WEBVTT - Bush v. Gore: Episode 6 – No Precedent 0:00:16.311 --> 0:00:23.231 Pushkin. Hey Leon here, Before we get to this episode, 0:00:23.431 --> 0:00:25.191 I want to let you know that you can binge 0:00:25.231 --> 0:00:28.591 the entire season of Fiasco Bush v. Gore right now 0:00:28.791 --> 0:00:33.071 ad free by becoming a Pushkin Plus subscriber. Sign up 0:00:33.111 --> 0:00:36.271 for Pushkin Plus on the Fiasco Apple podcast show page, 0:00:36.871 --> 0:00:44.111 or visit Pushkin dot fm slash Plus. Now onto the episode. 0:00:44.751 --> 0:00:46.830 Previously on Fiasco. 0:00:47.711 --> 0:00:49.871 Voce wins one round, Gore wins the next. 0:00:49.951 --> 0:00:51.231 It is a legal slugfest. 0:00:51.271 --> 0:00:55.631 We've gone from protest certification last night and now contest. 0:00:55.231 --> 0:00:59.590 Florida's ticking clock becomes a second adversary. December twelfth is 0:00:59.671 --> 0:01:02.511 key the dave Florida certifies it's electors. 0:01:02.671 --> 0:01:06.871 The Republican controlled state legislature scheduled a special session to 0:01:06.991 --> 0:01:10.031 name electors just in case the state Supreme Court rules 0:01:10.031 --> 0:01:11.231 against Cavador Borsch. 0:01:11.031 --> 0:01:13.951 By a vote of four to three, the majority of 0:01:13.951 --> 0:01:17.431 the court has ordered a manual recount of all under 0:01:17.511 --> 0:01:20.711 votes in any Florida county where such a recount has 0:01:20.751 --> 0:01:23.471 not yet occurred. The recount shall commence immediately. 0:01:23.711 --> 0:01:26.471 If you do not like political chaos, it's about time 0:01:26.551 --> 0:01:27.431 to head for the storm. 0:01:27.431 --> 0:01:35.151 Cell Sandra Dey O'Connor had a lot on her plate 0:01:35.191 --> 0:01:38.391 On November seventh, two thousand. It was election day, for 0:01:38.431 --> 0:01:40.831 one thing, and she had plans to attend a watch 0:01:40.871 --> 0:01:44.631 party at a friend's house. But first O'Connor was due 0:01:44.631 --> 0:01:46.111 at the United States Supreme Court. 0:01:47.111 --> 0:01:50.031 Well here argument now number ninety nine twelve fifty seven 0:01:50.151 --> 0:01:53.871 Carol M. Browner VERSUS American Trucking Association. 0:01:53.351 --> 0:01:55.911 Where she and the other eight justices were scheduled to 0:01:55.951 --> 0:01:58.911 hear oral arguments in a case involving the Clean Water Act. 0:01:59.111 --> 0:02:05.151 Now why would Congress want that advice on economic and 0:02:05.351 --> 0:02:06.231 energy efficts. 0:02:06.591 --> 0:02:09.151 O'Connor also had an important personal matter to attend to. 0:02:10.031 --> 0:02:12.471 Her husband, John had been sick, and she was trying 0:02:12.471 --> 0:02:13.911 to gather information in his condition. 0:02:14.951 --> 0:02:21.991 On election day, Sandra O'Connor spoke to her husband's neurologist 0:02:22.791 --> 0:02:26.270 for the first time about John's Alzheimer's. 0:02:26.471 --> 0:02:29.791 This is journalist Evan Thomas. He's the author of First, 0:02:30.231 --> 0:02:32.631 a Biography of Justice O'Connor, for which he interviewed her 0:02:32.671 --> 0:02:35.991 family members and former clerks, as well as her husband's neurologist. 0:02:37.311 --> 0:02:40.591 According to Thomas, John had been experiencing memory loss for 0:02:40.631 --> 0:02:43.311 several years, but he had been hesitant to call it 0:02:43.311 --> 0:02:46.551 what it was now. On the phone with his doctor, 0:02:47.151 --> 0:02:48.871 Justice O'Connor was trying to get a handle on her 0:02:48.911 --> 0:02:49.951 husband's diagnosis. 0:02:50.391 --> 0:02:53.751 John had finally started using the word Alzheimer's to talk 0:02:53.751 --> 0:02:57.991 about his condition, and she asked if there was perhaps 0:02:57.991 --> 0:03:03.951 some experimental program that he could be put into to 0:03:04.031 --> 0:03:07.751 keep the loss of memory away for as long as possible. 