The NewsHour with Jim Lehrer

JIM LEHRER: Good evening, I'm Jim Lehrer. On the "NewsHour" tonight, the much-delayed conclusion of the 2000 election for President; Mark Shields and Paul Gigot look at what George W. Bush and Al Gore must each say and do to make it work; Betty Ann Bowser and Margaret Warner examine the U.S. Supreme Court decision that ended it; Gwen Ifill sorts through the political fallout; and Ray Suarez, with Michael Beschloss, Haynes Johnson, Richard Norton Smith and Doris Kearns Goodwin, add some history. The other news of this Wednesday, will be at the end of the program tonight.

STRUGGLE ENDS

JIM LEHRER: The long struggle for the presidency is almost over. Vice President Gore today halted his efforts to gain hand recounts in Florida. And he set a nationally televised address for 9:00 PM Eastern Time to formally end his race for the White House. His decision followed last night's 5-4 ruling by the U.S. Supreme Court. It said the Florida Supreme Court violated the U.S. Constitution when it ordered statewide recounts of disputed ballots. And the majority said there wasn't time to arrange a new recount that would pass constitutional muster. Governor Bush will address the nation an hour after Vice President Gore, at 10:00 PM Eastern Time today. He remained in Austin today, but aides said he might travel to Washington this week, and would like to meet with Gore. A spokesman said Bush's remarks tonight would begin the healing process. In Washington, Senate Majority Leader Lott said he expected Gore to be magnanimous, and for Bush to adopt the same tone.

SEN. TRENT LOTT: I want him to make a very positive, unifying sort of speech, as I just pointed out. I think he needs to reassure the American people. I think he needs to ask for their help and their support, and I think he'll need to make some commitments of his intentions. I they he too will rise to this occasion. These are extraordinary circumstances and they both really need to do an unusually good job in addressing the American people

JIM LEHRER: Bush's running mate, Dick Cheney, met with congressional Republicans today. He said the transition to power was going well. The Florida Senate recessed today without naming electors for Governor Bush. It planned to reconvene tomorrow after hearing what Gore says tonight. But the Senate president said it was now unlikely there would be any reason to act. The Florida House approved the Bush electors yesterday.

FOCUS - THE ROAD AHEAD

JIM LEHRER: Shields and Gigot are here now for a look at what confronts Al Gore and George W. Bush tonight, as they address the nation. And let's take them one at a time. Al Gore first, Mark, what must he say and do?

MARK SHIELDS: Well, first, he has to remember, Jim, that it's the last bite of the apple he has in this campaign. And probably more people will see and remember what he says tonight than any event of the entire campaign because of the drama and the history surrounding it. He should also remember that Nixon gave the worst concession speech in 1962 when he said you won't have Nixon to kick around, this is my last press conference and went on it win the White House twice, so he shouldn't feel too much pressure. But what he has to do most of all, Jim, is reassure his own people that the fight, he is speaking to and for his own constituency, especially African Americans who feel that they have been treated shabbily in this election -- so many of the mistakes that were made, the undercounts and to forth. But then he has to move it to a ceremony of victory, of acceptance, of largeness of spirit, of acknowledging that Governor Bush is the president elect, and that he will have the support, not simply of the millions of people who voted for Al Gore and Joseph Lieberman as the Vice President would ask but for the Vice President himself.

JIM LEHRER: What would you add to that?

PAUL GIGOT: Well, I don't think this can be a garden variety concession speech because we haven't had a garden variety recount here. He has taken the country through an awful lot in the last five weeks by challenging the way he has. I don't think there is any question that there has been damage done, some damage to Bush, he's got no honeymoon to speak of; almost half a transition if you can call it that, and maybe some damage to his legitimacy. Certainly -

JIM LEHRER: To Bush's legitimacy.

PAUL GIGOT: Some of the Vice President's supporters are saying that publicly, and I think the Vice President could go do a lot to undo some of the damage that had been done by being magnanimous, as Mark says, but by saying he lost and fair and square -- no sort of needling references to 5-4 majorities or counting every vote.

JIM LEHRER: What about the 300,000 popular votes, should he mention that?

PAUL GIGOT: I think he can take pride in that. There's no question about it. He got a little more than half of all the votes. He can mention that, but to -- making references that somehow this wasn't a square deal will make him look small and damage the presidency.

JIM LEHRER: How does he deal with the closeness of this without saying, hey, I got more votes but I'm still not going to be president? How can he say that?

MARK SHIELDS: He can do it elliptically by saying to the millions and millions of Americans who supported Joe Lieberman and me, I say thank you. You know, that the cause that we share will not die. But the other side has won. I could not disagree more strenuously with Paul that Al Gore has to apologize for putting George Bush or the nation through anything. We do not know who won Florida. The decision has been made; the Supreme Court has ruled; and George Bush will be the president, but I mean to say that Al Gore put the country through something when he stood at 267 electoral votes with the popular lead, I don't - I really see no need at all for him to apologize for anything. I mean, what he did was totally legal and let us remember now and let us never forget that the first people who went to court were Jim Baker and they went to federal court four days after the election and long before the Gore people did. So I don't think you can say that responsibility for the past five weeks rests on Al Gore.

JIM LEHRER: Paul.

PAUL GIGOT: I don't think I ever used the word "apologize" and I wouldn't expect him to say I apologize but I do expect him to say, look, to begin to repair some of the damage to the institutions and to the presidency of Bush. I mean, the courts haven't emerged out of this in terrific shape. They've been dragged into the electoral process, and I think by basically saying this is legitimate. Bush won it fair and square despite all of this - he could go a long way to help.

