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Supreme Court Bush v. Gore

Aired December 11, 2000 - 10:00 a.m. ET


DARYN KAGAN, CNN ANCHOR: It is 10:00 a.m. on the East Coast, 7:00 a.m. on the West, and one hour from what could be the defining event of this presidential election. On this Monday, December 11th, the legal teams for Al Gore and George W. Bush take their cases before the U.S. Supreme Court.

At CNN Center in Atlanta I'm Daryn Kagan. We would like to welcome international viewers to this special edition of CNN MORNING NEWS.

Joining me for the Washington bureau chief Frank Sesno and from Tallahassee my MORNING NEWS partner, Bill Hemmer. Gentlemen, we will see you in just a moment.

First a look at nearly five weeks of legal limbo. The presidential election may be nearing its conclusion. We are now one hour from what may be the beginning of that end. A live picture now from the U.S. Supreme Court. At the top of the hour, oral argument are due to get under way before the high court. Lawyers for two presidential candidates will debate the one issue that could decide the presidential race, the legitimacy of manual recounts in Florida.

The lead attorney for the Gore campaign describes this all or nothing decision as "the end of the road."

Our legal analysts Greta Van Susteren and Roger Cossack are already inside the courtroom at this hour. We also have CNN troops entrenched along the many fronts of this legal battle.

From the court, we will hear from Charles Bierbauer, and from the campaigns, Jeanne Meserve with the Bush perspective, and Eileen O'Connor from the Gore camp.

Now a glimpse of how things are expected to play out in the next hour. The 90-minute hearing will be evenly divided in the case of Bush versus Gore. The time allotted for the Bush case breaks down to 35 minutes for Bush attorney Ted Olson, and then 10 minutes for Joseph Klock. He will be representing Florida's secretary of state. David Boies is the singular voice for the Gore arguments. He seeks a Supreme Court ruling that would allow manual recounts in Florida to continue.

Now let's bring in our Washington bureau chief Frank Sesno, covering the action for us from our Washington bureau. Frank. good morning.

FRANK SESNO, CNN WASHINGTON BUREAU CHIEF: A lot of action today, Daryn. and a string pivotal days in what has been a string of pivotal days, or so we have thought.

For the second time in less than two weeks now, the United States Supreme Court steps into this fray, this time possibly ending it. Lawyers from the rival camps agree on one issue: A ruling against Albert Gore Jr. will likely end his bid for the White House.

CNN's senior Washington correspondent Charles Bierbauer is at the U.S. Supreme Court, having read the briefs and anticipating this momentous day -- Charles.

CHARLES BIERBAUER, CNN CORRESPONDENT: Frank, you're right, for the second time, this election is in the hands of the nine justices of the U.S. Supreme Court, who are being asked to rule on the process that will decide the way in which the final vote count will be reached in the state of Florida, and there in hang the 25 Florida electors.

The last time this case was before the justices, they were instructive, but they were inconclusive, sending the matter back to the Florida Supreme Court, asking for clarification. Now they are going to rake another look at it again.

We know that this court was, itself, divided on the question of whether or not to put a temporary halt to the recounts going on in Florida. Five of the justices voted to halt that process. and to move ahead with these arguments here today. Sparked by Justice Antonin Scalia, who wrote "to count first and rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires."

Four of the justices were in dissent, wanting the count to go ahead. Justice John Paul Stevens wrote: "The majority has acted unwisely, counting every legally-cast ballot, cannot constitute irreparable harm. There is a danger that a stay may cause irreparable harm to the respondents, and more importantly, to the public at large."

The issues before this court, as presented by the Bush lawyers, who are the petitioning lawyers here, are three fold. They ask, in essence: Does the Florida Legislature have the sole right to assign state electors? can the rules be changed after November 7th, suggesting the court has changed those rules? and are all voters treated equally if some votes are counted in one fashion and others are counted in another? And that is the equal protection that is raised by the Constitution of the United States. It is a question that the Bush attorneys wanted to get to, It is now before this court. It is a question that Justice Scalia has very carefully pointed to in his concurring remarks earlier this week.

That's what we will be watching for as we go inside and listen, and you will listen as well later on -- Frank. SESNO: Charles, you are going to be inside, we know that, along with Greta Van Susteren, Roger Cossack. And as you mentioned, we will be hearing those tapes after the arguments are done.

Charles, a couple of important questions, though, first and foremost, that stay that was issued on Saturday seen as really indicative, perhaps, of a divided and maybe even decisive court. However, many say keep a close eye on two justices, O'Connor and Kennedy, could they change? Talk a little bit about that here.

