Published on Monday, December 11, 2000 in the Guardian of London
George W Bush vs Albert Gore Jr
Battle for US Presidency Reaches Supreme Court
by Martin Kettle in Washington and Julian Borger in Tallahassee
Two of America's most senior judges, both nominated to the US supreme court by the Republican president Ronald Reagan in the 1980s, hold the future of the 2000 election dispute between George W Bush and Al Gore in their hands in Washington today.
Sandra Day O'Connor, the first woman to serve on the court, and Anthony Kennedy, a judge with a reputation as a consensus builder, are the prime targets of Mr Gore's lawyers as they seek to swing just one vote their way in the deeply divided nine-member court today.
If the Gore lawyers can persuade either of the two traditionally pivotal judges to join the four liberals who opposed Saturday's halting of the Florida recount then the counts will begin again, perhaps as early as this evening, and Mr Gore will still be in with a chance of snatching the White House.
If they fail, as many American observers again expect them to do, Mr Gore will have nowhere else to go in his five-week effort to get all the disputed votes counted in Florida, his lead lawyer, David Boies, said yesterday.
"If no votes are counted, then I think that's the end of the road," Mr Boies said in a television interview. The nine justices of the supreme court "have the power to decide this", he added.
Mr Boies refused to say if he thought Mr Gore would concede the election in the event of losing the supreme court, but Richard Gephardt, the Democratic leader in the House of Representatives, said: "I believe he will."
Both sides were scheduled to file their written arguments, limited to 50 pages each, by 4pm yesterday in advance of today's 90 minutes of argument in the case which could, in effect, decide the outcome of the November 7 election.
Appropriately, the case set down for hearing today is called simply but tellingly "George W Bush v Albert Gore" on the court list.
No timetable has been announced for the court to issue its ruling, which could come at any time once the arguments are completed.
After the dramas of Friday, when the Florida supreme court reignited Mr Gore's hopes by ordering a count of 40,000 or more disputed ballots, and Saturday, when the US supreme court intervened 5-4 to stop the count in its tracks, yesterday was an eerily quiet day in America's constitutional drama. Both Mr Bush and Mr Gore remained out of the public eye.
There was brief flurry of excitement in Tallahassee when reports suggested that the ballot papers from Miami-Dade county that are at the heart of the argument had been moved to Washington to be entered as evidence.
The Florida supreme court later announced that the ballots remained in Tallahassee and were thus available for officials to resume counting if the US supreme court so ruled.
Expectations that Mr Bush will win centred on the fact that the court had issued Saturday's stay, which requires a high legal test to be satisfied before such a move is made.
"It suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner [Mr Bush] has a substantial probability of success," the conservative justice Antonin Scalia wrote in an opinion issued with the order.
© Guardian Newspapers Limited 2000