You can never tell from an appeals hearing exactly where the judges stand. The exalted ones sit up there and tend to pepper both sides with legal zingers.

That said, Al Franken’s recount lawyer, Marc Elias, was the object of lots more zings this morning than Norm Coleman’s lawyer, James Langdon.

The intense skepticism from a depleted four-member Minnesota Supreme Court heard Elias’ plea that Franken – who is ahead in the recount by 225 votes – should be awarded an election certificate right now and not, as state law seems to say, when the verdict in the ongoing election contest is determined by Judges Elizabeth Hayden, Kurt Marben and Denise Reilly.

Elias’ argument is that by not signing Franken’s election certificate now, Gov. Tim Pawlenty and Secretary of State Mark Ritchie have caused Minnesota to “opt out” of one seat of the U.S. Senate, contrary to the U.S. Constitution, which provides for two senators.

He said in the courtroom – the old Supreme Court courtroom in the State Capitol was used – and outside the room afterward that the nation’s work is continuing, key votes are at hand in the U.S. Senate, and Minnesota should be fully represented.

The U.S. Senate convened Jan. 6 with neither Coleman nor Franken seated there. If Franken would get his certificate, then the Senate would be able to seat him. Elias is only asking that Franken's certificate be on an interim basis ... until the trial ends.

But, pointing to state law that states an election certificate shouldn’t be issued until the final resolution of a contest, Langdon said the state should “get it right” and allow the contest trial to play out to conclusion.

He was supported by Alan I. Gilbert, the state’s solicitor general, who was representing Pawlenty and Ritchie and speaking for DFL Attorney General Lori Swanson. Franken is a DFLer.

Amidst the argument to get Minnesota another senator, Gilbert dropped a timing bombshell. He said it’s the position of the attorney general’s office that no certificate should be awarded until the contest trial ends AND all appeals related to it.

That could be a long time from now.

Only four justices heard the case. Because Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson were members of the State Canvassing Board, they recused themselves from all Supreme Court matters on this case. Justice Helen Meyer was absent; a court spokesman said she broke her ankle skiing; but Meyer will watch the hearing on videotape and be a part of the decision.

Justices Alan Page, Lori Gildea, Paul Anderson and Christopher Dietzen heard the case in person. Page, the longest-serving member of the court, sat as chief justice. He said the court would take the matter under advisement.

The contest trial was suspended for 90 minutes to allow for the Supreme Court argument. The trial continued at 10:30.

We are now into Day Nine of the election contest trial.