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California Recall

Aired September 19, 2003 - 14:05   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.


MILES O'BRIEN, CNN ANCHOR: CNN's Bob Franken, while we were talking with Wolf, was on his cell phone, getting the information right now. We just have it in on that ruling from the Ninth Circuit. Let's get right to it -- Bob.
BOB FRANKEN, CNN CORRESPONDENT: OK, what we know is that there will be a rehearing. They have decided that they are in fact going to appoint an 11-judge en banc (ph) panel. As you know, that's the 11 judges. It's an expanded panel, who will rehear the case from the three-judge panel. The three-judge panel ruled the election must be delayed. This does not been that there has been any change in that ruling. It just means that, in effect, there's an appeal of that ruling that's going to be held. The time, Miles, is TBA. We'll know what TBA is in about a half hour. In that half hour, they're going to decide which of the 11 judges among the 26 who are eligible to participate, who will be the 11 judges who will participate.

We know one of them. That's the chief judge. He's an appointee of President Carter, a Democrat of course. The other 10 will be chosen by lottery. They actually put wooden balls into a barrel and roll them around. It looks like one of the state lotteries. And out of that, they will pick 10 others. Then we will have some idea of their political breakdown -- that is to say who appointed them, then we'll find out where most of them live. And wherever that is, is where the hearing will occur. It could occur in San Francisco, which is, in effect, headquarters for the ninth circuit, or in Pasadena, which is the three-judge panel is at. It's where the -- quote -- critical mass of judges is.

In any case, we know that there is going to be a hearing. That doesn't surprise anybody. So that will be the next step in the appeals process. And of course, all of this is under a very tight schedule because the election is about 2 1/2 weeks away.

O'BRIEN: And you bring up that point, is there a scenario you can conjure up where everything goes so smoothly this election could, in fact, happen in October?

FRANKEN: Well, it could, absolutely. And of course, you know the adage about federal judges. When somebody says, what can they do, the answer is, just about anything they want to.

O'BRIEN: Good point. Let's factor this in to the whole race. We've got live pictures right now, as a matter of fact, of Al Gore speaking on behalf of Gray Davis, not far from where you sit right now. Raising the whole specter of the 2000 election, Gray Davis trying to make this a bigger issue than him. The theory has been that time is on his side. That still holds, doesn't it?

FRANKEN: It is, if, in fact, there is a delay. The longer he has to make his case, so the conventional wisdom goes, the sometimes reliable conventional wisdom. The better it is for him, and the harder it is on some of these candidates who hoped they would make a quick hit and be able to take advantage of the momentum that had developed, and overturn, that is to say, recall, Gray Davis. The longer it goes, the more complex it gets, mixing it up with the presidential primaries, for instance, the better, the conventional wisdom goes, it is for Gray Davis.

Now of course, what is so ironic, is the fact that as this is going on, Al Gore, former vice president Al Gore, is in the state. He is the person who suffered at the hands of the Bush V. Gore Supreme Court decision that is cited by just about everybody in making the case that the recall should be delayed, or that the recall should go on as scheduled. And remember, it was a totally convoluted, totally confusing opinion, and just about every point of view was expressed in it somewhere. So both sides have argued when they've appeared before judges at the two hearings that have been held thus far, both sides have cited that, and they cited that in the briefs that suggested there should be the en banc proceedings.

So now we know that there is going to be the expanded proceeding; we just don't know who is going to actually hear it, and we don't know where they're going to hear it, but we should know that within the next half hour.

O'BRIEN: You know, Bob, I know you hesitate to make predictions. But this roller coaster, it never stops, does it? You know, is there anything that's off the table?

FRANKEN: Just about anything that's off the table is the political situation in California is going to ever recover from this. I'll tell you what, this is such an unusual state in that regard. There are going to be a lot of historians and the like who are look at that. The United States was set up as a representative democracy, where there was this buffer between the passions of the moment and the elected officials.

Well, in California, they did away with that to some degree with the proposition system, and this very easy recall system, and there's going to be a lot of debate about whether they should modify this a little bit to allow a little bit of time to breathe so there can be an orderly government. That's the kind of debate that you're going to have at some point.

O'BRIEN: You know, I can only imagine the framers of the Constitution looking at this. Government by referendum. Of course, they couldn't imagine the short attention spans that we all have in the age of television. So it does make for a potent mix when people can just vote at their whim.

FRANKEN: Well, they did actually debate that very approach. When they originally were discussing how the United States should be set up. Of course, the most extreme example of the fact that there is this separation is the electoral college. That was set up as the buffer between the actual vote itself, and that's been much debated. And you'll recall that that was such a factor in Bush versus Gore. But before we bore everybody with our high school civics here, the important point is where we are today, and that is where a federal appeals court of judges is going to be selected by lottery. Ten of them are going to be selected. The other one is already there, and that's the chief judge, unless she decides not to be involved.

And then we're going to -- the first thing we're going to look at is the political orientation. One thing about that, Miles, nobody is suggesting that the judges are so political that if they were appointed by a Republican, they'll vote for the recall, and a Democrat, they'll vote against.

But Republicans more often than not favor the rights of the states, and Democrats more often than not look at the supremacy of the federal government. That of course is the fundamental issue here. That being the case, that's why it becomes important to look. By the way, this is a court that is almost two-to-one Democratic.

