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Burden of Proof

Campaign 2000: Impact on U.S. Supreme Court

Aired January 21, 2000 - 12:30 p.m. ET



ROBERT BORK, U.S. SUPREME COURT NOMINEE: You said a number of other things, that I broke the law in Watergate. I said yesterday that I did not break the law in Watergate.



QUESTION: Mr. President, it looks like the Bork nomination will fail in the committee.




CLARENCE THOMAS, U.S. SUPREME COURT NOMINEE: I've been harmed worse than I've ever been harmed in my life. I wasn't harmed by the Klan. I wasn't harmed by the Knights of Camellia. I wasn't harmed by the Aryan Race. I wasn't harmed by a racist group. I was harmed by this process.



SEN. ORRIN HATCH (R), UTAH: Some people have been spreading the rumor that perhaps you're going to withdraw. What's Clarence Thomas going to do?

THOMAS: I'd rather die than withdraw.


GRETA VAN SUSTEREN, CO-HOST: It's the most powerful judicial body in the nation: the United States Supreme Court. Its nominations originate from the desk in the Oval Office.

Today on BURDEN OF PROOF: As the race for the White House turns into high gear, how will campaign 2000 reshape the highest court in the land?

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

After months on the campaign trail, candidates embark on their first major test for the presidency this week. This weekend will be filled with last minute campaigning before Monday's Iowa Caucuses. For the 2000 election, the White House is the goal for presidential candidates. But our 43rd commander-in-chief will have tremendous impact on another American institution: the United States Supreme Court. And already the Republican front-runner is expressing his opinion on one of the court's most controversial rulings.


GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: Roe v. Wade was a reach. It overstepped the constitutional bounds, as far as I'm concerned. I want to remind you, I'm not a lawyer.


VAN SUSTEREN: All of our experts today served as clerks in the United States Supreme Court. And joining us today from Los Angeles is appellate attorney Heather Gerken. In Boston, civil rights law expert Sam Bagenstos. And in New York, civil defense attorney Robert Giuffra. And here in Washington, Bruce Abramson, appellate attorney Erik Jaffe and Debbie Goldberg (ph). And in our back row, Eden Rood (ph) and Gabrielle DuVall (ph).

Heather, let me go first to you. Governor Bush says that Roe versus Wade, which incidentally its 27th anniversary is tomorrow. He says, it's a reach. Is it a reach?

HEATHER GERKEN, APPELLATE ATTORNEY: I mean, constitutional scholars are quite divided about Roe v. Wade. It's an incredibly difficult issue. Although I must say, I think the national consensus is that it was the right decision at time and that it is still the right decision.

VAN SUSTEREN: Bob, a reach or not a reach?

ROBERT GIUFFRA, CIVIL DEFENSE ATTORNEY: Greta, whatever I answer to you today will be used against me someday, but I...

VAN SUSTEREN: Hopefully, it will be used against you, if you have the opportunity to be asked about it.

GIUFFRA: I think that there is a lot of strong views on this issue, and I think that there is a sound body of jurisprudence that it was a reach, and I think the position that was stated by the dissenters in Roe versus Wade, and then moving forward, is a position that has some sound basis in that the Constitution, itself, says nothing about abortion, and there has been a bit of a stretch to reach the result that the court did in Roe.

Now the issue that obviously is presented here is whether, now that we've had Roe for these many years, whether under the principle of stare desiseis (ph), which is that you don't overturn precedents, whether that is something that should be done.

I think Justice Kennedy, who was the key vote in the Casey decision, is someone who would agree that Roe was a reach, but he affirmed some right to abortion under the principle of stare desiseis because of the fact that judges are not to make up the law but have to look at prior precedents.

VAN SUSTEREN: All right, Sam, a reach or not a reach? Is Governor Bush right or wrong?

SAM BAGENSTOS, CIVIL RIGHTS LAW EXPERT: Well, I think that the last point is really the most important one. Whatever people might have thought about Roe versus Wade in 1973, I think the Supreme Court recognized eight years ago in the Casey decision that it has become a part of the fabric of American law. And I think that's something that the people generally support.

I mean, the court in the Casey decision said, essentially, the position that President Clinton has taken, and I think it's the people's position too, that abortion ought to be protected, but states can do things to try to discourage that. I think that's going to be the consistent position in the courts from -- for the foreseeable future.