JIM LEHRER: But there is nothing wrong with him saying also what I did the last five weeks is legitimate as well? You are suggesting he needs to say that was some kind of mistake on his part?

PAUL GIGOT: No, no, I don't expect him to say that. I mean, I don't think that --

JIM LEHRER: Right.

PAUL GIGOT: I don't think that he is going to say. I would like him to tell his -- some of his supporters that this is not -

JIM LEHRER: Back off.

PAUL GIGOT: Look -- Jesse Jackson compared this to the Dred Scott case or the fugitive slave law is upheld. He ought to tell his supporters Bush won fair and square he is going to be a legitimate president.

JIM LEHRER: All right. What does George W. Bush have to do?

PAUL GIGOT: He has to show largeness of spirit as well. No question about it. Sometimes it's harder to be a winner because you have the burden of resentment but he has got to show that he can reach out. Everyone in the Bush campaign suggests that he is going to do it. I think Bush should speak out on behalf of African Americans and say I know the importance of counting every votes. Some of these machines may have been screwed up. We should maybe spend some money on it. He should make a gesture like that.

MARK SHIELDS: I'm not an apologist for Jesse Jackson. I did hear the statement he made. He was comparing what he said erroneous and faulty Supreme Court decisions and I don't think anybody would argue that the day of the Dred Scott decision was not a terrible blight on American history.

PAUL GIGOT: Of course it was.

MARK SHIELDS: That is right. But he was comparing that: Al Gore never attacked the courts. The criticisms of the courts was solely from the Bush caverns but Bush has a lot easier assignment tonight.

George Bush has to be thematic rather than programmatic. He just -- he can be large of spirit. We expect winners to be humble. He has a chance to do that, to reach out I think is symbolically, Jim, it's important for him to come to Washington, to go to visit Al Gore at perhaps the Gore family at their home. I think the speech tonight -- people are going to be seeing him for the first time as a presidential elect. An awful lot of people are, and I think he made a mistake when he started talking programmatically after Katherine Harris declared him -- the secretary of Florida -

JIM LEHRER: About things he was going to do.

MARK SHIELDS: Things he was going to do. I think that was premature; I don't think that would be wise tonight. I think it is thematic about the nation, about his presidency, what he hopes for and what he sees in the future.

JIM LEHRER: What about that, a lot of discussion already about nobody, whether it had been Al Gore or more, neither one has the right to speak about a mandate that they have received to do anything. How does George W. Bush handle that tonight, or should he just ignore it and talk about the struggle and how we are and talk more in general terms?

PAUL GIGOT: Winning I think is its own mandate in many respects. There is plenty of time to talk about program and appointments and cabinet appointments. Leave that for next tonight. -- Week. Tonight Mark is right. You talk about bringing people together. You talk about the strengths of country, the strengths of the Constitution and his ambitions for the country, progress and unification -- big themes, Reagannesque themes not programmatic stuff.

JIM LEHRER: Speaking of big things, Is there a dramatic gesture available to each one of these men tonight that we -- nobody has thought about that they could do that would say, settle things down a little bit? Coming to Washington is one - for Bush.

MARK SHIELDS: I think -- no, I mean if Al Gore were to say if thatwas his intention I will never seek public office again or something of the sort, that is not casting the next two years or four years in the presidential setting or whatever, asking the Democrats to give the benefit of the doubt to President Bush and asking for their cooperation, I'll meet with the leaders of my party in Congress and ask them to cooperate, so that we are not into sniping back and forth.

PAUL GIGOT: I've been wracking my brain trying to think of something that either side could do that was bigger than what you expect. I don't know if I expect anything like that. I don't have any great ideas for them. I think coming to Washington -- you expect Bush to do that but meeting with Gore is important. I think that there would be something symbolically significant to a Bush presidency just to meet with Gore and shake hands with him.

JIM LEHRER: That is apparently in the works. As they say in journalism time will tell which one -- what each one of them does. Thank you.

FOCUS - SUPREME COURT DECISION

JIM LEHRER: The election for president was 36 days ago; the fierce post-election struggle for victory was finally halted last night by the action of the highest court in the land, when it reversed the Florida Supreme Court's recount decision. Betty Ann Bowser summarizes what the nine Justices said, and how they said it.

SPOKESPERSON: Here it comes.

BETTY ANN BOWSER: The ruling came just after 10:00 last night, sending reporters scrambling to make some sense of it.

REPORTER: Sorry peter, we are still trying to work our way, interrupted, through this very lengthy...

REPORTER: It's a highly confusing opinion, and I, with so many dissents, it would be irresponsible of me to come out and give you definitive things.