0:03:07.831 --> 0:03:10.351 Was there some kind of experimental program that could by 0:03:10.431 --> 0:03:10.990 him time? 0:03:11.911 --> 0:03:15.071 Sandra Dey O'Connor had a decision to make. She and 0:03:15.151 --> 0:03:17.871 her husband were both seventy years old, and she'd always 0:03:17.871 --> 0:03:20.471 thought that eventually they would move back to Arizona, where 0:03:20.471 --> 0:03:23.551 they had settled a few years into their marriage. If 0:03:23.591 --> 0:03:25.071 the two of them wanted to do that before his 0:03:25.151 --> 0:03:28.031 dementia got worse, O'Connor would need to retire from the 0:03:28.031 --> 0:03:31.511 Supreme Court sooner rather than later. The question was whether 0:03:31.591 --> 0:03:32.191 or not she could. 0:03:32.751 --> 0:03:35.831 They had considered retirement as early as nineteen ninety six. 0:03:36.831 --> 0:03:39.551 President Clinton was president, so they didn't want to retire 0:03:39.831 --> 0:03:41.111 while there was a Democrat there. 0:03:41.431 --> 0:03:44.351 O'Connor was a Republican, and if al Gore won the 0:03:44.391 --> 0:03:47.431 two thousand election, she knew that she would face enormous 0:03:47.431 --> 0:03:49.191 pressure to remain on the bench at least through his 0:03:49.231 --> 0:03:49.871 first term. 0:03:50.151 --> 0:03:52.671 According to her son Scott, they were at least thinking 0:03:53.151 --> 0:03:57.071 about retiring if there was a Republican president if Bush won. 0:04:01.871 --> 0:04:04.631 Good evening, President Reagan today named a woman to the 0:04:04.671 --> 0:04:06.911 Supreme Court and another barrier fell. 0:04:07.271 --> 0:04:10.591 O'Connor had been a justice for nineteen years. She was 0:04:10.631 --> 0:04:12.631 the first woman ever nominated at the Supreme Court. 0:04:13.111 --> 0:04:17.150 She is truly a person for all seasons, possessing those 0:04:17.231 --> 0:04:22.390 unique qualities of temperament, fairness, intellectual capacity, and devotion to 0:04:22.431 --> 0:04:22.831 the public. 0:04:22.911 --> 0:04:25.590 For years, O'Connor was a reliable member of the Court's 0:04:25.591 --> 0:04:28.591 conservative flank, but as the Court moved to the right 0:04:28.711 --> 0:04:31.911 under Reagan and George H. W. Bush, she increasingly found 0:04:31.911 --> 0:04:35.791 herself occupying the court's ideological center, and that was a 0:04:35.831 --> 0:04:36.711 powerful place to be. 0:04:37.271 --> 0:04:40.630 When Senator O'Connor was on the Court for many years, 0:04:40.671 --> 0:04:43.231 she simply was the swing justice at the Court. 0:04:43.791 --> 0:04:46.791 This is Dalia Lithwick, who writes about the law for Slate. 0:04:47.671 --> 0:04:50.511 Lithwick started covering the Supreme Court in nineteen ninety nine. 0:04:50.831 --> 0:04:55.791 She was a Reagan appointee who taxed left on affirmative action, 0:04:55.871 --> 0:05:00.071 on abortion, on church state separation. There was no case 0:05:00.391 --> 0:05:04.911 that wasn't decided in some ways by O'Connor if it 0:05:04.951 --> 0:05:06.190 was a five to four case. 0:05:06.631 --> 0:05:09.351 According to Lithwick, O'Connor didn't get a lot of respect 0:05:09.391 --> 0:05:09.871 from legal. 0:05:09.751 --> 0:05:16.111 Schot She was derided often in polls by snotty law 0:05:16.151 --> 0:05:19.151 students as the stupidest justice. I mean, people really didn't 0:05:19.231 --> 0:05:24.591 think she was, as a doctrinal matter, the smartest justice. 0:05:24.591 --> 0:05:27.591 But what she was was a pragmatist, and so she 0:05:28.591 --> 0:05:31.031 tended to sort of stand in the middle, four four 0:05:31.031 --> 0:05:34.031 on either side and say, what's going to fix this. 0:05:34.671 --> 0:05:37.071 O'Connor didn't like to be thought of as some unprincipled 0:05:37.111 --> 0:05:39.551 weather vane who turned whichever way the wind was blowing. 0:05:40.351 --> 0:05:42.311 Here again is Evan Thomas justice. 0:05:42.391 --> 0:05:47.070 O'Connor cared about the practical impact of the Supreme Court decision. 