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Burden of Proof

The Iowa Caucuses: Impact on the Supreme Court

Aired January 25, 2000 - 12:30 p.m. ET



VICE PRESIDENT AL GORE (D), PRESIDENTIAL CANDIDATE: On to New York, and California, and Ohio and Georgia, and all across the United States of America. And with your help, we'll win the election in November and we'll make this a better country. We'll fight for our future together.

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I am humbled and I am honored by your outpouring of support. Tonight marks the first election night of the new millennium, the beginning of the process by which America will choose the president to lead us in the 21st century, and tonight also marks the beginning of the end of the Clinton era.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Vice President Al Gore and Texas Governor George W. Bush win their respective caucuses. What legal impact will the race to the White House have on the United States Supreme Court and some of the most debated laws of a generation?

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

VAN SUSTEREN: Hello and welcome to a special edition of BURDEN OF PROOF. Roger is off today.

We're here in Des Moines, Iowa, where presidential candidates have taken their first test on the road to the White House. Now, Texas Governor George W. Bush and Vice President Al Gore will try to build on their victories in New Hampshire. It's early in the 2000 campaign, but it's plain: this election will have an impact on the laws of our land and, more importantly, on the composition of the United States Supreme Court.


AL HUNT, EVANS, NOVAK, HUNTS & SHIELDS: One of your father's appointments to the Supreme Court was David Souter. Today, do you think that was a good appointment?

BUSH: You know, nice try. You are trying to get me into the old George W., George H.W. debate. I am not going to fall into it.

HUNT: I am just trying to see if you think he was Supreme Court justice.

BUSH: I am going to appoint people who strictly interpret the Constitution and who will not use the bench from which to legislate.

HUNT: Does Judge Souter strictly interpret the Constitution?

BUSH: I understand what you are trying to get me to say. I am not going to say it, thank you.


VAN SUSTEREN: Joining me here today in Des Moines, Iowa are Drake law school professors Larry Pope and Thomas Baker. And from New Haven, Connecticut, we're joined by law professor Akhil Amar.

Tom, first to you. How important should the election be, this next election be, in terms of the United States Supreme Court?

TOM BAKER, LAW PROFESSOR: The Supreme Court issue is one of the most important to the electorate, but I'm sad to say that very often it is overlooked by the electorate. If you think about the issues that are on the Supreme Court docket, if you being look at the list of cases that I gave you before the program, if you have grandchildren, if your kids are in scouting, if you subscribe to cable TV, if you go to high school football games, if you send your kids to parochial schools, if you are a college student, if you work for the state and local government, the Supreme Court this term is going to decide cases that have an impact on your life.

And this is a committee of lawyers appointed for life sitting in Washington, D.C.

VAN SUSTEREN: Is it a more important time now in this election than perhaps previous elections?

BAKER: Very much so for two reasons. One, the court is closely divided, there are many 5-4 decisions, so even one appointment can make a critical difference in an important issue. And the other thing to note is the demographics of the court itself. The justices are getting on in years. Chief Justice Rehnquist is 75 -- or, no I'm sorry, he is 71. Justice Stevens is 79 and Justice O'Connor is getting up in years, too. So the point is that, as we have an older court, there are more likely going to be appointments in the next four years, and the next eight years.

VAN SUSTEREN: And both women, of course, have had bouts with cancer.

Let me ask you, Larry, let me read you a quote from President Dwight D. Eisenhower. He was asked if he had ever made any mistakes, and he responded: "Yes, two, and they are both sitting on the Supreme Court."

Can a president truly predict what a justice is going to do?

LARRY POPE, LAW PROFESSOR: Well, I think that Earl Warren and Justice Brennan probably were not backgrounded as well back then as they are now. I think that current presidents, modern presidents, do a pretty decent job of checking into the beliefs, the attitudes, and the likely positions that justices will take. Souter is probably a good exception to that, and that's why they were kind of beating up on George W. Souter probably didn't turn out the way President Bush thought he would.

But I think today most of the Supreme Court justices, certainly Thomas and Scalia, appointed by Republicans, Breyer and Ginsburg appointed by Clinton. I think it is easier to predict today because people work harder at trying to figure out what they will do when they get put on the court.