BETTY ANN BOWSER: It was a 65 page document with six different Justices writing opinions. In the unsigned majority opinion, the high court indicated it was uncomfortable with its role in determining the next president. "None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's deign to leave the selection of the President to the people..." But, they said, "...When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront." The five member majority: Rehnquist, O'Connor, Scalia, Kennedy, and Thomas, said the hand recount ordered by the Florida Supreme Court violated the Constitution's equal protection guarantee because the ballots were judged by different standards. And the Justices found... "When a court orders a state-wide remedy, there must be at leas some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." The majority also said a redesigned recount now would be difficult because it could not meet the December 12 deadline to certify electors. "It is obviously that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work." Two other Justices, Souter and Breyer, agreed there were equal protection issues, but felt there was still time for a fair recount. In a dissent, Justice Souter wrote: "To recount these manually would be a tall order, but before this Court stayed the effort to do that, the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now. I respectfully dissent." And he offered a remedy to be done before the electoral college meets on December 18. "In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots." In another dissenting opinion Justice Ginsburg said, the U.S. Supreme Court should not second-guess the Florida Supreme Court on matters of state law. "...disagreement with the Florida court's interpretation of its own State's law does not warrant the conclusion that the Justices of that court have legislated. There is no cause here to believe that the members of Florida's high court have done less than their mortal best to discharge their oath of office,...and no cause to upset their reasoned interpretation of Florida law." And Justice Ginsburg added: "...the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent." The most stinging dissent came from Justice John Paul Stevens who said the majority's decision would have broad repercussions. "It is the confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. 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 identify of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent."

FOCUS - SUPREME SHOWDOWN

JIM LEHRER: Margaret Warner peers further at the court's action.

MARGARET WARNER: And for that legal insight I'm joined once again by two scholars, and former Supreme Court clerks, who've helped us through much of this saga: Pam Karlan, an election law specialist at Stanford Law School, and John Yoo of the Boalt Hall Law School at the University of California, Berkeley. Well, welcome back guns -- once again, you both said that you thought in a politically charged case like this that the court will try to come up with a unanimous or as close to unanimous possible ruling. Pam Karlan, as you read through all of these different opinions what do you see as the fundamental split that made a unanimous ruling impossible?

PAM KARLAN: Well, I think the fundamental split that made a unanimous ruling impossible was that five Justices wanted to end the process last night and have it over with and four Justices didn't and there is no way to reconcile that kind of a conflict.

MARGARET WARNER: Explain that a little more.

PAM KARLAN: Well, the majority held that the equal protection clause has been violated here and then held that it was going to stop the recount as a result. You know, there is something a little silly about this or a little troubling, and that is having held that the right to vote is a fundamental right, the Supreme Court then essentially did exactly what it had criticized Florida for doing, which is having held that the right was fundamental it now denied the right to have many voters' votes ever counted. Having held that the right was fundamental and that the political process should act to protect that right, it then stepped on the other branches and criticized them. It made new law. It came up with a rule that it itself said was good for this case perhaps and good for this case only. And I think there was no way the majority having said that that the dissenters who either didn't think there was a problem with the recount in the first place or thought Florida should be given the ability to try to conduct a constitutional recount could go along with that. So I think that once a majority decided it wanted to end the case last night, there was nothing that could have been done to reach a unanimous opinion.

MARGARET WARNER: John Yoo, do you agree that was the rub? I mean, you had Souter and Breyer agreeing there was a problem with the recount but they wanted to try again.

JOHN YOO: Right, I think you had close to unanimous court. You had a 7-2 opinion on the equal protection clause violation but it really was the Section 5, December 12th deadline that caused a deadlock, and I think Pam is quite right that once you had a division on that issue you are not going to have a unanimous court. However, let me say I don't think that that argument or holding is as frivolous as some might think. I think what you had there was actually a reintroduction of the structural argument that the Constitution gave the Florida legislature the power to choose presidential electors and that it was up to, since it was up to the Florida legislature the Supreme Court could intervene and prevent the Florida courts from overriding the Florida legislature's desire that everything be settled by December 12. But I agree there is a critical division between the court as to whether that December 12 deadline was part of the constitutional power of the Florida legislature to set and whether it had to be respected by the Florida court.

MARGARET WARNER: But are you surprised as Pam Karlan is that that December 12 deadline which isn't really a deadline in law, I mean it's a wished for deadline, trumps, were you surprised they found it trumped the right of every person to have their vote counted or recounted or looked at manually?

JOHN YOO: Well, I was a little surprised that it came in at the end of the procuring opinion in the way that it did because the Chief Justice's concurrence lays out much of the foundation and the reasoning as to why the December 12 date actually became important. It actually is not important because of the federal law because if Congress has promised to count as valid electoral votes that are finally chosen by December 12. Instead, according to the Supreme Court, it came in through state law. It's important because the Florida legislature wanted to incorporate it into its own electoral -- I have to admit I found that surprising because the whole opinion is about the equal protection clause but if that was just an equal protection clause case, we would still be watching the litigation go on in the lower courts

MARGARET WARNER: All right. Let's talk about Justice Stevens' dissent, and particularly his last or second to the last sentence. Pam Karlan, he was talking about the fact that because the court was overruling the Florida courts, it was implying a lack of confidence in their impartiality, and he said we may never know with complete certainty who won this election, but 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. What do you think of that?

PAM KARLAN: Well, I think he is right to some extent, which is as Justice Ginsburg pointed out in her dissent, the last time the U.S. Supreme Court really reached into slap the face of a state Supreme Court quite the way it did here, decide there is a violation and then not send the case back so that the state court can fix it was in the 1960's in the Jim Crowe South. Those are actually the cases that the Chief Justice in his concurrence site -- cases where you couldn't trust the state courts because they were deeply racist. And to use those cases as the justification for saying you couldn't rely on the impartiality of the Florida courts here or you couldn't trust their interpretation of Florida law really does cast serious doubt on the state courts. And that is quite contrary for the Justices in the majority here because in a whole raining of issues they are prepared to let the state courts decide even very fundamental issues. They really want to get the federal courts, for example, completely out of the business of making sure that the death penalty is implemented fairly. They trust state courts there, and so there is something odd and contradicting and troubling about their suggesting now that state courts really aren't worthy of trust when it comes to important constitutional issues.

