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Burden of Proof

If Bush is Elected: Impact on the Supreme Court

Aired August 2, 2000 - 12:30 p.m. ET



GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: I am going to appoint people who strictly interpret the Constitution and who will not use the bench from which to legislate.

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: What they want to do is to seem safe and reliable and compassionate and inclusive. So they're not going to be up there saying, vote for us, our favorite Supreme Court judges are Justice Thomas and Justice Scalia, and we're going to repeal Roe v. Wade, but that's what's going to happen.

PAT ROBERTSON (REF.), PRESIDENTIAL CANDIDATE: I would put the U.S. Supreme Court and the probable vacancies as the most important domestic issue that will be decided in the presidential election in the year 2000.


VAN SUSTEREN: Today on BURDEN OF PROOF: Campaign 2000 and its impact on the highest court in the land. If elected into the office of the president, what types of justices would George W. Bush nominate to the U.S. Supreme Court? Among our guests today: former federal judge and independent counsel Ken Starr.

ANNOUNCER: This is BURDEN OF PROOF, live from the Republican National Convention in Philadelphia, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to a special edition of BURDEN OF PROOF.

By this evening, George W. Bush is expected to be tapped as the Republican Party's nominee for the president of the United States. If elected, the candidate could wind up having a historic influence on the highest court in the land.

ROGER COSSACK, CO-HOST: As many as three or four Supreme Court justices are reportedly considering retiring from the bench during the next presidential term. Such turnover would open up the door for considerable influence from whoever sits in the Oval Office.

VAN SUSTEREN: Joining us today from Washington is former independent counsel and federal judge Ken Starr. Joining us here in Philadelphia, Senator Charles Grassley of Iowa, and constitutional law professor Robert Reinstein, who is the dean of Temple University Law School.

Ken, let me go first to you. As a fundamental matter, does the president of the United States, whether he be a Republican or a Democrat, does it matter when you go to selecting a Supreme Court justice? is there a difference between a Republican president and a Democratic president?

KEN STARR, FORMER INDEPENDENT COUNSEL: I think there is. There's a basic philosophical and juris prudential difference and outlook in the main between most individuals seeking the nomination of Republican Party versus those seeking the nomination of Democratic Party. And the way this has sorted out, I think we have that situation this year with both Vice President Gore and Governor Bush staking out very different positions in terms of what they would like to see, what they would like to accomplish.

VAN SUSTEREN: Where is that line drawn, Ken? Where do you think, if you had to draw that line between two candidates, especially these two, Republican and Democrat?

STARR: Well, it is the role of the judge in interpreting the Constitution, which is the big issue. Is the Constitution law to be treated as law, and to be treated as essentially an important text, to be treated with great respect and care? or, more broadly, is the Constitution a more aspirational document that is frequently summarized with the term the "living Constitution'? It is the Republicans which tend to emphasize a more textualist approach to the document, including the Bill of Rights, and particularly the cutting issue of abortion and other liberty issues under the due process clause of both the Fifth Amendment and the 14th Amendment to the Constitution.

Where as the Democrats, on the other hand, say, gee, liberty is a very broad term, and that should reflect society's goals and aspirations and values.

COSSACK: Ken, I think that if I was called to serve before the Supreme Court, and I was asked how I felt about both of those propositions I would probably say, yes, to both of them, that I'm a person who believes in the stricter interpretation of the Constitution, but I also believe that it is a living document. And I think most modern legal thinkers believe that. How do you then balance the two?

STARR: Well, it is a matter, I agree, Roger, people can say, gee, both those propositions sound sensible and reasonable, and so I will vote in favor of both. It is a matter of degree. And there is, I think, a very strong emphasis, within the sort of traditional Republican community, that judges be very careful and watchful about exercising judicial power in a way that displaces the democratic process, the representative democratic process, in determining what social policy should be. And I think issues like abortion, physician-assisted suicide and the like are really the huge issues where the dividing line gets drawn.

VAN SUSTEREN: Bob, as a practical matter, as a citizen, how does the Supreme Court effect me? Why should I care about this election as it relates to the Supreme Court?

ROBERT REINSTEIN, LAW PROFESSOR: You know, the Supreme Court decides some of the most important issues of public policy that there are, one of the most important decisions that a president makes is who to appoint to the Supreme Court, and the lower federal courts.

If you look at the decisions that were made last year by the Supreme Court, they had an extraordinary term, and there were at least 10 decisions that affect millions of people in this country. And most of them were decided by a 5-4 vote. The court is very evenly divide.

COSSACK: Senator Grassley, most people who I think are on the Supreme Court in recent times have said, yes, I believe in the strict interpretation of the Supreme Court -- excuse me, strict interpretation of the Constitution, and yet we see them voting differently on different issues.

