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U.S. Supreme Court Agrees to Hear Bush Campaign's Appeal

Aired November 24, 2000 - 3:08 p.m. ET

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

NATALIE ALLEN, CNN ANCHOR: As you can see there on your screen, we're just hearing that the United States Supreme Court has issued a reaction to the Bush team appeal to the U.S. Supreme Court. The Bush team trying to get manual recounts stopped in Florida.

Apparently, the U.S. Supreme Court has said it will hear one of the appeals. The Bush team had put in three different arguments that it would take to the U.S. Supreme Court. One was that the state Supreme Court had violated the U.S. Constitution when it said that these manual recounts could continue. We'll wait and see which appeal that the U.S. Supreme Court has decided to hear.

CNN's Bob Franken is at the Supreme Court. We'll be able to talk with him momentarily. Right now, let's talk with our legal analyst Roger Cossack.

Roger, many of the analysts I had talked with over the past few days weren't sure if the U.S. Supreme Court would take this on. But apparently, they will.

ROGER COSSACK, CNN LEGAL ANALYST: Well, the surprising thing is, Natalie, that presumptively all voting issues usually end up in the Florida -- or in the state Supreme Court -- in this case the Florida Supreme Court. The reason this is so unusual for United States Supreme court to do it is they have to find that there is a federal question, something within the federal Constitution that is being questioned.

And most legal analysts -- I will admit me included -- felt that there wasn't that federal question, and that it would end up in the Florida Supreme Court, particularly in light of the fact we know there's now going to be a contest to this election. So it's surprising. We don't know which one -- there were several -- you have mentioned one -- another one that was brought up to the United States Supreme Court was the notion of the standardless recounts and due process violation.

And there's another issue that was right with the 11th Circuit right now having to do with dilution argument: that is, if certain counties had their votes recounted and other counties didn't have their votes recounted, those that didn't have their votes recounted were having their votes diluted by the fact that they weren't getting them recounted. And there must have been mistakes made within those counties. So there were three issues that were taken before the United States Supreme Court. We don't know as of yet which one they have decided. But we will wait and see.

ALLEN: Will the United States Supreme Court decide -- could the United States Supreme Court say: Well, let's have a recount of all the counties in the state of Florida? What are their options here? Again, we don't know which appeal that they have decided to take.

COSSACK: Yes, Natalie, not knowing which one they have decided to take puts me a little bit at a loss as to say what the remedy is going to be, because I don't know which one they've taken to review. But depending on which one they've taken and depending on what they find, and assuming -- and let's get one thing straight: Just because they have decided to review it does not necessarily mean that there is going to find a problem.

Natalie, go ahead.

ALLEN: OK, I think we have CNN's Bob Franken now. Perhaps he can tell us which area the U.S. Supreme Court will review in the Bush appeal -- Bob.

BOB FRANKEN, CNN CORRESPONDENT: This is going to help Roger a lot. They have decided to hear the George Bush campaign versus the Palm Beach Board of Elections. This of course would be the recount case. It's the one that has been rattling around for quite some time now.

They have a hearing schedule set up. And they're talking about having oral arguments on December 1. So they decided not only to hear the case, but to put it on a fast track, an expedited appeal, which Roger I'm sure will admit is quite extraordinary -- not unprecedented, but extraordinary.

ALLEN: Let's talk with Roger about that -- Roger.

COSSACK: Yes, that's absolutely correct, Bob. It isn't unprecedented, but it certainly is unusual. But how much more unusual and how much more pressing could you be, in light of the fact that we all know -- the one date we've all been taught is December 12th, is the cut-off date for Florida to make sure that its votes are certified so that they can be counted in the House of Representatives.

So the Supreme Court knows that, too. The notion that they are going to move so quickly is not surprising under these circumstances. And the point I wish to make, Natalie, just because they have decided to review a matter doesn't necessarily mean that they are going to agree with one side or the other. It means that they find that there is an issue, a federal issue, and an issue that should be decided.

And, in this particular case, when are you talking about people not getting the right to vote, how much more basic could it be?