MARGARET WARNER: John Yoo, what did you make of that comment of Justice Stevens?

JOHN YOO: Well, obviously Justice Stevens is worried about the politicization or at least the appearance of a politicization of the Judiciary. Pam is quite right; this is an unusual situation for the five Justices of the majority to be exercising a specially intrusive review over what state courts do. I might add that it runs both ways. I think the four dissenters must have found themselves in a very uncomfortable position to defending states courts as much as they were in these opinions but I think the important thing to focus on is -- is Justice Stevens right, that this decision is going to lead to a lack of respect or diminishment of the legitimacy of the Supreme Court and the lower courts? I tend not to think so. I hope his prediction is proven wrong in this regard. I do think that was a once in a lifetime or one time only case and that you are not going to see the Supreme Court become the focus of political attacks and criticism of its legitimacy a year from now because of this.

MARGARET WARNER: Let me bring up John Yoo, staying with you a minute. Justice Breyer also joined - there were critics inside and outside the court who said the Supreme Court would be seen as being driven by partisan considerations. He talked about we risk a self-inflected wound. On the other hand, Justice Thomas, for whom you clerked, said today, he was making an appearance, he said don't apply the rules of the political world to this institution. They don't apply. First of all, who is right here and do you think that, did you see any whiff of partisan considerations in this ruling?

JOHN YOO: I actually think it was a partisan ruling in the sense we think of Republican versus Democrat or Bush versus Gore. I think there is a deep divide on the court but it's about judicial ideology, which isn't of great concern to everyday Americans. I think there is a deep division on the court of how to interpret the Constitution and the role of the national governments versus a state government. But I don't think you saw some of the heated rhetoric actually you've seen in a lot of 5-4 decisions that the court has rendered in the last ten years about cases like abortion, voting rights, affirmative action, criminal procedure rights where the courts, minority and majority, often accuse each other of twisting the law to reach the results they like. You didn't reallysee that in this case.

MARGARET WARNER: Pam Karlan, did you see any tinge of partisanship here?

PAM KARLAN: No, I didn't t. I agree with John Yoo on that. What I did see is a kind of fundamental disrespect which I think is what this 5-4 split has indicated in a lot of other cases - a kind of fundamental disrespect for the other branches of government both federal and state, and that is the five Justice majority are also the people who have been recently most inclined to strike down congressional statutes such as the Gun-Free School Zone Act or the Violence Against Women Act. They've been the group most inclined to strike down state legislature reapportionments. So I think it reflects a deep ideology divide on the Supreme Court. But I don't think it's a crude justices sitting in their thinking do I want George w. Bush or Al Gore to be president? I don't think it's anything like that, no.

MARGARET WARNER: And, Pam Karlan, what about the tone of the dissent? To laypeople reading these they did sound pretty bitter. And much had been made of Justice Ginsburg just saying - instead of I respectfully dissent, -- which is I guess the tradition - I dissent. You were a clerk I guess 15 years ago. How do you read this? Are the divisions more bitter? Is there more bitterness on the court?

PAM KARLAN: I couldn't think that the court is -- I don't think that the court is bitter. I think it's deeply divided and I wouldn't make too much out of the lack of the world "respectfully in there." It's not an unprecedented thing. I think maybe last term she did that many, many times and earlier this week in fact she had a case where she said I dissent. So I don't think that that will I would read this one word as indicative of deep division, but I think the court was bitterly divided on this case and that bitter division reflects itself in the opinions.

MARGARET WARNER: John Yoo, how do you see that?

JOHN YOO: I think Justice Ginsburg is a writer who is very economical with her words and she'd rather use two words instead of three, so maybe she just left "respectfully" out. You know, going beyond that, I think the Justices are not very bitter towards one another. I clerked on the court with the current membership. It's amazing to see how well they all get along given how sharply worded some of the conditions are. In fact I think the Justices are very good at letting bygones be bygones. Something that happens in one case does not have an effect in other case. I don't think this is the first appearance of some kind of bitter split that is going to effect the way it's going to operate in the future. I think Stevens' words really were pointed at how is the nation and the people going to view the court as an institution?

MARGARET WARNER: And you think that it won't do damage?

JOHN YOO: I don't think so. I mean, compare this to the other situations in the history where the court has come under strong political attack, the Warren court, the New Deal court, the anti-Bellum court and the Marshall court; these were periods when the court was a center of the action, making a number of decision over time that made it the focus of the political debate. That was a one-time only case. The court is never going to decide this kind of issue again in our life times. A year from now they will be back to sign the regular run-of-the-mill cases that people care about, and I don't think they will be the center of any political criticism after long.

MARGARET WARNER: And Pam Karlan, your thoughts on this, what this will do to the image of the court?

PAM KARLAN: I think it will cause the court some damage. You know, many, many years ago Justice Jackson said in a case that involved federal and state power about the Supreme Court that they shouldn't be so sure that their reversing the state courts was always getting it right. And he said, we are not final because we are fallible; we are infallible because we are final. And in this case they were quite final, but I they were also fallible, and I think they will pay some price for that but no where near the price they paid for cases like Dred Scott. I don't think this case is Dred Scott. I think this case is more like the case in which the Supreme Court held if you didn't have enough money to pay the filing fees you couldn't go bankrupt. This is a case where they delayed the election recount then said, but it's too late to have a recount. So I think it's more a case where people will think they were inconsistent and where they rushed in where angels fear to tread but I don't think this is going to cause the court systematic damage, or make it impossible for them to issue other opinions that will garner widespread respect.