O'BRIEN: All right, CNN's Bob Franken, thanks for giving us all of that insight, right down to the civics 101 class, providing full support in so many ways for us in California.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com






Aired September 19, 2003 - 14:05   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
MILES O'BRIEN, CNN ANCHOR: CNN's Bob Franken, while we were talking with Wolf, was on his cell phone, getting the information right now. We just have it in on that ruling from the Ninth Circuit. Let's get right to it -- Bob.
BOB FRANKEN, CNN CORRESPONDENT: OK, what we know is that there will be a rehearing. They have decided that they are in fact going to appoint an 11-judge en banc (ph) panel. As you know, that's the 11 judges. It's an expanded panel, who will rehear the case from the three-judge panel. The three-judge panel ruled the election must be delayed. This does not been that there has been any change in that ruling. It just means that, in effect, there's an appeal of that ruling that's going to be held. The time, Miles, is TBA. We'll know what TBA is in about a half hour. In that half hour, they're going to decide which of the 11 judges among the 26 who are eligible to participate, who will be the 11 judges who will participate.

We know one of them. That's the chief judge. He's an appointee of President Carter, a Democrat of course. The other 10 will be chosen by lottery. They actually put wooden balls into a barrel and roll them around. It looks like one of the state lotteries. And out of that, they will pick 10 others. Then we will have some idea of their political breakdown -- that is to say who appointed them, then we'll find out where most of them live. And wherever that is, is where the hearing will occur. It could occur in San Francisco, which is, in effect, headquarters for the ninth circuit, or in Pasadena, which is the three-judge panel is at. It's where the -- quote -- critical mass of judges is.

In any case, we know that there is going to be a hearing. That doesn't surprise anybody. So that will be the next step in the appeals process. And of course, all of this is under a very tight schedule because the election is about 2 1/2 weeks away.

O'BRIEN: And you bring up that point, is there a scenario you can conjure up where everything goes so smoothly this election could, in fact, happen in October?

FRANKEN: Well, it could, absolutely. And of course, you know the adage about federal judges. When somebody says, what can they do, the answer is, just about anything they want to.

O'BRIEN: Good point. Let's factor this in to the whole race. We've got live pictures right now, as a matter of fact, of Al Gore speaking on behalf of Gray Davis, not far from where you sit right now. Raising the whole specter of the 2000 election, Gray Davis trying to make this a bigger issue than him. The theory has been that time is on his side. That still holds, doesn't it?

FRANKEN: It is, if, in fact, there is a delay. The longer he has to make his case, so the conventional wisdom goes, the sometimes reliable conventional wisdom. The better it is for him, and the harder it is on some of these candidates who hoped they would make a quick hit and be able to take advantage of the momentum that had developed, and overturn, that is to say, recall, Gray Davis. The longer it goes, the more complex it gets, mixing it up with the presidential primaries, for instance, the better, the conventional wisdom goes, it is for Gray Davis.

Now of course, what is so ironic, is the fact that as this is going on, Al Gore, former vice president Al Gore, is in the state. He is the person who suffered at the hands of the Bush V. Gore Supreme Court decision that is cited by just about everybody in making the case that the recall should be delayed, or that the recall should go on as scheduled. And remember, it was a totally convoluted, totally confusing opinion, and just about every point of view was expressed in it somewhere. So both sides have argued when they've appeared before judges at the two hearings that have been held thus far, both sides have cited that, and they cited that in the briefs that suggested there should be the en banc proceedings.

So now we know that there is going to be the expanded proceeding; we just don't know who is going to actually hear it, and we don't know where they're going to hear it, but we should know that within the next half hour.

O'BRIEN: You know, Bob, I know you hesitate to make predictions. But this roller coaster, it never stops, does it? You know, is there anything that's off the table?

FRANKEN: Just about anything that's off the table is the political situation in California is going to ever recover from this. I'll tell you what, this is such an unusual state in that regard. There are going to be a lot of historians and the like who are look at that. The United States was set up as a representative democracy, where there was this buffer between the passions of the moment and the elected officials.

Well, in California, they did away with that to some degree with the proposition system, and this very easy recall system, and there's going to be a lot of debate about whether they should modify this a little bit to allow a little bit of time to breathe so there can be an orderly government. That's the kind of debate that you're going to have at some point.

O'BRIEN: You know, I can only imagine the framers of the Constitution looking at this. Government by referendum. Of course, they couldn't imagine the short attention spans that we all have in the age of television. So it does make for a potent mix when people can just vote at their whim.

FRANKEN: Well, they did actually debate that very approach. When they originally were discussing how the United States should be set up. Of course, the most extreme example of the fact that there is this separation is the electoral college. That was set up as the buffer between the actual vote itself, and that's been much debated. And you'll recall that that was such a factor in Bush versus Gore. But before we bore everybody with our high school civics here, the important point is where we are today, and that is where a federal appeals court of judges is going to be selected by lottery. Ten of them are going to be selected. The other one is already there, and that's the chief judge, unless she decides not to be involved.

And then we're going to -- the first thing we're going to look at is the political orientation. One thing about that, Miles, nobody is suggesting that the judges are so political that if they were appointed by a Republican, they'll vote for the recall, and a Democrat, they'll vote against.

But Republicans more often than not favor the rights of the states, and Democrats more often than not look at the supremacy of the federal government. That of course is the fundamental issue here. That being the case, that's why it becomes important to look. By the way, this is a court that is almost two-to-one Democratic.

O'BRIEN: All right, CNN's Bob Franken, thanks for giving us all of that insight, right down to the civics 101 class, providing full support in so many ways for us in California.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com