In historic hearing, justices weigh Bush-Gore intervention

WASHINGTON - In a legal drama for the history books, Supreme Court justices pointedly questioned lawyers for the long-count presidential combatants Friday, seemingly divided over whether to intervene and throw out hand-counted Florida ballots that Al Gore hopes will allow him to overtake George W. Bush.

The Florida Supreme Court's decision to allow more time for manual recounts ''does look like a very dramatic change'' from state law, said Justice Sandra Day O'Connor.

Justice Ruth Bader Ginsburg took the other side. ''I do not know of any case where we have impugned a state supreme court in the way you have,'' she told Bush lawyer Theodore Olson. ''We owe the highest respect to the state court when it says what the state law is.''

The nation's highest court heard 90 minutes of arguments in a courtroom packed with legal luminaries, friends and family including Gore's four children, congressional VIP's - and a small gallery of people so eager for this glimpse of history that they had waited outside in the cold for most of the night.

Hundreds of sign-carrying demonstrators marched outside during the arguments. ''Winner vs. Whiner,'' one pro-Bush sign said. A pro-Gore sign said, ''We've been Bushwacked.''

For the first time, the court released an audio tape of the argument shortly after it ended, and many television and radio stations immediately aired it. As always, television and still cameras were barred from the courtroom.

The Bush and Gore camps immediately tried to read the court's intentions by its line of questioning, an iffy proposition at best.

Gore advisers said they came away with an impression of a 4-4 split with O'Connor the pivotal vote. They also were telling allies that the vice president will fight on - regardless of what the U.S. Supreme Court decides - and that Gore will press his election contest in Florida courts. By putting out the word, the Democrat was hoping to avoid calls for him to concede if the Supreme Court rules in Bush's favor.

Republicans suggested at least four justices - Chief Justice William Rehnquist, Antonin Scalia, Clarence Thomas and Anthony Kennedy - appeared to be concerned that the state Supreme Court had exceeded its authority, and they were encouraged that a fifth, O'Connor, took the lead on questioning that followed along similar lines.

Outside Washington, Gore suffered a series of legal setbacks Friday. The Florida Supreme Court declined to order an immediate manual recount of 14,000 disputed ballots and, in a case brought separately by Democratic voters, refused to order a new election in Palm Beach County.

A judge in Tallahassee, N. Sanders Sauls, also refused for the third time in less than a week to order a manual recount of disputed ballots, at least until he hears arguments that begin Saturday.

At the U.S. Supreme Court, the justices did not indicate how soon they would decide whether the Florida court acted unlawfully when it extended the recount deadline.

A ruling not to intervene would hold Bush's lead at 537 votes and allow the vice president to continue seeking more recount votes in a state-court contest. A decision for Bush likely would push his lead back to his 930-vote margin before the hand recounts, and could create new pressure on Gore to give up the race.

Olson said the Florida Supreme Court, in allowing the extended recount, ''overturned the carefully enacted plan'' by state legislators for resolving election disputes. He contended the action violated the Constitution as well as a federal law that bolsters the finality of states' choice of presidential electors as long as disputes were resolved under laws enacted before the election.

Gore lawyer Laurence Tribe said the recount process merely was ''rather like looking more closely at the film of a photo finish. It's nothing extraordinary.'' He added, ''Why tell people the count if you won't count it?''

A key issue the justices must resolve is whether the case involves any federal issue that warrants overturning Florida's highest court.

In recent years, the Supreme Court has carried out what some observers call a states' rights revolution, tilting the federal-state balance toward the states in a series of 5-4 votes with Rehnquist leading the majority.

But on Friday, some justices appeared to be arguing the opposite of their normal positions. Ginsburg - usually on the losing side of the states' rights rulings - spoke strongly in favor of deferring to the Florida court's decision.

She was joined by Justice David H. Souter, who also has voted in the minority on those cases. ''Why should the federal judiciary be interfering in what seems to be a very carefully thought-out scheme'' for settling elections in Florida, Souter asked.

Meanwhile, Rehnquist and Scalia, who voted in the past to boost states' authority, seemed more ready to believe there was a federal issue to decide - a stance that could help Bush.

Some observers believed the court would want to avoid a closely divided ruling on a case that could help decide who becomes the next president - perhaps dismissing the case without a ruling.

Justice Stephen G. Breyer noted that Bush was certified the winner even after the recount, adding, ''Is there any respect in which this really makes a difference, this case? ... What's the consequence of our going one way or the other now in this case?''

Joseph Klock, the lawyer representing Florida Secretary of State Katherine Harris, responded the immediate result would raise Bush's victory margin from 537 votes to slightly more than 900, his margin before the manual recounts were added.

Klock also said if Harris' standard that barred the manual recounts is reinstated, ''that will end the litigation that currently exists'' in Gore's state-court effort to force more recounts.

Harris certified Bush the winner in Florida last Sunday after manual recounts in a few Democratic-leaning counties that Gore had sought. The state Supreme Court had ordered those recounts to proceed through Sunday, beyond the Nov. 14 date that Harris cited as the deadline fixed in state law.