MARGARET WARNER: All right. Well Pam Karlan, and John Yoo, thanks both again very much.

FOCUS - POLITICAL FALLOUT

JIM LEHRER: More on the political fallout now and to Gwen Ifill.

GWEN IFILL: We test those political waters now with two Republicans, Senator Olympia Snowe of Maine, and former Congressman Vin Weber of Minnesota; and two Democrats, Congressman Harold Ford of Tennessee, and former New York Governor Mario Cuomo.

Senator Snowe, you spent part of your day meeting with Vice President elect - it would seem -- Dick Cheney up on the Hill. He met with five moderate Senators. What was the purpose of that meeting and what did you take away from it?

SEN. OLYMPIA SNOWE: Well, the purpose was to talk to Vice President-elect Cheney about our group and in wanting to work together in a constructive way on an agenda that is going to be important to the future of this country and particularly under these difficult and arduous circumstances, and the fact that Vice President-elect Cheney was willing to come to the Hill and to meet with us, I think it's an indication of how President-elect Bush and Vice President-elect Cheney intend to approach the issues that are going to be critical to this country.

GWEN IFILL: Senator, Do the circumstances of this election make the prospect of unity more difficult, or does it make it easier?

SEN. OLYMPIA SNOWE: Well, I think that in fact we could argue that given the narrow margins in the House of Representatives and the course of the evenly split Senate that it will require if not compel us to work together in a bipartisan way to make sure that we achieve legislative results, and I was encouraged last week when our centrist coalition of which I'm a co-chair with John Breaux, the Democrat from Louisiana, in which 26 members of the United States Senate, almost a third of the membership attended the meeting and indicated a willingness to meet on a weekly basis throughout the Senate session in order to develop issues that are important, to be a constructive force in making sure that we can overcome the impediments and the obstacles that would exist under this evenly divided Senate. So I take heart in that. And there was a real strong expression of interest on both sides of the political aisles that we should work together in a way to achieve early success in issues such as education and of course on the budget resolution.

GWEN IFILL: Governor Cuomo, you've given an important speech or two in your time. What is it that Governor Bush and Vice President Gore need to say tonight?

MARIO CUOMO: Well, I think they need to talk in terms of themes instead of specific programs. That will be an advantage for Governor Bush because Governor Bush it seems to me by a confluence of circumstance here has lost most of his agenda. Certainly after the performance by the Supreme Court, you can forget about anybody challenging Roe Against Wade with a new judge of the type of Thomas or Scalia who were advanced as icons by Governor Bush. That is gone. So the abortion issue is gone. The big tax cut is gone. And probably the Social Security privatization is gone. So governor Bush's problem is he is going to be limited to some issues that are mostly Democratic. He is going to have to talk about education, delighted especially if you spent some money; he'll have to talk about the Patient's Bill of Rights which he boasted he had done in his own state; but his own agenda has disappeared and to the extent that it turned on a conservative bench, that is going to be some fun, watching him try to add to Thomas and Scalia. So he'll have to be thematic and he'll have to be obvious.

GWEN IFILL: What about Vice President Gore?

MARIO CUOMO: Vice President Gore, who has done extremely well here not just because he won the popular vote but because he has a Senate now that is 50/50 and because he has a House that is much closer and you have to give him credit for that. So he is in a strong position. He should be generous, he should be obvious again saying thank you to the people who helped hem and by pledging absolute support for Governor Bush. I would love to see them come together at Christmastime and get together and make a present to the whole United States of America; they are going to work together. He'll do it I think well.

GWEN IFILL: Mr. Web, could you respond to some of Mario Cuomo's comment about the degree to which George W. Bush is limited and also to the larger issue that some Democrats have raised today about the legitimacy of this presidency?

VIN WEBER: First, I think the presidency is legitimate once the President stands up and takes the oath of office. I think most Americans will agree with this. There are certainly going to be some people that will have an interest in questioning that legitimacy. I don't think it will be the majority. I don't think it will be most people in either party. In terms of the agenda I don't quite agree with Governor Cuomo. I certainly think that Governor Bush, President-elect Bush perhaps, will come into office cognizant of the fact that the Congress is very evenly divided and that the country is evenly divided but to say that everything he talked about in the campaign is sort of washed away by that leaves you with nothing. The fact is that there has been bipartisan support for many of the things that the Governor talked about in the campaign. And he needs to talk to people like Congressman Harold Ford and like Senator Olympia Snowe and talk about the way in which he can assessable a bipartisan coalition on behalf of some of the initiatives he did talk about in the campaign, and he has to display a flexibility and a spirit of compromise in approaching those, but if you wait that agenda away, you are really left with nothing.

GWEN IFILL: Congressman Ford, after all the talk or the signals being sent from the Gore camp that the Vice President should be statesmanlike tonight, there are a lot of Democrats who are questioning this election, who are questioning the outcome of this election. Will Democrats ever embrace George W. Bush as President?

