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Burden of Proof

What Will be the Legal Legacy of President Clinton?

Aired January 28, 2000 - 12:30 p.m. ET



WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: And I ask you to reauthorize the Violence Against Women Act.

We must strengthen our gun laws and enforce those already on the books.

Let's make this country the safest big country in the world.

We will become, at last, what our founders pledged us to be so long ago: one nation, under God, indivisible, with liberty and justice for all.



GRETA VAN SUSTEREN, HOST: President Bill Clinton delivered his swan song State of the Union, last night. Today on BURDEN OF PROOF, what will be the legal legacy of this president?

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

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

Last night, President Clinton addressed both Houses of Congress, the Cabinet and the American people with his last scheduled State of the Union Address. Within the proposals of his sweeping agenda, the president talked about more cops, tougher gun laws and making America safer.

Joining me today to talk about the legal legacy of President Clinton in San Francisco, ACLU attorney Michelle Alexander. In Boston, civil rights lawyer Sam Bagenstos. And here in Washington, law professor Viet Dinh, appellate lawyer Heather Gerken and Kristin Beard (ph). And in the back row, Lily Konsevick (ph), Sean Tessam (ph) and Bonnie Pincus (ph).

Let me go first to you, Heather. Yesterday, on January 27th, the United States Supreme Court passed a message to the sergeant of arms of the United States House of Representatives saying "justices of the court had planned to attend the State of the Union Address but travel changes and minor illnesses have intervened. No justice will be in attendance, but they do thank you for the invitation to be present for the address." Six had good excuses: Scalia, O'Connor, Souter -- actually, four did not have -- five had good excuses, four did not: Rehnquist, Scalia, O'Connor and Souter had no excuse. Can you defend them not attending?

HEATHER GERKEN, APPELLATE LAWYER: Well, you know, it's certainly a surprise for our lawyers in Washington that not one of them showed up. But I have to say that the rumor in Washington is that the court was trying to snub President Clinton, and I just think that's a -- not with any good foundation. This is a court that's extremely attentive to propriety and appearances, and if the court were going to snub President Clinton, then the time for them not to appear would have been some during the last two years, when the Monica Lewinsky scandal broke and when the impeachment proceedings were going on. But the court appeared pretty regularly there.

I think that what we're really seeing is a number of justices, who are very private people, who are willing to give their excuses or not, but I can't -- I don't think that we can think of this as a snub to the president.

VAN SUSTEREN: Sam, do you agree? Not one of the nine appeared, and four have offered no excuse; the other five have pretty good excuses, having to do with illness and death in the family. But what about the other four?

SAM BAGENSTOS, CIVIL RIGHTS LAW EXPERT: Well, I think that there are a number of justices who are uncomfortable with the idea of justices attending State of the Union Address in the first place. I think that it's a very political speech and seen as a very political function, and for the Supreme Court to -- Supreme Court justices, members of a supposedly-nonpolitical institution to attend, makes some of them uncomfortable. You'll notice when they attend the speech they sit in the front, they don't clap, they don't stand up while there's all this ruckus going on around them.

So, I think for some of the ones, particularly some of the ones who you said do not have -- did not offer excuses, it's an uncomfortable thing anyway. I don't think it has to do with this president or any particular president; it's just the clash between political and judicial branches.

VAN SUSTEREN: Well, you're a lot kinder, perhaps, Sam, than I might be, because traditionally they do attend, and it's rather surprising to me.

But let me go to San Francisco to Michelle.

Michelle, civil rights legislation, the president talked last night about having -- asking Congress to pass Hate Crimes Prevention Act. What is your reaction to the president's speech as it relates to civil rights?

MICHELLE ALEXANDER, ACLU: Well, it was interesting, I think, that he went out of his way to talk about the importance of diversity and valuing all groups. I think that there will be a number of important decisions that the Supreme Court will have to make in the next several years regarding affirmative action, racial profiling, gay and lesbian rights, and who the next president will be, who President Clinton's successor will be, will likely have a dramatic impact on the future of civil rights in this country.

VAN SUSTEREN: But when he talked about civil rights, he didn't mention anything about affirmative action, in my recollection of last night's speech, although he did talk about the Hate Crimes Act and specifically referring to the horrible case down in Texas where a black man was dragged to death by some white men. What about affirmative action? What kind of laws can we expect in the future, if any?

