Rather Saw No Victory for Bush; Not a "Just and Fair Verdict"; Burden on Bush "To Change His Tone"; Thomas and Scalia Conflicts -- Extra Edition

1) Dan Rather: "What it does not do is in effect deliver the presidency to George Bush. It does not do that....This may mean that George Bush is going to be the next President, but that's by no means clear." It was clear to the other networks.

2) "Tonight's absolutely stunning, if not stupefying, Supreme Court decision," was how Dan Rather described it. Rather quoted approvingly from the Stevens dissent: "The identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."

3) Sam Donaldson warned Wednesday night on ABC's prime time special: "It will not be accepted with any sort of feeling that the court has rendered a just and fair verdict."

4) CNN's Bernard Show assumed the court did something wrong. He asked Lawrence Tribe: "What does this ruling do to this court's integrity?"

5) The burden is not on Al Gore but is now on George Bush "to change his tone," admit we don't know who really won and pledge himself to reforming the election counting system, NBC's omnipresent historian Doris Kearns Goodwin insisted.

6) "So where could judicial independence collide with personal experience? First, political debts, most famously, say critics, Clarence Thomas, plucked from relative obscurity by George W. Bush's father." Plus, there's his wife, NBC's Andrea Mitchell pointed. "And if Bush is President, Chief Justice Rehnquist could retire, creating the chance for Justice Scalia to move up."

Editor's Note: I meant to get this CyberAlert out by 5am ET, but after leaving the MRC at 3am and arriving home to write it up on my laptop computer, I sat down on my sofa and promptly fell asleep. Next thing I knew the morning shows were over and I'd missed an entire news cycle.

 1

CBS: Clueless Broadcasting System. The Supreme Court ruling released at 10pm ET prompted all the broadcast networks to go live with special reports and while reporters tried to figure out and then convey its meaning, CBS's Dan Rather and Bob Schieffer resisted concluding, as did everyone else in short order, that it meant Gore had lost and so Bush would become President.

    Right at 10pm ET Tuesday night Dan Rather insisted of the just-announced Supreme Court ruling: "What it does not do is in effect deliver the presidency to George Bush. It does not do that. That's one of the things it doesn't do" as it keeps "alive" Gore's hopes to "contest of the certification of Bush as the winner in Florida."

    At about the same time ABC viewers heard Peter Jennings declare: "This effectively ends the election." And on NBC, at about 10:25pm ET, Tim Russert doused the contest hope promoted by Rather: "At the stroke of midnight, it is now conclusive that the 25 electors of Florida move into George Bush's column and cannot be contested in Florida or in Congress."

    Rather opened the hour-long CBS News special report at 10pm ET: "They sent it back to the Florida courts. Now this is a complicated situation. What it does not do is in effect deliver the presidency to George Bush. It does not do that. That's one of the things it doesn't do. What it does do is it keeps alive, keeps alive at least the possibility of Al Gore trying to continue his contest of the certification of Bush as the winner in Florida."

    More than a half hour later CBS still had not caught up with the other networks which had figured out the meaning of the decision. At about 10:35pm ET, Bob Schieffer asserted from the steps of the Supreme Court: "A somewhat confusing decision tonight and I'm not sure it really brings all that much finality to this. It may mean that George Bush has won the election, but we're going to keep hearing a lot about what happened tonight and what happened in this election."
    Rather echoed his spin: "We want to underscore the word may, this may mean that George Bush is going to be the next President, but that's by no means clear..."

    Only not clear to Dan Rather and CBS News.

2

Dan Rather wrapped up CBS's special report Tuesday night by referring to the "complexity of tonight's absolutely stunning, if not stupefying, Supreme Court decision." Minutes earlier Rather had given air time to the dissent by Justice Stevens about how "we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear, it is the nation's confidence in the judge as an impartial guardian of the rule of law." Rather asked: "The prospect of a vision of raw politics dictating what the court did is inevitable. Why would the court do it this way?"

