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."
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.
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."
Only not clear to Dan Rather and CBS News.
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:
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
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."
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
Even Tribe demurred from Shaw's prompting as he maintained he's "not arrogant enough to render a verdict."
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:
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
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."
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
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."
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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