BIERBAUER: Well, Frank, that's almost a standard question here at this court. Because it is so sharply divided and the Justices O'Connor and Kennedy, who are -- how do you describe them -- moderate conservative? Is that not an oxymoron, I am not sure? But they are in the middle of the political spectrum, or the philosophical spectrum of this court. They often represent the swing vote. To say that it was 5-4 to put a halt to the voting, is not to say that it is going to be 5-4 to end the counting down in Florida. There is -- there are different questions presented when you are asking for a stay, and when you are asking for a ruling from this court, as to how the Florida vote count should proceed. We will watch them closely.

SESNO: And finally, many legal scholars say the last thing the United States Supreme Court wants to do is ultimately choose the next president of the United States. How heavy is that in the air?

BIERBAUER: Well, that is very heavy politically. That is what some of the people who are demonstrating out front here are exercising their First Amendment rights, you are talking about: Should this court be the deciding factor?

There is no question the court has a role, as have many courts in this process. What they will decide is what will be the final process? And then the votes will fall wherever they may fall. We know, if they let it stand the way it is, that George Bush wins. If they fashion or order some other kind of a recount process, then we don't know what the answer is, but we will certainly have to know it soon -- Frank.

SESNO: All right, Charles Bierbauer back to you.

At least two lawmakers plan to be in attendance and in the audience for the oral arguments today, as they were on December 1st.

Joining us now, Sen. Patrick Leahy of Vermont, he is the ranking Democrat on the Senate Judiciary Committee, and he has been highly critical of the court's weekend rule halting the manual recounts. Joining him is the Republican chairman of that committee, the Senate Judiciary Committee, Senator Orrin Hatch of Utah.

Senator Hatch, first to you, what might the court do? What are the options as you see it?

SEN. ORRIN HATCH (R), UTAH: Well, I can't tell you right off the bat what the court is going to do, but it does seem to show that at least five justices are concerned about these standardless ballot counts and whether or not Article II, Section 1 of the Constitution, which gives the authority over state elections to the state legislature, has been followed and whether Title III, Section 5 of the U.S. Code, which says you can't change the rules after the election, has been violated. Then, of course, you have got the whole question of whether or not counting of dimpled chads, which would be the first time in Florida's history that's been done, is a violation of equal protection or due process rights under the 14th Amendment. So these are very important issue. And all I can see is that it is very important that whatever the court decides that all of us in our country get behind, whichever way it goes, and it could go either way in this particular case. And I'm prepared to back the court, because I believe that these justices will do what they believe is right, in the best interest of the country, without consideration of politics.

SESNO: OK, to that point, Senator Leahy to you. You and I spoke over the weekend and you were very critical of the stay that the Supreme Court issued on Saturday. Very sudden stay, stopping the counting. You said that this raised the questions of credibility of the court, it could take years to repair. You called it "extreme judicial activism." Upon reflection, do you step back from any of those comments?

SEN. PATRICK LEAHY (D), VERMONT: No. I am a strong supporter of the Supreme Court, but I do not agree with their decision. I think that it was an unfortunate one. I think they could have very well just let the count continue. I mean, they were within really hours of finishing it. Let the count continue. Then if they felt that standards were not held right, step in.

Obviously, like all Americans, I respect our Constitution. And whatever the court rules, I will accept that. And I will support that as being the rule of law in our country. I have no problem with that.

But what I am concerned about is the Supreme Court, if they end up with a decision that is seen as partisan, and the polls over the weekend show that most Americans think this was, that they damage themselves, and I believe unnecessarily. That's my concern.

I want a Supreme Court that we will all respect.

SESNO: And you think that what the court has done and is doing may take years to repair?

LEAHY: I think it could if it is seen this way. I contrast this to both Watergate and the desegregation, Brown versus Board of Education, both unanimous decisions. People may or may not have liked them, but they accepted them by being unanimous.

I would hope that whatever they do, that they can close to unanimity. I mean, again, I will accept whatever they do, as we must. But I would hope that the Supreme Court realize they do not want to put themselves into a situation where they appear to be deciding an election, especially when we all know, under Florida's Sunshine Laws, three or four or five months from now, somebody is going to go through and count all those ballots and will decide who won Florida.

SESNO: Senator Hatch, you want to respond to your good friend from across the aisle?