    At about 10:45pm ET Rather approvingly read to legal analyst Jonathan Turley an excerpt from the Stevens dissent, as transcribed by MRC analyst Brad Wilmouth:
    "Now the, in a blistering dissent, I wanna quote this because some people may be joining us late and also we've talked about the majority opinion. In what can only be described as a really blistering dissent, Justice John Paul Stevens called the Bush legal appeal quote, 'a federal assault on the laws of the state of Florida,' then he went on to say and I quote, 'Time will one day heal the wound to that confidence that will be inflicted by today's decision.' He's talking about confidence in the court. To continue to quote, 'One thing however is certain. Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law.' That's quote unquote 'the Stevens dissent,' which was joined by Justices Ruth Bader Ginsburg and Steven Breyer. Also dissenting was Justice David Souter, but he didn't sign this part of it.
    "Pause. We got a situation in which the lower Florida state court judge was appointed by a Republican. He was a Democrat, but he had a lot of trouble with the state Supreme Court. A lot of people, after his decision which virtually closed down Al Gore said this is raw politics. Then it went to the state supreme court in Florida -- all Democrat-appointed. They came out with a five-four decision in favor of Al Gore, and the other side said this is raw politics. Now we have the Supreme Court decision, and no matter how many times we say the nation needs to pull behind that decision, whatever it is, the prospect of a vision of raw politics dictating what the court did is inevitable. Why would the court do it this way?"

   Turley regretted the less than united outcome: "I can't imagine they wanted to do it this way. They succeeded in avoiding a five-four split in terms of the remand. That must of been some accomplishment. But in the end, they could not get, in terms of the critical component, that type of strong majority. They divided as people expected. They seemed to rush to fulfill the stereotypes that pundits had left over the weekend. And what's tragic is that it's often in our history the courts that have brought us together when we have been most divided. We fall into natural divisions because of politics or economics or race or religion, but it's the courts often that have brought us together because we share a common touch tone of the law, and when courts have called us to that touch tone, they sometimes have healed our wounds. It didn't mean that we agreed with them or agreed with each other, but we accepted the result. This has to be a failure for the court as an institution because to many people this is a picture of justices behaving badly, not doing better than we were doing. And we sort of expect somehow, maybe this was naive, that at the end of the day we would hear a unified voice that spoke to us not from partisan divisions but spoke to us from some central concept of the law. And so unfortunately we are left tomorrow morning, I expect, with a choice that's made defacto. Al Gore may not be able to shoulder this burden. And as Justice Stevens said, many people in the country will look at this as not selecting a winner but burdening a candidate so much that he is most certainly a loser."

    A few minutes later, Rather wrapped up the hour-long special by acknowledging a potential Bush victory: "If not the Governor himself, Bush aides are beginning to celebrate. A Bush aide is quoted as saying that the initial reading of the Supreme Court ruling seems to be a victory for Bush. It may or may not be completely over for Vice President Al Gore. His hopes of coming from behind, getting votes he said were never counted counted in Florida. It does not look at the moment that there's very much hope. What the Supreme Court has done is delivered a severe blow, perhaps an absolutely crushing blow and kicked it back to the Florida State Supreme Court. That's where things stand at the moment...
    "A programming note, we had planned to return viewers in the eastern and central time zones to Judging Amy. That turned out not to be possible because of the importance and complexity of tonight's absolutely stunning, if not stupefying, Supreme Court decision...With a reminder that we are a nation of laws, a reminder of where the Supreme Court stands in our country and our society, Dan Rather, CBS News in New York."

3

Sam Donaldson raised rumors of how Justices O'Connor and Rehnquist want to retire and be replaced by a Republican President as he warned that the "narrow 5 to 4 split" led by "the conservatives" means the decision "will not be accepted with any sort of feeling that the court has rendered a just and fair verdict."

    At about 10:45pm ET Wednesday night Donaldson argued: "If we're right and this in fact makes George W. Bush the President there's going to be a great deal of bitterness in this country by Democrats, perhaps by some others [fellow reporters?]. It's not so much that the high court has made the decision, it's that it's made it by this narrow 5 to 4 split with the conservatives, who stopped the counting on Saturday and now say well there isn't enough time even if you devised a method of counting it constitutionally. There's talk in this town, Peter, that Justice O'Connor and Chief Justice Rehnquist, want to retire, but the talk is they wanted to wait to make certain there was a Republican President. That may not be fair to them, but this kind of talk adds poison to the atmosphere. I think this decision will not be, it will be accepted, it has to be accepted, it's the high court, it will not be accepted with any sort of feeling that the court has rendered a just and fair verdict."

    As Tim Russert explained on NBC at about 10:24pm ET, on the key point the line-up was 7 to 2, not 5 to 4: "If we can cut through all the legalese, what happened tonight, there were seven justices who said they had a constitutional problem with the Florida Supreme Court decision. Two of them believed it could have been fixed by having another recount with a uniform standard, which could have been completed by December 18th, the day the electoral college meets. Five of them, however, believed it had to be completed by midnight tonight and that's why Chief Justice Rehnquist wanted this decision out before midnight...."

    Roe v Wade was also a 7 to 2 ruling, but you don't hear many in the media worrying about whether that was a "just and fair verdict."

