is

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Speaker 4: hereby stayed pending further.

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Speaker 17: It is another dramatic twist in this election saga, now

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Speaker 17: thirty two days old, a saga that has left.

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Speaker 2: The campaigns, the candidates, and the.

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Speaker 18: Country on an extraordinary roller coaster ride.

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Speaker 2: That he is not over yet.

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Speaker 1: Ordinarily, a stay is a stopgap measure, a way for

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Speaker 1: judges to freeze the situation in place until they have

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Speaker 1: a chance to review it. But this stay was different

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Speaker 1: because of the timeline hanging over the recount process. With

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Speaker 1: the Electoral College deadline of December twelfth just three days away.

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Speaker 1: The Supreme Court's order to halt the recount all but

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Speaker 1: guaranteed that it could not be done in time. Even

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Speaker 1: if the Court ended up deciding to edit resume.

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Speaker 13: Even the Vice President's battled hardened legal team appeared shocked

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Speaker 13: at the set back.

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Speaker 25: There's no doubt that by delaying it, it has created a.

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Speaker 17: Very serious issue as.

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Speaker 25: To whether that count can fully be completed or not

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Speaker 25: by December twelfth.

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Speaker 1: Though Gore was despondent when he heard about the stay,

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Speaker 1: he remained true to his instincts as an institutionalist. In

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Speaker 1: a message sent to his top aids on his BlackBerry,

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Speaker 1: Gore wrote, please make sure that no one trashes the

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Speaker 1: Supreme Court. But the real risk might have been the

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Speaker 1: Supreme Court justices trashing each other. Justice Stevens was so

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Speaker 1: unhappy with the majority's decision that he wrote a dissent

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Speaker 1: that his three liberal colleagues signed onto Justice.

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Speaker 20: Stevens wrote that stopping this last chance recount may cause

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Speaker 20: irreparable harm to Gore, and that it will inevitably cast

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Speaker 20: a cloud on those.

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Speaker 1: Stephens argued that Bush's claim of a reparable harm was ludicrous,

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Speaker 1: that if anyone should be worried about a reparable harm,

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Speaker 1: it was Gore.

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Speaker 21: And it didn't seem to me that getting the right

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Speaker 21: answer in a contested election could ever be an irreable harm.

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Speaker 21: That's what you're trying to do in elections.

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Speaker 1: I asked Stevens to read part of his descent out loud.

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Speaker 21: Counting every legally cast vote cannot constitute irreable harm. On

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Speaker 21: the other hand, there is a danger that a stay

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Speaker 21: may cause irrebable harm to Respondence and more importantly, the

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Speaker 21: public at large, because of the risks that the entry

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Speaker 21: of the stay would be tantamount to a decision on

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Speaker 21: the merits in favor of the applicants. Preventing the reaccount

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Speaker 21: from being completed will inevitably cast a cloud on the

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Speaker 21: legitimacy of the election, if it seems to me makes

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Speaker 21: some sense.

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Speaker 1: Justice Scalia was so angered by Stephen's descent that he

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Speaker 1: decided to write a rebuttal. Scalia argued that if Bush

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Speaker 1: was right that he'd won the election, the counting of

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Speaker 1: votes that are questionable legality would cast a cloud over

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Speaker 1: his victory. Count first, and rule upon legality afterwards, Scalia wrote,

445
00:24:10,471 --> 00:24:12,830
Speaker 1: is not a recipe for producing election results that have

446
00:24:12,911 --> 00:24:15,271
Speaker 1: the public acceptance the democratic stability requires.

447
00:24:15,630 --> 00:24:18,590
Speaker 26: These are two justices that are going after each other

448
00:24:18,590 --> 00:24:22,231
Speaker 26: with Hammer and Tom and Scalia is stating the Bush

449
00:24:22,271 --> 00:24:25,471
Speaker 26: case far more strongly than the Bush lawyers stayed in

450
00:24:25,511 --> 00:24:26,111
Speaker 26: their briefs.

451
00:24:27,390 --> 00:24:31,110
Speaker 1: It's impossible to overstate how unusually fast the Supreme Court

452
00:24:31,150 --> 00:24:34,670
Speaker 1: was moving. Bush's petition had come in on December eighth,

453
00:24:35,191 --> 00:24:37,951
Speaker 1: the stay had been granted December ninth, and now oral

454
00:24:38,031 --> 00:24:40,271
Speaker 1: arguments have been scheduled for December eleventh.

455
00:24:39,870 --> 00:24:41,551
Speaker 4: At eleven a m total of one and a half

456
00:24:41,590 --> 00:24:43,991
Speaker 4: hours for oral arguments. This is lightning speed, of course,

457
00:24:44,031 --> 00:24:44,870
Speaker 4: by the Supreme Court.

458
00:24:44,911 --> 00:24:48,551
Speaker 1: The Court never likes to rush anything. In their usual schedule,

459
00:24:48,791 --> 00:24:51,071
Speaker 1: months and months go by between when oral arguments are

460
00:24:51,110 --> 00:24:55,151
Speaker 1: heard and when rulings are issued. That gestation period leaves

461
00:24:55,231 --> 00:24:57,791
Speaker 1: time for opinions to be written and rewritten many times over.

462
00:24:58,511 --> 00:25:01,311
Speaker 1: Occasionally it leaves enough time for justices to change their minds.

463
00:25:02,471 --> 00:25:05,830
Speaker 1: With the Electoral College deadline looming, such a leisurely approach

464
00:25:05,951 --> 00:25:09,871
Speaker 1: wasn't possible. The Supreme Court was on a violently compressed schedule,

465
00:25:10,271 --> 00:25:13,031
Speaker 1: and that meant the Bush and Gore lawyers were too.

466
00:25:13,271 --> 00:25:15,390
Speaker 1: They had just over twenty four hours to write and

467
00:25:15,431 --> 00:25:18,670
Speaker 1: submit their briefs. David Boyce led the charge on the

468
00:25:18,711 --> 00:25:19,831
Speaker 1: Gore side.

469
00:25:19,951 --> 00:25:26,031
Speaker 15: This did not come down to nuances of federal law.

470
00:25:27,150 --> 00:25:31,551
Speaker 15: It came down to what had happened in Florida, and

471
00:25:31,671 --> 00:25:33,471
Speaker 15: I knew that barn anybody.

472
00:25:34,551 --> 00:25:37,670
Speaker 1: Boys's central argument was that the Florida Supreme Court wasn't

473
00:25:37,711 --> 00:25:40,431
Speaker 1: making new laws, they were just interpreting ones that were

474
00:25:40,431 --> 00:25:43,830
Speaker 1: already on the books. The Bush team insisted this was wrong,

475
00:25:44,431 --> 00:25:46,390
Speaker 1: that in fact, the Florida Supreme Court had changed the

476
00:25:46,431 --> 00:25:47,991
Speaker 1: rules of the election in the middle of the game,

477
00:25:48,551 --> 00:25:50,551
Speaker 1: and that in doing so they had usurped the power

478
00:25:50,590 --> 00:25:53,311
Speaker 1: of the state legislature. But the last part of the

479
00:25:53,311 --> 00:25:56,471
Speaker 1: Bush brief also included a different argument, one based on

480
00:25:56,551 --> 00:26:00,031
Speaker 1: the equal protection clause of the Fourteenth Amendment. Here again

481
00:26:00,150 --> 00:26:01,391
Speaker 1: is Bush lawyer ted Olsen.

482
00:26:02,031 --> 00:26:06,870
Speaker 2: The elasticity of the rules and the procedures put the

483
00:26:07,110 --> 00:26:11,191
Speaker 2: power in the vote counters. Every time they change the rules,

484
00:26:11,630 --> 00:26:14,111
Speaker 2: they could put their thumb on the scale to make

485
00:26:14,150 --> 00:26:16,991
Speaker 2: it come out a certain way. When you have almost

486
00:26:16,991 --> 00:26:20,230
Speaker 2: a tie in terms of the numbers, all you have

487
00:26:20,311 --> 00:26:23,350
Speaker 2: to do is change a certain amount of those votes

488
00:26:23,991 --> 00:26:25,271
Speaker 2: to change the outcome.