HATCH: Well, naturally, I believe that it would better if we could have a unanimous vote on the court. But be that as it may, some of the most important cases in history have been decided five-four, and it's important that we understand that you can't put in jeopardy, or in criticism, all of those five-four decisions that we all recognize as law today.

I believe that they're going to do what's right here. There are two sides to this issue, but I have to tell you I've believed from the beginning that what the chief justice of the Florida Supreme Court said when he said that we could be in a constitutional crisis because the Florida state Supreme Court has ignored the Constitution, the laws of Florida, the state legislature, and they've done wrong here.

And you know, it does come down to just how should we should we permit a count -- a standardless count of ballots -- in ways that have never been permitted in Florida before-- to decide the outcome of a presidential election, when we've had two full counts and a third count in many respects, and, in some cases, even a fourth count. And should we allow that to be done in selected counties that are heavily Democratic and selected precincts that are heavily Democratic, etcetera.

SESNO: Gentleman -- very quickly, because we're almost out of time, I'm sorry.

LEAHY: I would say if I was either George Bush or Al Gore, if I truly felt I won Florida, I'd want the ballots counted, and I'd want the decision made by the voters, not by courts, and I think the American people would find that the most acceptable.

HATCH: Well, I think they do want the ballots counted -- both sides -- but the Bush people have claimed that the ballots have been counted a number of times in accordance with the rules that existed on the day of the election, and that they're changing the rules.

LEAHY: Well, if the Florida Supreme Court thought otherwise. Of course, the Florida Supreme Court thought otherwise.

HATCH: So let's see what the court says, let's back the court whatever it does, whichever way it goes I intend to support it...

LEAHY: That's one thing we both agree on: We'll both support what the Supreme Court does. Whether we agree or disagree, we will support it, as we should, as the United States should.

HATCH: It's the greatest country in the world. This is a country where our Constitution provides a means whereby we can resolve these matters in an appropriate manner. Isn't it wonderful that we are able to do that, and we're able to protest and make fuss, but all get behind whatever, I think, happens here in the next couple of days.

SESNO: Senator Orrin Hatch, Senator Patrick Leahy, a taste of the debate and the comment about following in behind the United States Supreme Court whatever it does after the case. We'll be following both those things, and we appreciate the Senators' time as they head into the high court.

And the high court itself will begin and start these arguments -- will start in approximately 45 minutes from now: an 1 1/2 hour of arguments, After which time, audiotapes will be brought out to that truck, and they will be turned around, and you will hear them right here on CNN. So we're watching every move here in Washington.

Daryn, back to you.

KAGAN: Frank, thank you very much.

To talk more about the burden on the U.S. Supreme Court to come up with a settlement for all this, joining us to talk about the implications is Robert Schapiro, associate professor of Law at Emory University here in Atlanta.

You're kind of becoming a regular with us here at MORNING NEWS.


KAGAN: Good to have you here, professor.

What about the burden on this court, on this high court: Do they appreciate, do you think, given your studies of the high court, how important this is?

SCHAPIRO: Absolutely, I think there's no question they realize that the eyes of the country are on them, that whatever decision they come out with is going to be closely scrutinized, and they're certainly going to feel the need to provide very powerful justifications for any division that comes out, particularly if the court ends up being divided -- and that seems that it's possible, given the vote on the stay over the weekend.

KAGAN: The first time around, December 4th, they were able to hold it together and come out as a unified group. This time, however, what we heard, over the weekend, was that five to four split and some very public division between the two sides. Isn't it unusual to hear such public bickering at this early stage from the justices?

SCHAPIRO: It is somewhat unusual, although I think the majority voted to give a stay, and then Justice Stevens, joined by three other justices, thought that he'd talk a little bit about the merits of the case of his dissent, and that provoked Justice Scalia to respond to say what the implications about the merits were of the majority's results.

KAGAN: And you have Justice Stevens who did write for the dissenting opinion. He very much like Justice Scalia, each side believes that they're trying to save the country from irreparable harm. So they come at it from a different way, buy both have the same end goal.

SCHAPIRO: Absolutely, the standard, certainly, is irreparable harm. And I think what it speaks to is to the difficulty of his question, the importance that whichever way you lean, you find irreparable harm, Justice Stevens saying if the vote count doesn't go forward, the potential is to run up against the December 12th date -- we used to call it a deadline, now we're not sure -- Justice Scalia saying if we count the votes before we know they're legal votes, that could cause irreparable harm to the country.

