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Close To The Vest

Britain's Queen Elizabeth II, descending aircraft stairs, is greeted by Netherlands' Queen Beatrix upon her arrival at Rotterdam airport, Netherlands, Feb. 5, 2007. Queen Elizabeth made a one-day visit to mark the 400th anniversary of Amsterdam's English Reformed Church.
AP
Maybe the Supreme Court justices were just being diplomatic. Maybe they were just giving lip service to the notion of judicial and political impartiality. Perhaps they simply wanted to put on a good show for the nation before putting the hammer to Vice President Al Gore.

Or maybe, just maybe, the court's upcoming ruling in this post-election dogfight isn't the foregone conclusion in favor of George W. Bush that some predicted it would be when five justices voted Saturday to stop the manual recounts pending a ruling on the merits of the case.

Instead, it looks more and more likely that the court's decision will be as close and as unpredictable as was the election which preceded it. That's my humble if limited conclusion after listening to 90 riveting minutes of oral argument Monday in Bush v. Gore — the seminal case of our generation.

As usual, the justices exhibited their uncanny knack for zeroing in on the weakest part of each side's case and rooting around for a raw nerve.

As usual, Justice Clarence Thomas said nothing. As usual, Justice Antonin Scalia was witty and Justice David Souter gracious. As usual, Chief Justice William Rehnquist was prompt.

And, as usual, the attorneys for both candidates did a marvelous job of answering questions with a dodge, a parry and a thrust. I cannot imagine an oral argument that was more precise, more professional and more profound than this one.

Meanwhile, justices Anthony Kennedy and Sandra Day O'Connor — the two key swing votes on this court in this case — tipped their hands in so many different directions that it's virtually impossible to tell which way they will go.

For instance, the pair peppered Bush attorney Theodore Olsen with the first eight questions of the session, expressing doubt about the role of federal courts in deciding a matter of state law.

On the other hand, the pair also were tough with Gore counsel David Boies. The asked him repeatedly to defend the scope of the Florida Supreme Court decision and its relation to federal law. They demanded he justify the ambiguous standard that court set to determine when an "undervote" ballot can be counted as a vote, and explain how the standard could be used — or if it even exists.

If Kennedy and O'Connor are leaning in any one particular direction, it was not immediately apparent.

What was apparent, however, is that Scalia meant what he wrote Saturday when he expressed grave misgivings about the Gore case. Alone among the Justices, I thought, Scalia didn't seem even remotely receptive to any part of the Democratic argument that, at a minimum, the court should send the case back to Florida with instructions to that court to set good standards for ballot counting.

At one point, he told Boies "It doesn't make any sense to me." At another point, he told the Gore attorney, "That's just not rational."

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  • But I also found it interesting that on at least two occasions other justices (including O'Connor) stepped in and answered questions posed by Scalia in a way which helped the Gore attorneys.

    This suggests to me that perhaps Scalia is not necessarily leading four other justices down the path to a Bush victory buis instead (probably with the silent Thomas) somewhat isolated on many of these key issues.

    Remember, no other justice who voted for a stay over the weekend joined with Scalia in that remarkable concurrence he wrote.

    For Bush attorneys, the best news of the day was the persistent pressure put on Gore attorneys on the issue of the standards — or lack thereof — to be used to determine when a ballot is a vote in Florida.

    Clearly several justices — especially centrist David Souter — are troubled that the counting would be too arbitrary and subjective under the state standard endorsed by the Florida court, which suggests that vote counters should look for the "clear intent" of the voter.

    If a majority of those justices can't overcome this legal and logical hurdle, it is likely Gore will lose this case, and the presidency, on what the court likely would describe as equal protection and due process concerns.

    But talk of those standards wasn't all bad news for the Gore team. The court spent an inordinate amount of time, it seems to me, exploring the practical contours of a future recount after a remand of the case back to the Florida Supreme Court with instructions on how to perform that recount.

    Souter even told Boies, "I think we would have a responsibility to tell the Florida courts what to do about" those standards if the court were willing to embrace the Democrats' position.

    If the justices truly are serious about this possibility — and they sure seemed to be — this really gives Gore a chance to again avoid a knockout blow. I suspect that the Gore team would be delighted at the prospect of a recount under any reasonable standard, especially a recount all but authorized by the Supreme Court.

    Gore still faces an uphill battle with this court. It won't be easy getting a majority of these justices to authorize hand recounts in any circumstances and clearly there are institutional pressures at work to close down this fight once and for all.

    But I'd be willing to bet that the Democrats came away from the argument Monday feeling a little better about things than they did before it started. And I'd also be willing to bet that the Republicans were feeling a little uneasy about all that talk from the bench about trying to make a recount work legally and logistically.

    So, after five weeks of waiting, we wait some more.


    By ANDREW COHEN