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Burden of Proof

Democratic National Convention: Would a Gore Administration Shift the Direction of the Supreme Court?

Aired August 16, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

PAT BUCHANAN (REF.), PRESIDENTIAL CANDIDATE: I would put the U.S. Supreme Court and the probable vacancies as the most important domestic issue that will be decided in the presidential election in the year 2000.

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: The decision is, I think, consistent with Roe v. Wade, and as you pointed out, it was narrowly upheld. I think that is about what the vote for Roe is. I think that in the next four years, there will be somewhere between two and four appointments to the Supreme Court, and depending on who those appointees are, I think the rule will either be maintained or overturned.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: 1600 Pennsylvania Avenue isn't the only focus of campaign 2000. Will there be vacancies in the United States Supreme Court? and will a Gore administration shift the direction of that court?

ANNOUNCER: This is BURDEN OF PROOF, live from the Democratic National Convention in Los Angeles, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to a special edition of BURDEN OF PROOF.

Vice President Al Gore arrives in Burbank, California, this afternoon, and he is ready to accept his party's nomination. If elected, Gore may have the chance to shape the future beyond his administration.

ROGER COSSACK, CO-HOST: As many as three or four Supreme Court justices are reportedly considering retiring from the bench during the next presidential term. Such turnover would open up the door for considerable influence from whoever sits in the Oval Office.

VAN SUSTEREN: Joining us today here in Los Angeles is Ralph Neas, with the foundation People for the American Way; and seated to our left is no stranger to Supreme Court nominees and the approval process on Capitol Hill, Senator Patrick Leahy of Vermont. COSSACK: And also joining us here in Los Angeles, Ed Lazarus, author of "Closed Chambers."

Senator Leahy, let me start right with you. How important is it that the next president of the United States may have three or four, up to three or four appointments on the Supreme Court, is that a major issue that American voters should be concerned about?

SEN. PATRICK LEAHY (D), VERMONT: I think it is probably one of the overriding issues of this whole presidential election. Nobody can say for sure whether -- what vacancies may or may not be, but it doesn't necessarily even mean resignations. As we have seen in the United States Senate, we have lost two senators unexpectedly by death in just within the last year.

Let us assume there are two or three or even four vacancies, in a court that's been closely divided on everything from a woman's right to choose to privacy issues, to the ability to sue for your rights, even the ability of states to be able to violate our patent and copyright laws, this could change the whole complexion and could change it for generations.

I think every single person, when they cast a vote this fall, has got to know they have the potential casting a vote for the direction of the Supreme Court, possibly for the rest of their lifetime.

VAN SUSTEREN: Ed, you've written a book on the Supreme Court. Let me give you a few pieces of information. Rehnquist is 78, Stevens is 80, O'Connor 70, two of the Supreme Court justices, including O'Connor, have had cancer. But you don't think there are going to be vacancies, at least not three or four?

EDWARD LAZARUS, AUTHOR, "CLOSED CHAMBERS": Not three or four, no. I don't think Justice O'Connor is going anywhere, If you talk to her clerks and former clerks they will tell you she's incredibly energy, she is traveling all over the world this summer. These people don't want to retire.

What has happened in the past, when justices have retired, if you look at Blackman and Brennan and Marshall is that they go downhill quite quickly.

VAN SUSTEREN: Suppose we don't have the three or four that some people are predicting, but you just have one. We had about 20 percent of the cases this term decided by one vote, including partial birth abortion, I think it was the gay Boy Scouts case, and a number of other significant, even one vacancy, does that make a difference in this court?

LAZARUS: Well, it all depends on which vacancy is it. Let's say George W. Bush wins the presidency. If Rehnquist retires, does it really make that much difference? I don't think so. Bush would be replacing one conservative with another conservative.

Now if Stevens retired instead, and Bush had that vacancy to fill, yes, in the area of federal-state relations, Affirmative Action, church-state relations, and conceivably even Roe versus Wade that would make an enormous difference. So everything depends on which seat opens up.

COSSACK: And Ralph, that is what I want to follow up on.

In reality, it seems that people who are more liberal-oriented, they focus in on Justices Thomas and Scalia as the enemy. In fact, really aren't those really the two justices on the Supreme Court that, in terms of reappointing or having someone replace them that people -- people more liberal side should be concerned about?

RALPH NEAS, PEOPLE FOR THE AMERICAN WAY: Let me make a very important point here, Roger, that has not been made. Last week, there is a new modern national record, it has been six years since the last Supreme Court appointment. That is the most time in between Supreme Court nominations in the 177 years since the administration of James Monroe.

There are going to be a number of Supreme Court justices. If there are one or two right-wing justices, the balance changes that much, there will be 100 Supreme Court precedents that would be overturned.