BAKER: I think Larry is very correct to say that, but there's another issue here, in terms of the longevity of the justices. Presidents are not disappointed by their appointments, their appointments usually vote the way they want on the issues that are important to the president who appoints them. But what the presidents cannot foresee or what issues are 20 years out, 25 years out, 30 years out, so that someone appointed to the Supreme Court now can likely be hearing and deciding cases in the year 2030.

VAN SUSTEREN: Akhil, Tom raised a little bit earlier the fact that one of the justices is almost 80. And let me read you another one of my favorite quotes. This was a ponsine (ph), a pretty woman, former Justice Oliver Wendell Holmes, who lived to the age of 93, and was on the court until 90. When he saw a pretty woman, he explained: Oh to be 80 again.

Is age a factor in this putting people on the court?

AKHIL AMAR, LAW PROFESSOR: Well, especially when you look around the world or at states, the Supreme Court is unusual. Our federal system basically provides for tenure without a limit. And most states and most foreign nations, it is capped at 15 years. And that's just not true in the United States.

The one thing that Tom didn't mention that I think compliments his point is that a lot of the issues right now before the court are 5-4 issues, so five justices on one side, four on another, and just even a single appointment can make a very big difference. That's true for issues of race discrimination and affirmative action, for issues of women's equality, perhaps abortion, or certain kinds of abortion at least, issues of civil rights more generally, and...

VAN SUSTEREN: And that raises does it not, Akhil, that raises, does it not, the issue about the voting rights case that came down yesterday by the United States Supreme Court was a 5-4 decision. What does that case, that voting rights case mean to voters?

AMAR: Well, what it means, in part, is that the Supreme Court doesn't just decide constitutional cases, it decides cases about how broadly or narrowly to interpret Congress's statute. That was a case involving a statutory question, but it really impacts a lot of the issues of who is going to have political power in the South, whether blacks are going to get really to control two out of 10 seats or zero out of 10 seats and in a certain area, and that all turns on how the lines get drawn -- the district lines -- and there are statutes that apply there. And the Supreme Court, five justices read the statute one way, four the other way. And that is going to affect the shape of political power for the next generation.

VAN SUSTEREN: Larry, when we will talk about these 5-4 decisions, there was a death penalty case last week that was 5-4, the voting rights case yesterday 5-4, how many vacancies do you think it is possible the next president of the United States could fill on that court?

POPE: Could be zero or it could be four or five. Franklin Roosevelt didn't get to appoint any his first four years, and he appointed seven over the next five or six years. I think most people believe that there will be at least two or three appointments in the next four years, and depending who goes, it could dramatically shift the balance of the court.


BAKER: And if the president serves a second term -- if the next president we elect succeeds himself, then that number can be between three and five. Over the history of the court, though, Greta, a Supreme Court justice has been nominated, on the average, every 22 months.

VAN SUSTEREN: All right, we are going to take a break. Up next: Are elections for sale? How the 2000 election could reshape campaign finance, the death penalty, abortion. Stay with us.


WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I appreciate Governor Bush being candid enough to say he didn't believe in Roe v. Wade. There is absolutely no question in my mind that whether Roe v. Wade is preserved our scrapped depends on what happens in the presidential race. And to pretend otherwise is naive in the extreme.



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(COMMERCIAL BREAK) 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.


BUSH: What I share is that for the Republican Party to be a pro- life party. The goal that I'm going to set if I'm the president is to convince Americans to respect life. The goal ought to be that every child, born and unborn, ought to be protected in law and welcomed into life. Our party is a pro-life party and it ought to remain that way, and I support the platform.


VAN SUSTEREN: If George W. Bush is elected president this November, he, like any other president, might have the opportunity to reshape the United States Supreme Court and have an impact on Roe versus Wade.

Akhil, what could a president do at this point in history in light of the fact we have Roe versus Wade from 1973. What could a president do that would change the course of abortion in this country?

AMAR: Well, precedent is not sacrosanct. Plessy versus Ferguson was overruled by Brown versus Board of Education, just to give you one example. The vote to reaffirm Roe most recently was six to three, so if two of the six were to be replaced it could be five-four the other way. And as we've heard, the idea that the next president might get two appointments to the Supreme Court is not a far-fetched one, so...

VAN SUSTEREN: You know, Larry, we talk about -- Larry, we talk about the Supreme Court reversing itself, but -- and Akhil refers to Brown versus Board of Education, but that was almost 50 years ago; it doesn't happen often. Is it realistic that any president could change what has previously been decided in terms of the Supreme Court on abortion?

