Clues sought in remarks from bench

By Susan Milligan, Globe Staff, 12/12/2000

ASHINGTON - A courtroom watched and a nation listened to Supreme Court Justice Sandra Day O'Connor yesterday, looking for signs that she might be the swing vote to give the advantage to Vice President Al Gore.

But the only thing that seemed clear from the Arizona justice was this: O'Connor appeared miffed that the Florida Supreme Court had yet to answer the concerns she and her colleagues raised a week ago, when they vacated the state-ordered recount.

''I did not find really a response by the Florida Supreme Court,'' O'Connor told Gore attorney David Boies. ''It just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they'd go ahead and adhere to them.

''And I find that troublesome,'' O'Connor said, which is court-speak for saying a justice is angry. As if they too had listened in, the judges of the Florida Supreme Court issued a clarifying opinion six hours later.

So it went yesterday, as legal observers and scholars tried to break the code of the Supreme Court's sometimes opaque questioning. The words of all the justices were fully parsed, but O'Connor and Justice Anthony Kennedy fell under the greatest scrutiny as the two swing justices who could give Gore another shot at his quest for the presidency.

Both justices sided with the majority in a 5-4 ruling Saturday to issue a stay stopping the Florida recount. Before yesterday's hearing, legal scholars called the stay a strong indication of where the justices were headed. But the nine justices, barraging lawyers from both sides with tough questions in the 90-minute session, did not give a clear signal of how they would rule.

The justices grilled Bush's lawyer, Theodore Olson, on whether there was truly a federal question raised, a necessary standard to involve a federal court. And they pressed Boies on the issue of whether the Florida court was wrongly making a new law when it extended the period of time for Florida counties to recount votes.

Gore's best chance, constitutional lawyers said, is that the high court accepts the argument of Bush's legal team: that recounting ballots violates the equal protection clause in the US Constitution because the standards differ from county to county.

But then, instead of simply halting the recount, the high court could order the Florida Supreme Court to set a uniform standard and allow the recount to commence, said Yale Law School professor Jack Balkin.

The equal protection argument ''kind of raises a new wild card that makes it hard to figure out where this is all going to go,'' said Stephen Wermiel, a law professor at American University.

It was the equal protection question, an issue that goes directly to the fundamental right of Americans to vote, that could unite a majority of justices in a ruling favoring either candidate, analysts said.

The relevant clause in the 14th Amendment to the US Constitution says that no state may ''deny to any person within its jurisdiction the equal protection of the laws.'' It was part of a series of three Reconstruction amendments that abolished slavery, protected citizens' rights, and said race may not be a bar to voting.

The Bush camp argues that the clause should prevent a recount, since different counties - and even different ballot examiners - might use different standards in assessing whether a vote had been cast and for whom.

For example, Palm Beach County did not count ''dimpled'' punchcard ballots, but Miami-Dade County did, seeing the indented cards as sufficient to indicate the intent of the voter.

But the equal protection argument as presented by the Bush campaign might have the impact of disenfranchising voters and prompt the justices to demand that the standards for counting a vote be higher, said Erwin Chermeninsky, a law professor at the University of Southern California.

''You can have equality by not counting the votes or by counting all of the votes,'' which is ''more consistent with the right to vote,'' Chermeninsky said.

Justice Ruth Bader Ginsburg appeared skeptical of the Bush team's take on the equal protection argument. ''There are different ballots from county to county, too,'' Ginsberg said as she questioned Olson. ''How can you have one standard when there are so many varieties of ballots?'' Ginsburg sided against the Bush campaign in Saturday's ruling.

Justice David Souter, who also sided with the minority on Saturday, said the lack of an objective standard of assessing ballots ''bothers a lot of us.'' He suggested that the issue of uniform standards could be remanded to the Florida courts, perhaps with input by the Florida secretary of state.

''It seems to me that the court was moving in the direction of what might be a unanimous decision: that the recount could continue pursuant to a standard set by the Florida Supreme Court or maybe the secretary of state,'' said Mark Tushnet, a professor at Georgetown Law School.

''The equal protection argument is a solution to the court's dilemma,'' Tushnet said. Wary of being accused of showing partisan motives, the court might choose to send the case back to Florida, Tushnet said.

Olson stated that a plan to recount votes along using a single standard would be ''feasible,'' but said he believed the requirements should be strict: limiting legal votes to ballots on which the chad was perforated, not just indented.

Gore's camp could take hope, but not assurance, from yesterday's hearing. O'Connor and other justices still seem worried that the Florida Supreme Court decision was an unwarranted encroachment on the right of state legislatures to set rules regarding the selection of electors.

It also will be difficult to shake the high court from the ideological lines that were drawn Saturday, said John C. Jeffries, a University of Virginia law professor.

''It seems to me that having intervened to grant a stay, that if they now turn around and say, `start 'em up again,' that would be publicly humiliating,'' Jeffries said. ''Having gotten involved once, even though they did so in a very minor way, kind of sets an obligation [for the court] to sort the problem out.''