ALEXANDER: Well, you know, right now there is a tremendous amount of debate regarding what constitutes affirmative action. Many people today go out of their way to insist that they don't approve of quotas, which really is a non-issue. The Supreme Court has disapproved of quotas for a very long time now, and so the question is whether we, as a country, are going to make affirmative efforts to make sure that women and people of color have an opportunity to compete for jobs and education, etcetera. And so what hopefully will happen in the next several years is that we will see aggressive efforts in these areas that will be upheld by the Supreme Court.

But depending on how the election turns out, we may have the Supreme Court blocking very reasonable and modest efforts to make outreach to women and people of color for educational and employment opportunities. Affirmative action has been hanging on by, you know, a slim majority in the Supreme Court for some time now, and so, you know, the next several years will be critical.

VAN SUSTEREN: Viet, you know, I -- one of the things the president said last night, he says, "and we should reauthorize the Violence Against Women Act." I love when they pass statutes that have to be reauthorized, because if they thought it was such a good idea why does it half to be reauthorized?

VIET DINH, LAW PROFESSOR: Well, the -- as you know, the Violence Against Women Act is up before the court right now, and the court is considering whether or not Congress had the authority to authorize in the first place within the constitutional separation of powers between state and federal governments. And depending upon how the -- how the court rules, Congress may have to revisit the issue and perhaps redraft the legislation.

But as you say, reauthorization, especially for a bill that nobody can oppose like Violence Against Women Act, gives an additional political hook for the political branches.

VAN SUSTEREN: Heather, do we need the Violence Against Women Act being reauthorized?

GERKEN: Well, I mean, you do as a statutory matter otherwise it's simply not going to exist any longer. VAN SUSTEREN: But I mean, do the American people need this law?

GERKEN: I do think that the American people need this law. I mean, I will say it's a tough constitutional question about whether Congress has the authority to pass it, and that's the question right now before the court, but certainly Congress looked into the evidence that this was a problem, and the reauthorization may simple be that Congress just wants to reestablish that the evidence is still there to establish a need for this program.

VAN SUSTEREN: Sam, looking back over the last eight years -- of course, seven years, we have one move year to go, what's the legal legacy of this president?

BAGENSTOS: Well, I think it's hard to summarize in a couple of sentences. I think the first thing you'd have to look at the president deserves great credit for is he's appointed a crop of judges to the federal bench who have been at once the most diverse in racial and gender terms and the most excellent in the terms measured by the American Bar Association ratings of any president in history. I think he deserves great credit for that.

He's also, I think, worked very hard in the civil rights area that you talked about before. You know, the president yesterday, in his State of the Union Address, talked about proposing the largest investment in the civil rights division of the Department of Justice of his predecessors, and I think -- I think he deserves a lot of credit for that as well.

And you know, I think a lot of the legal legacy of the president will likely be seen, though, in the decisions of the judges that he's appointed and of the two justices he appointed to the Supreme Court, Ruth Bader Ginsburg and Stephen Breyer.

VAN SUSTEREN: All right, well, up next, what kind of impact will the next -- will the next president have on the Supreme Court and the issues that affect you? Stay with as.


A $250,000 lawsuit against school shooter Kip Kinkel and his family's estate has been dropped by the family of one of the students he injured because the wounded student died in a subsequent hunting accident.


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.

(BEGIN VIDEO CLIP) THOMAS BAKER, LAW PROFESSOR: 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're 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.


VAN SUSTEREN: President Clinton put two justices on the Supreme Court. The next president may even have a larger impact. Last night, the president talked to Congress about whether or not there should be votes on his nominees to the bench, and this is what he had to say.


CLINTON: I ask you to vote up or down on judicial nominations and other important appointees.


VAN SUSTEREN: What about that, Viet, up or down? There are eight to 10 percent vacancies in the United States judiciary, depending how you count it.

DINH: Well, let's get the entire context out here. President Clinton has appointed and the Senate has confirmed 338 out of 852 sitting federal judges. That's close to half. And in the 106th Congress, the Senate has confirmed 42 out of 70 nominations.

VAN SUSTEREN: How does that compare to the Reagan years, because he had eight years as well?

DINH: He had eight years, also, and also the continuation with President Bush, and they certainly have a significant number of appointments. But as I recall, I believe there were a much higher rate of vacancy at the time that President Clinton took office. And with the first two years with Senator Biden at the helm of the Senate Judiciary Committee, and the last six years with Senator Hatch, confirmation has a continual pace. And so there cannot be an accusation that the Senate has stalled in its advise and consent process. I think the Clinton administration has been very, very good in playing this game, in nominating controversial candidates, who happen to be minority or women, and then using that fact as a way of...