489
00:26:26,031 --> 00:26:28,270
Speaker 1: It was hardly a secret that the manual recounts were

490
00:26:28,271 --> 00:26:31,870
Speaker 1: being conducted under different standards in different counties. Some places

491
00:26:31,870 --> 00:26:34,511
Speaker 1: were counting dimple chads, while others were throwing them out.

492
00:26:35,671 --> 00:26:38,910
Speaker 1: The Bush argument was that this inconsistent application of ballot

493
00:26:38,911 --> 00:26:41,511
Speaker 1: standards was itself unconstitutional.

494
00:26:46,511 --> 00:26:49,350
Speaker 14: This is an ABC News special report.

495
00:26:52,390 --> 00:26:55,590
Speaker 10: Hello again, everybody on Peter Jennings at ABC News headquarters.

496
00:26:55,630 --> 00:26:58,870
Speaker 10: And there is the US Supreme Court with its activist outside,

497
00:26:58,870 --> 00:27:01,470
Speaker 10: both for the Democrats and the Republicans today.

498
00:27:01,870 --> 00:27:04,791
Speaker 1: The oral arguments in Bush v. Gore were scheduled to

499
00:27:04,830 --> 00:27:07,590
Speaker 1: start at eleven am on Monday, December eleventh, a.

500
00:27:07,671 --> 00:27:10,630
Speaker 13: Lawyers for al Gore and George W. Bush head into

501
00:27:10,671 --> 00:27:13,071
Speaker 13: the US Supreme Court in Washington.

502
00:27:12,671 --> 00:27:14,791
Speaker 27: To argue the case in about two minutes.

503
00:27:14,911 --> 00:27:18,271
Speaker 20: The second oral argument in ten days involving the two

504
00:27:18,311 --> 00:27:21,191
Speaker 20: thousand presidential election as scheduled to get under way.

505
00:27:23,991 --> 00:27:27,230
Speaker 1: Dallia Lithwick had only recently started attending oral arguments, but

506
00:27:27,311 --> 00:27:28,271
Speaker 1: she already knew the drill.

507
00:27:28,711 --> 00:27:30,511
Speaker 12: You'd sort of line up in the court. I remember

508
00:27:30,590 --> 00:27:33,390
Speaker 12: they line you up a long time before arguments start,

509
00:27:33,431 --> 00:27:36,710
Speaker 12: and they march you in and they take away your

510
00:27:36,870 --> 00:27:38,431
Speaker 12: everything but your pen and your notepad.

511
00:27:38,911 --> 00:27:41,870
Speaker 1: Oddly, Lithwick and most of the other reporters were seated

512
00:27:41,870 --> 00:27:43,670
Speaker 1: in such a way that they couldn't actually see the

513
00:27:43,791 --> 00:27:46,510
Speaker 1: justices as they spoke from the bench. Instead they just

514
00:27:46,511 --> 00:27:47,311
Speaker 1: heard their voices.

515
00:27:50,110 --> 00:27:53,950
Speaker 7: Well, here argument now in number nine forty nine, George W.

516
00:27:54,071 --> 00:27:57,231
Speaker 7: Bush and Richard Cheney versus Albert Gore at al.

517
00:27:58,390 --> 00:28:01,951
Speaker 12: Beyond the first couple of rows, everybody's views obstructed, everybody

518
00:28:01,951 --> 00:28:05,671
Speaker 12: sitting behind curtains and columns, all the reporters. And there

519
00:28:05,911 --> 00:28:09,270
Speaker 12: was at the time somebody from the press office at

520
00:28:09,271 --> 00:28:11,511
Speaker 12: the Court who would get hand signals so you would

521
00:28:11,511 --> 00:28:15,231
Speaker 12: know for Justice Scalias speaking six, and that was how

522
00:28:15,271 --> 00:28:16,391
Speaker 12: you knew who was talking.

523
00:28:18,791 --> 00:28:21,071
Speaker 1: The air in the room was stifling as Lithwick and

524
00:28:21,110 --> 00:28:22,911
Speaker 1: her colleagues tried to make out what was happening.

525
00:28:23,350 --> 00:28:26,871
Speaker 12: My memory of it is it was, I mean almost

526
00:28:26,911 --> 00:28:30,391
Speaker 12: hanging from the lamps, like it was so packed and

527
00:28:30,511 --> 00:28:35,231
Speaker 12: so hot, and that there was a feeling, at least

528
00:28:35,231 --> 00:28:37,751
Speaker 12: in the press section of the room that we were

529
00:28:37,791 --> 00:28:40,991
Speaker 12: watching history. You don't often have a sense that you're

530
00:28:41,031 --> 00:28:43,190
Speaker 12: going to be telling, you know, your grandkids like I

531
00:28:43,311 --> 00:28:44,511
Speaker 12: was there. I was in the room.

532
00:28:46,271 --> 00:28:48,831
Speaker 1: Ted Olsen remembers the atmosphere as one of spectacle and

533
00:28:48,911 --> 00:28:49,551
Speaker 1: high stakes.

534
00:28:50,231 --> 00:28:54,071
Speaker 2: The entire world was watching. The Supreme Court was surrounded

535
00:28:54,111 --> 00:28:59,031
Speaker 2: by the satellite trucks of the various broadcast networks. The

536
00:28:59,071 --> 00:29:02,631
Speaker 2: court was filled with political figures, members of the United

537
00:29:02,671 --> 00:29:06,151
Speaker 2: States Senate, journalists and people all over the world were

538
00:29:06,231 --> 00:29:07,311
Speaker 2: watching and listening.

539
00:29:07,671 --> 00:29:11,071
Speaker 1: Despite having argued before the Supreme Court on thirteen other occasions,

540
00:29:11,511 --> 00:29:13,751
Speaker 1: Olsen found that he was not immune to the pressure.

541
00:29:14,191 --> 00:29:19,351
Speaker 2: You cannot imagine a more tense, pressure packed moment than

542
00:29:19,431 --> 00:29:22,471
Speaker 2: standing up in front of the all of those people

543
00:29:22,951 --> 00:29:25,591
Speaker 2: and the nine justices, with all of that at stake,

544
00:29:26,071 --> 00:29:28,271
Speaker 2: and I think all of us felt. For God's sakes,

545
00:29:28,271 --> 00:29:31,631
Speaker 2: I hope I can get these words out. One of

546
00:29:31,671 --> 00:29:34,911
Speaker 2: the lawyers made a mistake of three times, I think

547
00:29:34,951 --> 00:29:37,791
Speaker 2: he did, called the justices by the wrong.

548
00:29:37,631 --> 00:29:39,071
Speaker 18: Name, Justice Bar.

549
00:29:39,151 --> 00:29:41,151
Speaker 5: What I'm saying is is then I'm just a suitor.

550
00:29:41,151 --> 00:29:42,351
Speaker 1: You better cut that out.

551
00:29:43,351 --> 00:29:44,311
Speaker 4: I will now give up.

552
00:29:45,031 --> 00:29:47,591
Speaker 2: Your adrenaline is going to be pumping through you. So

553
00:29:48,271 --> 00:29:51,431
Speaker 2: anybody says, are you nervous, of course you're nervous. And

554
00:29:51,751 --> 00:29:54,631
Speaker 2: if you're not nervous, you're not a sentient human being

555
00:29:55,151 --> 00:29:57,551
Speaker 2: or a lawyer. So you have to focus on what

556
00:29:57,591 --> 00:30:00,271
Speaker 2: you're saying. You have to focus on what the justices

557
00:30:00,311 --> 00:30:03,831
Speaker 2: are saying. When they interrupt you, and they interrupt you constantly.

558
00:30:04,271 --> 00:30:05,111
Speaker 18: No, I don't think.

