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Election 2000: U.S. Supreme Court, Defense Lawyers Engage in 'Give-And-Take' Over Florida Recount

Aired December 1, 2000 - 11:01 a.m. ET


DARYN KAGAN, CNN ANCHOR: And welcome back to our continuing special coverage of the Supreme Court and the Florida recount. I'm in Atlanta. I'm Daryn Kagan. Also, we have along with us Frank Sesno in Washington and my partner Bill Hemmer in Tallahassee, Florida. Thanks for staying with us.

It is the disputed presidential race which has reached the highest court in the land. For about an hour now, at this hour, the U.S. Supreme Court is hearing oral arguments in an appeal filed by George W. Bush and his campaign. Here is what the historic showdown boils down to: The Bush side wants the court to block a hand recount of disputed ballots cast in Florida. Al Gore's campaign says the ballot battle is a state matter and the U.S. Supreme Court should not get involved. Each side given 45 minutes to argue its case. The hearing is scheduled to wrap up about a half hour from now. Actually, each case has been given 35 minutes. There's additional time for Secretary of State Harris, her attorney to speak, and also Paul Hancock to talk, the deputy attorney general of Florida. They are given 20 minutes to talk.

A lot to talk about here. We're getting some great perspective from Roger Cossack, who was inside the courtroom; also our correspondents outside.

And with more on that, here's Frank Sesno.


It's known as Bush v. Palm Beach County Canvassing Board. That's the official name of the case, as you say, just a little over an hour now under way inside the United States Supreme Court.

Outside, more protesters now in the streets as well as on the sidewalk, separated by police, the pro-Bush protesters on one side, the pro-Gore protesters on the other. There you see a picture of some with some of the signs showing that people are listening. Some of these organized protesters who've shown up, some that our correspondents have run into, one recently a naturalized citizen who said, it's important for me just to show up and demonstrate my right to be here. This is, after all, fundamentally about the rule of law and how the courts will decide.

Now, we are very privileged to have had Roger Cossack inside that courtroom hearing the opening arguments.

Roger, for those just joining us, recap what you heard and how this remarkable day began?

ROGER COSSACK, CNN LEGAL ANALYST: OK, Frank. And I just want to tell you that it's very noisy out here and I'll try and do my best.

What is going -- what was going in there is, as I said, is at 10:01 the case was announced, Chief Justice Rehnquist called Mr. Ted Olson, Theodore Olson's name and he stood up and began to argue. He perhaps was able to argue for a minute uninterrupted, perhaps two minutes, and the arguments began.

The first question was from Justice O'Connor and the questions then flew in the direction of: one, tell us why this is a federal issue; tell us why we, the Supreme Court, should be involved in this; tell us why we should be overruling a Florida state Supreme Court. Shouldn't we give them complete deference? Yes, you may not like the way they reconciled statutes; yes, you may not think that they did a good job, but isn't that their job to do? And finally they got to the point of, look, isn't the scheme here really that if there is this chaos going on, as you put it, this controversy, doesn't it end up with Congress first and then perhaps to the United States Supreme Court? Isn't that the scheme that Congress set out?

And those were the tenor of the questions that Ted Olson was required to ask, this notion of, first of all, should the Supreme Court be ruling now? Is there really a federal question? And finally, isn't this something that should, if there is a problem, end up in Congress rather than with us -- perhaps later on us?

SESNO: Now, Roger, we should remind our viewers that what you heard we will be hearing very shortly after the overall oral arguments are over, because, for the first time, we're going to have video -- I'm sorry -- audio cassettes produced almost immediately upon the conclusion of this. They'll be replayed and we'll be replaying them here on CNN.

Roger, in what you heard, a lot of technical very highly legalistic language and questioning?

COSSACK: Well, yes, but not so much so that it was, you know -- well, I don't know, I'd read the brief so I knew what was coming and I knew what the issues were. And the notion of having these judges or justices immediately start talking about the federal question is something that the Gore team has raised in its defense, and clearly that was something that was going -- that I'm sure Mr. Olson knew that he was going to have to discuss as well as, you know, what the proper remedy is.

You know, their argument is basically, look, what happened here was Florida changed the rules -- the state supreme court changed the rules after the election, that the election was one way, then after the election was over they changed the rules. Obviously you can't do that. Obviously, under their theory, you can't do that. It's a federal question. It may perhaps even rob voters of their ability to vote and have their vote counted.

So this issue of, is it a federal question? and if it isn't then what is the United States Supreme Court doing right now by hearing it? we knew it was going to come up. And it was couched sometimes technically in terms of what the statute requires, and sometimes by -- in hypotheticals. One question I think Justice Kennedy may have asked, he said, look, suppose there's a statutory scheme where the government says, we'll give you money for highways if you promise to lower the speed limit to 50 miles an hour. Well, what are we supposed to do if, in fact, they don't lower the speed limit to 50 miles an hour? I mean, does the United States Supreme Court step in at that stage?

