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Decision on California's Recall Election Expected Later Today
Aired September 23, 2003 - 09:18 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: Will it proceed or will it be postponed? A decision on California's recall election expected a bit later today. The Ninth Circuit Court of Appeals yesterday heard arguments on both sides. The hearings stem from last week's ruling by a three judge panel to postpone the recall election because, it said, thousands of punch card votes could be missed.
Here to talk about it from yesterday and what we might expect today, Jeff Toobin is back with us.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi.
HEMMER: Nice to see you.
Lesson number one that Jeff Toobin taught me years ago, you can never tell, based on a question and answer.
TOOBIN: Yes.
HEMMER: But, yesterday you say you can.
TOOBIN: Yet I'm going to revise that lesson. No, I think, oftentimes in a court of appeals argument, the judges are somewhat cagey in their questions, they're tough on both sides. I thought, listening to the 11 judges yesterday, and not all of them were outspoken, but the ones who spoke out seemed clearly inclined to leave the election in October, to overrule last week's decision moving it to March. Strong emanations, I thought, in that direction.
HEMMER: Is there anyone in that state that wants it postponed? Essentially it's an argument from the ACLU, right?
TOOBIN: It is...
HEMMER: Even the secretary of state says let's do it in October.
TOOBIN: And I think that's one of the issues here. The political momentum really rebelled against the March date since this decision. Gray Davis says he wants it in March -- I'm sorry, Gray Davis says he wants it in October, Schwarzenegger says he wants it in October, the state government wants it in October, all the counties want it in October.
There is not a real constituency for moving it to March. Now, courts don't respond to constituencies. In theory, they respond to the commands of the law. But that vibe was definitely in the courtroom. HEMMER: So you felt that yesterday, the attitude on the key momentum?
TOOBIN: Absolutely. The momentum had really shifted.
HEMMER: You said something to Judy yesterday, I was watching in the afternoon, when the Ninth Circuit agrees to review a decision, 75 percent of the time they overrule that decision.
TOOBIN: Absolutely.
HEMMER: That says a lot.
TOOBIN: Absolutely. And it makes sense. Think about it. You have a three judge panel that decides a case. Why review it if you're going to just affirm it? So in most cases when you have en banc hearings -- and in the Ninth Circuit this figure is 75 percent, but that's common in, across-the-board when courts are...
HEMMER: Speak legalese for a second. The court comes out, say they overrule the three judge panel. Based on what grounds?
TOOBIN: That "Bush v. Gore" does not require this election to be postponed. It really is how you interpret the decision in "Bush v. Gore." Now, speaking of legalese, after this decision, the losing side will have the opportunity to go to the U.S. Supreme Court.
To get into the prediction business, Long Island think at this point, given that the election is just two weeks away, I don't see any way the Supreme Court will get involved. But, to say the least, I've been wrong before.
HEMMER: Pretty quick work by the court.
TOOBIN: Yes.
HEMMER: We'll see what today, which way they go.
TOOBIN: Actually, it's not necessarily today. I mean I think tomorrow is quite possible, as well.
HEMMER: Oh, you think so?
TOOBIN: Absolutely. They did not say a decision would come today and given the fact that this is a complex legal issue, the previous ruling was 66 pages, I wouldn't be surprised if it was tomorrow.
HEMMER: Thank you, Jeff.
It would be pretty surprising if the Supreme Court stepped in on a state issue.
TOOBIN: I...
HEMMER: We'll see. Thanks.
TOOBIN: But would they?
HEMMER: We're on the record.
TOOBIN: OK.
HEMMER: Thank you, Jeff.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
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Aired September 23, 2003 - 09:18 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, CNN ANCHOR: Will it proceed or will it be postponed? A decision on California's recall election expected a bit later today. The Ninth Circuit Court of Appeals yesterday heard arguments on both sides. The hearings stem from last week's ruling by a three judge panel to postpone the recall election because, it said, thousands of punch card votes could be missed.
Here to talk about it from yesterday and what we might expect today, Jeff Toobin is back with us.
JEFFREY TOOBIN, CNN LEGAL ANALYST: Hi.
HEMMER: Nice to see you.
Lesson number one that Jeff Toobin taught me years ago, you can never tell, based on a question and answer.
TOOBIN: Yes.
HEMMER: But, yesterday you say you can.
TOOBIN: Yet I'm going to revise that lesson. No, I think, oftentimes in a court of appeals argument, the judges are somewhat cagey in their questions, they're tough on both sides. I thought, listening to the 11 judges yesterday, and not all of them were outspoken, but the ones who spoke out seemed clearly inclined to leave the election in October, to overrule last week's decision moving it to March. Strong emanations, I thought, in that direction.
HEMMER: Is there anyone in that state that wants it postponed? Essentially it's an argument from the ACLU, right?
TOOBIN: It is...
HEMMER: Even the secretary of state says let's do it in October.
TOOBIN: And I think that's one of the issues here. The political momentum really rebelled against the March date since this decision. Gray Davis says he wants it in March -- I'm sorry, Gray Davis says he wants it in October, Schwarzenegger says he wants it in October, the state government wants it in October, all the counties want it in October.
There is not a real constituency for moving it to March. Now, courts don't respond to constituencies. In theory, they respond to the commands of the law. But that vibe was definitely in the courtroom. HEMMER: So you felt that yesterday, the attitude on the key momentum?
TOOBIN: Absolutely. The momentum had really shifted.
HEMMER: You said something to Judy yesterday, I was watching in the afternoon, when the Ninth Circuit agrees to review a decision, 75 percent of the time they overrule that decision.
TOOBIN: Absolutely.
HEMMER: That says a lot.
TOOBIN: Absolutely. And it makes sense. Think about it. You have a three judge panel that decides a case. Why review it if you're going to just affirm it? So in most cases when you have en banc hearings -- and in the Ninth Circuit this figure is 75 percent, but that's common in, across-the-board when courts are...
HEMMER: Speak legalese for a second. The court comes out, say they overrule the three judge panel. Based on what grounds?
TOOBIN: That "Bush v. Gore" does not require this election to be postponed. It really is how you interpret the decision in "Bush v. Gore." Now, speaking of legalese, after this decision, the losing side will have the opportunity to go to the U.S. Supreme Court.
To get into the prediction business, Long Island think at this point, given that the election is just two weeks away, I don't see any way the Supreme Court will get involved. But, to say the least, I've been wrong before.
HEMMER: Pretty quick work by the court.
TOOBIN: Yes.
HEMMER: We'll see what today, which way they go.
TOOBIN: Actually, it's not necessarily today. I mean I think tomorrow is quite possible, as well.
HEMMER: Oh, you think so?
TOOBIN: Absolutely. They did not say a decision would come today and given the fact that this is a complex legal issue, the previous ruling was 66 pages, I wouldn't be surprised if it was tomorrow.
HEMMER: Thank you, Jeff.
It would be pretty surprising if the Supreme Court stepped in on a state issue.
TOOBIN: I...
HEMMER: We'll see. Thanks.
TOOBIN: But would they?
HEMMER: We're on the record.
TOOBIN: OK.
HEMMER: Thank you, Jeff.
TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com
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