KAGAN: And then Justice Scalia, as you were mentioning before, didn't just come out and say that. He said: Oh yeah, and by the way, it looks like this whole thing is going to go for Bush anyway. That was kind of a jab, wasn't it?

SCHAPIRO: I think it was. Again, I think it was a response to Justice Stevens, who put in some comments about the Florida Supreme Court's decision seeming to be a reasonable interpretation of Florida law, and Justice Scalia not wanting to leave that out in the public without a response.

KAGAN: We're about 45 minutes away from these oral arguments that will last 90 minutes. What will you be listening for?

SCHAPIRO: Well, certainly, I think everybody's going to be focussing on Justices O'Connor and Kennedy to see if arguments could be made to them to change their vote from the stay vote. That's, certainly, going to be the goal of David Boies, who's arguing the case for Vice President Gore.

Now, it's clear that they are not inclined to decide the way the Florida Supreme Court decided -- that's not the way they like to make decisions -- and yet it's going to be the job of David Boies to try to convince them that once a decision's made by the state court, it's not the place of the United States Supreme Court to review those questions of state law.

KAGAN: We had one former Supreme Court clerk with us this weekend who said if you want to win this one or the best bet for the Gore is to write a love sonnet to Sandra Day O'Connor. Maybe not exactly that, but if you're trying to issues that are near and dear to her heart, what would those be? She's a former state legislator, she's coming from Arizona, she understands how state government works, and she respects the way that state government works.

SCHAPIRO: She does. One argument you certainly want to make to her is look, when the state courts give an interpretation of state law, the normal practice is for federal courts to defer to that and not to reinterpret the state law questions. Now, that's an argument that was made to her last time, and to some extent, I think we saw her as the former state legislator saying, well, wait a second, if the state court doesn't defer to the state legislature, then why should we defer to state court?

KAGAN: And the other potential swing vote: Justice Kennedy.

SCHAPIRO: Right, I Justice Kennedy also sometimes sides with the four people who dissented from the granted to stay, and I think, there, the argument that's going to be made is look, what are the implications of this decision? Do you really want to inject the federal courts into election contest? Do you really to say that when manual counts are done, you need one standard throughout the state. You're deciding this case, but how is this going to affect future cases that come before the court.

KAGAN: And for the Bush camp to hang on to that five to four decision what must they do?

SCHAPIRO: Well, I think they're going to try to convince particularly, again, justices O'Connor and Kennedy that this is a special situation, this is not a garden-variety situation where the federal court defers to a state court interpretation of state law -- this is case, they'll argue, where a state Supreme Court has acted outrageously in area of great federal interest, the election of the president, and that that federal interest is embodied in certain provisions in the U.S. Constitution.

So a decision here to overrule the Florida Supreme Court would not require reversing the normal views of justices Kennedy and O'Connor.

KAGAN: Robert Schapiro, from Emory Law School, thank you very much, we'll talk with you later in the morning and see how you take -- what your take is on the oral arguments to take place now just about 40 minutes away. Thanks for joining us.


BILL HEMMER, CNN ANCHOR: All right, once again, welcome back to Tallahassee on this Monday morning, another significant day in the race for the White House in election 2000.

At this time, Republican and Democratic lawmakers in Tallahassee meeting in committee to talk further about the special session. What we understand right now, the schedule, as we know it, has the House voting tomorrow, on Tuesday, and the Senate then voting on Wednesday of this week, to appoint the 25 electors here in Florida.

Now, Republicans have a clear majority in both houses, 2-1 in the House, it is nearly 2-1 in the Senate. We will continue to track that.

But as we talk here in Tallahassee, just about 35 minutes away from oral arguments starting at the U.S. Supreme Court in Washington. Certainly there are two areas of this country watching those arguments quite closely.

In Austin, CNN's Jeanne Meserve is watching things with the Bush campaign, and from Washington, CNN's Eileen O'Connor watching as well with the vice president.

First, to Austin, and Jeanne Meserve.

Jeanne. good morning to you.

JEANNE MESERVE, CNN CORRESPONDENT: Good morning, Bill. You would never know that this was a particularly important or unusual day by looking at Governor Bush's schedule. He met this morning with Andy Card, his designee to be White House chief of staff. He got a national security briefing, something he gets on almost a daily basis now. And shortly, we expect him to head for the state capitol, where he will do some state business and some transition business, we are told.

Of course, it is a very important day for the Bush campaign. It would like nothing more to see a permanent stop put to the counting of the undervotes in the state of Florida. They would like to see this election season brought to a close, preferably in the venue of the U.S. Supreme Court.