VAN SUSTEREN: Erik, if a president in the White House is against abortion, wants to do something about it. What at this point can he or she do?

ERIK JAFFE, APPELLATE ATTORNEY: Certainly seek to get a constitutional amendment, lobby for that, promote that in the states. They can try to appoint justices and judges who have an underlying judicial philosophy that is less prone towards creating solutions to things out of whole cloth, if you will, that might stick more closely to the text of the Constitution. That would, in all likelihood, put Roe at risk. They can do those things quite directly.

VAN SUSTEREN: All right, we are going to take a break.

Up next: Help wanted on the U.S. Supreme Court. How many vacancies will likely open up in the next term? and what experience and qualifications will the next president be looking for? Stay with us.


A Utah man who yelled racial slurs at two grocery store employees and tried to run over them with his car will spend one year in jail and then perform 200 hours of "ethnically related" community service.

His community service includes 50 hours at a Jewish center and 50 hours at a black Baptist church. In addition, his probation officer will be black.



VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to and click your way to the BURDEN OF PROOF LINK. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via Video On-Demand.


SEN. JOSEPH BIDEN (D), DELAWARE: I'm getting fed up with this stuff about how terrible this system is. I hear everybody talk about how terrible the primary system is. We're big boys. I knew when I ran for president everything was free game. Anybody who runs for the Supreme Court or is appointed to the Supreme Court, to be more precise, should understand. This is not Boy Scouts, it's not Cub Scouts. In the case of the president, it's for the right to be the leader of the free world, and no one ever said it would be easy, and whoever goes into the Supreme Court is going to determine the fate of this country more than anybody. For the next 20 years, we're going to have people, scrupulous and unscrupulous, respond and react.


VAN SUSTEREN: The nomination of Clarence Thomas to the Supreme Court bench launched one of the most controversial confirmation hearings in American history. Election 2000 could open the door for more turnover on the bench.

Heather, how far should the United States Senate go in advise and consent when a president has nominated someone for the Supreme Court?

GERKEN: I think it's absolutely fair for the Senate to ask a judicial nominee about their judicial temperament, what their philosophy is on the Constitution. What I think everyone is concerned about, though, is the litmus-test question, whether you force a candidate like Justice Thomas to something as ridiculous as, I've never talked about Roe V. Wade in my life. That's a real problem, because justices should not be asking to commit to their positions on these important positions prior to being put on the bench.

VAN SUSTEREN: Well, earlier this week I spoke to Senator Orrin Hatch, who is also the -- who is not only running for president of the United States but he is chairman of the Senate Judiciary Committee, and when I asked him about the type of nominee he would look towards, this is what he had to say:


SEN. ORRIN HATCH (R), PRESIDENTIAL CANDIDATE: In order to be on the Supreme Court or in any federal judicial position those people are going to have to commit to the rule of judging, and that is that judges are not nominated and confirmed for life to do anything but interpret the laws. Their job is to interpret the laws, not make the laws. They're not to act as super-legislators on the bench in black robes. They're job is to interpret the laws made by those who have to stand for reelection.


VAN SUSTEREN: Sam, the whole controversy about activist judges is what Senator Hatch was speaking about. When we speak about activist judges, are we speaking about decisions by judges we don't agree with, or is that a legitimate concern?

BAGENSTOS: Well, I think that activist judges is one of the chameleon words that's been deployed against all judges of all different kinds of predilections, and it does, basically, I think, in the political discourse refer to judges who make decisions that I personally disagree with, I, who I'm throwing around the word, "activist." I think, you know, people, as Heather said, senators can have legitimate concerns about the candidates for judgeships who are before them about their judicial temperament and their judicial philosophy. But I think this -- all this talk about activism, there's activism on both sides and no sides; it all depends on what you mean by the word.

VAN SUSTEREN: Erik, isn't that true that the criticism -- some people who do not like Roe say that was activism by the Supreme Court, can't the same criticism be made of the Supreme Court when, for instance, it invents exceptions to the Fourth Amendment search and seizure?

