Today's Papers

Oyez, Oy Vay

Everybody leads with this morning’s Supreme Court oral arguments, which the USA Today lead calls the court’s “unprecedented foray into electoral politics.” The New York Times and Los Angeles Times leads note that the case is actually called Bush v. Gore.

The USAT, LAT, and Washington Post leads, as well as the Wall Street Journal main election story, note that the Gore legal brief for the case says that if votes are not officially recounted now, they will be counted by researchers later, with the Journal and the Post noting that the brief points out that Florida’s “sunshine” law mandating access to public documents guarantees this. The NYT and WSJ explain that the Bush argument emphasizes that in its Friday decision green-lighting more recounts, the Florida Supreme Court failed to acknowledge that its previous ruling on the matter had been set aside by the U.S. Supreme Court and instead merely repeated the previously vacated errors of usurping the Legislature’s powers relating to presidential electors. The NYT makes it clear that the Gore position on this is that the state court was not making new election law, but rather interpreting and reviewing the pre-existing one. On the contrary, adds the Gore brief, reports the LAT, it would be a change in the law not to count all remaining ballots.

The two Times leads report that another Bush argument is that since the Florida courts failed to set a standard for ballot assessment, the manual recount at issue violates equal protection and due process guarantees. The LAT lead quotes a law professor saying that argument faces the problem that the United States does not have any uniform voting standards. Anthony Lewis makes the same point on the NYT op-ed page.

The Bush brief also claims that the Florida Supreme Court doesn’t have jurisdiction over appeals to election contest lawsuits. The NYT notes this is the third position the Bush lawyers have taken on this issue, and the WSJ makes a similar observation.

The WP goes highest with the argument used by both sides that ruling against them would taint the resultant presidency. The general sense of the coverage is that a Gore Supreme Court loss would mean the end of his campaign. The NYT lead has a Sunday chat show quote from Bush legal honcho James Baker saying, “We are going to follow the dictates of the United States Supreme Court. You can rest assured on that.” But the WP lead has Baker saying Bush might fight on if the court rules against him.

The LAT lead emphasizes the odds against Gore the most, stressing the Supreme Court’s reference on Saturday to a majority on it believing in Bush’s “substantial probability of success.” In commenting on the decision to have David Boies replace constitutional scholar Laurence Tribe in arguing the Gore case today, the LAT notes that Boies once lost to Tribe at the Supreme Court. The decision to go with Boies was, says the LAT, in part to underscore that this is a state case that raises no federal issues.

USAT fronts its own new poll showing that respondents are predictably divided on the merits of more manual recounts (49-47 percent against) but are “overwhelmingly” (61 percent) in favor of having the Supreme Court make the call, rather than Congress (17 percent), the Florida Supreme Court (9 percent), or the Florida Legislature (7 percent).

The WP lead saves until its penultimate paragraph mentioning that the Florida Supreme Court will receive briefs this morning on appeals to the losses suffered Friday by the plaintiffs in two lawsuits alleging Bush-favoring absentee ballot application irregularities. An inside story at the LAT says that although the odds are long, the Florida high court–which has already supported Gore twice–could still toss out 25,000 absentee ballots (most of them votes for Bush) and name Gore the state winner after hearing arguments in the matter today.

The election consumes the NYT op-ed page. There’s William Safire making the argument he’s made before–that it’s pointless for Gore to prolong since every post-Supreme Court step in the process–the Florida Legislature or the House of Representatives–yields Bush. To Safire, the court not only yields the same result quicker but also lends some of its own legitimacy to the political victor. That view is disputed not just by the aforementioned Lewis effort, which basically argues that the court’s contact with politics here doesn’t strengthen politics but instead weakens the court, but also by Bob Herbert, who sees its intervention as a “clumsily wielded hammer” on George W. Bush’s behalf, and Stanford law prof Pamela S. Karlan, who writes, “If Governor Bush is to win, ultimately, by one vote, fine. But let that one vote be cast by a Floridian, and not by a justice of the United States Supreme Court.”

An inside story at the WP says a wide range of legal scholars think the county’s not in a crisis yet. Maybe the real crisis is in what counts as legal scholarship. In the top-of-the-page LAT op-ed, a Yale constitutional law professor concludes that “if people make clear that they accept the new government, it will have all the legitimacy it needs.”