REP. HAROLD FORD, JR.: We are a great nation and I thank my colleague for urging the Governor - the President-elect to reach out to me. We are a great nation, a resilient one, an enduring one and I'm confident that Democrats will be able to work with this President, work with his administration but without a doubt there is a lot of frustration. As Governor Cuomo mentioned, Al Gore was the winner of the popular vote. He might be the winner of the popular vote in Florida. The court has spoken though. We respect the rule of law. This campaign does and certainly my colleagues in Congress do. I think two things that Governor Bush could do right away that could help allay some of the concerns and allow an agenda to be pushed forward in addition to some of the issues that Governor Cuomo raised - One would be to push immediately or to promote an electoral reform which would allow for a voting machines to be modernized and to even take a hard look at the electoral college and two would be to perhaps grab on to Senator McCain's idea of campaign finance reform. One is non-controversial; the other is somewhat controversial, but I think it would send a clear message to Democrats and Republicans that he is willing to work across party lines and even willing to take a look at some of the things he said during his campaign and even broaden his perspective on those issues. So it's my hope that Olympia Snowe's organization, the Senate, the group that we formed in the House will be able to work closely with President-elect Bush and Vice President-elect Cheney, if I can be so bold as to speak about what may happen in a few hours, and look forward to actually do doing something on behalf of the people in Tennessee and all across this nation.

GWEN IFILL: Senator Snowe, how -- should Vice President Gore have fought so long and so hard? Should he have prolonged this election the way he did?

SEN. OLYMPIA SNOWE: Well, you know, I don't fault him for that. I mean, he had every right and prerogative to pursue the political and the legal course, and that was extended to both candidates. I think everybody understands that. This was a very difficult and arduous process and in complex to say the least. So I think everybody understands exactly why he pursued the course he said did.

REP. HAROLD FORD, JR.: I think it's important to note the court stipulated there were votes that had not been counted and their remedy was one which the majority -- majority offered was one they did not believe it could be accomplished in time to meet this safe harbor period, to preserve this safe harbor period. So I heard one of the earlier guests indicate that Vice President ought to be apologetic. There were votes that were not counted and he sought to have those votes counted. I can live with this outcome; I don't mean to sound bitter at all, and I don't think my colleagues in the House, Democratic colleagues are going to be bitter but it's important to note that he was only trying to ensure that all voices were heard and all votes would be counted. And the irony is all the votes are going to be counted at some point, and I just hope that the person who does occupy the White House actually received the most votes in Florida.

GWEN IFILL: Governor Cuomo do you expect that Democrats over the next two years are going to use the way this election turned out as an issue against Republicans?

MARIO CUOMO: You know, I don't know that you can actually specifically relate backward and say you know, they stole the election or we won the popular vote. I think we are so current oriented or such a dynamic nation, so much is happening, we are now global and every day new events will occupy our attention, and I think we won't have time to look back and consider how Bush got there. He'll be judged on how he performs. He is going to make some appointments and he will be judged on that. He'll deliver his inaugural address and he'll be judged; the state of the union, he will be judged. He'll meet with Netanyahu or Barak, et cetera, et cetera, and so I think he has a good opportunity to function. He is going to be limited in his agenda; again, I think Congressman Ford is absolutely right, the reform agenda will be available to him and the Democrats will be delighted to participate in that. Education will be available. Healthcare will be available. But his big pieces are gone. He is not going to be able to do anything about Roe against Wade; that's clear. He is not going to have his big tax cut - not just because it's so close in the Congress but because of where the economy is at the moment. The idea of giving a $1.4 trillion tax cut is now a mirage. Nor is he going to be able to privatize Social Security, and Vin Weber is right. That does leave him with nothing in terms of his own agenda. And he is going to have to get down to where the Democrats are. And I'm delighted with that prospect.

GWEN IFILL: Does that mean the year 2002 and 2004 are real challenges for Republicans?

VIN WEBER: Sure, it is a challenge for Republicans; it's a challenge for Democrats. I just have to again dissent a little bit from Governor Cuomo -

REP. HAROLD FORD, JR.: Do you respectfully dissent?

VIN WEBER: I respectfully or very respectfully dissent. The Governor's agenda, is that flexible - certainly -- does he have to reach out to Democrats and moderate Republicans as he puts the details around any plan on Social Security and taxation? Certainly, but to say that that agenda which he talked about and which was supported in the polls is dead is simply not the right way for this Governor -- this President to proceed in my view.

GWEN IFILL: Senator Snowe, I heard you trying to get in.

SEN. OLYMPIA SNOWE: That's correct because I somewhat disagree with Governor Cuomo on the fact that President-elect Bush has lost some of his agenda. In fact, to the contrary, education was the centerpiece of his campaign. He talked about what he did in Texas and what he wanted to do at the federal level to improve the quality of education in America as well as ensuring that there was accountability -- and to deliver more funds for education. In fact, Vice President elect Cheney said today that they intend to pursue an education agenda. Our conversations in the centrist coalition said that in fact we weren't that far apart between Democrats and Republicans in fashioning legislation on the issue of education early on in the session so that we can demonstrate to the American people there is a strong group in the Senate, there's a strong group in Congress who can work on these issues that are important like education. And the same is true for example with Social Security and prescription drugs, those are issue that is he talked about during the course of the campaign and tax cuts. It may not be the size but clearly as Cheney indicated today, they do intend to pursue particularly - tax cuts - particularly because there is a declining economy, and all the more important and I know Democrats are interested in passing some tax cuts concerning marriage penalty and estate tax relief as well.

MARIO CUOMO: I agree if I may. Again. I think we are all agreed now and I'm particularly pleased. You are absolutely right. Now he is going to spend money on education, it is very much something that appeals to the Democrat and Vin Weber is right maybe that the polls agree with him but let's keep it clear. The electoral college makes George Bush President but the votes were still with the Gore agenda; more people voted for Al Gore's agenda than voted for Bush's agenda. You can't neglect that.