0:05:47.151 --> 0:05:51.631 She wasn't in love with doctrine. She didn't look closely 0:05:51.831 --> 0:05:55.311 at doctrinal consistency. Was she really cared about was the 0:05:55.391 --> 0:05:57.390 practical impact. How is this going to play in the 0:05:57.471 --> 0:06:00.391 real world. 0:06:01.191 --> 0:06:04.151 On election night two thousand, the O'Connors went to their 0:06:04.151 --> 0:06:06.791 friend's party and watched the returns on a television set 0:06:06.791 --> 0:06:10.711 in the basement den. Shortly before eight o'clock, the networks 0:06:10.711 --> 0:06:13.111 called Florida for Gore, a big. 0:06:12.831 --> 0:06:16.671 Call to make. CNN announces that we call Florida in 0:06:16.711 --> 0:06:18.031 the Al Gore column. 0:06:18.151 --> 0:06:21.151 This is a roadblock the size of a boulder to 0:06:21.231 --> 0:06:21.871 George W. 0:06:21.951 --> 0:06:22.791 Bush's path to. 0:06:22.751 --> 0:06:25.431 The White Given the rest of the electoral map, it 0:06:25.471 --> 0:06:29.510 looked like Gore was about to clinch the presidency. Two 0:06:29.511 --> 0:06:33.431 witnesses later told Newsweek that Justice O'Connor was visibly disappointed. 0:06:34.271 --> 0:06:36.551 This is terrible, she said, before leaving to get a 0:06:36.551 --> 0:06:40.671 plate of food. According to Newsweek, John O'Connor tried to 0:06:40.671 --> 0:06:42.911 clarify for the people still in the room that his 0:06:42.991 --> 0:06:45.831 wife was only upset because a Gore presidency would force 0:06:45.871 --> 0:06:49.590 her to wait another four years before retiring. But Gore 0:06:49.711 --> 0:06:52.951 was not elected president that night, and later, as all 0:06:52.991 --> 0:06:55.671 the lawsuits being filed in Florida were winding their way 0:06:55.711 --> 0:06:59.191 through county and circuit courts, O'Connor's son suggested to his 0:06:59.231 --> 0:07:01.591 mother that the recount battle could end up in front 0:07:01.591 --> 0:07:06.070 of the Supreme Court. It was a jarring thought. The 0:07:06.111 --> 0:07:09.390 Supreme Court was supposed to stay above politics. That was 0:07:09.391 --> 0:07:13.191 the premise of legitimacy as an institution. If O'Connor's son 0:07:13.231 --> 0:07:15.631 was right. If the Court got involved in a case 0:07:15.631 --> 0:07:18.391 that directly affected which party took control of the White House, 0:07:19.191 --> 0:07:23.431 that premise would be tested in dramatic fashion. But Justice 0:07:23.431 --> 0:07:26.151 O'Connor did not think that was going to happen, and 0:07:26.231 --> 0:07:34.831 she told her son he was being ridiculous. I'm leon 0:07:34.951 --> 0:07:39.751 Neefok from Prologue Projects and Pushkin Industries. This is fiasco 0:07:40.111 --> 0:07:40.591 Bush v. 0:07:40.751 --> 0:07:45.151 Gore, the lawyers for hold Gore and George W. Bush, 0:07:45.271 --> 0:07:46.991 pedant of the US Supreme Court. 0:07:47.151 --> 0:07:49.631 She was trying to save the country from what she 0:07:49.791 --> 0:07:51.871 saw as a car crack. 0:07:51.831 --> 0:07:55.031 Just as probably the most significant decision in thirty years. 0:07:55.191 --> 0:08:00.351 You cannot imagine a more chance, pressure packed moment. 0:08:01.351 --> 0:08:05.831 Episode six, our season finale. No Precedent How the two 0:08:05.871 --> 0:08:08.511 thousand election was put to rest in a Supreme Court 0:08:08.551 --> 0:08:11.671 case called Bush v. Gole, and how a ruling that 0:08:11.751 --> 0:08:16.431 was explicitly designed to set no precedent ended up changing everything. 0:08:24.511 --> 0:08:26.431 I didn't know this before I started researching the two 0:08:26.471 --> 0:08:29.751 thousand election, But Bush v. Gore was not the first 0:08:29.791 --> 0:08:31.991 lawsuit to crawl out of the swamps of the Florida 0:08:31.991 --> 0:08:35.231 recount and reach the U. S Supreme Court. I had 0:08:35.271 --> 0:08:37.351 always thought the Court swooped in at the very end, 0:08:37.871 --> 0:08:40.351 but this earlier case preceded Bush v. Gore by a 0:08:40.391 --> 0:08:41.591 full fifteen days. 0:08:42.631 --> 0:08:46.191 Drawing on very rarely used legal powers, the Supreme Court has, 0:08:46.231 --> 0:08:49.071 for the first time in American history, decided to step 0:08:49.070 --> 0:08:52.151 into a legal dispute in the midst of a presidential election. 