How do you figure out what's going to happen when perhaps the most important part of our institution of government, at least I do, is that I think that way as a lawyer, everybody says, yes, I'm a great believer in a strict interpretation of the Constitution, yet they end up voting differently.

SEN. CHARLES GRASSLEY (R), IOWA: Well, you try to, as a senator, try to read what they have written and ask them a lot of hard questions, and maybe some of the previous decisions, if they've been in the lower court, quite frankly, over a period of years, you can look back and find out that people have been appointed to courts that didn't quite materialize the way you anticipated.

I would say, on the one hand, Souter turned out to be much more liberal than I anticipated at the time of my questioning on what I read, and Breyer, on economic issues, is really much more conservative than anybody would have anticipated.

COSSACK: We've heard that time and time again that, you know, the biggest mistake Eisenhower ever made was putting on Earl Warren. Is that a good thing, that you can't predict?

GRASSLEY: I think, when you look at a president being elected for a four-year term and appointing people to the Supreme Court sometimes for 25 to 30 years, that over that 25 to 30 years, you expect that people have to evolve, in the rule of law fashion, and that does bring about some changes than what you originally anticipated when they were put on the court, yes.

VAN SUSTEREN: Ken, I know, through the grapevine, that you've been working on a book on the Supreme Court that's not yet out. This election, 2000, with so many decisions 5-4, how many vacancies would you guess we are going to have? and how important is this election compared to the one four years ago or eight years ago?

STARR: Well, if you look at the age of the justices, and the retirement eligibility, there are possibly three or four vacancies that could occur, but of course one doesn't know. I mean, we have recent history of justices deep into their 80s serving, being in very good health. Today we are focusing on President Ford's health, here he is at the age of 88 or 89, and there is a history of justices remaining on the court for a very long time. So one never does know.

But in terms of impact, there is no question that with the court as divided as it is, on some of these very important issues that really do get the attention of the American people, each vacancy counts for a lot.

VAN SUSTEREN: Do you think that this year, and this election, with the possibility of so many vacancies, because the court is getting a little bit older, and some of the justices have been sick, and the fact that we have had so many 5-4 decision in such important areas as abortion, gay rights, do you think this election is any different from four years ago, or eight years ago? When voters cast their vote this November, should this play a more important role in their minds?

STARR: I don't think so. That obviously is going to be an issue this year. I think it is shaping up to be more than an issue than it was four years ago.

I think since Roe v. Wade, which was the watershed, the issue of who is going to go on the Supreme Court has been a fairly large issue to play some role in the presidential debate. And I think that is happening very much this year. There's a strong emphasis on it, we are hearing it from the candidates themselves at a fairly early stage.

As these things go, I think this is likely to be coupled with the huge term, as the dean pointed out quite rightly. This was an enormous, blockbuster term of the Supreme Court. So the court has been very much in the news, people are aware of these very sensitive decisions, on such very important subjects. And so, I think the attention of the American people is more likely to be on the court than heretofore.

COSSACK: Senator Grassley, what role, if any, should politics play in the nomination of a Supreme Court justice? In other words, the president could be here for as little as four years, as much as eight years, but these justices could be there a lot longer. Should political philosophy play any part?

GRASSLEY: I think that, from the standpoint of judicial philosophy, and what the president believes in judicial philosophy, strict constructionist, versus legislating from the bench, I think it is very, very important, and I think it is legitimate that it be a part of a campaign. And I think, regardless of whether the Supreme Court justices or any other level of appointing judges, that we should know, and the people should want to know what sort of person the president might put on the bench. VAN SUSTEREN: And maybe a topic we won't talk about today cameras in court -- Let me just stop us right there. I am going to take you now to a Bush event at the convention center. The vice presidential candidate, Dick Cheney is also there. This is a live event at the convention center not far from here sponsored by the RNC.

While we are watching the two candidates here, the vice president and the presidential candidate, let me turn back to you senator.

Senator, do you have any impact on the Judiciary Committee. if it us a Republican president, on who that nominee might be before it even gets to the nomination process?

GRASSLEY: Maybe just a little bit more because we are on the Judiciary Committee, but every Republican senator, with a Republican president, would try to suggest names to the president, I'm sure. It doesn't matter whether it is local lawyer or somebody on your circuit court of appeals, or might even be a colleague in the Senate. You try to promote somebody. I have been involved in suggesting names to the president for every vacancy we've had when we've had a Republican president.

COSSACK: Have any of your nominees ever been nominated?

GRASSLEY: Not really.

VAN SUSTEREN: Bob, what about, in terms of the nominee, does -- does the public have any sort of affect on the president in terms of who he selects?