559
00:30:04,991 --> 00:30:07,950
Speaker 23: It's necessary a reliance on you really are not relying

560
00:30:07,991 --> 00:30:08,511
Speaker 23: on those.

561
00:30:08,311 --> 00:30:10,391
Speaker 18: Well, I think those cases support the argument.

562
00:30:10,431 --> 00:30:12,431
Speaker 21: But as we said, if you got to choose one

563
00:30:12,551 --> 00:30:14,151
Speaker 21: version of the word legislature or the.

564
00:30:14,151 --> 00:30:17,631
Speaker 18: Other, I think in different contexts, it's not necessarily necessarily

565
00:30:17,671 --> 00:30:19,231
Speaker 18: the case. And certainly it is.

566
00:30:19,191 --> 00:30:20,311
Speaker 23: True that legislatures.

567
00:30:21,151 --> 00:30:23,831
Speaker 1: As the hearing were on the main thing, anyone was

568
00:30:23,871 --> 00:30:26,791
Speaker 1: listening for recluse as to how the two swing justices

569
00:30:26,951 --> 00:30:31,031
Speaker 1: O'Connor and Kennedy were thinking about the case. O'Connors, how

570
00:30:31,071 --> 00:30:33,831
Speaker 1: the baffled that canvassing boards wouldn't just use ballot standards

571
00:30:33,831 --> 00:30:35,950
Speaker 1: that were based on the instructions that voters received an

572
00:30:35,951 --> 00:30:36,551
Speaker 1: election day.

573
00:30:37,191 --> 00:30:40,591
Speaker 8: Well, why isn't this standard the one that voters are

574
00:30:40,631 --> 00:30:43,751
Speaker 8: instructed to follow for goodness sake? So, I mean, it

575
00:30:43,831 --> 00:30:46,911
Speaker 8: couldn't be clear. Why don't we go.

576
00:30:47,031 --> 00:30:50,391
Speaker 1: There was something else bothering O'Connor to the Florida Supreme

577
00:30:50,431 --> 00:30:52,791
Speaker 1: Court had not responded in any way to the Supreme

578
00:30:52,831 --> 00:30:55,911
Speaker 1: Court's remand and request for clarification on their earlier ruling.

579
00:30:56,311 --> 00:31:01,990
Speaker 8: And I did not find a really response by the

580
00:31:01,991 --> 00:31:06,351
Speaker 8: Florida Supreme Court to this Court's remand in the case

581
00:31:06,631 --> 00:31:09,991
Speaker 8: a week ago, it just seemed to kind of bypass

582
00:31:10,111 --> 00:31:14,151
Speaker 8: sit and assume that all those changes in deadlines were

583
00:31:14,271 --> 00:31:16,391
Speaker 8: just fine, and they'd go ahead and adhere to them.

584
00:31:16,431 --> 00:31:19,831
Speaker 25: And I found out troublesome, your honor, if I could.

585
00:31:20,471 --> 00:31:22,991
Speaker 1: It was about nineteen minutes into oral arguments when the

586
00:31:23,031 --> 00:31:26,351
Speaker 1: issue of equal protection entered the discussion. But it wasn't

587
00:31:26,391 --> 00:31:29,031
Speaker 1: Ted Olson who brought it up. It was Justice Kennedy.

588
00:31:29,351 --> 00:31:31,591
Speaker 23: Well, and I thought your point was that the process

589
00:31:31,671 --> 00:31:34,511
Speaker 23: is being conducted in violation of the equal protection clause,

590
00:31:34,591 --> 00:31:36,071
Speaker 23: and is its standards and.

591
00:31:36,071 --> 00:31:38,311
Speaker 18: The due process clause, and what we know is now

592
00:31:38,351 --> 00:31:41,071
Speaker 18: Kennedy latched onto the issue and tried to get answers

593
00:31:41,071 --> 00:31:44,190
Speaker 18: from David Boys, But because the equal protection argument had

594
00:31:44,191 --> 00:31:46,911
Speaker 18: been such a small part of the Bush brief, Boys

595
00:31:46,911 --> 00:31:48,951
Speaker 18: had spent most of his time preparing to talk about

596
00:31:48,991 --> 00:31:50,031
Speaker 18: other aspects of the case.

597
00:31:50,391 --> 00:31:53,750
Speaker 25: I think there is a uniform standard. The standard is

598
00:31:53,791 --> 00:31:57,751
Speaker 25: whether or not the intent of the voter is reflected

599
00:31:57,791 --> 00:32:01,231
Speaker 25: by the ballot. That is the uniform standard that throughout.

600
00:32:00,991 --> 00:32:03,471
Speaker 23: Very general it runs throughout the law. Even the dog

601
00:32:03,511 --> 00:32:05,391
Speaker 23: knows the difference in being stumbled over and being kicked

602
00:32:05,431 --> 00:32:07,911
Speaker 23: me know it now? You would say that, from the

603
00:32:07,911 --> 00:32:11,751
Speaker 23: standpoint of equal protection clause, could each county give their

604
00:32:11,791 --> 00:32:14,710
Speaker 23: own interpretation to what intent means, so long as they

605
00:32:14,751 --> 00:32:21,111
Speaker 23: are in good faith and with some reasonable basis finding intent?

606
00:32:22,271 --> 00:32:24,470
Speaker 19: I think could that vary from county to county.

607
00:32:24,671 --> 00:32:27,671
Speaker 25: I think it can vary from individual to individual.

608
00:32:28,231 --> 00:32:31,591
Speaker 1: The sudden focus on equal protection was surprising and those

609
00:32:31,791 --> 00:32:34,591
Speaker 1: Kennedy who brought it up. Other justices seem to share

610
00:32:34,631 --> 00:32:37,231
Speaker 1: his concern, and not just the conservative ones either.

611
00:32:37,351 --> 00:32:40,151
Speaker 10: And why this question of equal protection for all Florida

612
00:32:40,231 --> 00:32:41,191
Speaker 10: voters keeps coming up.

613
00:32:41,311 --> 00:32:44,071
Speaker 26: Because Justice Sooner was saying, I'm troubled by this.

614
00:32:44,471 --> 00:32:45,831
Speaker 2: Justice Kennedy is troubled by this.

615
00:32:46,031 --> 00:32:48,271
Speaker 4: Justice Bryer is troubled by this now.

616
00:32:48,391 --> 00:32:50,991
Speaker 18: So I think that was something that really.

617
00:32:51,111 --> 00:32:54,471
Speaker 1: There was something weird about the equal protection claim. Though

618
00:32:54,471 --> 00:32:56,631
Speaker 1: the Bush team was applying it narrowly to the problem

619
00:32:56,671 --> 00:33:00,271
Speaker 1: of inconsistent hand recounts in Florida, its premise was that

620
00:33:00,311 --> 00:33:02,951
Speaker 1: there was something wrong with the decentralized way in which

621
00:33:02,991 --> 00:33:06,751
Speaker 1: all American elections are carried out. Taking the argument to

622
00:33:06,751 --> 00:33:10,711
Speaker 1: its logical conclusion, the country's entire electoral sism them was

623
00:33:10,831 --> 00:33:15,351
Speaker 1: one big violation of equal protection in any event. By

624
00:33:15,391 --> 00:33:17,991
Speaker 1: the time oral arguments came to a close, it was

625
00:33:18,071 --> 00:33:20,271
Speaker 1: clear that the Court would be treating the equal protection

626
00:33:20,391 --> 00:33:23,911
Speaker 1: argument as much more than a sideshow. But how exactly

627
00:33:23,951 --> 00:33:31,511
Speaker 1: they would respond to it was anyone's guess. The nine

628
00:33:31,671 --> 00:33:33,911
Speaker 1: justices met in their conference room to figure out who

629
00:33:33,951 --> 00:33:37,911
Speaker 1: stood where. Stevens and Ruth Bader Ginsburg felt strongly that

630
00:33:37,911 --> 00:33:41,111
Speaker 1: the Court should allow the recount to resume, but Kennedy

631
00:33:41,271 --> 00:33:44,311
Speaker 1: was still focused on Bush's equal protection argument, and it

632
00:33:44,351 --> 00:33:47,311
Speaker 1: appeared that two of his more liberal colleagues, Stephen Bryer

633
00:33:47,351 --> 00:33:49,991
Speaker 1: and David Souter, were hung up on it as well.