GWEN IFILL: We are going to have to continue this conversation another time. Thank you all for joining us.

FOCUS - ELECTION 2000 - IT'S HISTORY

JIM LEHRER: And finally tonight some history and to Ray Suarez.

RAY SUAREZ: We get that longer view from "NewsHour" regulars, presidential historians, Doris Kearns Goodwin, and Michael Beschloss; and journalist and author Haynes Johnson; joining them tonight is Richard Norton Smith, presidential biographer and historian. Well, a five-four vote in the Supreme Court settles the whole game; 36 days of state Supreme Court deliberations on television; emotional demonstrations on the street; people holding ballots up to the light. Maybe the specifics are different, but Michael, have we ever been in a situation like this before?

MICHAEL BESCHLOSS: We never had. And I have been grouping for some frame of reference for the last five weeks. You know, usually you can go back and say here is a situation which a president has done this or in which the country has been in this kind of crisis, and there is just no frame for this. And you've seen that also I think in Bush and Gore. Governor Bush and Vice President Gore when they have spoken in public, it has had this slightly artificial, surreal aspect. They haven't quite known what to say themselves. You know, usually politicians look to past speeches in history for some guidance, and that is one reason why I think that there has been this sort of odd feeling both on the part of the candidates and perhaps on the part of all of us not knowing exactly sort of what we are going through and how you are supposed to react. And I think one thing that I've been a little bit distressed by -- by both Governor Bush and Vice President Gore is that in this case, they haven't just sort of said this is a horrible agony that I'm going through. and it's something that the nation is going through. Instead you have the Vice President saying I'm fine and I'm optimistic and I'm sleeping like a baby and Governor Bush giving these very carefully structured speeches. And one thing I think we've missed is that sense of a leader talking to us, leveling with us and saying this is something I'm going through too.

RAY SUAREZ: Doris, uncharted territory?

DORIS KEARNS GOODWIN: Without question. I think if we look back 100 years from now on this election, it seems to me the most important point to understand it was the moment when democracy found our own electoral system in some disrepair. You know, if you look at the history of the 20th century, in some ways it's the triumph of democracy abroad over fascism and communism and also the expansion of democracy at home with women's suffrage and civil rights. And, yet, what this election revealed was when you have an incredibly close election, we didn't have the machinery ready to count the votes accurately. We didn't have a process that could do the manual we recounts. We have a lot of machines in the poorer precincts that aren't working correctly. So I think in some ways if both candidates were able to realize they both were hurt by the system, but we are strong enough to be able to repair that system now. And, in fact, the constitutional system worked. Even if the electoral system, Roosevelt used to say a nation is like a body, it needs to be clad, housed and fed. I think to some extent our electoral system needs that kind of clothing right now, but we can make it work. The constitutional system provided finality. Everybody tried to act the best they could in this whole circumstance, but I think that's the reason it is uncharted because we haven't look at our democratic system. It's not only the failure of the machines, I think if we look more carefully; it's the failure of enough people to vote. Think of what would have happened if more out of five out of ten people had voted. Maybe it wouldn't have been -- if it had been nine out of ten -- as close as it was. And we have got the campaign finance to deal with. So I think we need to take a hard look at ourself after this is over.

RAY SUAREZ: Haynes, what do you think?

HAYNES JOHNSON: I agree with that, absolutely. The system is in disarray right now. We've all talked before -- the last time we were with you. This was a great civics lesson. We learned about how it's working. That's true. Troops aren't in the streets and tanks aren't rolling down Pennsylvania Avenue, but if you look at where we are, every element of the political system has been tarnished and diminished, including the courts. We have a political system, Congress, the state courts, the legislatures and the rest and the press, so all of these things are coming out of it. The question is not so much that that happened, what do we do about it and I think that is the real challenge for this new administration that is about to come in to Washington. Are they going to reform the way we vote and reform the way so that people have a sense of fairness in the whole prospect of our electoral democracy? That could be done, but it's not going to be an easy thing. And it's really going to be rebuilding that kind of sense that there is faith that you can count upon it, it works.

RAY SUAREZ: Richard, should we be careful not to exaggerate the seriousness of the national predicament?

RICHARD NORTON SMITH: I that's is a good question, Ray. I went back last night. I was looking at Sandburg's Lincoln thinking about a time when not only presidential legitimacy was called into question but the very survival of the republic. And in 1862, Lincoln delivered a famous message to Congress, and he said, the occasion is piled high with difficulty, and we must rise with the occasion. And I think those words are still applicable to what we are going through now. Sure we have got problems, but as Doris said they are problems of the machinery, literally of the machinery -- how we cast and how we count votes in this country. There is the election that is the closest parallel to what we are going through is 1876; and during the four-month interregnum that took place there was talk of civil war. One night while the Hayeses were dining a bullet was fired through the dining room window. I mean, that was an election that literally threatened to tear this country apart over issues of reconstruction, the nature of states' rights, the relation of the individuals to the government. The next president for all the challenges that he faces, remember -- will also get to argue about Congress about how to divvy up a 4 to 6 trillion dollar surplus.

RAY SUAREZ: Well, let's get some other historical insights on what presidents have done at times of deep division in the country. Michael?