FRANKEN: And, Natalie, this is...

ALLEN: What -- go ahead, Bob.

FRANKEN: Natalie, I was going to say, of the two issues, I'm sure Roger will agree this is the one that would be more textured for the Supreme Court. This is the one that has had much more serious constitutional arguments attached to it, 14th Amendment arguments, Article 3 arguments, etcetera. So this would be the one of the two that you would have expected the Supreme Court to decide to consider.

ALLEN: What are the specifics here involved with the appeal that relate to Palm Beach County?

FRANKEN: The specifics are, this is the one they were trying to stop the recounts. And the Bush campaign has been trying to get that approval in the federal district court level, in the appeals court level. Now the Supreme Court says, no, it is going to chew on it. It's going to decide whether in fact there is equal protection under the law, as the Bush campaign has charged there is not because of the arbitrary nature of the recounts.

And they are going to decide the questions of does the -- the fundamental question is whether in fact the federal court system, the federal government should get involved in trying to regulate a function -- that is to say an election function -- that is normally reserved to the states.

COSSACK: Yes, this is the issue, Natalie, in which the Florida Supreme Court ducked when they refused to issue standards regarding how these votes should be counted, with the implication being that they were going to leave them up to each county canvassing board to set up standards. And later on, if there was a complaint about these standards, then there could be a hearing perhaps before the Florida Supreme Court again.

However, the United States Supreme Court apparently, Bob, has now jumped in and said: Just a second, there -- this is a due process. As Bob points out, this is a due process, 14th Amendment issue. There is nothing more basic than one person, one vote and having that vote count. And it's about time that we review this.

ALLEN: Does this mean that we are going to have the U.S. Supreme Court discussing pregnant and dimple chads? Say it ain't so.

(LAUGHTER)

FRANKEN: They can discuss whatever they want, Natalie.

COSSACK: I would think that -- I would think that those pregnant and dimpled chad may very well appear in the United States Supreme Court record.

(LAUGHTER)

ALLEN: Let's -- that's been the continuing joke, has it not? Let's talk about: What does this do to this Sunday night deadline now, Roger? COSSACK: Well, as of yet, it doesn't do much to the Sunday night deadline. There are -- the question is: What else will the Supreme Court do? I mean, they have other things they can do. They could issue a stay. They could tell the Palm Beach people to stop counting. They could do a lot of things.

As of yet, what I know is they have just agreed to hear the case without doing anything else. Bob, do you know anything more than that?

FRANKEN: Well, they have just said that they have come up with a briefing schedule -- which we don't really need to bother people with -- but that they have decided to hear it. There is no temporary restraining order that has been issued -- anything like that. So they just really want to chew on the constitutional and the questions of constitutionality and whether there are violations of course of federal law.

COSSACK: I just have the briefing schedule in front of me. And they are saying that the briefs of these parties are to be filed on opposing counsel on or before November 28th.

FRANKEN: Next week.

(CROSSTALK)

COSSACK: The reply briefs are no more than 4:00 p.m. November 30. And they don't want more than 50 pages. They know these people can be a little long-winded when they want to.

FRANKEN: But one of the documents that is used more than any other by lawyers is asking leave to go longer than they were supposed to.

COSSACK: Ah, yes.

ALLEN: Here we go. All right. Thanks, guys. We will continue to talk with you. We want to talk with our other correspondents covering the Bush and Gore teams about this now -- here is Stephen.

FRAZIER: As you might imagine, Natalie, this has been greeted with quite a bit of anticipation on the part of the Bush campaign. Let's go down to Austin, Texas.

Tony Clark has been keeping an eye on that campaign. And he joins us now -- Tony.

TONY CLARK, CNN CORRESPONDENT: Stephen, a senior Bush campaign official said that they are very heartened to hear the Supreme Court is taking up this case and that they believe that their case was very sound from the beginning -- and so, in that respect, perhaps not surprised, but very heartened to have that in the Supreme Court.

