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American Morning

Supreme Court Justices Says He Ran Out of Time

Aired September 10, 2001 - 10:17   ET

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

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
COLLEEN MCEDWARDS, CNN ANCHOR: Well, the Supreme Court hands out a lot of 5-4 decisions, but few close ones are the stuff of history books like Bush versus Gore.

Now, a new book suggests that the 5-4 ruling came pretty close to going the other way.

"Newsweek" reporter David Kaplan wrote that book, "The Accidental President," and it's actually previewed in the latest issue of "Newsweek."

David Kaplan joins us now from New York.

David, thanks for being here.

DAVID KAPLAN, "NEWSWEEK": Thanks for having me.

MCEDWARDS: I've got the "Newsweek" piece right here and I want to start with the suggestion that Justice David Souter said that he could have won over that decisive vote by Justice Kennedy if he had one more day. Explain that for us.

KAPLAN: Well, about a month after election day he was -- Justice Souter was meeting with a group of prep school students from CHO (ph), and they were meeting at the court in a private setting, no cameras, no press there, so, of course, he assumed his comments would remain within the room. And he told them that had he had one more day, just one more day, he thought he could have turned Justice Kennedy.

Now, maybe that's -- maybe he could have and maybe he couldn't have, this is according to Justice Souter, but at least in his mind, it was just that close. And of course the 5-4 ruling for Bush would have then become a 5-4 ruling for Gore. And Justice Kennedy is famous for his wavering, equivocating nature. He was the justice among the five conservatives who was most likely to be flipped.

MCEDWARDS: Well, in the meeting, I'm wonder, did Justice Souter betray any of the reasons he thought he was so close?

KAPLAN: No, certainly not that I know of. But Justice Kennedy is -- you know, in some of the famous abortion rulings, he -- it was only at the last minute that he decided to go with the group that upheld Roe vs. Wade, the landmark abortion decision. At one point in one of the cases he had been in the other direction, but in terms of the actual back and forth between Justice Souter and Justice Kennedy I think we'll have to wait until my next book.

MCEDWARDS: OK. And you've got another story in here about this group of Russian judges meeting with some of the Supreme Court judges, having a discussion about it. One of the dissenters, which I guess maybe isn't surprising, he was a dissenter saying -- having some pretty harsh words about this decision. But then the conversation goes on. Tell us about that.

KAPLAN: Well, this was another gathering just a few weeks after the decision. Justices of the Russian Supreme Constitutional Court come to Washington every year to learn from the masters what constitutional law is supposed to be in a democracy. And in this setting they wanted to know: Explain this to us, judges pick a president? Even that didn't take place in the old Russia.

So there was a little bit of irony and sarcasm in the question and several of the dissenters spoke up quite harshly. Justice Breyer, the justice you were referring to, said that he thought it was an outrageous decision, an indefensible decision, worse than anything the court had ever done. Ruth Bader Ginsburg said that she really thought maybe this showed the court was political. She had always maintained that despite the divisions there wasn't partisanship as such on the court.

And Justice Kennedy spoke up in defense of decision, trying to explain that we all have to take responsibility, you have to step up to the plate. Now that's classic Justice Kennedy, kind of thumping his chest about the burden of it all, that you've got to be out there and take control. Of course, the competing position was to say that it wasn't the court's role to decide the election at all and to point across the street to the Capitol building and say it was up to Congress, which after is mentioned in the Constitution as the branch of government that resolves presidential disputes.

MCEDWARDS: And certainly that argument's been made.

And another argument that we've heard over and over again, especially among academics, is that this whole decision caused Americans to lose faith in their supreme court. And I'm wonder what you think of that almost a year later in the course of doing this book. Do you get the sense that confidence has been undermined or not?

KAPLAN: I think -- you know, public opinion polls show that the court still ranks pretty highly. I think in academic circles and among lower court judges and ones that I talk to, yes, I think there is a loss of respect. And we saw that kind of thing 30 years ago when Roe vs. Wade came down. Now, in that -- after that case, the abortion ruling, it was the conservatives who were upset. Whether public confidence in the court went down, I'm not -- don't think that's so clear. But the conservatives were enraged with the court did, and now it's the liberals who are enraged. SO in a certain sense there's poetic justice.

In this decision, the problem is that when the court begins to look like just another legislature, voting its personal whims, which is what legislatures are supposed to do, in the long-term, I think it at least hurts within the judiciary. Whether the public actually cares a lot, it's harder to tell. The court is a pretty insular body. It's, you know, ruling -- it's hearing aren't televised, probably won't be in our lifetime.

MCEDWARDS: No, these aren't people you just get access to as a journalist.

KAPLAN: That's right. I mean, they're most -- they can shop in supermarkets and not be noticed.

MCEDWARDS: All right, got to leave it there.

David Kaplan, thanks so much for your time this morning, appreciate it.

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