4

CNN's Bernard Shaw assumed the Supreme Court ruling called into question the court's "integrity." At midnight he posed this statement in the form of a question via phone to law professor Lawrence Tribe of Harvard University who had argued the previous Gore case before the Supreme Court:
    "Professor, you just told our audience that you believe the highest court in this nation is punting, in your words it's not really accepting responsibility. My question is this: What does this ruling do to this court's integrity?"

    Even Tribe demurred from Shaw's prompting as he maintained he's "not arrogant enough to render a verdict."

5

The burden should not be on Al Gore but is now on George Bush "to change his tone," admit we don't know who really won and pledge himself to reforming the election counting system, NBC's omnipresent historian Doris Kearns Goodwin insisted.

   Near the end of the 10pm ET hour Goodwin told Tom Brokaw:
   "I think the most important thing for Mr. Bush to do, I think his acceptance speech is even more important than Vice President Gore's concession speech. He has to change his tone, he has to realize we may never know who won there, and he has to talk about the flaws in the system and I think pledge himself right up front that we get better machines, better recounting, uniform standards, and say that's the first order of business because otherwise he goes in with everybody wondering if the time hadn't run out, if these machines hadn't broken down, if we had better more uniform recounting, maybe this election would have been different."

6

Before the Supreme Court ruling NBC's Andrea Mitchell devoted a story to personal and political conflicts amongst the justices, but other than a throwaway line about Justices Ginsburg and Breyer, Mitchell's entire story focused on the court's more conservative justices, mainly Scalia and Thomas. Plus Thomas's wife, who is guilty of "doing a talent search at a Washington think tank for a possible Bush administration."

    Mitchell began her December 12 story, which ran on both the NBC Nightly News and 9pm ET edition of MSNBC's The News with Brian Williams, by pointing out how it's not realistic to assume the justices can be totally politically independent. She then wondered: "So where could judicial independence collide with personal experience? First, political debts, most famously, say critics, Clarence Thomas, plucked from relative obscurity by George W. Bush's father."
    President Bush naming him on July 1, 1991: "The fact that he is black and a minority has nothing to do with this in the sense that he is the best qualified at this time."
    Mitchell: "Later, praised by the son."
    George W. Bush on Meet the Press in November 1999: "I do and I think he's proven my Dad correct."
    Mitchell: "On the other side, liberals Ginsburg and Breyer, indebted to Bill Clinton for their appointments. The second potential conflict, personal political attacks. Can conservative justices forget they were targets of this campaign ad from the liberal People for the American Way?"
    Ad: "The next President could appoint three of the nine Supreme Court justices."
    Gore: "The main issue is whether or not the Roe v Wade decision's going to be overturned."
    Mitchell: "The third issue, personal relationships. Clarence Thomas's wife, Virginia, a former top Republican aide to Majority Leader Dick Armey, now doing a talent search at a Washington think tank for a possible Bush administration."

    Having put Virginia Thomas, now at the Heritage Foundation, into play, Mitchell then ran two soundbites dismissing the supposed reasons for concern.

    Professor Heather Gerkin, Harvard Law School and former Souter clerk: "I don't think it's a conflict of interest. I mean I have a little bit of sympathy for the spouses and children of the justices. They have to find jobs somewhere. She has to find a job in Washington and I'm not sure if there is a job in Washington that doesn't have some political aspect to it."
    Professor John Yoo, University of California at Berkeley and a former Thomas clerk: "I think the thing that would influence them least actually is their personal affairs."

    Mitchell was unpersuaded, and moved on to another conservative: "What about the children of justices? Scalia's son Eugene, a partner to Bush lawyer Ted Olson, follows court guidelines, deducting from his income any fees his partners earn arguing before the court."
    Professor Michael Dorf of Columbia Law School got a soundbite to discount any worry: "We know where Justice Scalia is, we know where he would be regardless of his son's affiliation with that law firm."

    Mitchell continued: "Finally, the question of retirements and promotions. Friends say Sandra Day O'Connor wants to retire but would like a Republican President to fill her shoes."
    Clifford Sloan, former Stevens clerk: "I think the winner of the presidential election is going to appoint the colleagues of these justices, the people that they're going to sit with. So it's going to effect them very personally."

    Mitchell concluded by calling into question Scalia's motivation: "And if Bush is President Chief Justice Rehnquist could retire, creating the chance for Justice Scalia to move up. In fact, court watchers say justices are only human, subject to all of life's pressures, but can still reach independent judgments even in the most politically charged case they'll likely ever decide."

    Too bad reporters can't. -- Brent Baker

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