In an extraordinary example of how quickly the legal situation is changing in the presidential election battle, attorneys for Texas Gov. George W. Bush and Vice President Al Gore clashed sharply in Supreme Court briefs Thursday on an issue that was not even raised when the justices agreed to hear the case a week ago.
On the eve of a historic argument in the nation's highest court, both sides sought to focus the justices' attention on the question of whether the Florida Legislature has the power to appoint its own slate of presidential electors.
They were reacting to the unusual circumstances of the case in which the question the court originally agreed to consider--whether the Florida Supreme Court should have allowed Katherine Harris, Florida's secretary of state, to certify the election's results more than two weeks ago--has been largely overtaken by events.
Bush's lawyers urged the high court to hold that "the Constitution specifically assigns the power to determine the manner of appointing presidential electors to the state legislature," as opposed to the "state" in general.
Doing that would "avoid a potential constitutional crisis" that would be caused if the Florida Legislature and its courts clashed, Theodore B. Olson, Bush's lead lawyer, wrote in his brief filed Thursday.
Gore's attorney, Harvard University law professor Laurence H. Tribe, fired back that Bush's team was improperly trying to "smuggle in" an issue that is not properly before the court.
They urged the Supreme Court justices to not rule on the issue and stick to the matter at hand--whether the Florida Supreme Court was within its bounds when it extended the state's deadline for conducting manual recounts.
Thursday's developments showed how truly bizarre the legal situation is, according to a wide array of legal scholars.
"This is a moving target," said Yale University constitutional law professor Akhil Reed Amar.
"The case they [the justices] thought they had may not be the case they have now," said Brad Berenson, a Washington attorney who served as a clerk to Justice Anthony M. Kennedy.
"The Supreme Court is acting almost like a trial court," making the first judgment--not the last as it normally does, said UC Berkeley law professor John C. Yoo, who clerked for Justice Clarence Thomas.
Technically, both sides were reacting to a brief filed earlier this week for the Florida Legislature by Harvard law professor Charles Fried, the former solicitor general of the United States who now represents the Florida Legislature's Republican majority.
Fried's brief asserts that the Florida Legislature has the authority to pick a slate of electors regardless of any other development--including the outcome of Gore's pending litigation in Florida courts contesting Bush's narrow victory there.
On a political level, Gore's attorneys were also reacting to the moves by Republican legislative leaders to convene a special session next week that would pick electors and to the fact that the state's governor, Bush's brother Jeb Bush, said he would sign a bill doing so.
Both Pamela Karlan, a liberal constitutional scholar at Stanford University law school, and Michael McConnell, a conservative constitutional scholar at the University of Utah, expressed skepticism about whether the Supreme Court would follow the path Bush is asking it to do.
"The train is coming into the station fast, and if I were the Supreme Court I would stand far back," Karlan said. In particular, she noted, the court could be faced with another case growing out of the election battle in a matter of days and should not be in the position of prejudging the outcome.
McConnell said that, in essence, Bush's attorneys "are asking for an advisory opinion" on an issue that was not formally in front of the justices. The court has always held that the constitution does not allow it to issue advisory rulings.
The idea of the Florida Legislature leaping in to appoint its own slate of electors is somewhat "scary," McConnell said. And he suggested that the Supreme Court would be wise not to rule at all because of the way the case has changed since the justices agreed to hear it.
With the certification now over, the legal battle has moved on to Gore's attempt to contest the election results, said McConnell. "I don't see how" the Supreme Court could issue a ruling that would "void out the contest," he said.
Attorneys for Bush and Harris, who served as co-chairwoman of Bush's Florida presidential campaign, seem to disagree with that assessment.
In a brief filed earlier this week, Bush's attorneys asked the high court to vacate the Florida Supreme Court decision. And they assert that the court could do so in a way that would allow Harris and the Election Canvassing Board to provide a retroactive certification of the results as of Nov. 14.
If the court did that, "some of the recently filed challenges to the election results may be mooted," including Gore's attempts to get a manual recount in Miami-Dade County, they wrote.
Gore's attorneys launched an acerbic attack on that contention Thursday.
Bush "appears to seek nothing less from this court than a declaration . . . that the Florida vote was actually certified on November 14--not when it actually was, on November 26--so that he can argue elsewhere" that Gore's current challenges to the election results should be tossed out as untimely, Tribe wrote.
"He seeks not just to run out the clock but, extraordinarily, to have this Court turn back the clock in pending Florida contest proceedings so that he can declare the game over."
It is unclear when the Supreme Court will issue a ruling, but court officials said Thursday that their cafeteria will be open Saturday, as the justices and their clerks are expected to be working.