Not Looking Good For Gore

Al Gore attorney David Boies had barely introduced himself when the questions began. Chilly, frosty, skeptical questions about whether the court had the duty even to accept the case and decide the issues presented by the parties. That's not a good sign when you are an attorney with limited time trying to get a court to reverse a lower court and grant you extraordinary relief.

In fact, there weren't many bright signs for the Gore lawyers during the hour-long oral argument, which is the penultimate act in a lawsuit that more than any other case likely will decide the presidency.

Florida's Supreme Court justices clearly were spooked by the U.S. Supreme Court's decision earlier this week to remand the case back to them to evaluate more fully some federal law questions. And the state court clearly wasn't willing to automatically embrace its own jurisdiction over the case.

For a full 10 minutes the justices asked Boies to justify why the court should and could second-guess the state's legislators over the precise meaning of the laws which govern this dispute. For fully one-third of the Gore team's presentation, then, the justices weren't necessarily fussing over the merits of the recounts or the need for fairness and equity or even what parts of Circuit Court Judge N. Sanders Sauls' ruling the Gore lawyers were particularly peeved about.

When they finally did come around to the core Gore issues in the case, they only hinted about how receptive they are to the notion that they have a duty, as the Democrats contend, to count those ballots from Miami-Dade and Palm Beach and to add hundreds of additional already-counted votes to Gore's certified total. I didn't get the sense, as I did the last time this crew came before these justices, that the Democrats were getting a more sympathetic ear than were the Republicans.

It's true that several justices appeared troubled - and rightly so - that Judge Sauls accepted the ballots into evidence over the weekend but then refused to look at even one before rendering his decision. It's true that some justices seemed willing to at least consider exploring the contours of the recount position taken by Boies. And it's also true that several justices - three or four, I'd say - seemed a little skeptical of the legal standard - "reasonable probability" - the trial judge used to justify his decision not to count votes or add more votes to the Gore totals.

These are not small issues. About the only way this court can second-guess a trial judge is on legal issues like these. And if the court goes in this direction in this case, we very well may see some sort of a recount over the weekend. But I still see that as a long shot. There simply seem to be too many hurdles for the Democrats, and the justices, to overcome.

Which was what Bush attorney Barry Richard was only too happy to point out. Richard came to the argument sitting pretty, with a trial court decision ione pocket and a couple of key county canvassing board decisions in the other. It's always easier defending the status quo on appeal, because the entire judicial system is built upon the notion that appellate courts engage in only a limited review of trial courts.

Richard knows this, of course, which is why he told the justices that they ought not reverse Judge Sauls for "a garden variety appeal" and that they also had to defer greatly under Florida law to those local boards who decided either not to count ballots (Miami-Dade) or to count them using a strict standard about when a vote is a vote (Palm Beach).

The idea the Republicans emphasize is that for the court to accept the Democrats' position, it would have to rule that both the judge and those boards were wrong. Judges usually don't like to do that.

Richard, too, wisely kept reminding the justices of the weakness of the case the Democrats presented to Judge Sauls. Since the Democrats cannot with a straight face contend that they presented an overwhelming case for recounts over the weekend, they were left to argue to the justices that their case didn't have to be so good because the law is so favorable. But sometimes the law follows the facts and I think that if the justices are looking for something to hang their hats on. If they affirm Judge Sauls, it'll be the fact that the Gore folks couldn't or didn't produce even evidence to justify the help they were looking for from the court.

In any event, we will know soon enough, won't we?