COSSACK: Don't you have to look at this from sort of a historical analysis, and say: Look, this country has been going on pretty well now for 200 years, these kinds of arguments around this table have been made every time there's another Supreme Court nominee, and somehow we made it through.

NEAS: This is a very comparable time to something that Pat Leahy and I worked on together, the Bork nomination in 1987, where the next Supreme Court literally could be a walking Constitutional amendment.

Thank goodness Robert Bork was defeated, and we got Kennedy and we got Souter. And the Supreme Court was saved, for another 15 years at least, with respect to many fundamental constitutional rights and freedoms.

There could be dozens an dozens off the precedents overturned if Scalia and Thomas get one or two more votes, let alone three or four.

VAN SUSTEREN: Senator, tell me, what's sort of the inside story in terms of the marriage between the Supreme Court and this election, how important is it as part of the Democratic strategy?

LEAHY: Well, I think it has to be important because we've seen what has happened in the past few year, the Republican control of the Senate, where all of the confirmations go, they've been blocking appointments of the courts. Made it very, very clear, they want to put an ideological stamp on all our courts, especially on the Supreme Court.

Women and minorities have taken much, much longer to go through, if they get a vote at all. We voted down, for the first time, a district court judge ever voted down in the Senate having come out of the Judiciary Committee was an African-American from Missouri. There is a very clear stamp of how they want to change the lower courts, can you imagine it would be like in the Supreme Court?

If you have a Republican president and a Republican Senate, I guarantee you they will try to shape very much the U.S. Supreme Court.

VAN SUSTEREN: Should the American citizens be cynical. Is this sort of payback because of the Bork confirmation hearings and the Clarence Thomas confirmation hearings, is that what this -- is this payback or people in the Senate were legitimately looking at these issues and the nominees?

LEAHY: I think it has become extraordinarily partisan, I don't think they are looking enough at the qualities of it now with Clarence Thomas, President Bush said he was the most qualified person in America to be on the Supreme Court. Most Americans disagreed. They saw it as political ploy in putting him there.

I think they are going to see that again.

I would -- I feel very much in my heart, not just as a Democrat, but as a lawyer and ranking member of the Judiciary Committee, I feel very strongly in my heart that a President Gore will pick somebody first and foremost on their qualification.

I also feel from the precedent that we have seen in the past few years that a Republican president will pick somebody with idea of absolutely shaping the Supreme Court and absolutely changing things, from everything from rights of privacy, and the right to choose, to a number of issues involving state-federal relations.

COSSACK: All right, let's take a break. When we come back, the future of the Supreme Court: selecting the nominee. Stay with us.

(BEGIN LEGAL BRIEF)

On this day in 1965, a 6-day race riot ended in south-central Los Angeles, leaving 34 dead, 857 injured, and more than 2,000 arrested.

The riot began on August 11, after police arrested an allegedly intoxicated African-American motorist and accusations of police brutality spread throughout the community.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: This is the most important election in my voting career because of the Supreme Court. Privacy and the Internet, it is a whole new territory, how these guys think about it is going to affect how we live.

UNIDENTIFIED FEMALE: Nine people are making a ruling saying we have to do this, thus and so. I guess it's worked in the past, and it will work in the future. I hope because I love my country.

UNIDENTIFIED MALE: The way the court is now they've been voting 5-4 on a lot of issues, so you know switching either way could significantly impact Roe v. Wade, school prayer, school voucher type stuff, several issues I think.

(END VIDEO CLIP)

COSSACK: Tomorrow night, Vice President Al Gore will formally accept the Democratic nomination for president. If Gore is elected to the White House this November, he could have the opportunity to impact the legal direction of the U.S. Supreme Court.

Senator, you are on the Judiciary Committee. Let me give you a hypothetical. I am going to be brought up perhaps to be a federal judge or even the Supreme Court. I come into your area and you want to know some things from me. What do you want to know and what should I tell you?

LEAHY: Well, first, I want to know your qualifications, what...

COSSACK: That's an easy one, I am going to tell you I've got some qualifications. Don't you want to know how I think about certain issues?

LEAHY: Probably know this from the questions we are going to ask you. That is really not as important to me as, one, are you really, really well versed in the law? are you an ideologue? In other words, are you going to go a certain way no matter which way the law is going. That's going to create a problem for me, whether it is to the left or the right.

But the bottom line I end up with, I tried an awful lot of cases before I was in the Senate. I look at every nominee and I say: If I was either a plaintiff or a defendant, and I was Patrick Smith, not Patrick Leahy, would I feel that I could be treated fairly by that person, whether I came in with an unpopular cause or a popular cause.

