WASHINGTON — Having taken the unprecedented plunge into the middle of the muddled presidential race, Supreme Court justices spent Friday openly asking lawyers for George W. Bush and Al Gore if the court should toss out Florida hand counts — or be in the case at all.
Only Justice Clarence Thomas sat silently on the bench throughout the 90-minute argument. The other eight justices repeatedly questioned, wheedled and cajoled the lawyers, leaving them little time to resort to prepared remarks.
Justice Sandra Day O'Connor asked Bush attorney Theodore Olson whether federal law gives "an independent right to a candidate" to go to court to challenge a state's election laws.
Other justices worried whether the Florida Supreme Court overreached when it extended the state's Nov. 14 deadline for certifying the statewide presidential vote to allow hand ballot recounts.
If conflicting provisions of Florida election law caused a problem, "the Florida Supreme Court didn't solve it when it extended the deadline so populous counties could count," an impatient Justice Antonin Scalia suggested.
Amid the flurry of questioning from the bench, Chief Justice William Rehnquist made the rare offer of an extra two minutes to Florida Deputy Attorney General Paul Hancock "because you haven't had a chance to say a lot yet" — an offer Hancock declined.
But when Gore lawyer Laurence Tribe briefly lost track under the justices' constant questioning, Rehnquist warned him, "It won't get you an extra two minutes," prompting laughter in the court.
The marble courtroom, draped in gold-fringed red velvet curtains to keep it from acting as an echo chamber, was stuffed beyond full by a who's who of Washington's political and legal elite.
Barbara Olson, the blond conservative TV commentator married to Bush's lawyer, sat between Sens. Edward Kennedy, D-Mass., and Fred Thompson, R-Tenn., on the front spectators bench, held down at the other end by Gore heavyweights Warren Christopher and William Daley. All four Gore children attended.
"Bet you don't know me without a ballot held up in front of my face," said Palm Beach County Judge Charles Burton, the other side of the Supreme Court case in Bush vs. Palm Beach County Canvassing Board.
Pinstripe-suited members of the Supreme Court bar waited in line to get inside beside down-coated out-of-towners hoping to catch a glimpse of history in the making. Name wasn't enough to pull rank, as ABC "Nightline" host Ted Koppel waited along with everyone else in the public line. Beryl Anderson, Ohio's deputy secretary of state, made the trek because "I just had to be here. I'm thankful it's Florida and not us."
The high court stunned legal experts and even some Bush lawyers by announcing a week ago that it would take Bush's novel federal lawsuit. Bush is seeking to stop Gore from pressing for hand recounts in Florida counties with punch card ballot problems.
Once the court agreed to weigh in, many hoped it would use its political capital to help the nation see its way out of Florida's election swamp.
But then Florida Secretary of State Katherine Harris certified a Bush win by a 537-vote margin, followed by a spate of new Florida lawsuits and plans by Florida's Republican legislature to name its own slate of electors.
If events threaten to outpace this Supreme Court case, the court could still have the last word if Bush invokes:
— The Electoral Count Act of 1887, passed to prevent a replay of the 1876 election. A 15-member commission finally chose Rutherford B. Hayes as president, even though Samuel Tilden won the popular vote, after Florida and two other states sent rival slates to the Electoral College. The law says state laws enacted "prior to" Election Day "shall govern the counting of the electoral votes" if electors get challenged.
— Article II of the U.S. Constitution, which leaves it to state legislatures to decide the "manner" of choosing a state's Electoral College representative.