WASHINGTON (AP) — Lawyers for George W. Bush and Al Gore pleaded their case in the high-columned solemnity of the U.S. Supreme Court on Friday before justices openly questioning whether they should intervene in the nation's contested presidential election.
"We're looking for a federal issue here," said Justice Anthony Kennedy, less than 10 minutes after Bush's attorney, Theodore Olson, began speaking.
"Why should the federal judiciary be interfering in what seems to be a very carefully thought-out scheme" for settling elections in Florida, Justice David H. Souter prodded.
"This is a federal court," Justice Antonin Scalia said at another point in an exchange with Joseph Klock, the lawyer representing Florida Secretary of State Katherine Harris.
The courtroom was crowded, the sidewalk outside full of protesters as Chief Justice William Rehnquist gaveled the court into session for arguments that could settle the contested election between Gore and Bush.
"God save the United States and this honorable court," the clerk intoned before Rehnquist — his voice familiar from historic impeachment proceedings two years ago — called the case. Bush's lawyers are seeking to have the high court overturn a Florida Supreme Court ruling that extended a deadline for counting votes in the state. The Bush campaign says that action was improper overreaching by a court that was writing instead of interpreting laws.
Tribe, representing Gore, underwent tough questioning, too. Justice Anthony M. Kennedy told him, "You say the Florida Legislature now has no role. You now say this court has no role. That means the Supreme Court of Florida is it."
Tribe contended the issue of whether the Florida Legislature can step in was not at issue in Friday's case.
Olson said the Florida Supreme Court "overturned the carefully enacted plan" by state legislators for resolving election disputes.
However, Justice Ruth Bader Ginsburg told Olson, "I do not know of any case where we have impugned a state supreme court in the way you have. We owe the highest respect to the state court when it says what the state law is."
The justices did not indicate when they will issue a ruling. In some past cases in which the timing was urgent, the court has acted in as little as one day.
The questioning was so active that when Florida Deputy Attorney General Paul F. Hancock finished his 10-minute argument, Rehnquist granted an extension. saying, "You haven't had a chance to say a lot."
Hancock declined, but a few minutes later when part of Tribe's argument time was spent finding the correct page on which a law was cited, Kennedy quipped, "That won't get you an extra two minutes," drawing a laugh from the audience.
Harris certified Bush the winner in Florida last Sunday by a meager 537 votes after manual recounts in a few Democratic-leaning counties that Gore had sought. The state Supreme Court had ordered those recounts to proceed, setting a time frame that extended beyond the Nov. 14 date that Harris had cited as the deadline fixed in state law.
Olson argued that the Florida Supreme Court "overturned and materially rewrote" the election laws, while Tribe likened the recount process to "a kind of photo finish."
What is going on now, Tribe said, "is rather like looking more closely at the photograph. It's not like moving Heartbreak Hill" in a marathon.
"Who would have thought that the (Florida) Legislature was leaving open the date for change by the court?" O'Connor said. Tribe said the original certification date was "not a real deadline" because the secretary of state had discretion to accept late-filed vote totals.
Olson said the Florida court's ruling led to "chaos" and had upset "very important timetables" for resolving election disputes before the Electoral College is scheduled to meet.
Breyer noted that Bush has been certified the winner of Florida's vote even including the disputed ballots.
"Is there any respect in which it makes a difference, this case?" Breyer said. "What's the consequence of our going one way or another now in this case?"
Klock, representing Harris, said the margin of Bush's lead might affect the outcome of ongoing court contests.
But Breyer said it was not clear now "whether or not it will make a difference, a difference to the outcome of the election."