For Every Cheer, There’s a Jeer From the Other Camp

If there is a single message in the explosive rulings from the Florida Supreme Court on Friday and the U.S. Supreme Court on Saturday, it may be that neither George W. Bush nor Al Gore can now win the presidency in a way that most supporters of the other will view as fair.

“It’s a terrible ending, and it’s terrible for both of them,” said Republican consultant Scott Reed, the campaign manager for Bob Dole in 1996. “It’s put a whole new layer of cloud over whoever ultimately wins.”

On Friday, Republicans immediately denounced the 4-3 Florida Supreme Court ruling authorizing further hand recounts as a partisan effort to rewrite the law and an act of “judicial aggression.” On Saturday, Democrats were just as outraged when the U.S. Supreme Court, on an equally polarized 5-4 vote, stopped the recounts only hours after they had begun.

Though no one could predict the course of those recounts, analysts in both parties believe they might have provided Gore a lead in Florida by today that could have changed public opinion.

Indeed, in an unusual aside, Supreme Court Justice Antonin Scalia argued Saturday that one reason for stopping the recount was to prevent a potential Gore lead from undermining the legitimacy of a Bush presidency if the U.S. high court ultimately rules against including the result of the hand tabulations.

Democrats immediately said that, by stopping the count, the conservative majority on the U.S. Supreme Court paradoxically ensured the result Scalia sought to avoid--in effect, guaranteeing that many Americans would question a victory for Texas Gov. Bush achieved after a last-minute decision to derail the hand counts.

“[Scalia] doesn’t want to have the legitimacy of [a potential Bush] presidency undercut by the fact that people will know there were more votes for Vice President Gore than there were for Gov. Bush in Florida,” David Boies, Gore’s lead attorney, argued Saturday. “We don’t think that’s the right way to look at it. We think the right way to look at it is the way the four dissenting [Supreme Court] justices looked at it: that the legitimacy of any president that’s elected is going to be impaired unless the American people understand there has been a full and fair count of all the votes.”

The problem for the next president may be that there is probably no count of the votes that all Americans will now view as full and fair. Nor, with these narrow rulings, are there any institutions, even the highest courts in the state and the nation, that now are viewed as above the fray. Just as Republicans denounced the state Supreme Court ruling as an effort to rewrite the law, Sen. Patrick J. Leahy (D-Vt.) on Saturday denounced the U.S. Supreme Court ruling as “extreme judicial activism” that would diminish the court’s “moral posture” for years.

With such words already echoing across the airwaves, it hardly seemed like an exaggeration when Heather Gerken, an assistant professor at Harvard Law School, said, “I now actually think the courts are not going to manage to elude the partisan muck.”

As Republicans quickly note, all seven of the Florida Supreme Court justices were appointed by Democratic governors; Democrats note that seven of the nine U.S. Supreme Court justices--and all five who voted for Bush on Saturday--were appointed by Republican presidents.

For Gore, the U.S. Supreme Court ruling was especially crushing because the hand counts had put him within hours of possibly fulfilling one of his most elusive goals since election day: taking a lead, even unofficial, in Florida.

Throughout this draining struggle, Gore advisors have believed that they could win public opinion if they could produce a vote count that showed the vice president ahead--even if the question of whether those votes would be included in the official result remained unresolved. In effect, they have believed that taking the lead would legitimize the process of counting votes.

“If you get a count that comes up with a different number that shows Gore ahead, that number will be ingrained in people’s minds, the way 537 [Bush’s lead in the result certified Nov. 26] is ingrained in people’s minds now,” Gore communications director Mark D. Fabiani said only hours before the Supreme Court halted the recounts. “You will move instantly to a whole different universe.”

The Gore team so strongly believed that proposition that it released a partial result Saturday afternoon from 13 counties that showed Gore gaining 58 votes; Republicans immediately charged that the disclosure violated Leon County Circuit Judge Terry P. Lewis’ order Saturday barring the release of any running tally.

Most Republicans agreed that newspaper headlines today or Monday potentially showing Gore ahead could have strengthened the vice president for the endgame of this extraordinary political war.

“In all the data we’ve done, the middle--the normal 40% of the country that are not hard-core partisans--say something like, ‘Hey, hey. It was really close, but Gore lost. He’s never been ahead,’ ” GOP pollster Bill McInturff said. “But all of this is based on that there has never been a time that has showed Bush behind. . . . The worst fear is that . . . the unofficial [Associated Press] counts would come out showing Gore pushing ahead.”

If the recounts had pushed Gore ahead, Democrats believe that would have made it tougher for the Republican-controlled Florida Legislature to approve legislation directly allocating the state’s 25 electoral votes to Bush.

One highly placed Florida Senate Republican aide disputed that, saying that even a Gore lead would not have stopped the Legislature from acting on the grounds that the legal disputes surrounding the election remained unresolved.

“Bush has been ahead since the 7th of November. Has that changed anything? It hasn’t,” the aide said. “Obviously, all the media trucks are still here; everybody is here. To say now, once Gore goes ahead, does that make finality? I would say no.”

But other leading Republicans believe a Gore lead would have changed the landscape for the Florida Legislature. “I think there would be a big-time backlash, and it would be very damaging not only to members of the Legislature but to the party as a whole,” said Tom Slade, the former state GOP chairman. “If Gore is perceived by this country as the clear winner of the election and the Legislature certifies Bush, there would be a lot of negative political fallout from this.”

Some think that if Gore had moved ahead, even the U.S. Supreme Court might have been forced to think twice about overturning the Florida high court’s decision--and in effect nullifying a popular vote count that would have put Gore in the White House.

Perhaps the clearest effect from a Gore lead would be the difficulty it would present for Bush to gain legitimacy, even if the U.S. Supreme Court ultimately ruled those votes didn’t count.

Scalia, perhaps the court’s most conservative member, acknowledged that point Saturday in his concurring opinion: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.”

Yet Gerken noted that if the Supreme Court, in a 5-4 conservative-liberal split, backs Bush and overturns the Florida Supreme Court, it could summon that cloud itself. “It makes it even harder on Bush to govern . . . to have five Republicans [on the Supreme Court] ruling in his favor with two Republicans and two Democrats dissenting,” she said.

The reverse, though, is true as well. Even if the U.S. Supreme Court upholds the Florida high court’s ruling, Republicans now are so convinced that the state court is displaying partisan motivations that there seems virtually no prospect that GOP supporters will consider a Gore victory legitimate. “It just gets uglier from here on out,” said Tom Cole, the chief of staff at the Republican National Committee.

That may be one of the few sentiments on which both parties still can agree.

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Times Washington Bureau Chief Doyle McManus contributed to this story.