Legal avenues closing for Gore

Concession likely if Supreme Court rules in Bush's favor

`Their voice is final'

Election 2000

December 11, 2000|By Paul West | Paul West,SUN NATIONAL STAFF

WASHINGTON - What will likely be Al Gore's last campaign speech is being given today - not by the vice president, but by one of his lawyers.

Gore's pitch will be delivered in the muffled, velvet-trimmed chamber of the U.S. Supreme Court, whose members have telegraphed the "substantial probability" that they will vote in favor of George W. Bush, according to Justice Antonin Scalia.

Unless the justices uncork the biggest surprise of all in the improbable postelection battle, Gore will be out of realistic options, both legal and political, for fighting on.

"If the Florida Supreme Court's opinion is reversed and the United States Supreme Court says no more votes are going to be counted, then that's the end of it," said David Boies, the lawyer who will argue Gore's case this morning.

"We have repeatedly said that we wanted to have a rule of law that tested whether or not we have the right to have those votes counted," Boies said on NBC. "The United States Supreme Court is the top court in the land. Their voice is final. They have the power to decide this."

A decisive ruling could come as early as this afternoon or evening, according to legal analysts. Gore advisers have said privately that a concession speech might follow very quickly after that.

Yesterday, Gore, a self-imposed prisoner in his official residence here for much of the past month, attended church services in Northern Virginia and conferred with his lawyers and campaign aides. Last evening, he welcomed guests at the first in a series of annual holiday parties, while a small but vocal band of Republican protesters chanted outside.

The vice president has been variously described in recent days by intimates as resolute, upbeat, combative and relaxed. Former Secretary of State Warren Christopher, a Gore legal adviser, characterized him as "very calm and collected" and "very businesslike" after the Supreme Court all but snuffed out Gore's last chance with its order Saturday that shut down the Florida recount.

Continuing his hands-on involvement in the fight, Gore decided during the weekend to replace Harvard Law Professor Laurence Tribe, who failed to persuade the justices to rule for the vice president the first time the case was argued before the court, with Boies. Gore made the switch on Christopher's recommendation, according to a member of the vice president's legal team.

For the record, Gore and his lawyers remain hopeful about the possibility of persuading at least one Supreme Court justice to change his or her mind and allow the count to continue, aides say.

Scalia's blunt suggestion that a majority of the court favors Bush, has "given us a hill to climb," Boies acknowledged. "Hopefully," the justices can be persuaded not to become a "super court to decide Florida election law" and instead leave that responsibility in the hands of the Florida Supreme Court, he added.

Gore remains convinced, as he has said publicly, that more Floridians intended to vote for him on Election Day than for Bush, according to his advisers. And Gore's lawyers advanced the argument, in their Supreme Court brief, that the legitimacy of the next administration would be damaged by a failure to resume the recount.

"We think it would really cast a cloud over the next president if it turned out that the wrong person was in" the White House, said Doug Hattaway, a Gore spokesman.

The vice president's aides say the disputed ballots in Florida eventually will be counted by news organizations, academic researchers or others who could gain access to them under the state's public records law.

"The only question is: Will they be counted before the Electoral College casts its votes [next Monday] or afterwards," said one of Gore's lawyers, who briefed reporters on the condition he not be identified.

Gore campaign officials sidestepped the question of exactly when the vice president might abandon his quest, if, as expected, the court rules against him.

Senate Democratic Leader Tom Daschle of South Dakota, in a CBS interview, declined to push publicly for a swift concession by Gore, in that event, while acknowledging it "would be difficult" for Gore to continue after a Supreme Court defeat.

Many in both parties are clearly ready for the legal wrangling to stop and are expecting an end to the election dispute within the next day or two.

"I hope in the next 24 hours this comes to a close," Democratic Sen. Robert G. Torricelli of New Jersey said on "Fox News Sunday."

He called on Bush and Gore to meet in a public display of national unity soon after the election is resolved.

Democratic Sen. Bob Graham of Florida warned of the danger of more verbal attacks on judges, both in his state and on the Supreme Court bench, who are being accused by supporters of both candidates of allowing partisanship to color their decisions.

"One of the worst things that might come out of this long process," he said, would be if "basic institutions, particularly the rule of law as expressed by our highest courts," are "degraded."

Republican Gov. Frank Keating of Oklahoma also expressed concern about a loss of public respect for the legal system if the Supreme Court splits 5-to-4, largely along ideological lines, in the presidential election case.

"It would be better if the decision were unanimous," he said.

But "that's probably not going to happen," added Keating, a leading contender to become attorney general in a Bush administration.

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