And those were the kinds of questions I suppose, you know, more hypothetical kinds of question, but all going to the same thing of, is this the time for us to be here, is there a federal question that's been presented? And if there is, what is the remedy? Is it us that should be involved later on down the road or is it Congress? And the argument being that perhaps Congress should be.

SESNO: Roger, speaking by computer with Candy Crowley, who's down in Austin, as you know, covering the Bush campaign, she raises an interesting point. And that is that if there was such skepticism expressed by the justices, why does one suppose they took this case to begin with? because the fundamental question raised by many who said it was no purview of the Supreme Court at all was, this is about a state supreme court interpreting state law?

COSSACK: OK, and I think that's a great question, once again, by Candy. And let me answer it this way. First of all, if I have in any way implied that the justices were skeptics, I want to erase that. What I want to say is that this was a give-and-take in a legal argument and the kind of questions that each side would expect. Second of all, I want to reiterate that I did not -- that I have left the court to come out to report, and I don't know what Justice -- what Larry Tribe, who represents the Gore campaign, is going through. Right now, he's getting grilled. I am sure his side is as tough as other -- as the other side.

And to answer the final question, you know, there may be reasons, even if the court decides eventually to perhaps not take this case or not issue the kind of decision we think they're going to issue, there are reasons that because of how important this case is, the magnificence, if you will, of the issues, that the United States Supreme Court should weigh in and be -- and perhaps write an instructionary opinion that will clear things up or at least give some hint of the way things should be done.

But I want to erase the word skepticism. This was a legal give- and-take argument and I only heard one side. And I want to say again that you cannot glean any decision from only hearing the questions, and clearly from only hearing one side.

SESNO: Duly noted.

COSSACK: All right. SESNO: But clearly as well, through those questions, those justices embodying that very argument, at least through the questioning, as I say, that this is Florida state Supreme Court interpreting Florida law.

Stay with us, Roger...

COSSACK: All right.

SESNO: ... because also listening very closely is Eileen O'Connor. She's been talking to folks inside the Gore campaign. They also gleaning from the partial report of the partial argument that we're hearing.

Eileen, what have you got?

EILEEN O'CONNOR, CNN CORRESPONDENT: Well, basically I talked to one of the lawyers involved with the legal strategy of a lot of these cases. And basically he said, look, you know, it's encouraging, but at the same time we got to be realistic here. The Supreme Court, the U.S. Supreme court, does have a history of asking tough questions of, quote, "friend and foe," people they might agree with, and then also people they might be inclined to disagree with, and this could be just a way of them -- of how they're conducting the case to lay out the arguments, as Roger, I think, has pointed out.

They also -- they say they are, though, encouraged because it does get down -- with those questions that were being asked -- they say because it does get down to their argument. And they also -- that this is not a case for the U.S. Supreme Court, that the state supreme court has the right and the ability and the ultimate right to interpret state law.

And they also pointed out, you know -- and this is obviously in their brief -- that the U.S. Supreme Court is reluctant, and has always, historically, been reluctant to interfere with a state supreme court interpreting state law.

So they say, by those questions they're encouraged that they do kind of go along with their argument. But they say they have to be realistic, this has play out -- Frank.

SESNO: And as this plays out, Eileen, here in Washington at the United States Supreme Court, there are any number of lawsuits that are playing out in Florida as well. And recently we're hearing now that the Bush campaign has appealed to the judge there at the circuit court to have even -- you know, another million ballots dumped in there...

O'CONNOR: Well...

SESNO: ... and time is not on the Gore campaign's side here.

O'CONNOR: No, it isn't. And this is something that they are definitely complaining about, people I have been speaking to this morning, this lawyer and others within the campaign, aides. Spokespeople are saying that, also pointing to the witness list by the Bush campaign -- 95 witnesses, one of the witnesses Bob Dole, another one Christine Todd Whitman. And the lawyer complaining, these people are not experts on election law or counting ballots. And they say that this is just justice delayed, justice denied, that the Bush campaign is trying to basically delay the counting of the ballots so that they're pushing up against that December 12 deadline.

As you've been seeing from all the arguments coming out of the Florida state Supreme Court, the Gore campaign says, you know, the Florida state Supreme Court does not want to go beyond that December 12 deadline, because then, Frank, you do get into the situation where you already have a certified election, you already have a slate of electors right now on the Republican side. If that were to be overturned by the Florida state Supreme Court after December 12, after the counting potentially gets done and the vice president overtakes him, that's when you get into the position where you have two slates going forward into Congress and then it's up to Congress to decide. And they said, you know, this raises a constitutional question, and one that the Florida state Supreme Court doesn't want to get into. So the Bush campaign complaining they're delaying again -- Frank.