They were heartened, of course, by the court's decision to issue a stay over the weekend. But I'm told the operative word for describing Bush headquarters today is cautious, rather than optimistic. They know the court has many options before it, and they are reluctant to predict which one the justices may choose -- Bill.

HEMMER: All right, Jeanne, Jeanne Meserve in Austin.

Now to Washington and more with the vice president, here's CNN's Eileen O'Connor.

Eileen, good morning to you.


Well, the vice president is going to be monitoring these events. They are very important. He has talked to his lawyers. He decided to go with David Boies, the Gore legal adviser, saying Mr. Boies has -- knows this case, knows Florida law and, therefore, he will be the one to make the argument.

As you know, he was the one that made the argument before the Florida State Supreme Court that won the decision to get the manual recounts going down in Florida.

Gore legal advisers say there will be several key points that they will be hitting on today. One is that the law enunciated in the Florida Supreme Court's opinion is the law as it existed on election day and long before it. In other words, that under Article II, they have in fact not been making law, changing the rules, as the Republicans say, but that they applied the law, and that manual recounts are called for under Florida law, according to the Gore legal advisers.

They also say that they did not violate any of the rights of the voters equally across the state, did not violent the Equal Protection Clause. They say that, by ordering manual recounts of all the undervotes of all the counties in Florida, the Florida Supreme Court protected those right. Also they say that there was one single standard, and that was that the intent of the voter must control.

These are the key legal arguments they are going to make. They believe, Bill, that they have a very good case. And they believe that they will get those manual recounts going again -- Bill.

HEMMER: All right, Eileen, Eileen O'Connor; Jeanne Meserve, once again, in Washington and in Austin with updates from both places.

One other note from Tallahassee, a short time ago, briefs were filed at the State Supreme Court. These are appeals for the Martin and Seminole County cases that were dismissed last Friday, Friday afternoon. That is a bit on the back-burner right now. But again, the focus, front and center right now. 33 minutes and counting, oral arguments will begin at the nation's highest court, the U.S. Supreme Court in Washington.

More when we continue after a quick time out.


KAGAN: We are keeping a close eye on the U.S. Supreme Court, where oral arguments are due to begin at the top of the hour. Attorneys for George W. Bush and Al Gore will debate the defining issue of the presidential election: whether the disputed ballots in Florida should be counted by hand.

Good morning, once again, I am Daryn Kagan at CNN Center in Atlanta. Joining me in our special coverage today, Frank Sesno in Washington; and Bill Hemmer in Tallahassee.

The Bush side of the argument will split its allotted time of 45 minutes, Bush attorney Theodore Olson will spend 35 minutes making his case against recounts, also Joseph Klock will have the remaining 10 minutes to present the case of Florida's secretary of state.

David Boies will have his full 45 minutes to present the Gore case, calling for recounts.

And now to Frank in Washington.

SESNO: Thanks, Daryn.

Well, let's check on what is going to in the Supreme Court, as we check on what is happening across the town here.

CNN national correspondent Bob Franken is at his post with lots of often noisy demonstrations, but it is what is going to be happening later today, Bob, inside of that courtroom that is so pivotal, and really as we got a suggestion over the weekend, the dispute, and the debate over what constitutes irreparable harm and to whom. Talk about that a bit.

BOB FRANKEN, CNN CORRESPONDENT: Well, the irreparable harm argument is made by the Bush people, saying that, if in fact the recount goes on, they will be the ones irreparably harmed because they will have their constitutional and federal statutory rights violated. They go to on say that, in fact, a continuing recount could undermine the legitimacy of the election.

The Gore people are the ones who say the irreparable harm would come to them, because the possibility that Gore would win the presidency that he had earned, in their view, would in fact be irreparable harm. So each side is going to make a strong irreparable harm argument. Each side is going to make its legal claim, the Bush side saying that the federal Constitution was violated by the Florida State Supreme Court as well as federal law. And the Gore people saying this is a state matter that appropriately belongs in the state courts, and appropriately has been handled by the Florida Supreme Court -- Frank.

SESNO: Know the personalities, some considerably discussion on the Gore team and the Bush team too that the people they are really talking to today are Justices O'Connor and Kennedy. The others are there, but far more predictable.

FRANKEN: And what is very interesting about that, of course Kennedy and O'Connor are so often looked as the swing votes, but both of them were part of that five-justice majority that agreed to the stay. And Antonin Scalia, who might have been expected to, really, in a very unusual move, made the point, drove the point home, when he said that when you have a majority that comes out for a stay like that, there is a very strong "probability," to use his word, probability that the case will be decided on behalf of the petitioners, by whom he meant the Bush campaign.