JAFFE: Well, it depends on, really, what your constitutional hook is, what the language that you're trying to interpret is. When -- in the Fourth Amendment, when you're interpreting a word like a reasonable search, that kind of language sometimes requires judgment calls, if you will, and people will consider those judgment calls activists. But at the end of the day, if it sits in the lap of a judge and the legislator won't define what reasonable is, it comes to the court to make that decision. Where in other circumstances you have something like due process, which by any basically straightforward reading seems to refer to procedures, and suddenly you interpret due process to mean some substantive requirement of "you may do this" or "you may not do this" as opposed to "here's the process by which you can do this," I think that's more fairly subject to the criticism of activism. It's a predilection.

VAN SUSTEREN: All right, well, we have women on the United States Supreme Court, we have African-Americans, we do not have a Hispanic member of the United States Supreme Court. I asked Senator Hatch earlier this week if he would name a Hispanic to the Supreme Court. This is what he had to say:


HATCH: I've recommended Jose Cabranas a number of times from the Reagan administration on, and he -- and I would say four or five others that I've put into the mix so that at least they would look at Hispanic nominees. Now, I think -- I think everybody ought to be considered. You know, this isn't just a white male or white female organization. We ought to consider everybody for the court.


VAN SUSTEREN: Bob, when I spoke to Orrin Hatch earlier this week and I asked him the question, I thought it was a good question. In hindsight, I wonder, is it fair to put to our nominees at this point specific questions of who you are going to put on the Supreme Court.

GIUFFRA: Yes, I think that's a fair question in a general sense. I think that the thing that needs to be remembered here is that the Senate will have a key role in this. I mean, what we've seen in the Clinton administration, and there have been two excellent appointments, Justice Breyer and Justice Ginsburg, and I think the fact that you had a Republican Senate probably tempered those nominations and made sure that the president sort of nominated middle- of-the-road people. So, I think it's important to remember that the Senate will play a key role. If you have a Republican president and a Republican Senate, that Republican president will have greater leeway than would, for example, Senator -- Vice President Gore, were he to become president, with a Republican Senate.

Judge Cabranas, who was just mentioned before, is obviously a very qualified person, and he's someone who is a Democrat but someone who is -- was a trial judge, now is an appellate judge and is someone who sort of just decides the case that was before him.

The problem, I think, when people look at the Supreme Court and try to inject it into the presidential campaign process is that there are very few cases that come to the Supreme Court that are, you know, the big picture political issues like abortion, affirmative action, which so dominated the political landscape in the 1980s. We've seen a real turning away from that in the last 10 years, and many of the cases that come to the Supreme Court, in fact the bulk of the cases, are really straightforward cases involving administrative law, criminal procedure that are not as political as the big issues like abortion.

VAN SUSTEREN: Heather, in 1998, 19 cases were divided by a one- vote majority in the United States Supreme Court. There may be three -- or, two or three vacancies in the United States Supreme Court for the next president. How important is it when you cast your vote that you consider that?

GERKEN: Oh, it's incredibly important. I mean, these justices are going to decide very important issues. It may well be that most of the cases that they take don't seem to matter much to the American people, but the justices are going to be deciding a number of civil rights cases and abortion cases in the next five or 10 years, and the shift in the majority would have a dramatic impact upon those decisions with a court that is this closely divided.

VAN SUSTEREN: We're going to take a break. Up next, the president not only nominates candidates for the Supreme Court, he or she also nominates judges for the federal trial bench, but those nominees still face scrutiny by a Senate committee. Stay with us.


Q: What are terms of computer hacker Kevin Mitnick's three-year probation when he is released from a federal prison in California today?

A: He is not allowed to touch any computer, software, modem, cell phone, Internet-connected television, or any other electronic item that would give him access to the Internet.



VAN SUSTEREN: A judicial logjam exists between the president's desk and a Senate confirmation process for federal judges. Dozens of positions remain open, and the White House and Congress don't agree on the definition of a healthy roster count.

Earlier this week, I asked Senator Hatch about the problem of the logjam, and this is what he said:


HATCH: Now, let me just be frank with you: Whether it was a Republican nomination or a Democrat nomination, when the two senators -- for the district court, and this was a district court position -- when the two senators both go against that nominee, then that nominee is dead in the water.


VAN SUSTEREN: Sam, how serious of a problem is this? The trial court bench is enormously important, and if we have this logjam and two senators can kill it, how important or how big a problem is it?