SESNO: Eileen O'Connor talking to the Gore campaign following Roger Cossack, who's been listening to the Supreme Court.

And now back to Daryn Kagan in Atlanta.

KAGAN: Thank you, Frank; thank you, Eileen.

Yes, it's been fascinating to listen to Roger Cossack, who was inside the courtroom and came out to report the first part of what he heard. Also going through that courtroom, members of the general public waited a long time for that privilege to get to see that. We're going to talk to one of the gentlemen who did that. He is David Forbes, waited overnight, I understand, for the chance to get to go watch these proceedings.

Mr. Forbes, good morning. Thanks for joining us.


KAGAN: How long were you actually inside the courtroom?

FORBES: I was inside the courtroom much longer than expected: about 15 minutes. We expected three.

KAGAN: And tell us exactly what you saw and what you heard?

FORBES: It was amazing. We were seated behind a large row of columns, although we could see around them fairly well. I actually got to see all the justice. I initially went in, it was actually the attorney for Bush and he was mostly being interviewed or questioned, I guess, by Souter, and they were arguing Articles V and XV of the Constitution. And at the point that most of the discussions from Souter seemed to be aiming, that Souter believed that it should be the responsibility of the Congress and not the responsibility of the court. And, of course, you know, we'll see what happens when the defense comes in. KAGAN: Right. And as we should say, you're just seeing a piece of it, as Roger Cossack pointed out, just seeing the part where the Bush attorneys are before the Supreme Court. So it's not a complete picture, but a fascinating picture nonetheless. Was it like you though it would be?

FORBES: It was actually more exciting than I thought. I mean, it really was amazing. I was sitting in there seeing all the justices at once, realizing I'm sitting in the Supreme Court of the United States. I actually got to see a change of attorneys. The attorney for Bush actually changed over to the attorney for the secretary of state of Florida, so we got to hear another argument start. So it was amazing. It was actually even more, you know, special than I thought it would be.

KAGAN: On a personal note, can we ask you where you're from and why this was important for you to attend today?

FORBES: I actually live in Arlington, Virginia. I've lived in about five states. My father was military. It was important to me. I believe it's the president of the United States, and that's what this decision is all about, is who's going to be president, and that's a huge decision. So I thought it was an exciting time, it was a momentous opportunity. I didn't have to work tomorrow so I came in -- left yesterday at like 4:00 in the afternoon and slept overnight and here I am.

KAGAN: So you figured you were going to have to sleep overnight to get this opportunity?

FORBES: Absolutely. I actually showed up at 11:00 a.m. yesterday morning and there were already six people in line. So when I came in at 4:00, unfortunately I missed the first 50. The first 50 get to sit in for the full 90 minutes. But the exciting thing was I was one of the first group to go in for 15 and come back out, so...

KAGAN: And how did they tell you it's time to go?

FORBES: They just walk over and look at you and...

KAGAN: And you know.

FORBES: ... go like this and you get up and move.

KAGAN: Would you do it again?

FORBES: Oh, absolutely. It was amazing.

KAGAN: Given what you saw, has this affected what you think about the justice system or about the political system and what we've been seeing in these days after the election?

FORBES: Well, I guess what really struck me was, you know, we have an amazing country. It's amazing that a person, you know, an average citizen like myself can get in to see this, to see the Supreme Court on such a big decision. So I guess it kind of renews my faith in the way our system works and how people, you know, we have such good rights and we have such opportunities here.

KAGAN: And do you have a better feeling now about how this election might be resolved however it is resolved?

FORBES: I don't simply because I know I only saw one half of the argument and only for 15 minutes. So I know what I'd like to see happen, but we'll see.

KAGAN: Well, David Forbes, you did have an incredible opportunity, as we've mentioned, one that many millions of Americans would have liked. They're very jealous of you today. And we appreciate you taking a little bit of time to sit down and share the experience with us.

FORBES: Thank you very much. I appreciate it.

KAGAN: Thank you very much.

And we hope to be talking to more people like David Forbes as they have had their opportunity to sit in the high court and watch today's historic proceedings. Perhaps they'll come out and sit down and, like Mr. Forbes, have a seat and share exactly what they see and feel about the process.

Looking at the time, at the clock right now, 11:16 Eastern time. By the clock, that would leave about 14 minutes left for these oral arguments to go on. Once again, the court has said that once things have wrapped up, they will be releasing audiotapes of the proceedings, and we will be playing them as soon as possible. You'll hear them right here on CNN.

Meanwhile, our discussion and our coverage continues; still continue to take your e-mail. Let's put that address up on the screen one more time. Our address: We're taking your comments, also your questions, about today's proceedings at the high court and passing them onto our experts.



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