That is the understanding going in. But of course the oral arguments could make a difference. O'Connor and Kennedy have been known to shift their positions, but the lawyers will tell you, you don't win with oral arguments in a court, you lose.

SESNO: Bob, we are back once again in front of that Supreme Court. Who's there? Who's going in?

How does today feel different than December 1st when you were there last time?

FRANKEN: Well, I tell you, on the outside, it looks pretty much the same. Each side has its group out here chanting, trying to make sure that whatever message is delivered on television is not lost. We have been hearing the chants. we have been seeing the crowds. And of course we have seen the arrival of members of Congress, and we have seen the arrival of more lawyers. We are just seeing now the arrival of some of the members of the Bush legal team who will really be watching as Ted Olson, who is their appellate specialist, does the arguing, along with the secretary of state's lawyer.

There is a very big difference here today. The last time, 10 days ago, that the arguments were made before the U.S. Supreme Court. By the time they were made, most people believed that the Supreme Court really was not going to decide the election, even though it was the highest court in the land.

This time, depending on the decision, the United States Supreme Court, the court of last resort in the U.S., could in fact decide the outcome. If there is a ruling for the Bush campaign that almost shuts things down in Florida -- Frank. SESNO: All right, Bob Franken, thanks much, we will back to the Supreme Court of course. Of course the case, the arguments under way about 25 minutes from now -- Daryn.

KAGAN: Frank, thank you very much. A reminder for our viewers. Our full troops are our there. Bob is outside the courthouse. CNN's senior Washington correspondent Charles Bierbauer is inside of the courtroom, along with our legal analysts Roger Cossack and Greta Van Susteren, and we are going to hear from them as soon as they come out from the courthouse.

So we have heard from the lawyers and the experts, and now it is time to hear from the you, the viewers. We are ready to take your phone calls and e-mails and our all-star panel, includes senior political analyst Bill Schneider, who is in Washington; correspondent Bob Franken at the U.S. Supreme Court, Bob, we have you back; and election law analyst David Cardwell, who is in Tallahassee. There is David.

Good morning, gentlemen, thanks for joining us.


KAGAN: Let's go right to our first e-mail, which is from Winie (ph), and her question, I believe, David, this one is going to go to you: "Will the lawmakers of Florida still name the Republican slate of electors, even if the Republicans win -- oops, here is the question, just listen in, David -- "Will the lawmakers of Florida still name the Republican slate of electors, even if the Republicans win the U.S. Supreme Court?"

CARDWELL: I think there is a very good possibility they will. There has been some comment that they might not proceed if there is a quick and rather resounding victory from the Supreme Court of the United States. But I think to be absolutely safe, they may go ahead on the 13th and select another slate of electors. Because, if you recall, the current electors were picked based upon the November 26th certification, which is based on a Florida Supreme Court ruling that has been vacated. So I think that they may still go ahead and do it in an abundance of caution.

KAGAN: Bill Schneider, what about the political danger here, in terms of the image that the legislature in Florida could look like they are just working for the Bush camp?

SCHNEIDER: Well, it'll look like the fix is in, which a lot of Democrats are saying is the case right now. You have got the Florida Legislature, the United States Supreme Court, the United States Congress, the governor of the Florida, the secretary of state. The only ally that the Democrats believe they have is the Florida Supreme Court.

So they're going to say that the fix is in here. But the danger is not one of the image, the danger is one of political survival. Because if the Legislature certifies a Bush slate of electors there are a lot of member of the legislature who are going to have to worry a lot about the campaign in two years. The legislature has a Republican majority, will they be facing an enraged electorate who feels that they have been disenfranchised by the Florida Legislature?

FRANKEN: And there is one other point.

KAGAN: Go ahead.

FRANKEN: If the U.S. Supreme Court rules in favor of the Bush campaign, there would be a feeling that perhaps the Florida Legislature action would a redundancy, and if I can use a redundancy, an unnecessary redundancy.

KAGAN: Let's move on to the next e-mail, this one is from James. The question for the gentlemen, is: "If Bush is declared a winner by the Supreme Court action, as Bob was just alluding to, do you think he will overcome the notion that he really was not the legitimate winner?:"

Bill Schneider, you take this one. No matter who wins the presidency, either man is going to have a challenge before him to get the nation behind him?