On another issue, we heard from Democratic vice presidential candidate Joe Lieberman a short time ago complaining about the demonstrations that have been occurring in Florida. And this same senior aide said that he thinks the vice presidential candidate protests too much, that -- he completely dismisses those complaints, and says: You know, just think back a couple of weeks ago when Jesse Jackson was leading protests in Florida for the Democrats.

He said Joe Lieberman was not complaining about the protests at that point. And so he said this is another example of the Gore- Lieberman candidacy, their campaign saying one thing and doing another. It's the sort of complaint we heard earlier today from the Bush campaign in reference to the military votes, saying: on one hand vice presidential nominee Senator Lieberman saying that they want the military vote counted. And then there are people on the ground trying to get those moved out.

So again, reaction on two fronts: dismissing the complaint by Senator Lieberman about the demonstration, saying that it is an example of them saying one thing and doing another, and being very heartened that the Supreme Court is going to pick up, going to hear this case about the vote counting in Florida -- Stephen.

FRAZIER: Tony, in that statement, did anybody address the distinction, though, that Senator Lieberman made between protests. He acknowledged that there were Democratic protests earlier in all of this, but said they were just to voice an opinion. These protests by Republican demonstrators, he went on to say, were not simply designed to voice an opinion, but were intended to disrupt the count of the ballots.

Did anybody bring that up to them and challenge them on that point?

CLARK: Well, in fact, as you can imagine, these things -- these comments and reactions are happening very quickly. And in that regard, no. But he said: You know, the Democrats were very silent about the protests before. And so they find it very strange that, when it is Republicans demonstrating, that there is outrage, and when it is Democrats that there is not.

FRAZIER: Well, of course, we haven't heard the last on that. Tony, thank you very much for bringing us up-to-date on the point of view in Austin.

Let's go now to our Chris Black, who is at the -- outside the Naval Observatory, the -- Vice President Gore's official residence -- for some sense of how this is affecting the Gore campaign -- Chris, hi.

CHRIS BLACK, CNN CORRESPONDENT: Hello, Stephen.

The Gore campaign arbiters are now consulting very closely with their team of lawyers to decide exactly what this means. What they have been saying from the beginning, however, is that they do not believe this is a case for the U.S. Supreme Court. They said very strongly that they believe this is a state case best resolved in a state court.

And their feeling is that the Supreme Court of Florida was the final word on this subject -- Stephen.

FRAZIER: Is there any way for them to -- are they preparing their comments before the Supreme Court now, or were they ready in anticipation of this possible development?

BLACK: Oh, absolutely. Yes, oh, absolutely. They have asked Professor Larry Tribe, who's probably the nation's foremost constitutional lawyer, a professor at Harvard Law School, to handle the case for them. He has already been working with the campaign. When the Republicans went to federal court in Atlanta, for example, he was the lead counsel on that effort to knock it out of circuit court.

So they are definitely looking at this. They will make an assessment, and we'll know more about it later today.

FRAZIER: Chris, before we leave you, I just have to ask -- we can hear an awful lot of noise behind you there -- who's making the noise and what do they want?

BLACK: Well, it's a group of Republican demonstrators called FreeRepublic.com. It's a very small group. They're a group actually I'm familiar with, because when I covered the White House they used to come to the White House every weekend during impeachment to protest President Clinton. So they are definitely anti-Gore and pro-Bush, and have great lungs.

FRAZIER: Well, you're glad you're able to hear us OK. Chris Black from the Naval Observatory with the Gore campaign. Thank you.

BLACK: Let's turn once again to Bob Franken, who's covering things at the Supreme Court for us. Bob, do you know anything about these briefs that have been filed in anticipation of all of this?

FRANKEN: Well, the briefs that were filed with the federal court, with the Supreme Court, of course, argued both that the Florida state Supreme Court case -- this is the one we're talking about -- that the Florida state Supreme Court had acted without regard to Florida law and that the briefs that they filed with this raised constitutional questions that we've heard over and over again. And of course, they're going to get to expand on those.

The Supreme Court justices here specifically said they should talk about the question about the Florida state Supreme Court and federal law. So, that is where the emphasis is going to be.