0:08:52.471 --> 0:08:55.151 The case centered on the first big ruling handed down 0:08:55.151 --> 0:08:58.431 by the Florida Supreme Court during the recount. This was 0:08:58.430 --> 0:09:00.711 the one you heard about in episode three, the one 0:09:00.710 --> 0:09:03.551 that forced Secretary of State Catherine Harris to wait nearly 0:09:03.590 --> 0:09:06.430 two extra weeks before certifying the election results. 0:09:06.511 --> 0:09:07.310 Here's the latest. 0:09:07.471 --> 0:09:12.110 Florida's highest state court has blocked the Secretary of State certain. 0:09:12.151 --> 0:09:14.751 What it basically means in an opinion that justice has 0:09:14.790 --> 0:09:18.591 reached unanimously is that the hand counts continue, and the 0:09:18.631 --> 0:09:19.671 hand counts count. 0:09:20.151 --> 0:09:20.910 But the justice. 0:09:20.950 --> 0:09:23.230 The new deadline set by the Florida Supreme Court had 0:09:23.231 --> 0:09:26.871 briefly given the Gore campaign reason for hope. But the 0:09:26.871 --> 0:09:30.430 Bush team quickly appealed the ruling, and this time there 0:09:30.511 --> 0:09:32.751 was only one place left for the case to go. 0:09:32.830 --> 0:09:33.671 To, the U. S. 0:09:33.670 --> 0:09:34.391 Supreme Court. 0:09:34.910 --> 0:09:38.150 Bush is arguing that the state court overreached its authority 0:09:38.391 --> 0:09:41.231 and rewrote election law in a way that violates the 0:09:41.391 --> 0:09:42.350 US Constitution. 0:09:42.790 --> 0:09:45.190 In their petition to the U s Supreme Court, Bush's 0:09:45.271 --> 0:09:48.190 lawyers argued that by pushing back the certification deadline, the 0:09:48.231 --> 0:09:51.271 Florida Supreme Court had improperly changed an election law put 0:09:51.310 --> 0:09:54.310 in place by the Florida state legislature. In doing so, 0:09:54.710 --> 0:09:58.231 they had violated Article two of the Constitution and Title three, 0:09:58.310 --> 0:10:02.350 Section five of the US Federal Code. On November twenty fourth, 0:10:02.710 --> 0:10:04.830 the Supreme Court agreed to hear the case. 0:10:05.070 --> 0:10:08.030 A huge legal gamble pays off for the Bush campaign. 0:10:08.351 --> 0:10:11.231 Oral arguments were scheduled for December first, The battle for. 0:10:11.231 --> 0:10:15.070 The White House goes before the US Supreme Court, Bush gore, 0:10:15.751 --> 0:10:17.271 and a day for the history books. 0:10:18.910 --> 0:10:21.631 There was something momentous about the Supreme Court intervening in 0:10:21.670 --> 0:10:25.151 a presidential election. But by the time oral arguments rolled 0:10:25.190 --> 0:10:27.870 around in December first, the case had lost a lot 0:10:27.910 --> 0:10:31.991 of its urgency. The certification had come and gone. Catherine 0:10:31.991 --> 0:10:35.310 Harris had already declared Bush the winner. What difference did 0:10:35.310 --> 0:10:37.190 it make now whether the Florida Supreme Court had been 0:10:37.190 --> 0:10:40.951 wrong to set the new deadline. But Bush did not 0:10:40.991 --> 0:10:43.511 want to drop the case, and the Supreme Court kept 0:10:43.511 --> 0:10:44.190 it on the docket. 0:10:44.751 --> 0:10:47.590 We'll hear i arguement this morning in number eight thirty 0:10:47.670 --> 0:10:51.711 six George W. Bush versus the Palm Beach County Canvas. 