Chat Transcript: ABCNEWS Legal Analyst Jeffrey Toobin (Dec. 12, 2000)
Dec. 12, 2000 -- After weeks of courtroom wrangling, the presidential election is back in the hands of the U.S. Supreme Court as the nation awaits a ruling that will likely determine the outcome of the election. How might the court’s nine justices approach this case? Will politics play a role in their decision? ABCNEWS legal analyst Jeffrey Toobin joined us today in a live chat. The transcript appears below.
Jeffrey Toobin at 12:59pm ET
Hello, everyone. I'm joining you from the Supreme Court pressroom, so I will have to leave if there is a decision.
Moderator at 12:59pm ET
What did you make of yesterday's high court hearing? Are Al Gore's prospects any brighter than they were before?
Jeffrey Toobin at 12:59pm ET
Fundamentally, no. Five justices granted a stay, saying that they thought it was likely Bush would win on the merits. I didn't see anything to indicate that any of those five had changed their minds.
Moderator at 1:00pm ET
Which legal team, in your opinion, presented the better case?
Jeffrey Toobin at 1:00pm ET
I thought Ted Olson did a solid, effective job, and I think that David Boies was not exactly at the top of his game, and missed a few important opportunities.
Moderator at 1:00pm ET
Some say the court may forge a compromise ruling. What might this look like?
Jeffrey Toobin at 1:01pm ET
A compromise might instruct the Florida Courts to establish a single standard on what counts as a vote, but the only justices who seemed interested in such a compromise were in the minority in Saturday's opinion on the stay.
Scott Levine from mpowercom.com at 1:02pm ET
With regard to the "fairness" of counting the undervotes in a "uniform" manner, isn't this impossible since so many different types of ballots and different types of voting machines are utilized in the different counties of Florida? And wouldn't the creation of a standard used to count all of the votes be in essence a new law, since the Florida legislature only designated the "clear intent" of the voter?
Jeffrey Toobin at 1:02pm ET
Justice Ginsberg made that point at the end of yesterday's argument. It is hard to get too worked up about consistant standards on dimples, when there are entirely different systems of voting in different counties around the state. As to the second part of your quetion, that's a good point, although you could say that the voter's intent provision of the law sets a standard, and the refinements would just be interpretations. But your question was a concern raised by Justice O'Connor.
mark E from vcn.net at 1:04pm ET
I like Justice O'Conner's comment that basically pointed out that the criteria for determining a vote are posted in every polling booth - i.e. punch a hole. Do you think that whatever the ruling, this will open the floodgates for challenges on any, if not all, future elections, rendering the entire voting process irrelevant?
Jeffrey Toobin at 1:05pm ET
I think you're worrying too much. Everything about this election is extraordinary. However, I do think that the controversy will lead to changes in voting procedures, and it may lead to more challenges of results in elections.
Steve Kenned from il.us.prserv.net at 1:05pm ET
If the Supreme Court throws it back to Florida, what do you feel is the likely outcome?
Jeffrey Toobin at 1:06pm ET
In the unlikely event that Gore were to pull ahead in the recount you suggest, there would almost certainly be a slate of electors voted by the Florida Legislature. So Congress would almost certainly be involved in resolving the election.
OneVoice050 from netphase.net at 1:06pm ET
How serious is the blunder made by Mr. Klock yesterday?
Jeffrey Toobin at 1:07pm ET
Klock called two justices by their incorrect names in the space of about two minutes. It's hard to achieve immortality in the Supreme Court so quickly, but Klock managed to do it. I don't think it will have much impact on the results of the case, but Joe Klock will be answering questions about it for the rest of his life.
Moderator at 1:08pm ET
Hermes Galatis writes: "Why is the Supreme Court concerned with equal protection this time around? Didn't they turn down hearing that case?"
Jeffrey Toobin at 1:09pm ET
It's not exactly the same issue. The first case raised equal protection concerns about recounts, generally. The new case narrowed the issue to identical ballots being counted differently in different counties. According to Justice Souter, that's a serious equal protection concern.
Lwest from proxy.aol.com at 1:09pm ET
Why do you consider it an "unlikely event" that Gore would pull ahead in the recounts?
Jeffrey Toobin at 1:10pm ET
The whole history of recounts suggests that small changes are more likely than big changes. And Gore already had recounts in Palm Beach and Broward, which are the most heavily Democratic counties in the state.
Jim in Toledo at 1:10pm ET
In your book "A Vast Conspiracy," you wrote: "In the years since the Second World War, there has been a conspiracy within the legal system to take over the political system of the United States." Do you think the U.S. Supreme Court has become part of this trend wittingly or unwittingly, and why?
Jeffrey Toobin at 1:11pm ET
Thanks for the plug. I do think that this controversy does represent the culmination of the judicial system's increasing involvement in politics. Just look at the caption on the case: Bush vs. Gore. Who could have imagined such a thing in the United States Supreme Court?
Moderator at 1:12pm ET
Several people in our audience ask why Scalia didn't recuse himself from hearing the case given that his son works for Bush's lawyers. And James Garland writes: "Since Scalia told the press he would likely resign if Gore won, wouldn't that statement alone warrant recusal since a bias likely to effect outcome warrants such under federal law?"
Jeffrey Toobin at 1:13pm ET
I think that is a completely bogus issue. Scalia's son has every right to practice law at a big firm, like Gibson Dunn. Under long-established Supreme Court rules, Justice Scalia has no obligation to recuse himself. People ought to focus on the substance of issues, rather than invent meaningless ethical controversies. And James, I never heard that Scalia said anything like what you are suggesting.
Lynn from bbnplanet.com at 1:14pm ET
Do you feel that any damage has been done to the reputation of the Supreme Court or to the authority of the state Supreme Courts?
Jeffrey Toobin at 1:14pm ET
A real answer to that question will require some time to pass. Certainly, the U.S. Supreme Court has never been so intimately involved in an election, and the liberal-conservative split certainly suggests a political approach to the issues may have taken place.
SD from edgewd1.ky.home.com at 1:15pm ET
Any word from the court as to a possible time for a ruling?
Jeffrey Toobin at 1:15pm ET
All of us are sitting here in the Supreme Court, waiting, listening to rumors that have proven wrong, one after another. I look forward to talking with you all again after the decision is released.
Moderator at 1:18pm ET
Thanks, Jeff. And thanks to all of you who participated in this event! Jeff Toobin will join us again when we have a decision from the high court.
Moderated by ABCNEWS.com's Saira Stewart.