SCHNEIDER: That is right. There will be a shadow over both candidates right now. What we are seeing is that the Bush supporters are much more likely to say: They would never accept Gore as the legitimate president. That is their feeling right now, that could change, whereas only a third of Gore supporters would never accept George W. Bush, although, that might be changing because of anger at the United States Supreme Court for having usurped this decision.

It is also a problem here that the Democrats are constantly bringing up, namely, that under Florida's Sunshine Law, as well as the federal Freedom of Information Act, somebody, probably the press, is going to go in and count those Florida ballots. So if is Bush is named president effectively by the United States Supreme Court, it may be just a matter of a few weeks before somebody counts those ballots, they have a right to do that, and finds out in some determinative way, I don't know if that would be, that actually Gore won the Florida vote. And then the Democrats say that would be a very danger for Bush as president.

KAGAN: David Cardwell, you chime in on that. How exactly does that work in Florida? Can someone come in and demand to have a look at those ballots?

CARDWELL: We have a very strong public records law that allows anyone to come in and look at certain public records, unless they are exempted. There is some restriction on the ballots, an individual would not able to actually touch the ballots, but they would be entitled to inspect it. And that is what was in fact going on in Palm Beach County before Judge Sauls impounded the ballots, what seems like an eternity ago, but it is possible that after all of the legal challenges are finished, the ballots are back in the counties, and the counties supervisor of elections offices that somebody could make a public records request. And since the ballots will be sealed, under Florida law, they are put back into boxes and sealed, it's very likely that someone would have to go to court and get a court order, under a public record as law, so the court could oversee the review of the ballots. But it is very possible that they could be counted.

KAGAN: And now a question by e-mail from Patricia Craig. She points out a little known fact, and she is asking: "Given that Justice Scalia has a son with a member -- who is practice with a member of Bush's legal team, should he not recuse himself from the case?"

First, the facts here. The son is one of nine of Justice Scalia's children, Eugene Scalia, and he is partner at Gibon, Dunn, and Crutcher (ph), and that is the same law firm that Ted Olson is a partner in, and Ted Olson will be arguing once again on behalf of the Bush team.

Bill Schneider, how does this work?

SCHNEIDER: Well, the answer, I believe, that most legal ethics experts say is that the son is not working on this case. So there's no obvious conflict of interest. The son was very careful not to participate in this case. So therefore, his father most -- most legal ethics specialists say, would not necessarily have a conflict of interest.

KAGAN: And then, Bob Franken, you do the math. If Justice Scalia did recuse himself, then you would have 4-4.

FRANKEN: Moving beyond that, the issue that the Democrats were promoting yesterday is that under in the judicial canon of ethics, in the legal cannon of ethics, there is a code for judges, and one of the parts of that is that the justices must avoid conflicts of interest, and even the appearance of conflict of interest, and that is what everybody was arguing, that as a partner in this law firm, Eugene Scalia has a financial interest in the success of the law firm.

However, as Bill pointed out, many legal ethicists say that takes it beyond the normal application of that cannon. So that is where things stands. It would not look like Antonin Scalia would be the kind to say: OK, I am not going to participate, particularly after he really wrote that really stinging concurring opinion where he announced that because of the ways that things had been structured there is, quote, a "substantial probability of success" for the Bush campaign. He savors an argument.

KAGAN: We do know that Justice Scalia does have strong feelings in this case. We want to give our thanks to David Cardwell, Bill Schneider, and Bob Franken at the U.S. Supreme Court, where as you can see by the live picture we are about to show you, there is plenty of -- do we have the picture? -- the live picture from the U.S. Supreme Court. Plenty of company, Plenty of protesters having their say outside the high court. We are just about 18 minutes away from those oral argument beginning in the case of Bush versus Gore. Thanks to our panelists, thanks to our viewers for those e-mails. We will take a break and be back after this.


SESNO: With the start of oral arguments before the United States Supreme Court just a few minutes away -- nine minutes, if they start exactly on time -- there are plenty of partisan protesters out in front of the court now, and they're making plenty of noise.

We are going to be going over to the court and hearing from our correspondents there, but first we want to take you to some people who know these Supreme Court justices well, and, specifically, what they do inside and how is these cases unfold -- U.S. Supreme Court justices almost never talk to the media.

One way to find out what's on their minds and how things work is to talk to clerks who are familiar with their work. And so we have two former clerks with us now. Heather Gerken, of Harvard University -- she once clerked for Justice David Souter-- and Paul Clement, a former clerk to Justice Antonin Scalia.