0:10:51.991 --> 0:10:54.551 In oral arguments, the Gore side made the case that 0:10:54.590 --> 0:10:57.231 extending the deadline did not amount to passing a new law. 0:10:57.710 --> 0:11:00.190 It was merely a judicial interpretation of an existing law, 0:11:00.391 --> 0:11:02.151 something judges did all the time. 0:11:02.111 --> 0:11:05.310 As a way of shedding light on the provisions that 0:11:05.391 --> 0:11:07.751 are in conflict, so long as it's not done in 0:11:07.790 --> 0:11:09.950 a way that conflicts with a federal man. 0:11:10.670 --> 0:11:13.550 The Bush side made the opposite point. What if it 0:11:13.590 --> 0:11:15.950 had been the Florida State legislature that decided to change 0:11:15.950 --> 0:11:19.271 the date of the certification deadline, wouldn't that be considered 0:11:19.271 --> 0:11:21.751 a new law? Why was it any less of a 0:11:21.751 --> 0:11:24.231 new law just because it came from the Florida Supreme Court. 0:11:24.871 --> 0:11:26.830 Here's Ted Olsen speaking in oral arguments. 0:11:26.991 --> 0:11:29.790 I would emphasize that what the Florida Supreme Court did 0:11:29.871 --> 0:11:35.030 is basically essentially say rewriting the statute, were changing it. 0:11:35.351 --> 0:11:38.190 When they issued their ruing three days after oral arguments, 0:11:38.590 --> 0:11:40.951 the Supreme Court showed a reluctance to interfere with the 0:11:40.950 --> 0:11:41.871 proceedings in Florida. 0:11:43.111 --> 0:11:44.190 The case is submitted. 0:11:45.231 --> 0:11:48.550 The Supreme Court's historic hearing ended with a less than 0:11:48.710 --> 0:11:49.751 historic decision. 0:11:50.590 --> 0:11:53.390 Instead of weighing in on the constitutional issues at hand, 0:11:53.790 --> 0:11:55.830 the Court sent the case back to the Florida Supreme 0:11:55.910 --> 0:11:58.391 Court and asked them to provide an explanation of how 0:11:58.391 --> 0:12:01.751 they had reached their decision. Florida Supreme Court Chief Justice 0:12:01.830 --> 0:12:05.271 Charles Wells was puzzled by the request. The timing just 0:12:05.271 --> 0:12:06.670 didn't make sense to him. 0:12:06.950 --> 0:12:11.910 I talked the whole week before they their order that 0:12:12.030 --> 0:12:16.670 they were going to enter in order. Finding that the 0:12:16.790 --> 0:12:20.631 case had become moot, just dismissed that appeal. 0:12:21.151 --> 0:12:24.311 Instead, the Supreme Court was asking Wells and his colleagues 0:12:24.351 --> 0:12:26.230 to go back to the case and take another stab 0:12:26.271 --> 0:12:26.511 at it. 0:12:26.910 --> 0:12:30.991 They wanted us to revisit it, but we were busy 0:12:31.070 --> 0:12:34.190 visiting other something else at that point. 0:12:35.151 --> 0:12:37.631 You heard about the something else the Florida Supreme Court 0:12:37.710 --> 0:12:40.431 was busy with in our last episode. It was the 0:12:40.471 --> 0:12:43.910 contest lawsuit that the Gore team filed on November twenty seventh, 0:12:44.391 --> 0:12:47.110 after Catherine Harris certified the election for Bush. 0:12:47.190 --> 0:12:49.951 Good evening. It was like an earthquake in Florida. This afternoon, 0:12:49.991 --> 0:12:52.831 the Florida Supreme Court did a life saving exercise on 0:12:52.871 --> 0:12:54.791 al Gore's campaign to be president. 0:12:55.111 --> 0:12:57.910 This was the big one, the one that culminated on Friday, 0:12:57.950 --> 0:13:01.391 December eighth, in the Florida Court shocking both campaigns by 0:13:01.471 --> 0:13:04.310 ordering a last minute hand recount of every undervote in 0:13:04.351 --> 0:13:04.990 the state. 0:13:04.950 --> 0:13:08.151 A manual recount of the so called under votes, and 0:13:08.190 --> 0:13:11.111 they wanted in every part of the states sixty four counties, 0:13:11.391 --> 0:13:13.271 more than forty three thousand votes. 0:13:13.910 --> 0:13:16.790 Under votes, as you'll recall, refers to ballots that didn't 0:13:16.830 --> 0:13:19.950 register a vote for president, often because someone didn't punch 0:13:19.991 --> 0:13:23.391 through their ballot all the way. The Florida Court's ruling 0:13:23.471 --> 0:13:27.550 to manually review all these undervotes created instant uncertainty. With 0:13:27.670 --> 0:13:30.830 so many potential new votes, the race was anybody's game 0:13:30.871 --> 0:13:34.151 for the first time since election Day. The Bush team 0:13:34.190 --> 0:13:37.391 once again turned to the US Supreme Court, this time 0:13:37.511 --> 0:13:40.030 to file an emergency petition to halt the recount. 