FRAZIER: And they rein in the attorneys during oral arguments, don't they, if they stray away from what they've been guided to speak to?

FRANKEN: Well, the Supreme Court justices can be brutal, much less courtly, as a matter of fact, than they are on the state level. They sometimes mince no words belittling the lawyers.

Roger, I don't know if you're still on or whether you've ever practiced before them before, but you cringe sometimes at how abrupt they can be. COSSACK: Bob, I have practiced before the -- I have practiced before the United States Supreme Court, probably one of the most exciting days of my life, and you bet, I cringed. They can be very, very tough.

FRAZIER: Well, let's keep this going, Bob. It's interesting that they moved with the kind of expediency you took note of earlier, even though the date is actually farther off than a lot of people are fearing.

FRANKEN: Well, as a matter of fact, this is called a flash when you're talking about the U.S. Supreme Court. For them to act that quickly means they take it that seriously.

To my knowledge -- and I'm pretty sure about this -- there has never been an election case that's gotten this kind of treatment. I do know that one of the cases during the Watergate matter, the significant case in the Watergate matter, did get an expedited consideration.

You will recall also during the entire Monica Lewinsky matter there were several cases where there was an effort for an expedited appeal. I remember one in particular where the Secret Service was trying to stop its agents from testifying and the Supreme Court decided to turn that one down.

It is not something that they do very often, but when you think about it, this is a case, as Roger pointed out, that is like no other, and it is something that does have a really tight time frame around it.

So in retrospect, it's always easy to look back than it is to look forward. You can see where the Supreme Court would decide, if it is going to act, it needs to act quickly.

FRAZIER: Let's step back...

COSSACK: Bob, I -- Bob, I just want to add that in reviewing the granting of certiorari, and certiorari, by the way, is what it's called when the United States Supreme Court grants a hearing when you -- they don't have to hear every case.

FRANKEN: Right, right.

COSSACK: So when they grant a hearing, lawyers ask for a petition for certiorari. So in the granting for certiorari, I notice that they say, Bob, the petition for the writ of certiorari is granted on questions one and two as presented by the petition. So there's the implication, at least, that they're going to be hearing more than just one argument.

We've asked for the petition for certiorari to be brought to me. I don't have it quite yet. But when I have it, we'll be able to refer to it more specifically.

But it looks like there's going to be more than just one question that they're going to take a look at.

FRANKEN: Well, there's -- there's the question, there's the question, of course, of the violation of federal law. That has been raised by the administration. And there are also the fundamental -- there are the fundamental constitutional questions. These are the questions that have been asked over and over again, and there have been some pretty creative interpretations of some of the parts of the Constitution.

While the Supreme Court really likes to chew on creativity, or sometimes to chew on the lawyers who try and be creative...

(LAUGHTER)

... so they just want to really to just cover the entire gamut of this.

FRAZIER: Let me ask both of you, if we could for just a minute, to help people who may just be joining us. We're all excited now right now about how quickly things are moving, but let's step back and discuss those violations of federal law, Bob, that you just mentioned.

Again, what is it that gets this case about recounts in Florida, a state issue, up to the federal level before the United States Supreme Court?

FRANKEN: Well, the question is whether there is a federal issue involved. Did, in fact, the Florida state Supreme Court violate federal requirements about how these matters are handled? And there's a specific federal law or two or 10 involved, but that is precisely what they wanted to discuss.

More fundamental than that is the constitutional question, because both sides have made strong constitutional arguments about how the Constitution is violated or would be violated depending on how this goes on.

So it's the kind of thing -- it's the kind of thing, Stephen, that the Supreme Court likes to chew on, or at least likes to put its footprint on. That is to say it may decide, as Roger has pointed out several times, against the Republicans, but it has allowed them to state their case.

FRAZIER: All right. Both of you, thank you. Take a minute here to catch your breath, think about what you've learned, and we're going to take a short break. Obviously, now, we're not bringing you CNN's TALKBACK LIVE, which usually appears at this time. We're going to continue our coverage of these ongoing events in the Florida recount, federal handling of those issues. Take a break right now to catch our breaths, and we'll be right back.

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