VAN SUSTEREN: I'm not so sure I'd call minority or women necessarily controversial.

DINH: No, no, no, no, not -- controversial candidates who happen to be minority or women...


DINH: ... and using that fact as a defense for their judicial...

VAN SUSTEREN: Fair enough.


GERKEN: ... to have been languishing for years in front of the Senate, and they do deserve an opportunity to be voted on. The president has nominated them, the Senate should be offered that opportunity to vote. The reason that the Senate isn't putting them up for a vote is the senators don't want to be on record voting against these candidates. They're not that controversial and it's simply a political game that's being played right now.

VAN SUSTEREN: All right, all four of you -- my special guests, they all clerked in the United States Supreme Court.

Michelle, the chief justice has been critical of the fact that there seems to be a logjam. Is it a serious problem, the vacancies on the courts -- the federal courts?

ALEXANDER: It's absolutely a serious problem. When there aren't enough judges to hear pending cases, it means delay in the system. It means that if your civil rights have been violated and you file a lawsuit in order to change unconstitutional practices or to receive some compensation for the harm that's been caused to you, it may take a year, two, three years or more to have your case ultimately litigated to a final judgment, in part because there simply aren't enough judges to hear cases. So, yes, the failure of Congress to, you know, approve existing nominations means that justice is delayed for a significant percentage of people who are seeking redress for violations of their rights.

VAN SUSTEREN: You know, Sam, I agree with Michelle. You know, I've been pushing this issue about how important the Supreme Court is in this next election, but it's not just the Supreme Court, it's the trial court where people go to have their disputes resolved. Do you agree that it's a significant problem and a significant issue in the next election?

BAGENSTOS: I agree entirely with Michelle. And, you know, it seems to me that you really have to focus the issue. Who's this a problem for? I mean, it's a problem for what you might call the little people, I mean people who have had things done to them, whether violations of their civil rights or injuries caused to them. Because, you know, when big companies sue big companies, they can contract around the judicial system, they can find private judges, arbitrators.

But, you know, when somebody causes an environmental harm to some small community, they can't contract around it. They have to file a lawsuit in federal court and wait for the wheels of the federal court to turn, however slowly they may turn. I think the vacancy rate has a big deal to do with the delays that people suffer in vindicating their rights, and I think it's a major problem.

DINH: Yes, but judicial vacancy rates are a fact of life because we want to find the most qualified people for the president to nominate, and the Senate has a legitimate constitutional role to provide advice and consent. VAN SUSTEREN: But, Viet, two senators can nix an appointment. It doesn't even get any place.

DINH: And that is the same in any administration or any party controlling Congress because of the hold practice of the Senate.

GERKEN: But that just means it's a political game. I mean, the Senate has not given these candidates an opportunity to be voted on, it has not given them an opportunity to obtain the advice and consent of the Senate. What's happening is partisan games, and it's really a problem for the judiciary. And the fact -- that is, I think, proved by the fact that Chief Justice Rehnquist, whom few would consider to be a liberal, has consistently, with the backing of the entire Supreme Court, said that this is an important problem that Congress should address as soon as possible.

VAN SUSTEREN: Michelle, can you solve this for us?

ALEXANDER: I'm sorry?

VAN SUSTEREN: Can you solve this problem for us?

ALEXANDER: Well, you know, I don't know that I can solve the problem, but I definitely think that there are concrete steps that can be taken to address it. And, you know, one can only hope that, in this final year that Clinton has, that some movement will be made so that the issue will be addressed effectively.

VAN SUSTEREN: But isn't the problem going to besiege the next president, Republican or Democrat? I mean, isn't that just the fact of life?

ALEXANDER: Well, unless the current rules change, unfortunately, these kind of political games will be allowed to continue, and this, perhaps, should be an issue in the current presidential campaigns: Should these types of rules be allowed to exist that allow political games to go on that have negative consequences for ordinary people? I think it's a legitimate issue that people really should ask their legislators and folks to address.

VAN SUSTEREN: Up next: Could the president be suspended from practicing law in his home state? An Arkansas Supreme Court investigation, when we come back.



Q: Who heads up the largest personal injury law firm in the United States?