0:13:40.271 --> 0:13:44.231 The Bush campaign responds instantly, preparing a broad legal counter attack, 0:13:44.391 --> 0:13:47.550 hoping to stop the court ordered recount before it even begins. 0:13:48.070 --> 0:13:51.231 Ted Olsen, a Bush lawyer with years of experience, arguing 0:13:51.231 --> 0:13:53.670 before the Supreme Court thought it was obvious that the 0:13:53.710 --> 0:13:56.871 statewide manual recount could not be done fairly or quickly 0:13:56.950 --> 0:13:59.830 enough to make the electoral College deadline of December twelfth. 0:14:00.231 --> 0:14:04.751 It couldn't possibly be done. The earlier recount procedures of 0:14:04.991 --> 0:14:10.230 just four counties had been moving along very slowly. There 0:14:10.310 --> 0:14:13.430 was no chance that a statewide recount could be done 0:14:14.070 --> 0:14:17.071 by the time of that deadline, And so my concern 0:14:17.310 --> 0:14:20.631 was that the Florida Supreme Court was either ignoring those 0:14:20.710 --> 0:14:26.271 deadlines or wasn't paying sufficient attention to the legal impact 0:14:26.311 --> 0:14:27.311 of those deadlines. 0:14:28.751 --> 0:14:31.431 Bush's forty two page petition was filed at nine to 0:14:31.431 --> 0:14:34.951 eighteen pm on Friday, December eighth, mere hours after the 0:14:34.991 --> 0:14:38.591 Florida Supreme Court ruling was announced. When the petition reached 0:14:38.590 --> 0:14:41.791 the US Supreme Court, it fell to Justice Anthony Kennedy 0:14:41.911 --> 0:14:42.991 to decide what to do with it. 0:14:43.191 --> 0:14:46.471 The first step an emergency request to Justice Anthony Kennedy, 0:14:46.471 --> 0:14:49.031 who was assigned to that region, asking him to block 0:14:49.071 --> 0:14:51.871 the recount while the Court considers whether to take the case. 0:14:52.351 --> 0:14:55.271 Justice Kennedy was a Republican appointee with an independent streak, 0:14:56.231 --> 0:14:59.551 like Justice O'Connor, Kennedy was often a swing vote, though 0:14:59.551 --> 0:15:01.991 he was traditionally conservative on a lot of issues. He 0:15:02.031 --> 0:15:05.471 also liked to surprise people. Here again is Dahalia Liithwick. 0:15:06.111 --> 0:15:08.911 I think the two of them were very much what 0:15:08.991 --> 0:15:12.551 I would call now kind of country club Republicans, the 0:15:12.791 --> 0:15:17.591 kind of eighties Republicans who were socially conservative but not 0:15:19.231 --> 0:15:24.551 rabid movement conservatives the way we've seen. But Kennedy as 0:15:24.551 --> 0:15:27.951 a swing justice was very different. Kennedy was a reliable 0:15:28.031 --> 0:15:31.991 vote for conservative outcomes, but on a handful of cases, 0:15:32.631 --> 0:15:36.110 most notably you know the gay marriage case that came 0:15:36.151 --> 0:15:39.911 about after Bush vy Corp. He would defect and vote 0:15:40.391 --> 0:15:41.671 with the left wing of the Court. 0:15:42.551 --> 0:15:45.911 After the Bush lawyers filed their petition, Justice Kennedy wanted 0:15:45.951 --> 0:15:48.751 Chief Justice Ranquist to call conference as soon as possible 0:15:48.751 --> 0:15:49.870 so they could discuss the case. 0:15:50.991 --> 0:15:56.671 Well, I was in Washington in my office, and I 0:15:56.671 --> 0:15:59.591 remember the Chief Justice called me and told me that 0:16:00.111 --> 0:16:01.470 we should have a conference. 0:16:02.031 --> 0:16:06.511 That's former Supreme Court Justice John Paul Stevens. Stevens retired 0:16:06.551 --> 0:16:09.590 from the Court in twenty ten. I interviewed him in 0:16:09.631 --> 0:16:12.791 twenty nine nineteen, just a few months before he died 0:16:12.830 --> 0:16:14.271 at the age of ninety nine. 0:16:14.791 --> 0:16:17.551 During the year I came down here to Florida and 0:16:17.590 --> 0:16:21.991 we had this place down here, and my wife and 0:16:22.511 --> 0:16:27.630 two daughters were planning to fly to Florida on that Saturdays. 