Mr, Clement and Ms. Gerken, thank you both for joining us today.

Mr. Clement, let me start with you. There is a fascinating piece in "The Washington Post" today. It is a profile piece of Antonin Scalia -- perhaps you can see it right here -- and they had a conversation, a brief one, with Scalia, earlier this year, and they quote him as saying, "We," referring to the United States Supreme Court, "should not be a prominent institution in a democracy."

Well, they're pretty prominent today. How do you suppose Scalia feels about that?

PAUL CLEMENT, FORMER CLERK TO JUSTICE SCALIA: Well, I think that he probably feels that they're not supposed to be a prominent institution in a democracy, for the most part, but they exist precisely to make sure that federal law is respected and that the Constitution is respected. And I think, as a result, the first questions that the justices are going to have today is to try to establish is there a legitimate federal interest in this case, and if show, how do we go about vindicating the federal Constitution in the context of this case?

SESNO: Ms. Gerken, the "Post" continues to quote Scalia as saying "We are called in to correct mistakes. When you have to call us in, someone has screwed up, something has gone terribly wrong."

Probably, most people would agree with some portion of that premise. What do you expect is going to happen, in terms of the other justices, not to mention the more liberal justices, to those who side on that liberal wing, to include the man you clerked for?


SESNO: Heather Gerken?

I'm sorry, apparently, Heather Gerken's got some audio problems. We'll see if we can't fix that and get back to her.

So Mr. Clement, let me come back to you and merely pose that question to you.

CLEMENT: Well, I think that the -- all the justices are going to look at this case in largely a similar way, which is start with the idea that we have to identify a federal constitutional principle at stake.

GERKEN: I got it.

CLEMENT: Second, try to figure out what's the level of error in the Florida Supreme Court that's necessary to trigger the United States Supreme Court from coming in. Is it is a matter where if the Florida Supreme Court gets any matter wrong, the United States Supreme Court is justified in coming in to correct that mistake, or does there have to be a major mistake, a major error, in their interpretation of state law?

And then the third question is, even assuming there's a federal interest here, even assuming there's enough of a mistake to justify the United States Supreme Court getting involved, what are they going do about it? What's the proper remedy in a situation like this?

SESNO: Heather Gerken, let me get come back to you. Can you hear us now, is the audio fixed?

GERKEN: Yes, I can, thank you.

SESNO: There we go. I'm sorry about that.

Again, the question I posed to you before was Justice Souter and those others who tend to line up on the more liberal wing of the court, how do you suppose they're going to be playing today? What's the dynamic, how does it get addressed to them? What's their role?

GERKEN: Well, in every argument you see the justices talking to each other. Today we will see those four justices talking to the justices in the middle, and that would be Justice O'Connor and Justice Kennedy. So every question that those four dissenters from stay of this weekend ask will be directed to persuade Justice O'Connor and Justice Kennedy to join them in affirming the state Supreme Court here.

SESNO: All right, let me ask this question of both of you -- and Heather Gerken, you go first.

How uncomfortable do you suppose these justices feel today, knowing that the arguments they hear, the decision, the ruling they make, may, in effect, pick the president of the United States? Or do they not look at it like that?

GERKEN: It's a terrible situation for them, and they are definitely looking at it like that. They didn't want this question, they did their very best last time they had it in front of them to find a unanimous opinion that they could all agree on, to avoid addressing these questions. But now it's in front of them, and they're going to have to decide it, and they are well aware that, in this sort of the partisan battle that's been going on, they may get sucked into it and that their legitimacy is on the line today.

SESNO: Paul Clement?

CLEMENT: I think the way they're going to deal with their discomfort is to try to insulate themselves from the kind of political issues and really focus in on the legal issues. If they can make this case about the meaning of Article Two, Section One, Clause Two of the Constitution, and only that, then I think it helps insulate them from the political crucible that's going on outside the courthouse.

SESNO: And yes or no: Can they punt it back to Florida?

CLEMENT: I don't think there's time for that.

SESNO: OK, Heather Clement -- or Heather Gerken, Paul Clement, thanks to you both very much, appreciate your time, and sorry for that audio problem at the top.

GERKEN: Thank you.

SESNO: Daryn.

KAGAN: Thank you very much. We -- there we are. Thank you very much.

We're less than four minutes away from the top of the hour, when we expect oral arguments to begin at the U.S. Supreme court. We are tracking it. Stay with us for our special coverage.



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