634
00:33:49,951 --> 00:33:53,151
Speaker 21: And they both indicated that their feeling it was a

635
00:33:53,271 --> 00:33:57,151
Speaker 21: possible violation. And I had never been able to understand.

636
00:33:56,671 --> 00:34:00,710
Speaker 1: Why Stevens tried to propose a compromise. If most of

637
00:34:00,711 --> 00:34:03,831
Speaker 1: his colleagues agreed that the varying standards for conducting recounts

638
00:34:03,831 --> 00:34:06,831
Speaker 1: were a violation of equal protection, why not send the

639
00:34:06,871 --> 00:34:09,391
Speaker 1: case back to the Florida Supreme Court and asked them

640
00:34:09,391 --> 00:34:11,551
Speaker 1: to come up with one on statewide standard for judging

641
00:34:11,591 --> 00:34:15,951
Speaker 1: voter intent. That way, the recount could resume and proceed fairly.

642
00:34:16,911 --> 00:34:19,271
Speaker 1: But the conservatives on the Court didn't think that prolonging

643
00:34:19,311 --> 00:34:22,230
Speaker 1: the process was an option. It was simply too late.

644
00:34:22,831 --> 00:34:26,350
Speaker 1: The deadline for ceding Florida's electors was December twelfth. That

645
00:34:26,431 --> 00:34:30,350
Speaker 1: was the very next day. Justice O'Connor in particular, was

646
00:34:30,391 --> 00:34:32,231
Speaker 1: worried that if the case went back to the Florida

647
00:34:32,270 --> 00:34:35,551
Speaker 1: Supreme Court now, the dispute over electors could enter truly

648
00:34:35,671 --> 00:34:36,671
Speaker 1: uncharted territory.

649
00:34:37,471 --> 00:34:39,391
Speaker 9: Justice O'Connor said, this is a mess. We got to

650
00:34:39,391 --> 00:34:41,310
Speaker 9: stop it now because if we don't stop it now,

651
00:34:41,311 --> 00:34:42,710
Speaker 9: it's going to go on and on, and it's going

652
00:34:42,750 --> 00:34:45,351
Speaker 9: to get worse and Bush is going to win in

653
00:34:45,391 --> 00:34:45,671
Speaker 9: the end.

654
00:34:45,710 --> 00:34:51,831
Speaker 1: Anyways, not everyone thought the situation was so dire. Stevens, Briar, Suitor,

655
00:34:51,831 --> 00:34:54,591
Speaker 1: and Ginsburg all believed that something could still be done

656
00:34:54,631 --> 00:34:57,230
Speaker 1: in Florida, or at least they believed that it wasn't

657
00:34:57,270 --> 00:35:00,071
Speaker 1: the Supreme Court's job to make that call. Why did

658
00:35:00,111 --> 00:35:01,951
Speaker 1: you think there was time? And they didn't think there

659
00:35:02,031 --> 00:35:02,350
Speaker 1: was time.

660
00:35:02,591 --> 00:35:06,671
Speaker 21: Well, I didn't really feel I had the capacity to

661
00:35:06,750 --> 00:35:10,591
Speaker 21: decide that issue. But if the Florida Supreme Court thought

662
00:35:10,671 --> 00:35:13,071
Speaker 21: it could be worked out, which should let them be

663
00:35:13,151 --> 00:35:13,951
Speaker 21: given a try.

664
00:35:14,951 --> 00:35:17,751
Speaker 1: What ensued was a tug of war, with some members

665
00:35:17,750 --> 00:35:19,830
Speaker 1: of the Court planting their feet and trying to pull

666
00:35:19,871 --> 00:35:23,951
Speaker 1: their colleagues over to their side. The hope was to

667
00:35:23,951 --> 00:35:25,951
Speaker 1: come up with a ruling that wouldn't divide the Court

668
00:35:26,031 --> 00:35:30,151
Speaker 1: on a partisan basis. To that end, Kennedy and O'Connor

669
00:35:30,151 --> 00:35:33,071
Speaker 1: decided to collaborate on an opinion reflecting whatever shreds of

670
00:35:33,071 --> 00:35:36,830
Speaker 1: consensus were available in it. They would argue that the

671
00:35:36,831 --> 00:35:40,551
Speaker 1: statewide recount was a violation of equal protection, a position

672
00:35:40,631 --> 00:35:43,790
Speaker 1: that seven of the justices seemed to agree with. The

673
00:35:43,831 --> 00:35:46,791
Speaker 1: problem was that two of those seven, Brier and Suitor,

674
00:35:47,311 --> 00:35:49,710
Speaker 1: thought the state wide recount could still be revived under

675
00:35:49,710 --> 00:35:52,830
Speaker 1: a uniform ballot standard, while the other five thought the

676
00:35:52,871 --> 00:35:56,190
Speaker 1: game was over. That meant the justices were still divided

677
00:35:56,230 --> 00:35:58,710
Speaker 1: five to four on whether the recount had to end.

678
00:35:59,511 --> 00:36:01,831
Speaker 1: Compromise would have been nice, but it wasn't.

679
00:36:01,671 --> 00:36:18,390
Speaker 14: Necessary, okay. Also, standing by the moment.

680
00:36:18,111 --> 00:36:19,791
Speaker 4: Of truth, it is the moment of truth.

681
00:36:19,831 --> 00:36:23,350
Speaker 25: The Supreme Court may use this moment to determine who

682
00:36:23,391 --> 00:36:24,950
Speaker 25: is the next president of the United States.

683
00:36:24,991 --> 00:36:26,830
Speaker 15: There are many ways this decision could go.

684
00:36:27,270 --> 00:36:29,591
Speaker 1: The Supreme Court handed down its ruling in Bush v.

685
00:36:29,710 --> 00:36:32,991
Speaker 1: Gore at ten pm on December twelfth, the same day

686
00:36:33,031 --> 00:36:36,310
Speaker 1: as the deadline for seating Florida's electors Saturday. The Court

687
00:36:36,311 --> 00:36:39,071
Speaker 1: printed copies of the sixty five page decision and stacked

688
00:36:39,071 --> 00:36:40,871
Speaker 1: them on a table in the press office for the taking.

689
00:36:41,631 --> 00:36:45,191
Speaker 1: Journalists grab copies and sprinted outside to waiting TV cameras.

690
00:36:45,311 --> 00:36:47,790
Speaker 13: The Supreme Court decision from Florida is now out.

691
00:36:47,991 --> 00:36:50,390
Speaker 10: Let's go straight to the court because ABC's Jackie Judd

692
00:36:50,431 --> 00:36:52,191
Speaker 10: and Jeffrey Tubman are standing by.

693
00:36:54,151 --> 00:36:58,350
Speaker 6: The Peter.

694
00:36:58,391 --> 00:37:01,190
Speaker 1: If you can, I will, let me give you the

695
00:37:01,230 --> 00:37:04,551
Speaker 1: typical Supreme Court opinion starts with the summary, helpful guide

696
00:37:04,551 --> 00:37:07,790
Speaker 1: to relevant constitutional questions and how they've been decided. But

697
00:37:07,871 --> 00:37:09,951
Speaker 1: because the Court's ruling on Bush v. Gore had been

698
00:37:10,190 --> 00:37:12,790
Speaker 1: and so quickly, there was no time for that kind

699
00:37:12,831 --> 00:37:16,711
Speaker 1: of sign posting. That made interpreting the decision rather difficult.

700
00:37:16,911 --> 00:37:19,551
Speaker 27: So we're going to have to keep shifting through this decision.