0:16:27.671 --> 0:16:30.791 I remember Stevens, who was one of the most liberal 0:16:30.791 --> 0:16:33.191 members of the Court, was skeptical that they needed to 0:16:33.231 --> 0:16:36.711 intervene in the Florida recount. The only justification for doing 0:16:36.710 --> 0:16:39.470 so would be if Bush, the petitioner, was at risk 0:16:39.511 --> 0:16:41.990 of suffering irreparable harm if the vote counting were allowed 0:16:42.031 --> 0:16:44.951 to go on. Stephens didn't see how that was possible, 0:16:45.431 --> 0:16:47.871 and he made his feelings clear to Chief Justice Reanquist 0:16:47.871 --> 0:16:48.631 on Friday evening. 0:16:49.071 --> 0:16:52.951 I told him that the request for a stay did 0:16:53.071 --> 0:16:56.351 the same to have any merit because there was no 0:16:56.471 --> 0:17:00.391 showing a veryrreal injury, and I thought I would like 0:17:00.431 --> 0:17:03.431 to go ahead with my plans and my family. 0:17:04.391 --> 0:17:08.031 Ranquist told Stephens that their conservative colleague Anthony Scalia, known 0:17:08.071 --> 0:17:11.031 to his friends as Nino, felt strongly that the petition 0:17:11.031 --> 0:17:12.350 should get a hearing right away. 0:17:12.791 --> 0:17:16.511 He told me, as I remember that Nino thought the 0:17:16.590 --> 0:17:19.150 issue was a serious one and we ought to have 0:17:19.191 --> 0:17:22.110 a conference on it. So we should plan on meeting 0:17:22.590 --> 0:17:24.031 the following morning. 0:17:24.551 --> 0:17:28.391 Justice stevens vacation was canceled. He wasn't going to Florida. 0:17:28.951 --> 0:17:43.951 Florida was coming to him. On the morning of Saturday, 0:17:43.951 --> 0:17:47.791 December ninth, county canvassing boards all over Florida pulled out 0:17:47.791 --> 0:17:50.311 their boxes of month old ballots, plugged in their vote 0:17:50.350 --> 0:17:53.950 counting machines, and started the process of separating out their undervotes. 0:17:54.551 --> 0:17:57.630 You are looking right now at a live picture of 0:17:57.711 --> 0:18:01.150 the Leon County Library in Tallahassee, Florida. That's where a 0:18:01.271 --> 0:18:05.071 manual recount of some nine thousand, so called under votes 0:18:05.071 --> 0:18:07.551 from Miami Dade County is being counted. 0:18:07.630 --> 0:18:10.711 At this hour, some counties had thousand of under votes 0:18:10.751 --> 0:18:14.191 account while others had just a few dozen. The judge 0:18:14.231 --> 0:18:16.831 overseeing the process gave them all until the following day 0:18:16.870 --> 0:18:20.071 at two pm to get the job done. If the 0:18:20.110 --> 0:18:23.231 recount could be completed by Sunday, December tenth, that would 0:18:23.311 --> 0:18:25.751 leave Florida two whole days to seat its twenty five 0:18:25.751 --> 0:18:30.431 electors before the Electoral College deadline. As recounts got underway, 0:18:30.911 --> 0:18:33.950 representatives from the Bush and Gore campaigns fanned out across 0:18:33.951 --> 0:18:37.511 the state to monitor the proceedings. 0:18:38.671 --> 0:18:42.710 Demonstrators from both sides channed outside public buildings as public 0:18:42.791 --> 0:18:45.390 servants count ballots on the inside. 0:18:45.630 --> 0:18:48.910 Meanwhile, in Washington, the nine justices of the U. S. 0:18:48.911 --> 0:18:51.190 Supreme Court met in their conference room to discuss the 0:18:51.191 --> 0:18:55.071 Bush campaign's petition to stay the recount. It was obvious 0:18:55.150 --> 0:18:58.031 right away that the room was split along ideological lines, 0:18:58.590 --> 0:19:01.630 with Sandra Day O'Connor and Anthony Kennedy both joining the 0:19:01.630 --> 0:19:06.111 Conservatives in support of granting the stay. According to Evan Thomas, 0:19:06.551 --> 0:19:09.751 O'Connor was primarily motivated by desire to contain the chaos, 0:19:10.110 --> 0:19:11.271 for it got worse. 