BAGENSTOS: I think it's a major problem, you know, and it's one of these problem that you don't see on the headlines, but real people feel it everyday. I mean, Congress passes these laws to give people rights, and when there aren't enough judges, the rights can't be enforced in a timely manner, and that means they're relatively ineffective. They don't do the job that congressmen -- that people thought that their rights would afford them, whether they're environmental laws or civil rights laws or other important laws.

So, I think it's enormously important. It's one of these issues that's really very undersold in the public discourse. It's a very important issue and it's a very important issue in the election.

VAN SUSTEREN: Bob, in such a hugely partisan time, what's the solution? How can we get these vacancies filled? GIUFFRA: We've actually done a pretty good job in the last year in trying to fill the vacancies. Now, at the end of any president's term, there always are a lot of vacancies, particularly if you have, in this case, a Senate that's controlled by the Republicans and then a Democratic president, because, obviously, there's a question as to how much is going to be up for grabs in the election.

In terms of the appointment of judges to lower courts, you really want there people who are good, competent, technical lawyers because, unlike the Supreme Court, a lower court judge is obviously bound by the Supreme Court's precedents and decisions and you want someone who's just going to decide the case and who will have a good judicial temperament.

I think my experience -- and I'm actually in the federal courts on a daily basis -- I think we have a very high quality of federal judge in the trial courts and the appellate courts appointed by both presidents of all parties. And I think that the most important thing is that you get people who are good, qualified, competent lawyers. And I think that really is not an issue that deserves the political focus as, say, maybe the Supreme Court does because of the awesome power of the Supreme Court over these issues.

VAN SUSTEREN: And when I asked Senator Hatch to give us some idea of the vacancy issue, here's what he had to say:


HATCH: It's a combination of factors. And there aren't 10 percent, there's approximately eight percent that are vacant, maybe seven percent, which is usually where it's at. You have enough retirements that you constantly have somewhere between 40 and 80 vacancies. This president announced when Joe Biden was chairman of the committee that 63 vacancies meant that we had a full court system in this country, and that's about right. In other words, when you're -- I'd say 65 vacancies or less, you pretty well have a full federal judiciary. And it's a constant battle to go through the confirmation process, do the investigations that have to be done, the follow-up investigations that have to be done. We take this very seriously, both Democrats and Republicans do, because these people are appointed for life.


VAN SUSTEREN: Heather, eight to 10 percent vacancy, depending on who's calling the numbers, can mean about 60 to 80 judges not sitting on the bench. How big a problem is that for the American people. Is that tolerable?

GERKEN: It's absolutely intolerable. I mean -- and it does make a huge difference to average people. It may be that a corporation can wait years to get a trial in an appeal, but average people who have employment discrimination claims and disability claims really need an answer more quickly than the judiciary's able to provide them. And with all deference to Senator Hatch, the Republicans are playing a political game here, and we should blame them for that. And we should also blame President Clinton for being unwilling to step in and spend some political capital on filling the judiciary.

VAN SUSTEREN: Erik, when we talk about the United States Supreme Court, we often talk about diversity, about race. We don't have a Hispanic, as I noted earlier. We also don't have sort of like an old- fashioned trial lawyer who has been in landlord-tenant court or small- claims court or where many of the American people oftentimes find themselves when they're in court. Is that a candidate a president should look for?

JAFFE: Well, I think it would be good to have candidates with a diversity of experience. I'm not sure that I would say the president should look for someone who's done trial work all their life.

VAN SUSTEREN: But how about someone who's represented people.

JAFFE: That's always a good idea. I believe Justice Stevens, actually, had a law practice for a while.

VAN SUSTEREN: Who is almost 80 years old and one of the people that we expect we may lose in the next...

JAFFE: Absolutely. So, yes, I think there's certainly something to be said for looking for someone with some practical experience in representing parties, in going into the trial courts and the appellate courts. One shouldn't lean all the way towards academics or all the way towards practitioners, but, I agree, it would be a valuable experience.

VAN SUSTEREN: All right, that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on "TALKBACK LIVE," an interactive debate over the custody dispute over a 6-year-old Cuban boy: An international family feud today at 3:00 p.m. Eastern time, noon Pacific.

And we'll be back Monday with a special campaign 2000 edition of BURDEN OF PROOF," live from Iowa. We'll see you then.


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