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DECEMBER 12, 2000

With the clock ticking on a final resolution to the ongoing Presidential dispute, a decision by the United States Supreme Court is expected as early as today.

The nine justices will meet this morning to consider arguments in Texas Governor George W. Bush's attempt to put a permanent stop to the manual recount of an estimated 43,000 Florida ballots. But if yesterday's historic 90-minute question and answer session is any indication, the justices are as divided on the issue as they were when the Court barely agreed to accept the case.

Grilling of Bush's argument began immediately by Justice Anthony Kennedy, an often conservative and swing voter on the bench. He questioned Bush's premise that the Florida Supreme Court has overstepped its bounds by ordering the recount and by extending the state's certification.

"To say that the legislature of the state is unmoored from its own constitution and it can't use its courts and it cant use its executive agency -- even you, your side, concedes it can use a state agency -- it seems to me a holding which has grave implications for our republican theory of government," said Kennedy.

Kennedy's concerns were also echoed by Justice Sandra Day O'Connor. Considered another swing voter, O'Connor had tough questions for lawyers of both Bush and Vice President Al Gore.

In particular, she challenged Gore's argument that the Florida Supreme Court was just doing its job by interpreting state law, apparently without regard for the powers granted to every state legislature by the US Constitution.

"You are responding as though there were no special burden to show some deference to legislative choices in this one context," she said to Gore lawyer David Boies. "In the context of selection of presidential electors, isn't there a big red flag up there: 'Watch out'?"

Indeed, a red flag has already been raised as the deadline for resolving the dispute nears. The Electoral College meets on December 18, but federal law says states should names their electors by today and on Monday, the two houses passed resolutions agreeing to name Bush electors.

But there too, the decision was divided. In a Senate committee, the vote of 4 to 3 was split along party lines, with Republicans naturally voting in favor of the resolution. In the House, however, one Democrat joined the Republicans, voting 5 to 2 to name Bush electors.

As the Supreme Court meets again this morning, a potential outcome might be a compromise to the issue, rather than a complete victory for either Bush or Gore. The Court might allow for recounts to occur, but in a limited fashion and with a uniform standard applied by all counties. Such a compromise might alleviate concerns raised by Justices David Souter, Ruth Bader Ginsberg, and Stephen G. Breyer.

Read/Hear the Supreme Court Hearing:
Real Audio of Supreme Court Hearing
Full Text Transcript of Supreme Court Hearing

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