POPE: Oh, yes. I think Roe v. Wade is one of those decision that could very well be in play. It depends, though, who leaves the court. If Justice Rehnquist were to leave the court, then it wouldn't make much difference who Bush put on, because Rehnquist is for reversing Roe v. Wade. On the other hand, if Stevens leaves the court, and he's the oldest, then you would have one of the Roe v. Wade folks...

BAKER: Or if Justice Ginsberg resigns because of health concerns.

POPE: That's right. So, it depends who goes, but I think Roe v. Wade is in play. I don't think there's any question about it.

VAN SUSTEREN: Tom, but how could you -- how can we have a constitutional right and then we don't have one. I mean, what -- how can these -- the court seems so fickle.

BAKER: You have to appreciate the precedent, or stare decisis, the idea that we continue to adhere to earlier decision means a lot less than constitutional law. And the reason for this -- and judges on the left and the right under the Constitution this way -- the reason for this is simply that if the court makes a mistake or comes to the conclusion it has made a mistake in an earlier decision, it's for the court to correct its mistake rather than go through the cumbersome process of amending the Constitution. If the court is interpreting a statute, on the other hand, and they get it wrong, Congress can simply meet, take a vote and fix the statute. But the Constitution is in a category by itself, and the justices, under our system of judicial review, the justices are the keepers of the Constitution.

VAN SUSTEREN: Larry, the voters here -- Republican voters here in the state sent a message to Senator hatch which indicates that he is probably -- he may pull out of the race. He is still a very powerful man in the United States Senate as it relates to the judiciary.

POPE: He's got to be just absolutely beside himself, today, because he is one of the most powerful men in America and yet he had absolutely no luck in the Iowa caucuses. So, he's probably going to drop out, but he remains chairman of the Judiciary Committee in the Senate, a very powerful position. Nobody can be confirmed as a federal judge in America unless Orrin Hatch approves of it as long as he chairs that committee. So, he goes back to Washington with his power intact, but his ego probably has really been shattered.

VAN SUSTEREN: You know, Tom, you said something interesting during the break that he might be a possible candidate, you think, for the Supreme Court.

BAKER: Yes. In a divided government, if the Senate goes Democrat and if a Republican is elected to the White House, then it would be reasonable to nominate Orrin Hatch, nominate a member of the Senate to the Supreme Court, because the tradition of the Senate over our 200 years is that they have never, ever refused to confirm one of their own.

POPE: I think Hatch might like to be on the Supreme Court of the United States.

BAKER: He is a constitutional...

VAN SUSTEREN: I think any of us would.

BAKER: He is a constitutional-law wonk, yes.

POPE: Yes, exactly.

VAN SUSTEREN: Akhil, is Senator Hatch the second-most powerful person as it relates to the judiciary, after the president of the United States, since he's chairman of the Senate Judiciary Committee? AMAR: It's a very powerful position, and Senator Hatch, I think, is, in a lot of respects, been much more responsible than actually some of his colleagues who are really quite far to his extreme. He believes, basically, that the federal judiciary has vacancies and they need to be filled, so he's not actually stonewalling to the extent that actually some of his colleagues want him to stonewall, his colleagues on the right. And so he's slowed things down, he wants to take a close look at the nominees, especially for the lower courts. But if you had someone else actually in that position, maybe, again, someone to his right, you could have seen really an effort to, in effect, bring the federal judiciary to a halt by just not filling the vacancies and not letting President Clinton get his choices through.

VAN SUSTEREN: Tom, last week, a death penalty case, five-four. Yesterday, the United States Supreme Court said that it has decided it will not consider whether the electric chair is cruel and unusual at this time. Is the death penalty an important issue for the Supreme Court and one a president can effect at this point?

BAKER: Always the death penalty is an issue because it divides the country, and the Supreme Court reflects the divisions in society. The hot issues in our country in the Iowa caucuses get played out in the Supreme Court. It was Alex -- Alexis d'Toqueville in the 1830s who said that Americans have a way of turning every very important issue into a legal issue that gets decided by the Supreme Court.

VAN SUSTEREN: All right, we're going to take a break. Up next, we'll have more from Iowa and the legal impact of campaign 2000. Stay with us.


Q: What infamous mass murder was convicted on this day in 1971?