COSSACK: What if I told you, during the questioning, I said, you know, senator, I don't agree with the decision of Roe versus Wade, but I promise you I will be fair on other decisions that have to do with that, and I believe in stare decisis, and looking at cases that have previously been decided, How would that make you feel?

LEAHY: I would probably go further into that. I might even give you, as difficult as it is to do this, a hypothetical to make absolutely sure you are willing to follow the Supreme Court rulings, whether you agree with them or not, especially if you are a lower court, you are bound to. I want to make absolutely sure you really mean it.

COSSACK: Are you concerned that you might get your constituents saying, senator, what are you putting this guy on there that didn't like Roe v. Wade?

LEAHY: But I have voted for people who disagree with some case that I happen to like, but I was convinced that they would follow the law. What is bothering me is what is happening in the Judiciary Committee now, you have a lot of people, especially women and minorities, who have taken on pro bono cases, the best type of cases as to how tenants organizations or migrant workers, something like that, and something the Republicans in the Senate are saying: We can't let this woman, we can't let this Hispanic, we can't let this African-American go on the bench because they've been an activist, because they did their job as lawyers. That's what worries me.

VAN SUSTEREN: Ed, you know, we look at the court from the outside, you've been inside as a law clerk. What makes the best Supreme Court justice?

LAZARUS: Well, I think it's a combination of intelligence and integrity. I would say to the senator that his fairness test is a good one. I might add to that a sense of someone who is willing to reach decisions that they personally don't like.

Justice Kennedy, for example, in the flag burning case. Here is someone who clearly has no truck with people who take a match to the American flag, but in that case he was willing to say: Look, I studied the First Amendment, I know what it means in this context, it means you protect political speech, and that's what I'm going to do here.

You've got to have people who are willing to be consistent, even if it drives them to results they don't like.

VAN SUSTEREN: Is there any bartering that goes -- I mean, do you need someone who can negotiate with the eight colleagues, there are nine of them there, but do the justice sell their votes in some ways?

LAZARUS: Well, they don't sell their votes in some ways, but it is very important to have statesmen or stateswomen at the court, people who can build coalitions.

One of the problems in the current court is that the decisions are so splintered, frequently the justices are so all over the map that there's no five vote majority for any proposition of law, and lawyers and the average person doesn't even know what the law is. You need people who can draw the court together, and that's a problem on the current court.

VAN SUSTEREN: Ralph, you are with a very liberal organization. Who, in terms of like, if you are advising Al Gore, if he were elected president, give me an idea of who you think would be -- your organization would think would be a good Supreme Court justice?

NEAS: I'm not sure I'm going to get into specific judges or people who are in the system.

VAN SUSTEREN: Other ideals.

NEAS: What I want to focus on here IS consistent with your discussion, competence and character are important, but we want to look at judicial philosophy. There's no litmus test that we are concerned about. We want to look at all of the issues, and what concerns us about a Robert Bork or a Scalia or Thomas, it is not just one issue, it is all the issues...

VAN SUSTEREN: You have got to throw into the mix then Justice Souter, who was a big surprise to then President Bush. I mean, I'm not sure, in a hearing, with all due respect to Senator Leahy, that we can have a little hearing and predict how people are going to vote.

NEAS: I agree with you to degree, David Souter was a surprise, he's an exception to the rule. The right this time is saying: No more Souters. George W. Bush is saying my favorite justices are Scalia and Thomas. They have a plan, There's a reason why the right wing is...

COSSACK: Ralph, if the people of the United States decide to vote for George W. Bush, they are saying: That is right, We agree with what you said, I mean, that is just the way it is. Isn't what you are saying in a little bit of tension with what the senator says? You are talking about judicial philosophy, and the senator is saying: I don't know if I really have the right to know judicial philosophy, I just have the right to know whether or not you are going to be fair.

NEAS: We have the right to know someone's judicial philosophy. Judicial philosophy has been part of our system...

(CROSSTALK)

LEAHY: You are going the have that in the hearings, I mean, the philosophy is going to come out. Ed probably put it far better than I did. Are you going to have a person who can rise above things and say, for example, in the freedom of speech issues especially, First Amendment is very, very important to me. Say I cannot stand what that person has said and done, but they are protected, and I am going to protect that.

Can you rise a of about those feelings? Can you rise above religious feelings on privacy issues? Can you rise above these things and uphold the law? And, in some ways, you can't ever really know that.

George Bush, you've got Justice Souter, you've got Justice Thomas, remarkable difference. During the Reagan era I suspect in most cases he had no idea what the person might be like. Brought up Judge Ginsburg's name, he would say, oh that's fine with me, and a week later he sends Jim Baker out, looks like it is unpopular, take his name off, put another name on.