REINSTEIN; Well, sure, it is a major political issue, and if you look historically, the Senate has taken a different roles in different periods of history. In some periods of history, the Senate has been much more assertive.

VAN SUSTEREN: Let me just stop right now, and let's listen to George W. Bush, who is at the podium.


VAN SUSTEREN: Listening to nominee in the Republican Party for the president of the United States, obviously a very excited George W. Bush, proud of his candid he has chosen, Dick Cheney, as well as his family, mentioned his wife, who has raised the bar in public speaking, pointed out the governor from Florida, his brother Jeb is present in the audience.

And of course quipped that his brother Jeb and he may be a little bit worried because George P. Bush also in the crowd is, as he says, "a hot member of the family."

We are going to go back to our discussion now about the Supreme Court and the effect on the election.

Let me go to you Ken, Ken, I want to talk about the issue of advise and consent, that's what the Senate does when it selects someone, gives the president advise and consent after the president selects someone for the Supreme Court. What does advise and consent mean?

STARR: The advise part is that the president is duty-bound to receive the thoughts and recommendations, ideas of the United States Senate. But then, much more importantly, once the president has made his choice, consent obviously means that the Senate of the United States has the absolute and complete and unfettered discretion to vote to either confirm the president's nominee, or to reject the president's nominee.

It is a matter that the Constitution saw fit really to entrust to the good judgment and the discretion of the Senate with putting no standards, no requirements. It is simply a judgment call, as to whether this particular candidate is fit or appropriate to serve as a justice for the remainder of his or her life, during good behavior in the terms of the Constitution.

VAN SUSTEREN: All right, we are going to take a break. When we come back, the future of the Supreme Court, will a Republican administration influence interpretations of the Constitution? Stay with us.


The Judiciary Act of 1789 was the first U.S. law to be declared unconstitutional by the Supreme Court.

The case being heard by the court was Marbury v. Madison in 1803.



COSSACK: Governor George Bush has arrived in Philadelphia, as you have seen, and he is of course the presumptive nominee. If he is elected president, he may have the opportunity to choose up to as many as perhaps four members of the Supreme Court.

Senator Grassley, you are on the Judiciary Committee. You are in charge of, along with your members, of vetting the people who are nominated. What's a proper question, are these litmus test proper questions? and how far into their background should you go?

GRASSLEY: Well, in 1981, I thought litmus tests were very important things, particularly on the abortion issue, and Senator Kennedy, Senator Biden, Senator Leahy, and other Democrats made an issue that was absolutely the wrong thing that anybody ought to be asking.

They have convinced us now. So Republicans are generally the ones that think it is wrong to ask litmus test, but the Democrats are asking very much litmus tests, particularly on the abortion issue. VAN SUSTEREN: Let me ask you a question about this vetting process, to sort of come off Roger's question. When you select someone for the Supreme Court, we hear this business about strict construction versus someone who is not a strict constructionist. What does that mean? and does it matter? and can you predict it?

REINSTEIN; I don't think it means much. I don't think there's a judge who has ever served on the Supreme Court who would ever say I was legislating, as opposed to interpreting the law. I think the difference is that different judges derive different values from the Constitution, give different weight to those values. So you have a situation now where you have conservative judges who view Roe versus Wade, the abortion decision, as a form of legislation and overreaching, but those same judge are very, very activists and ready to declare acts of Congress unconstitutional when they think it interferes...

VAN SUSTEREN: Let me ask, Ken, ask you this thing about the strict construction and the legislation. The Republicans typically want a strict constructionist. Why isn't it, when a very conservative judge decides there's an exception to the warrant clause in the Constitution and creates an exception, why isn't that almost legislative? why isn't that a violation of the strict construction?

STARR: Well, it could be viewed that way, and I'm sure there are those who would say, yes, that's absolutely inconsistent with the idea of a stricter, more textualist approach. By the way, I don't embrace the idea of, quote, "strict construction," and I think Justice Scalia and his essay called "A Matter of Interpretation," says look what we are aiming at in the textualist school, so to speak, is reasonable construction of these words. That is, issues like liberty, that we are talking about, the dean talks about different values in the Constitution.

But the question is, everyone believes in human freedom. The question, of course, becomes to what extent can society regulate in particular ways that affects those freedoms, and therein lies the real dividing lines, the real fault lines, the extent of which judges will in fact overturn the views of democratically-elected legislative body, as we saw recently in the partial abortion decision. That is where the fault line is.

To what extent are you going to allow democratic processes to control? or are you going to in fact say, no, we believe that the concept of liberty in the Constitution is such that we have to protect the woman's right to choose, even in a particular form of abortion as opposed to the fundamental right to choose articulated in Roe v. Wade, a particular methodology for carrying out the abortion decision.