MICHAEL BESCHLOSS: Part of that is they have to draw on theirown experience. I keep thinking of Lyndon Johnson in 1963 after an assassination -- the assassination of John Kennedy -- and Jackie Kennedy said to him, Lyndon, what a horrible way for to you come in. And he was in a situation where people knew this was done in his home state. They didn't know him very well, and because largely he had been in Washington for 30 years, and served in Congress, did almost everything right. You know, I've studied it so closely. He almost didn't put a foot wrong -- what he said, whom he met with -- members of Congress he spoke to, every public gesture, so that within a very short period of time, the assassination of John Kennedy, as traumatic as it was, was not something that sort of lived in our political system. We didn't draw darker conclusions at the time. The same was true of Gerald Ford for many of the same reasons. He had been in Congress three decades. He knew exactly what to do after Richard Nixon resigned when people were saying things largely about him as the person who had been chosen by the disgraced ex-president, and once again, very quickly, he made it sort of a non-issue. So if Governor Bush - President-elect Bush, beginning tonight, can show that same presence of mind, sort of the tone perfect sense of how to behave, he can do that as well, but that remains to be seen.

RAY SUAREZ: Richard, maybe you could continue with that Ford example. Some of the things that President Ford did were really symbolic and not very concrete, is that right?

RICHARD NORTON SMITH: It's true. Well, he understood that at a time like that, symbolism really was substance, and the most important thing you could do at that time was to begin symbolically to dismantle the imperial presidency, a presidency discredited by scandal, a nation torn apart by the Vietnam War. He told me once that August 9, 1974, was the worst day of his life, which you would really never guess because he really didn't a foot wrong that first week. He invited the Congressional Black Caucus to come to the White House. He asked George Meany of the AFL-CIO to come over. He had all the female systems of Congress, 13 in those days where he reiterated his support for the ERA. He even - talk about symbolism - he even told the Marine band to stop playing Hail to the Chief and replace it with the Michigan fight song. He also went to the VFW and proposed a Vietnam clemency board, which actually caused certain wave of resentment from many veterans but was part of this effort that he decided for the outset he never wanted to be president. He was an accidental president. He was unelected president -- but as long or short as his presidency was he was going to try to make it a time of healing.

RAY SUAREZ: Haynes.

HAYNES JOHNSON: I think with my colleagues, what they're talking about, the various examples -- the idea of Richard Nixon -- we talked about that, Dwight Eisenhower -- when he became President of the United States, the last time the Republicans had the White House and the two Houses of Congress, even though we've got a tie now - out of that came eventually a divided government and you had Lyndon Johnson and Sam Rayburn, the head of the Senate and the head of the House, meeting with Dwight Eisenhower every single week. They would go down to the White House on Monday and they would sit around the table and they would literally talk about the agenda that the Congress had to take. Now, that was a very different time. Whether you can do it today in the sort of bitterness that you have had recently in our politics or not, but that was an example that worked and the Congress got things done then. And they all worked together. That is maybe the model that I would hope you could see now.

RAY SUAREZ: Doris, there is a lot of talk about olive branches, about bipartisanship. Has it really worked in the past, especially after a very bitter contest?

DORIS KEARNS GOODWIN: Well, I think bipartisanship is almost like motherhood right now. Everybody is going to be saying that President Bush should bring into his new cabinet Democrats. And I suspect he might do that. It's not as sees easy as it sounds, however. When Nixon tried to have a cabinet of unity after his election in 1968, he asked Humphrey to go to the UN; Humphrey He refused. He asked Whitney Young to come to HUD, and he refused, and he got finally Moynihan; he wanted Jackson for the Defense Department, so that it's very hard to make that work. And I think the deeper thing, however, even than having a few Democrats in the cabinet, the political culture in Washington is a much deeper poisoned culture I think than it was after Ford, even after Watergate, even after Vietnam I would say because what we have had years of is between Watergate and Vietnam and Bork and the nominations and then the impeachment, we have had one crisis after another where there is not the camaraderie that once was able to sustain Republicans and Democrats. And it's partly the system that makes that happen. They used to stay around on the weekends and play poker or drink together. So during that time that Haynes mentioned where Lyndon Johnson was in the Democratic Congress, Rayburn and the Republicans would be there on the weekends together. Now they go home to raise funds. The media takes sometimes a negative attack on some of these candidates and plays them up when they talk against each other. It somehow emphasizes dissent - we have point, counter points on all these cable talk shows, and the way we campaign now leaves people's reputations destroyed so it's hard for them to shake a hand afterwards and say, okay, I'm with you. So I think the most important thing that Mr. Bush will have to do is deeper than just bipartisanship in an abstract way. He has got to start repairing the culture, and that means repairing the language. I think he has to tell Trent Lott you can no longer say things like I hope Hillary Clinton is hit by lightning before she gets here. Think of it what that means in our culture, some comment like that. So I think we have a much more difficult task in a funny way, even though the issues aren't dividing us as deeply in the other times, when they were much more serious; the culture itself has been in disrepair in the these last couple of decades.

RAY SUAREZ: Well, thank you all, good to see you.

NEWS SUMMARY

JIM LEHRER: In the other news of this day, the crippled U.S.S. "Cole" returned to Pascagoula, Mississippi, where it was built. It arrived piggyback aboard a Norwegian heavy-lift vessel. Two months ago, in Yemen, a suicide bombing blew a hole in the destroyer, killing 17 U.S. sailors. Repairs are expected to last a year, and cost up to $170 million. Retail sales fell four-tenths of 1% in November, the Commerce Department reported today. It was the first drop since April, led by the biggest decline in new car sales in more than two years. Analysts said the report was one more sign the economy is slowing. We'll see you online, and again here tomorrow evening, with further analysis of what now, after one of the closest and most challenged presidential elections in history. I'm Jim Lehrer, thank you and good night.