A: Johnnie Cochran. The Cochran firm has 63 lawyers and more than 1,000 clients.

(END Q&A) VAN SUSTEREN: The Arkansas Supreme Court ordered its professional conduct committee to look into complaints that President Clinton lied and obstructed justice in the Paula Jones sexual harassment case.

Sam, if you were representing the president, what would you be doing about this complaint, which is a bar complaint?

BAGENSTOS: I don't know. Assert presidential immunity.



DINH: Resign as counsel.


BAGENSTOS: Exactly. You know, it's not my specialty. You know, obviously, from what we understand, someone had filed a complaint with the Arkansas Supreme Court asking them to prod the bar in Arkansas to speed up the process of considering the complaint. And the court ordered that it be speeded up.

It seems to me you have the judge's findings and a judge's referral, and that definitely needs to be followed up, because, you know, bars can't countenance lying before courts by their members.

VAN SUSTEREN: Michelle, does it make a difference? One of the complainants in the case is the Southeastern Legal Foundation, which I looked at their Web site and it's a very conservative organization. I called and asked about their funding, which they didn't want to tell me who funded them.

But does it make a difference if this is a conservative group? Does that matter in this process?

ALEXANDER: Well, you know, I'm not sure that it should matter. You know, they definitely have a reputation for being very conservative, right wing, and for doing, you know, whatever they can to interfere with President Clinton's power and influence and reputation. And so I think that their motivation can certainly be called into question, but I'm not sure that the fact they have right- wing orientation should be relevant to the determination of how this process should unfold.

VAN SUSTEREN: Heather, you know, I've been debating with my colleague Roger Cossack for the last two years about this case. And if the president did not commit perjury in a technical sense but was loose with the facts in the sense that he may have lied but not met the technical definition, does that matter in a bar proceeding?

GERKEN: Well, the bar proceeding doesn't use sort of the criminal version of what constitutes perjury as its standard. It uses a much higher standard. I don't know what the standard is in the Arkansas bar, but I wouldn't be surprised that they would be concerned about even someone playing fast and loose.

I mean, if this is going to be an honorable profession -- and I think it is -- it is very important that we police our own members and prevent them from playing fast and loose with the justice system, even if it means skating by criminal conduct.

VAN SUSTEREN: In the sense, though, that, you know -- I think lawyers oftentimes counsel their clients in depositions to answer the question literally. If the president answered them literally, like are you having a relationship with Monica Lewinsky -- and at the moment he's not, he's sitting answers questioning at a deposition -- does that make a difference if we as a profession tell our clients to answer questions literally?

GERKEN: We never will tell our clients to lie on the stand, and that's really the question here. I mean, it all does depend on the definition of what "is" is, but I think this is a very tough call, whether or not this is something you would ever counsel a client to do. So I actually do think that there's a reason to be concerned here.

VAN SUSTEREN: Viet, what's your reaction to this?

DINH: Well, not only is there technical perjury and obstruction and the like, but we have a judicial funding by Judge Wright that he was in contempt of court. That is a very, very serious charge, when a sitting federal judge finds as a judicial matter that the president is contempt of court. And it's bad enough for a private citizen to do so. It's bad enough for a president to be so held. But as a member of a bar -- of the bar as a legal (ph) profession, I think it is very, very serious.

VAN SUSTEREN: Michelle, what do you think is going to happen in this bar complaint?

ALEXANDER: I think it's very difficult to predict. You know, on the one hand, I think there's a sense that most people have, including members of the committee and the judiciary, that we shouldn't allow these types of matters to overshadow the presidency or interfere with the presidency, although the Supreme Court has made ultimately very clear that these types of cases and complaints can go forward even when, you know, there's a sitting president.

So I think it's very difficult to predict. I would not be surprised, however, if there's not much action on this front during the -- President Clinton's tenure.

VAN SUSTEREN: Sam, in the last 20 seconds, what do you think is going to happen in this bar complaint?

BAGENSTOS: Well, I agree with Michelle. It seems like if the Arkansas bar were to issue a finding in the middle of the presidential campaign, it could have political effects and I think they're going to want to avoid doing that and consider this in a deliberative fashion.

VAN SUSTEREN: All right. That's all the time we have for today. Thanks to our guests and thank you for watching. And we'll be back next Monday live from New Hampshire with a primary edition of BURDEN OF PROOF. We'll see you then.


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