The court continues to struggle with the definition of one word "liberty." What does liberty mean? It can't means absolutely anything you want to do at any time. Otherwise, we wouldn't have laws. So it then becomes a matter of how do you go about interpreting that very important word? The same thing happens in free speech, free press and the like, but liberty -- the idea of liberty is really the key dividing point. COSSACK: Ken, I want to ask you to go back again about the terms of politicizing the judiciary. For example, let me just make a hypothetical that you were selected or nominated to be on the Supreme Court. Would it be right for the Senate Judiciary Committee to ask you your opinions about cases that have gone on in the past? how you would vote, for example, on abortion? how you feel about the Independent Counsel Law, things you were particularly connected with? Would that be right to ask you what you would do, and how you feel about those things?

STARR: I think the Senate can ask anything that it wants. Any member should be able to ask any question. I think it is, again, a matter of judgment and prudence. I think it is inappropriate, as a matter of judgment, question of raw power, can ask anything that the senator wants to ask.

But I think, as matter of judgment, it is better, it is more prudent, it is more appropriate for the senator not -- for the committee to be trying to extract some kind of commitment. That is a terrible, in my judgment, invasion of the entire judicial process and what we expect our judges to be, which is independent, and to come to their independent judgment.

So getting kinds of extractions or commitments is wrong, but probing into what the judge's philosophy is, I think, is exactly right. You want to get the best feel that you can for the way the judge views the Constitution, the way he or she is likely to perform, in your best judgment, best estimate...

COSSACK: Let me interrupt you just one second.

Senator Grassley, isn't that exactly what the tension is here. You want a commitment, don't you? You want to know what these judges are going to do. Don't you want to know something about how a judge might vote on abortion?

GRASSLEY: It's wrong for me to want that. I might want it, but I shouldn't expect it. Most of the time you don't get it. Common response to a lot of both Republican and Democrat questions of a nominee, from the nominee, are simply I'm not going to speculate on that. There might be a case before us on that, and so I am not going to respond to that specific of a question.

What we ought to get from them is how they approach a case that will tell us something about their judicial temperament? what they would use as a basis for making a decision? The importance of precedent to them and on what base they might depart from precedent.

VAN SUSTEREN: Bob, if you were advising a president who was making a selection of the Supreme Court, what is your best advice?

REINSTEIN: Well, obviously, you want somebody who is qualified for the Supreme Court.

VAN SUSTEREN: OK, what is qualified? There are awful lot of people out already. REINSTEIN: Professionally qualified, but beyond that, I think what a president really has to look at is the kind of vision that a nominee has about the Constitution and about the country.

VAN SUSTEREN: Then do we circle back to the political question that Roger raised, this sense that, you know, if we are looking for the nominee.

REINSTEIN: I think we are talking about, as Mr. Starr said and as the senator said, the kind of general philosophy that people have and their ability to effectuate that philosophy, and whether the president thinks the philosophy that the nominee has about the Constitution is similar to the president's.

VAN SUSTEREN: Ken, do you have to be a lawyer to be on the Supreme Court?

STARR: No, you don't. In fact, Justice Hugo Black, who served with great distinction for many decades, has suggested it would be a good idea to have a non-lawyer on the court.

COSSACK: Ken, do you think that, in light of the fact that we could possibly see four new justices on the Supreme Court, for example, the cases that involve the 5-4 decisions we saw this year, did you think that, for example. abortion rights, as they stand today, could be questioned in the next Supreme Court if there were new -- if Governor Bush had a chance to put on those many nominees?

STARR: Sure, it would be subject to question, and I think it may be that a legislature somewhere across the country would decide to, in fact, test whether Roe v. Wade, and now the more recent decision out of Pennsylvania, the Casey decision, is still viewed as good law.

But, in doing that, I think that the emphasis that the Supreme Court, with its present membership, with the -- a couple of exceptions, emphasized on the weight of precedent should be a very important factor to a legislature and the like in terms of where are we as a country and as a court in terms of what the Supreme Court is willing to do. This Supreme Court...

COSSACK: Ken, I hate to cut you off. I've been told that we are definitely out of time. But that is all the time we do have. Thanks to our guests, thank you for watching.

Tomorrow on our program, join us as we break down the legal issues within the Republican Party's 2000 platform.

VAN SUSTEREN: Our guests include Governor Tommy Thompson from my favorite state, Wisconsin; and Bush campaign general counsel Ben Ginsburg.

Stay tuned to CNN for complete coverage from the Republican National Convention and join us tomorrow for another edition of BURDEN OF PROOF.



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