701
00:37:19,591 --> 00:37:23,230
Speaker 27: It is extremely complicated, with all these concurrences and descents and.

702
00:37:23,471 --> 00:37:24,471
Speaker 4: The phrasing of it.

703
00:37:24,471 --> 00:37:26,270
Speaker 26: It's very badly written, to tell you the truth, and

704
00:37:26,391 --> 00:37:27,871
Speaker 26: it sounds Parnie.

705
00:37:27,911 --> 00:37:30,190
Speaker 10: Let's work through this as carefully as we can.

706
00:37:30,351 --> 00:37:32,671
Speaker 16: But let me get to the bottom line here the

707
00:37:32,791 --> 00:37:36,151
Speaker 16: judgment of the Supreme Court of Florida is reversed.

708
00:37:36,671 --> 00:37:41,351
Speaker 1: The majority opinion was signed procurium, meaning by the court. Usually,

709
00:37:41,750 --> 00:37:44,511
Speaker 1: this was a sign that a decision was uncontroversial, and

710
00:37:44,551 --> 00:37:46,391
Speaker 1: it was meant to indicate that the Court was speaking

711
00:37:46,391 --> 00:37:49,990
Speaker 1: in one voice. But this opinion was not so straightforward.

712
00:37:50,431 --> 00:37:53,191
Speaker 1: On the one hand, it said that seven justices agreed

713
00:37:53,190 --> 00:37:55,751
Speaker 1: that the statewide recount was a violation of equal protection.

714
00:37:56,750 --> 00:37:59,591
Speaker 1: But the far more consequential takeaway from the opinion was

715
00:37:59,631 --> 00:38:01,591
Speaker 1: that a majority of the court, five out of the

716
00:38:01,671 --> 00:38:04,510
Speaker 1: nine justices, thought the recount had to be shut down

717
00:38:04,671 --> 00:38:05,230
Speaker 1: no matter what.

718
00:38:05,591 --> 00:38:08,231
Speaker 24: And it seems that this really clearly is a victory

719
00:38:08,471 --> 00:38:09,750
Speaker 24: for Governor Bush.

720
00:38:10,151 --> 00:38:12,511
Speaker 21: I read this to say, here's the bottom line.

721
00:38:12,591 --> 00:38:15,911
Speaker 13: We've reversed the Supreme Court opinion of Florida. This election

722
00:38:16,071 --> 00:38:16,390
Speaker 13: is over.

723
00:38:16,750 --> 00:38:19,911
Speaker 1: According to Gore lawyer David Boyce, some of his colleagues

724
00:38:19,911 --> 00:38:22,511
Speaker 1: initially thought that the Court's decision was not necessarily the

725
00:38:22,591 --> 00:38:23,271
Speaker 1: end of the line.

726
00:38:23,671 --> 00:38:27,671
Speaker 15: There was still some hope among some members of the

727
00:38:27,710 --> 00:38:30,551
Speaker 15: Gore camp that we could continue the fight in Florida,

728
00:38:31,071 --> 00:38:33,951
Speaker 15: that we could try to get the vote count we started.

729
00:38:34,551 --> 00:38:37,711
Speaker 15: But at one point al Gore asked me what I thought,

730
00:38:38,511 --> 00:38:41,710
Speaker 15: and I said, it was wrong to shoot you, but

731
00:38:41,791 --> 00:38:44,390
Speaker 15: you're still dead. There's no coming back from this.

732
00:38:44,951 --> 00:38:46,911
Speaker 5: And in the end, what we had was a collision

733
00:38:47,270 --> 00:38:50,230
Speaker 5: between the calendar and the fourteenth Amendment of the Constitution

734
00:38:50,750 --> 00:38:53,031
Speaker 5: guaranteeing equal protection under the law.

735
00:38:53,431 --> 00:38:55,710
Speaker 1: As someone who teaches these issues, I would say this

736
00:38:55,750 --> 00:38:58,751
Speaker 1: is probably the most significant decision in thirty years.

737
00:38:58,991 --> 00:39:01,231
Speaker 14: We've had an appeal, we've taken that appeal.

738
00:39:01,551 --> 00:39:03,750
Speaker 3: There is no appeal from the United States Supreme Court.

739
00:39:06,031 --> 00:39:09,111
Speaker 1: The idea of a conservative majority rallying around equal protection

740
00:39:09,230 --> 00:39:13,151
Speaker 1: seemed absurd many liberal court watchers. Equal protection was maybe

741
00:39:13,151 --> 00:39:16,391
Speaker 1: the most revered legal tenet of progressives, the centerpiece of

742
00:39:16,471 --> 00:39:19,271
Speaker 1: landmark civil rights decisions like Brown v. Board of Education

743
00:39:19,631 --> 00:39:23,471
Speaker 1: and Loving v. Virginia. Justice Ginsberg, who pioneered the use

744
00:39:23,511 --> 00:39:27,230
Speaker 1: of equal protection arguments in fighting sex discrimination, was particularly horrified.

745
00:39:27,791 --> 00:39:31,470
Speaker 1: While drafting her dissenting opinion, Ginsburg included a footnote saying

746
00:39:31,471 --> 00:39:33,671
Speaker 1: that if there was any equal protection violation at work

747
00:39:33,710 --> 00:39:37,191
Speaker 1: in Florida, it was the disenfranchisement of African American voters.

748
00:39:38,270 --> 00:39:41,511
Speaker 1: She was referencing reports of voter suppression, including efforts to

749
00:39:41,551 --> 00:39:45,151
Speaker 1: purge felons from Florida's voter roles. Justice Scalia read the

750
00:39:45,151 --> 00:39:47,870
Speaker 1: footnote in a draft of Ginsburg's assent and accused her

751
00:39:47,911 --> 00:39:53,591
Speaker 1: of using al Sharpton tactics. Ginsburg gruented and took it out. Meanwhile,

752
00:39:54,151 --> 00:39:57,031
Speaker 1: Justice Stevens decided to articulate his frustration in a descent

753
00:39:57,071 --> 00:39:59,911
Speaker 1: of his own. Here he is reading from the last paragraph.

754
00:40:00,750 --> 00:40:03,551
Speaker 21: Time will one day heal the wound to that conference

755
00:40:03,871 --> 00:40:08,031
Speaker 21: that will be inflicted by today's decision. One thing, however,

756
00:40:08,111 --> 00:40:11,911
Speaker 21: is certain, although it will remain never know with complete certainty,

757
00:40:11,951 --> 00:40:15,271
Speaker 21: the identity of the winner of this year's presidential election,

758
00:40:15,871 --> 00:40:19,591
Speaker 21: the identity of the loser is perfectly clear. It is

759
00:40:19,671 --> 00:40:23,871
Speaker 21: a nation's confidence in the judge as an impartial guardian

760
00:40:24,071 --> 00:40:29,231
Speaker 21: of the rule of law. I respectively dissent. No, that's true.

761
00:40:29,511 --> 00:40:32,310
Speaker 21: I think I hit it right out of the head.

762
00:40:34,190 --> 00:40:37,031
Speaker 1: There was one more important and unusual thing about the

763
00:40:37,031 --> 00:40:38,230
Speaker 1: Court's decision in Bush v.

764
00:40:38,351 --> 00:40:38,551
Speaker 13: Gore.

765
00:40:39,311 --> 00:40:40,951
Speaker 1: It didn't set any precedent.

766
00:40:41,151 --> 00:40:44,551
Speaker 20: The justices, in a highly unusual move, said their ruling

767
00:40:45,031 --> 00:40:48,910
Speaker 20: is limited to the present circumstances only, meaning.