0:19:11.630 --> 0:19:14.311 In the moment. She was trying to save the country 0:19:14.511 --> 0:19:19.431 from what she saw as a car crash. That if 0:19:19.471 --> 0:19:22.470 the recount went on in the state of Florida, it 0:19:22.590 --> 0:19:27.311 was possible that Gore would get ahead. Then you would 0:19:27.311 --> 0:19:29.071 have two sets of electors. 0:19:29.590 --> 0:19:33.031 In this scenario, there would be two competing sets of electors, 0:19:33.590 --> 0:19:36.151 and the next president would be determined through partisan warfare 0:19:36.191 --> 0:19:40.311 in Congress. That was something O'Connor wanted to avoid. As 0:19:40.311 --> 0:19:42.791 the Supreme Court prepared to make the stay order, Public 0:19:43.431 --> 0:19:44.791 Justice Stevens was dismayed. 0:19:45.431 --> 0:19:50.031 I thought addressing this issue in this way would hurt 0:19:50.031 --> 0:19:56.190 the Court's reputation. The Court generally avoids unnecessarily participating in 0:19:56.311 --> 0:20:00.830 political controversies, and I thought here it was entering into 0:20:01.271 --> 0:20:02.631 uncharged territory. 0:20:05.630 --> 0:20:09.110 At two forty pm on Saturday, December tenth, news broke 0:20:09.150 --> 0:20:10.590 that the Court had grant Did the stay? 0:20:10.830 --> 0:20:11.991 Hang on one second, David. 0:20:11.991 --> 0:20:12.991 They're interrupted me now. 0:20:13.271 --> 0:20:15.950 Bob Franken at the US Supreme Court in Washington has 0:20:15.991 --> 0:20:18.191 a bit of news. Bob, what are they saying up there? 0:20:18.711 --> 0:20:21.630 Very big news. The US Supreme Court has agreed to 0:20:21.671 --> 0:20:24.471 put a stay on the recount in Florida. 0:20:24.751 --> 0:20:27.511 There are a few hundred county election workers across this 0:20:27.630 --> 0:20:29.631 state rather bewildered right about now. 0:20:30.071 --> 0:20:32.590 Most of the canvassing boards throughout Florida were still counting 0:20:32.590 --> 0:20:33.190 at this point. 0:20:33.271 --> 0:20:36.271 I understand this is a live pixture from Cager County, Florida, 0:20:36.311 --> 0:20:39.830 where the recount has in fact stopped because of the 0:20:39.951 --> 0:20:41.751 order of the US Supreme Court. 0:20:42.110 --> 0:20:43.711 If it says stop, I'm going to stop. 0:20:43.911 --> 0:20:46.430 In fact, we're stopping right now until I see if 0:20:46.431 --> 0:20:47.591 we need to keep on stopping. 0:20:48.150 --> 0:20:50.470 A few counties had finished, and a few had not 0:20:50.590 --> 0:20:54.311 yet managed to start. David Boys, one of Gore's most 0:20:54.350 --> 0:20:57.350 trusted attorneys, was at a sports bar called Andrews in 0:20:57.390 --> 0:20:59.791 Tallahassee when he saw the news on one of the 0:20:59.791 --> 0:21:01.710 TV screens, and I thought it was a mistake. 0:21:02.630 --> 0:21:07.390 It just didn't seem possible that the United States Supreme 0:21:07.431 --> 0:21:12.431 Court was going to inter in this election to pick 0:21:12.431 --> 0:21:16.551 the winner, and to do so without even hearing argument. 0:21:17.271 --> 0:21:19.791 They're going to stop the votes from being counted. 0:21:19.791 --> 0:21:23.031 Was obviously presented by Justice Kennedy, Anthony Kennedy, who's in 0:21:23.150 --> 0:21:25.470 charge of this area. I'm reading now it is ordered 0:21:25.671 --> 0:21:28.551 that the mandate of the Floria State Supreme Court is 0:21:28.630 --> 0:21:30.630 hereby stayed pending further. 0:21:31.350 --> 0:21:34.191 It is another dramatic twist in this election saga, now 0:21:34.271 --> 0:21:37.031 thirty two days old, a saga that has left. 0:21:36.870 --> 0:21:39.431 The campaigns, the candidates, and the. 0:21:39.350 --> 0:21:42.351 Country on an extraordinary roller coaster ride. 0:21:42.231 --> 0:21:43.551 That he is not over yet. 0:21:45.471 --> 0:21:49.230 Ordinarily, a stay is a stopgap measure, a way for 0:21:49.350 --> 0:21:51.590 judges to freeze the situation in place until they have 0:21:51.590 --> 0:21:54.670