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American Morning
Pledge Judge Puts Ruling on Hold
Aired June 28, 2002 - 07:06 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.
BILL HEMMER, CNN ANCHOR: I want to get now to the growing flap over the Pledge of Allegiance. That ruling has sparked outrage from Capitol Hill all the way up to California. School kids can still legally make the Pledge, because just one day after he ruled that the words, "under God," was unconstitutional, a federal appeals court judge in San Francisco put his ruling on hold essentially, pending appeals there.
Jeffrey Toobin, our legal analyst, here this morning to sort this all out -- how are you?
JEFFREY TOOBIN, CNN LEGAL ANALYST: I'm good.
HEMMER: So what happens here? The judge says, hey, we need a second look at this, hold the presses right now?
TOOBIN: Well, what's not unusual is that when you have a controversial ruling, it gets put a stay pending appeal. So in other words, let's just leave the status quo intact, while the legal process continues. What is unusual is Judge Goodwin in the 9th Circuit, the author of this opinion, issued the stay without anyone asking him to do it.
He just did it, what lawyers say sua sponte, which means he recognized a little bit, I think, the storm that he had created, and he wanted to reassure everyone, hey, you can continue saying the Pledge of Allegiance while this gets appealed, and I think it may be at least an implicit recognition that this is going to get overturned.
HEMMER: So he had a sense then of the outrage that essentially swept the country.
TOOBIN: I can't read his mind, but by his actions, it certainly indicates he did.
HEMMER: Is it possible to, though, that he was picking up on some of the messages from the Department of Justice, which said, you know, we are going to ask a larger appeals court in the 9th Circuit to go ahead and have a look at this?
TOOBIN: Right. The attorney general, John Ashcroft, yesterday announced that the Justice Department would not appeal directly to the United States Supreme Court. Instead, they would go to what's called an en banc panel of the 9th Circuit, 11 judges that could relook at this ruling and that's going to be the next step in the process.
HEMMER: One of the things we have talked about heavily in the past 36 hours, as you know, is where we find the word "God" in all of our government, whether it's the money or the Supreme Court or the House or the Senate. Given that, do you have a sense that this fuels more cases, or does it make people shy away from it?
TOOBIN: I think it's interesting, as I have been talking to people in the last 36 hours, the people in many respects who are most upset are liberals, are people on the sort of left side of the debate. Because they think this ruling has generated so much outrage and has kind of made supporters of the wall between church and state look kind of ridiculous, that they think there is going to be a backlash to this.
And yesterday, of course, we had the United States Supreme Court weighing in on the establishment clause, the very same provision of the Constitution, where they said school vouchers, government money going to parents and then to parochial schools, were legal -- very important ruling, very significant. But indicating that they feel that the wall between church and state is not as high as all of that.
So I think you see how much the 9th Circuit was out of step with contemporary thought from yesterday's Supreme Court ruling.
HEMMER: Continue that thought when you go to public school vouchers. Right now across the country in various states, state legislatures are going to have to take a look at their own laws...
TOOBIN: Right.
HEMMER: ... possibly put some things on the referendum block and have their own people vote on it. Is that a direct result of what we saw in Washington yesterday?
TOOBIN: Well, it has been going on for quite some time. In fact, vouchers -- you know, it's interesting. The legal issue is very much settled now. Vouchers are constitutional. But politically, it's very much still alive, because remember, you have California and Michigan voted down vouchers in 2000 really for political reasons, not for legal reasons. Teachers unions, public schools' teachers unions remain adamantly opposed to this proposal.
The battleground is just going to completely shift at this point. State legislatures are going to have to decide whether they want to adopt vouchers programs, but the legal issue is really settled now. It doesn't mean there are going to be vouchers everywhere. It's just a different debate.
HEMMER: Thank you, Jeff -- we'll talk again.
TOOBIN: All right.
HEMMER: Jeffrey Toobin, legal analyst.
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