768
00:40:48,871 --> 00:40:51,631
Speaker 1: Justice O'Connor was always cognizant of downstream effects of the

769
00:40:51,631 --> 00:40:55,430
Speaker 1: Court's actions, and during the drafting process in Bush v. Gore,

770
00:40:55,911 --> 00:40:57,831
Speaker 1: she told Kennedy that she wanted it to be clear

771
00:40:58,111 --> 00:41:00,631
Speaker 1: that the Court was only responding to the specific facts

772
00:41:00,631 --> 00:41:03,190
Speaker 1: of the case at hand, and so they added a

773
00:41:03,230 --> 00:41:06,631
Speaker 1: sentence stipulating just that and acknowledging that the problem of

774
00:41:06,671 --> 00:41:11,751
Speaker 1: equal protection and election processes generally presents many complexities. To critics,

775
00:41:12,111 --> 00:41:14,750
Speaker 1: it sounded like the majority was basically admitting that the

776
00:41:14,791 --> 00:41:17,591
Speaker 1: equal protection argument did not deserve to be taken seriously.

777
00:41:18,431 --> 00:41:19,870
Speaker 1: Here again is Dahalialithwick.

778
00:41:20,351 --> 00:41:25,390
Speaker 12: I do remember absolutely being shocked by the Court having

779
00:41:25,391 --> 00:41:29,031
Speaker 12: to explicitly say in the manner of mission impossible, like

780
00:41:29,111 --> 00:41:31,271
Speaker 12: this is going to disappear in a poof of smoke

781
00:41:31,351 --> 00:41:33,911
Speaker 12: in ten seconds. So read it quickly because it doesn't

782
00:41:33,911 --> 00:41:38,471
Speaker 12: stand for everything. For me, that was anathema to what

783
00:41:38,511 --> 00:41:41,911
Speaker 12: the court does. You know, the Court sets out clear

784
00:41:42,311 --> 00:41:46,951
Speaker 12: lasting precedent to guide the next case. It doesn't say, like, dudes,

785
00:41:46,991 --> 00:41:49,310
Speaker 12: we were totally painted into a corner and so we're

786
00:41:49,311 --> 00:41:52,230
Speaker 12: going to make some stuff up and good luck. And

787
00:41:52,671 --> 00:41:56,710
Speaker 12: so I remember that being to me. The thing that

788
00:41:56,831 --> 00:41:58,790
Speaker 12: grabbed me by the throw was they don't even have

789
00:41:58,831 --> 00:42:01,830
Speaker 12: the courage of their own convictions, much less you know

790
00:42:01,911 --> 00:42:10,750
Speaker 12: that the ability to resolve this in any binding, precedential way.

791
00:42:10,871 --> 00:42:14,390
Speaker 17: Peter Tonight al Gore's age describe him as calm, at

792
00:42:14,391 --> 00:42:17,951
Speaker 17: peace with himself and his decision, and very focused on

793
00:42:18,071 --> 00:42:21,391
Speaker 17: his task tonight to do his part to unite the country.

794
00:42:21,710 --> 00:42:25,710
Speaker 1: On December thirteenth, thirty six days after election day, al

795
00:42:25,791 --> 00:42:28,071
Speaker 1: Gore gave a televised address in which he conceded the

796
00:42:28,111 --> 00:42:30,391
Speaker 1: two thousand election for a second and final time.

797
00:42:31,351 --> 00:42:31,911
Speaker 4: Good evening.

798
00:42:32,831 --> 00:42:35,631
Speaker 16: Just moments ago, I spoke with George W. Bush and

799
00:42:35,791 --> 00:42:39,031
Speaker 16: congratulated him on becoming the forty third president of the

800
00:42:39,111 --> 00:42:42,591
Speaker 16: United States, and I promised him that I wouldn't call

801
00:42:42,671 --> 00:42:46,791
Speaker 16: him back this time. Now the US Supreme Court has spoken,

802
00:42:47,791 --> 00:42:51,471
Speaker 16: let there be no doubt. While I strongly disagree with

803
00:42:51,551 --> 00:42:55,911
Speaker 16: the Court's decision, I accept it. I accept the finality

804
00:42:55,951 --> 00:42:58,551
Speaker 16: of this outcome, which will be ratified next Monday in

805
00:42:58,591 --> 00:42:59,790
Speaker 16: the Electoral College.

806
00:43:00,311 --> 00:43:03,790
Speaker 1: Later, George W. Bush offered a few conciliatory remarks of

807
00:43:03,791 --> 00:43:04,311
Speaker 1: his own.

808
00:43:04,631 --> 00:43:07,231
Speaker 11: Vice President Gore and I put our hearts and hopes

809
00:43:07,230 --> 00:43:12,471
Speaker 11: into our campaigns. We shared some emotions, so I understand

810
00:43:12,511 --> 00:43:16,390
Speaker 11: how difficult this moment must be for Vice President Gore

811
00:43:16,431 --> 00:43:17,071
Speaker 11: and his family.

812
00:43:18,591 --> 00:43:20,551
Speaker 1: The only thing left to do was make it official.

813
00:43:21,391 --> 00:43:24,750
Speaker 1: On December eighteenth, Florida's presidential electors gathered at the State

814
00:43:24,750 --> 00:43:29,191
Speaker 1: House in Tallahassee. As expected, all twenty five Republican electors

815
00:43:29,270 --> 00:43:32,431
Speaker 1: voted for George W. Bush, while his brother Jeb looked on.

816
00:43:33,151 --> 00:43:36,031
Speaker 2: Thank you for your attendance and cooperation and fulfilling this

817
00:43:36,111 --> 00:43:36,871
Speaker 2: awesome duty.

818
00:43:37,671 --> 00:43:39,991
Speaker 13: This meeting of the presidential electors is now adjourned.

819
00:43:40,031 --> 00:43:40,870
Speaker 2: Thank you all very much.

820
00:43:40,991 --> 00:43:41,790
Speaker 19: God blessed.

821
00:43:45,031 --> 00:43:48,230
Speaker 1: In Washington the task of officially presiding over the Electoral

822
00:43:48,230 --> 00:43:51,710
Speaker 1: College TWI felt in none other than al Gore, whose

823
00:43:51,710 --> 00:43:54,111
Speaker 1: position as vice president also made him the president of

824
00:43:54,111 --> 00:43:54,551
Speaker 1: the Senate.

825
00:43:54,951 --> 00:43:57,190
Speaker 16: The whole number of the electors appointed to vote for

826
00:43:57,230 --> 00:43:58,950
Speaker 16: President of the United States as well, the.

827
00:43:58,831 --> 00:44:01,991
Speaker 27: Third vice president in history to preside over the certification

828
00:44:02,071 --> 00:44:03,111
Speaker 27: of his own defeat.

829
00:44:03,750 --> 00:44:04,390
Speaker 4: George W.

830
00:44:04,511 --> 00:44:07,631
Speaker 16: Bush of the State of Texas has received for President

831
00:44:07,671 --> 00:44:09,871
Speaker 16: of the United States two hundred and seventy one v.

832
00:44:10,991 --> 00:44:13,870
Speaker 16: Al Gore of the State of Tennessee has received two

833
00:44:13,911 --> 00:44:17,390
Speaker 16: hundred and sixty six votes. May God bless our new

834
00:44:17,431 --> 00:44:20,991
Speaker 16: president and our new Vice President, and may God bless

835
00:44:21,351 --> 00:44:22,751
Speaker 16: the United States of America.

836
00:44:30,951 --> 00:44:33,671
Speaker 1: When the election was finally over and Bush was inaugurated

837
00:44:33,671 --> 00:44:36,151
Speaker 1: as president, it seemed like the stage was set for

838
00:44:36,230 --> 00:44:38,750
Speaker 1: Sandrad O'Connor to announce that she was stepping down from

839
00:44:38,750 --> 00:44:43,230
Speaker 1: the court, but she didn't. According to Devin Thomas, she

840
00:44:43,270 --> 00:44:44,870
Speaker 1: felt that her role in putting Bush in the White

841
00:44:44,911 --> 00:44:46,511
Speaker 1: House made retirement untenable.