VAN SUSTEREN: We are going to take a break. We will be right back with our discussion on the Supreme Court. Stay with us.

(BEGIN Q&A)

Q: A Los Angeles Superior Court judge has refused to halt the production of a television movie about the O.J. Simpson trial. On what basis was Simpson seeking court intervention? A: Simpson claims the film reveals inside secrets of his defense. Former Simpson attorney Robert Kardashian is named as a defendant in the lawsuit.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: The United States Supreme Court is made up of justices with varied careers in the field of law. But they are nominated by presidents who are affiliated with political parties. The next president could have the opportunity to influence the bench with as many as four justices, which may be a little bit optimistic -- four.

Senator Leahy, it's not just the Supreme Court the president nominates, but it's also the Court of Appeals and the trial court, and there are probably as many as 2,000 federal judges. And we have the Court of Claims and other federal courts.

Frankly, I am convinced that the American people don't understand what's going on in the United States Senate because I think they'd almost be storming the Senate. You have all those vacancies that the Senate has been sitting on for years. And most people, when you talk about going to court, they go at the trial court level. And we have all these vacancies and the Senate isn't moving on it. What's the reason?

LEAHY: Well, the Senate's not moving because the Republican leadership said, we won't move.

VAN SUSTEREN: How can they get away with that? I mean, we've got all these vacancies.

LEAHY: Because the American public has not raised hell the way they should. I mean, if they knew what this is doing -- you got courts that are clogged where, if you're either a plaintiff or defendant, you can't even get in to have your case heard even though your taxes pay for that court because the judges are not there. It's an intimidation of the courts.

But I think what has been worse, whether it was intended this way or not, the statistics show conclusively that women and minorities take much longer to go through the U.S. Senate if they get a vote at all. George W. Bush said, well, this is terrible. People should get a vote either for or against them within 60 days. Great speech, great stump speech. He never bothered to pick up the phone and call the Republican leadership in the Senate and tell them that. The fact is, people -- we have good people that are turning down judicial appointments because they know they'll never be heard.

VAN SUSTEREN: Ed, what do you think this is the reason, Ed -- I mean, I'll give both of them -- why aren't the American citizens squawking about this, about the fact that -- well, I don't know whether these people should be confirmed by the Senate or not, but at least the nominees should be considered so we can fill some of these vacancies.

NEAS: People should be up in arms. And I think what we've had over the last seven or eight years is the rules have been changed. We talked about Supreme Court nominees, confidence and character in judicial philosophy. For many years, long time that Leahy has been around, it has been a different standard for the lower courts, confidence and character. You did not previously oppose people because of judicial or legal philosophies. The rules have been changed. Ideological tests have been applied to lower court judges. That's never happened before.

COSSACK: Ed, has the judicial nominee process been politicized?

LAZARUS: Oh, I think very definitely it has. I mean, you have to understand, there is a civil war going on in our legal culture. There is a tremendous divide between legal conservatives and legal liberals. And the most important decisions get shaped by trial court judges, and this is just something everybody's catching on to. If you want to have an ideological approach to the judiciary, you have to start at the trial level, and that's what's happening.

VAN SUSTEREN: I'll tell you, though, I'm almost scandalized by the fact that these vacancies seem to exists and that the people who want access to courts can't get it, and the fact that the American people just don't seem to like, you know, scream.

LEAHY: Look what happened here. Take somebody like Marsha Berzon: waits there for years to get a vote and brought back a humiliating hearing at one after another; two women in Michigan who are being held up by a whim even though there's a Michigan senator on the Judiciary Committee. All these people being held up. When the Republican lockstep vote against the African-American chief justice of the Missouri Supreme Court...

VAN SUSTEREN: Let me ask you a quick question, a yes or no question.

COSSACK: A quick one because we're out of time.

VAN SUSTEREN: In the event the Democrats should win the U.S. Senate, is the Democratic Party going to do the same thing to the Republicans?

LEAHY: No, because I'll be chairman of the Judiciary Committee and I would never stand for the kind of things that Republicans are doing to the federal judiciary. I would not do it. I would resign before I would do it.

COSSACK: All right, that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE": Is the Democratic National Convention keeping its liberal wing happy? That's at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: And tomorrow on BURDEN OF PROOF, the legal issues within the DNC platform, with Maryland Lieutenant Governor Kathleen Kennedy Townsend and Senator Kay Bailey Hutchison of the state of Texas. Both are lawyers and both will be here to talk about the impact the law has over the next four years.

Join us tomorrow for another edition of BURDEN OF PROOF live from the Staples Center in Los Angeles. We'll see you then.

COSSACK: Bye.

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