A: Charles Manson



VAN SUSTEREN: Welcome back to a special edition of BURDEN OF PROOF. We're in Des Moines, where the Iowa caucus has launched the presidential campaign.

Akhil, yesterday the United States Supreme Court came down with a 6-3 decision coming out of the state of Missouri on campaign finance. Is it important and why?

AMAR: It is hugely important, in part because some of the justices suggested that they might be willing to rethink Buckley versus Valeo, a landmark case from about a quarter of a century ago that seemed to freeze into place a lot of the rules saying that you couldn't cap campaign expenditures, you could maybe cap campaign contributions but not expenditures. And some of the justices suggested that they might be willing to take another look, and maybe we will see a lot more emphasis now on campaign finance reform, which is a big issue of course for Senator McCain and for Senator Bradley, in particular.

VAN SUSTEREN: Akhil, doesn't that just go to show how important this election is, because that was a 6-3 decision, some justices indicate they want to overturn the 1976 landmark case. So doesn't that just go to show how important it is when you vote this fall who you vote for because that person may be able to change that or not change it?

AMAR: You are absolutely right, and there's another example of a willingness to rethink precedent. And it is across-the-board, it is race, it is religion, it is sex discrimination, and women's equality, it is voting rights and civil rights, it's congressional power and states' rights, it is campaign finances, it is across a very wide range of issues.

VAN SUSTEREN: Larry, explain to me in the 1976 Supreme Court case Buckley versus Valeo, the court said it was OK to put limits on how much people gave, but it was not OK to put limits on how much candidates spent. Why the difference?

POPE: A lot of people think that it doesn't make any sense, I believe it does. It is one thing to put a limit on the money that I might give to you if you want to run for office. But it is another thing to say that a candidate or an individual can't use their own money to get their own ideas across. And somebody like Steve Forbes that wants to spend all of his money, or at least a lot on running for president, or somebody that wants to buy a newspaper and have editorials that speak out on an issue, when you start to say what a person can or can't do with regard to spending money on speech, you are affecting the First Amendment in a very real way.

On the other hand, if you just want to say, there's a limit on campaign contributions, that's more the electoral process, and there ate fewer First Amendment implications. I think distinction makes sense, not everybody does. I'm not even sure Tom believes it.

VAN SUSTEREN: Tom, do you buy that, or you think the court was just being clever in 1976 drawing the distinction between giving and spending.

BAKER: I've had the misfortune of reading Buckley versus Valeo several times, and it is I think 435 pages. I still don't get it. Money talks. If I give you money, I'm saying something by that act. If I spend money on my own behalf, I am saying something by that act.

It seems to me that this is an example of the Supreme Court's importance in our system, because the Supreme Court's rules in Buckley have sort of hamstrung Congress in trying to figure out what to do with campaign finance reform. And as Akhil mentioned, that's a very important issue, not just in the caucuses and in the primaries, but that is a very important issue for the country. And that is this separation of powers concern. Do we have judges decide these issues and make the rules for campaign finance reform or should we turn this over to the elected branches, to politicians, and let them decide the rules of the road? POPE: Well, I think it is a great idea if the Supreme Court prevents Congress from interfering with the First Amendment. And that's what they have said.

VAN SUSTEREN: Which is sort of interesting, though, Akhil, didn't Justice Kennedy in the opinion said that money isn't speech, it is property.

AMAR: Well, you know, there are these two different images. One side sees the First Amendment as -- it is really about property, and therefore, inequality, money. The other side says: No, it is actually really the big idea is democracy, and therefore, equality. Rich people don't get any more of a vote than poor people, so maybe they shouldn't have this massively disproportionate impact on our electoral system. It is equality and voting, more than property. And that's basically the two competing positions, vying for who will control the interpretation of the First Amendment.

VAN SUSTEREN: Tom, I don't mean to put on you the spot, but do you think many of the Iowa voters can name three or four members of the United States Supreme Court?

BAKER: No, I'm afraid not. In all of the public opinion polls that I have read, in fact in a recent poll by the National Constitutional Center, more high school student could name the Fresh Prince of Bel-Air than the chief justice of the United States.

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

On today's "TALKBACK LIVE," you can interact with the national chairmen of the Republican and Democratic Parties. That's today at 3:00 p.m. Eastern time, noon Pacific.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.


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