842
00:44:47,431 --> 00:44:52,270
Speaker 9: The standard wisdom is that she voted for Bush so

843
00:44:52,391 --> 00:44:54,671
Speaker 9: that she could retire because she wanted to retire, because

844
00:44:54,710 --> 00:44:57,391
Speaker 9: it sounded like that's what they wanted to do based

845
00:44:57,391 --> 00:45:01,710
Speaker 9: on that dinner party outburst. But in fact the opposite

846
00:45:01,791 --> 00:45:06,430
Speaker 9: is true. Because she voted for Bush, she knew that

847
00:45:06,471 --> 00:45:08,750
Speaker 9: she could not retire. It would look like the fix

848
00:45:08,871 --> 00:45:10,991
Speaker 9: was in that She knew that it would look like

849
00:45:11,071 --> 00:45:13,830
Speaker 9: she voted for Bush so that she could retire. So

850
00:45:13,871 --> 00:45:17,351
Speaker 9: she said to her family, look, no white House events.

851
00:45:17,431 --> 00:45:20,830
Speaker 9: We're not gonna hang around with a Bush family. We're

852
00:45:20,871 --> 00:45:24,791
Speaker 9: not retiring. And she didn't, not for another five years

853
00:45:24,911 --> 00:45:28,151
Speaker 9: until her husband's Alzheimer's was so bad she felt she

854
00:45:28,230 --> 00:45:28,871
Speaker 9: had to retire.

855
00:45:30,951 --> 00:45:34,230
Speaker 1: As John's Alzheimer's worsened, O'Connor often brought him to the

856
00:45:34,230 --> 00:45:36,870
Speaker 1: court with her. He sat on the couch in her

857
00:45:36,871 --> 00:45:40,230
Speaker 1: office reading the newspaper while she worked. When he occasionally

858
00:45:40,270 --> 00:45:43,111
Speaker 1: wandered off, Supreme Court guards were always around to keep

859
00:45:43,111 --> 00:45:47,391
Speaker 1: an eye on him. Meanwhile, the Supreme Court's docket filled

860
00:45:47,471 --> 00:45:50,991
Speaker 1: up with cases that touched on Bush administration policy. These

861
00:45:50,991 --> 00:45:54,351
Speaker 1: were major cases about affirmative action, the right to die,

862
00:45:54,671 --> 00:45:57,911
Speaker 1: the rights of prisoners at Guantanama Bay. And if anyone

863
00:45:57,951 --> 00:46:00,511
Speaker 1: still believed that the two thousand election had been low stakes,

864
00:46:01,031 --> 00:46:02,751
Speaker 1: the string of decisions that came out of the Supreme

865
00:46:02,791 --> 00:46:05,350
Speaker 1: Court in its aftermath served as a reminder of just

866
00:46:05,391 --> 00:46:13,391
Speaker 1: how much had been on the line. When O'Connor finally

867
00:46:13,391 --> 00:46:15,911
Speaker 1: retired in two thousand and five, she was replaced with

868
00:46:15,951 --> 00:46:19,911
Speaker 1: Samuel Alito, a relentlessly conservative justice whose arrival shifted the

869
00:46:19,911 --> 00:46:24,270
Speaker 1: ideological balance of the court. In private, O'Connor expressed deep

870
00:46:24,270 --> 00:46:27,190
Speaker 1: frustration with Alito, and she watched with disappointment as the

871
00:46:27,190 --> 00:46:30,510
Speaker 1: court tilted away from her doctrine on abortion rights, affirmative action,

872
00:46:30,831 --> 00:46:32,031
Speaker 1: and a host of other issues.

873
00:46:32,791 --> 00:46:35,471
Speaker 12: She was so full of regret that she, you know,

874
00:46:35,871 --> 00:46:39,671
Speaker 12: immediately on her retirement and being replaced by Alito and

875
00:46:39,750 --> 00:46:42,350
Speaker 12: watching all of the doctrine that she had had her

876
00:46:42,391 --> 00:46:46,591
Speaker 12: thumbprint on got erased. Within like two years. You know,

877
00:46:46,710 --> 00:46:49,671
Speaker 12: every place in which she had been the decider goes

878
00:46:49,710 --> 00:46:52,911
Speaker 12: the other way. And I think she really did feel

879
00:46:52,991 --> 00:46:56,710
Speaker 12: as though she couldn't say it out loud, but that

880
00:46:56,831 --> 00:47:02,711
Speaker 12: she had done something like catastrophically bad for the country

881
00:47:02,710 --> 00:47:05,310
Speaker 12: that she didn't know how to make reparations for. And

882
00:47:05,351 --> 00:47:08,111
Speaker 12: I think, much more so than anyone else, she really

883
00:47:08,351 --> 00:47:09,631
Speaker 12: carried that around with her.

884
00:47:12,831 --> 00:47:17,071
Speaker 1: In twenty thirteen, for the first time ever, O'Connor publicly

885
00:47:17,111 --> 00:47:19,671
Speaker 1: expressed second thoughts about the ruling in Bush v.

886
00:47:19,831 --> 00:47:20,071
Speaker 18: Gore.

887
00:47:21,230 --> 00:47:23,790
Speaker 1: The Supreme Court probably added to the problem. At the

888
00:47:23,871 --> 00:47:27,191
Speaker 1: end of the day, she told the Chicago Tribune. Maybe

889
00:47:27,190 --> 00:47:29,871
Speaker 1: she said the Court shouldn't have even taken the case

890
00:47:29,911 --> 00:47:34,831
Speaker 1: in the first place. Five years later, Justice O'Connor announced

891
00:47:34,871 --> 00:47:38,951
Speaker 1: that she was suffering from dementia, most likely Alzheimer's, and

892
00:47:38,991 --> 00:47:42,831
Speaker 1: she retired from public life. She died in twenty twenty

893
00:47:42,831 --> 00:47:48,151
Speaker 1: three at the age of ninety three. In the wake

894
00:47:48,190 --> 00:47:51,950
Speaker 1: of al Gore's concession, a handful of news organizations went

895
00:47:51,991 --> 00:47:54,830
Speaker 1: back to Florida's ballots and tried to figure out whether

896
00:47:54,871 --> 00:47:56,671
Speaker 1: the right person had been elected president.

897
00:47:56,951 --> 00:47:59,671
Speaker 24: The count of more than sixty one thousand punch carts

898
00:47:59,710 --> 00:48:03,471
Speaker 24: optical scan even handwritten votes tallied by a team from

899
00:48:03,471 --> 00:48:06,871
Speaker 24: the Miami Herald, USA Today and a private accounting firm.

900
00:48:07,471 --> 00:48:09,750
Speaker 1: The first major result was released by a consortium of

901
00:48:09,750 --> 00:48:12,591
Speaker 1: news papers that included USA Today and the Miami Herald.

902
00:48:13,391 --> 00:48:15,831
Speaker 1: It came out in April two thousand and one, about

903
00:48:15,831 --> 00:48:18,431
Speaker 1: two and a half months into George W. Bush's presidency.

904
00:48:19,591 --> 00:48:21,350
Speaker 1: The study gamed out what would have happened if the

905
00:48:21,351 --> 00:48:24,191
Speaker 1: recount mandated by the Florida Supreme Court had been allowed

906
00:48:24,190 --> 00:48:27,711
Speaker 1: to continue. It looked at possible outcomes under four different

907
00:48:27,710 --> 00:48:31,191
Speaker 1: ballot standards, ranging from the most lenient to the most strict,

908
00:48:31,551 --> 00:48:32,991
Speaker 1: under vote ballots.

909
00:48:32,791 --> 00:48:35,831
Speaker 24: Those now famous hanging, dimpled and pregnant chads.

910
00:48:36,111 --> 00:48:39,270
Speaker 1: Ironically, the study found that Gore would have only won

911
00:48:39,431 --> 00:48:43,071
Speaker 1: under the strictest standard, and even then the margin would

912
00:48:43,071 --> 00:48:44,431
Speaker 1: have only been three votes.

913
00:48:44,511 --> 00:48:47,511
Speaker 24: So Gore wins using a strict vote counting method, he

914
00:48:47,591 --> 00:48:51,471
Speaker 24: did not support Bush wins using a more liberal method

915
00:48:51,750 --> 00:48:52,591
Speaker 24: he opposed.

916
00:48:53,111 --> 00:48:55,791
Speaker 1: A second major post mortem of the election came out

917
00:48:55,831 --> 00:48:59,351
Speaker 1: just after its first anniversary. This one was the product

918
00:48:59,391 --> 00:49:01,911
Speaker 1: of a million dollar effort that included The New York Times,

919
00:49:02,190 --> 00:49:05,551
Speaker 1: The Washington Post, The Wall Street Journal, The Saint Petersburg

920
00:49:05,631 --> 00:49:09,350
Speaker 1: Times and the Palm Beach Post Together they commissioned a

921
00:49:09,391 --> 00:49:12,671
Speaker 1: non partisan research institute at the University of Chicago to

922
00:49:12,710 --> 00:49:15,151
Speaker 1: spend ten months going through the one hundred and seventy

923
00:49:15,151 --> 00:49:17,790
Speaker 1: five thousand undervotes and over votes from Florida.

924
00:49:17,991 --> 00:49:22,351
Speaker 27: Trained coders, often operating in teams, viewed but did not touch,

925
00:49:22,431 --> 00:49:25,111
Speaker 27: disputed ballots and wrote down what they saw.

926
00:49:25,791 --> 00:49:29,071
Speaker 1: According to that study, if every undervote and over vote

927
00:49:29,111 --> 00:49:32,310
Speaker 1: in Florida had been examined by hand, Gore would have

928
00:49:32,311 --> 00:49:33,871
Speaker 1: won the state by a slim margin.

929
00:49:34,230 --> 00:49:37,351
Speaker 27: Under those circumstances, Gore would have gained to a plus

930
00:49:37,391 --> 00:49:39,830
Speaker 27: one hundred and seventy one largely.

931
00:49:39,591 --> 00:49:42,830
Speaker 1: But as the news organizations themselves acknowledged, this was neither

932
00:49:42,871 --> 00:49:46,071
Speaker 1: here nor there. Though it may have been true in theory,

933
00:49:46,671 --> 00:49:48,790
Speaker 1: there had pretty much never been a scenario in which

934
00:49:48,831 --> 00:49:52,071
Speaker 1: all of Florida's undervotes and overvotes were going to be counted.

935
00:49:53,351 --> 00:49:55,671
Speaker 1: If you imagine the thirty six days after election day

936
00:49:55,671 --> 00:49:58,270
Speaker 1: as a choose your own adventure, there was just no

937
00:49:58,351 --> 00:50:00,511
Speaker 1: fork in the road when that was a serious possibility.

938
00:50:01,551 --> 00:50:04,071
Speaker 1: Even before it was published, an LA Times editor was

939
00:50:04,151 --> 00:50:06,631
Speaker 1: quoted saying that it was entirely possible that most readers

940
00:50:06,631 --> 00:50:09,831
Speaker 1: would look at the report and yawn. The Saint Petersburg

941
00:50:09,871 --> 00:50:12,910
Speaker 1: Time Times asked whether anyone other than political junkies would care.

942
00:50:13,591 --> 00:50:16,471
Speaker 1: In The Washington Post, media critic Howard Kurtz said the

943
00:50:16,551 --> 00:50:22,190
Speaker 1: recount now felt like some distant Civil war battle. There

944
00:50:22,230 --> 00:50:24,710
Speaker 1: was good reason to be skeptical about the public's appetite

945
00:50:24,710 --> 00:50:28,270
Speaker 1: for relitigating the election. Maybe you've already done the math

946
00:50:28,311 --> 00:50:30,911
Speaker 1: in your head, But the first anniversary of November two

947
00:50:30,951 --> 00:50:34,431
Speaker 1: thousand was November two thousand and one, So two months

948
00:50:34,431 --> 00:50:36,591
Speaker 1: after the September eleventh attacks.

949
00:50:36,511 --> 00:50:39,470
Speaker 27: Try to remember the kind of September we just had.

950
00:50:43,791 --> 00:50:47,230
Speaker 27: What consumed us last December is a paragraph for history now.

951
00:50:47,431 --> 00:50:50,231
Speaker 1: A reason George Bush's approval rating was close to ninety percent.

952
00:50:51,270 --> 00:50:53,871
Speaker 1: A poll published in early November showed that if the

953
00:50:53,911 --> 00:50:57,151
Speaker 1: election was held again, Bush would beat Gore nationally by

954
00:50:57,190 --> 00:51:02,271
Speaker 1: twenty six points. Even Gore's former campaign chairman, Bill Day

955
00:51:02,551 --> 00:51:04,671
Speaker 1: said that anyone who was still speculating what the election

956
00:51:04,750 --> 00:51:08,471
Speaker 1: results was wasting their breath. On the editorial page of

957
00:51:08,471 --> 00:51:12,391
Speaker 1: the Tampa Tribune, both parties received praise for showing restraint

958
00:51:12,710 --> 00:51:14,591
Speaker 1: at a time when the core temperature of the former

959
00:51:14,631 --> 00:51:18,830
Speaker 1: World Trade Center still hovered near one thousand degrees in

960
00:51:18,911 --> 00:51:22,710
Speaker 1: subsequent years. Whenever anyone asked Justice Antonin Scalia about the

961
00:51:22,750 --> 00:51:25,991
Speaker 1: Court's decision in Bush v. Gore, he would respond, get

962
00:51:26,031 --> 00:51:29,591
Speaker 1: over it. In his book on Justice O'Connor, Evan Thomas

963
00:51:29,631 --> 00:51:32,711
Speaker 1: reported that Scalia privately referred to the equal protection argument

964
00:51:32,951 --> 00:51:36,071
Speaker 1: used to end the Florida recount as a piece of shit.

965
00:51:59,151 --> 00:52:02,471
Speaker 1: Fiasco is a production of Prolog Projects, and it's distributed

966
00:52:02,511 --> 00:52:06,471
Speaker 1: by Pushkin Industries. The show is produced by Andrew Parsons,

967
00:52:06,710 --> 00:52:11,511
Speaker 1: Madeline kaplan Ula Culpa, and me Leon Nathan. Our script

968
00:52:11,631 --> 00:52:15,591
Speaker 1: editor was Daniel Riley. Our editorial consultant was Camilla Hammer,

969
00:52:16,031 --> 00:52:19,991
Speaker 1: and we received additional editorial support from Lisa Chase. Our

970
00:52:20,071 --> 00:52:22,791
Speaker 1: music and score are by Nick Silvester of god Mode,

971
00:52:22,991 --> 00:52:26,911
Speaker 1: with additional music from Alexis Quadrado. Our theme song is

972
00:52:26,911 --> 00:52:30,391
Speaker 1: by Spatial Relations. Our artwork is by Teddy Blanks at

973
00:52:30,511 --> 00:52:35,071
Speaker 1: Chips and y Audio, mixed by Rob Buyers, Michael Raphael

974
00:52:35,230 --> 00:52:38,871
Speaker 1: and Johnny Vince Evans. A final Final V two special

975
00:52:38,871 --> 00:52:42,551
Speaker 1: thanks to Luminary for a list of books, articles, and

976
00:52:42,591 --> 00:52:45,631
Speaker 1: documentaries that we relied on in our research. Click the

977
00:52:45,671 --> 00:52:49,271
Speaker 1: link in the show notes. Thanks to c SPAN, NBC

978
00:52:49,391 --> 00:52:52,631
Speaker 1: News Archive, CNN and Channel twenty and Palm Beach for

979
00:52:52,710 --> 00:52:56,431
Speaker 1: the archival material you heard in today's show. Thanks for listening.

980
00:53:10,551 --> 00:53:11,230
Speaker 23: I don't know