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CNN Legal Analyst Roger Cossack Offers First-Hand Account of Bush Legal Team Argument Before U.S. Supreme Court

Aired December 1, 2000 - 10:39 a.m. ET


FRANK SESNO, CNN ANCHOR: I mentioned just a moment ago that our Roger Cossack has been inside the courtroom. He broke out. He is standing by with us now. So we are going to get our very first sense of what has been going on inside the United States Supreme court on this morning.

Roger, good day to you. What can you tell us? What did you hear? You are our first connection with what is going on in there?

ROGER COSSACK, CNN LEGAL ANALYST: Frank, it was an incredibly dramatic day. At 10:01, we heard Justice Rehnquist announce the case and introduce Mr. Ted Olson, who argued on behalf of the Bush team. Olson argued for no more than two minutes before the questions came, and they came hot and the heavy.

And what were the thrust of those questions, Frank? It was, one, why are we hearing this case? Why is this a federal question, Mr. Olson? Isn't this something that Florida Supreme Court should decide? And, in fact, the direct quote, if I it can find it, from Justice Ginsburg, who said: "Don't we owe, even in the cases that you cite to us, don't we owe the highest respect to state courts when they say what that law is?"

Now, Ted Olson fought back bravely, trying to point out that this was federal question, that in fact Title 3, Article 2 of the U.S. Code is a compact between the state and the federal government and that Florida violated that compact. And that is why the federal government should be involved.

But the justice, time and time again -- and I'm talking about all of them -- Ginsburg, Stevens, Scalia, Kennedy, from each side of the spectrum -- kept coming back and saying, is this a federal question? Isn't this the kind of thing that the Florida legislature and the Florida courts should be deciding? And then if in fact there's a problem, didn't Congress set out a scheme where Congress should decide what happens, not the federal judiciary? And that was the entire thrust of the argument, was: one, why are you -- why should we be hearing this case? and two, isn't this something that we should not be involved in now, that the scheme calls out for whatever remedy it is, if there is a remedy needed, that it should be done in Congress and not by us? -- Frank.

SESNO: Now, Roger, when those justices asked again and again and again, why is this a federal question, did Olson retreat to legalistic arguments? Did he boil it down to the political nature of this case?

COSSACK: No, this was legal. This was not the political nature. Of course everyone knows that this is about voting and voting for the president of the United States of America and having votes counted. And of course Mr. Olson's argument is, the thrust of it is, look, Judge, they changed the rules in the game on us, and you know there's a federal statute, Judge, that says you can't do that. And that's, of course, by the extending of the -- by the Florida Supreme Court extending the deadline.

But the court -- but the justices came back time and time again and said, are you saying that the secretary of state had no discretion whatsoever? Are you saying that the secretary of state couldn't do anything? Are you saying that we should not defer to a particularly -- to law that may be a Florida court? And are you saying that we should be the one involved? Shouldn't it be Congress, that eventually we might be involved? You're not saying that we couldn't get involved if, in fact, we decided Congress acted incorrectly. But the first line should be the Florida courts and then Congress, and then perhaps maybe us.

Now, Frank, I want to -- one thing I want to underline: I only heard Ted Olson's argument. Arguments are going on right now. The other side will be speaking soon.

And, you know, as I say, and what Greta says and all lawyers say, you know, you cannot glean too much from the questions that the judges ask. But from what they asked, they seemed to be very, very concerned about their role and whether or not they should be playing a role in this at all. And I got Justice Ginsburg's remark about, don't we defer to the highest court in the land whenever we should? I thought that may be pretty telling.

SESNO: Roger, yesterday in their reply brief, the one filed yesterday, the Gore campaign all but implored these justices to stay away from the issue of the role of the Florida legislature. Did Theodore Olson or the justices in any fashion, so far as you heard, raise the role of the Florida legislature today?

COSSACK: Yes, the Florida legislature was brought up, of course, by Ted Olson, saying, look, the Florida legislature has acted. Now, are you talking, Frank -- I'm sorry -- about the special session of the Florida legislature?

SESNO: That's what it would appear.

COSSACK: No, that has not been brought up yet. That has not -- there was no remarks made about the special session of the federal -- of the Florida legislature.

SESNO: All right, let me come back to something else you said a moment ago, that you and Greta point out a lot of times: you can't really tell from the questioning where the justices are coming from. But would you characterize their questioning as harsh or skeptical or merely inquisitive? COSSACK: You know, I would say clearly inquisitive, Frank. This was -- there was no rancor, there was no, you know, antagonism, but there certainly was a question of asking Olson to explain why the federal judiciary should be involved in this case at this time; also the question of the issue of deferring to the Florida Supreme Court. Isn't this Florida law? Isn't this what the Florida Supreme Court -- yes, they reconciled these two statutes. Perhaps we don't like the way they reconciled these two statutes, perhaps we don't agree with it, but isn't this something that the Florida Supreme Court should be doing? Should we the federal judiciary be involving ourselves with the Florida Supreme Court? Even if we don't like it, it really is a Florida.

And then they pointed out, however, that Congress has set out another scheme -- as part of the scheme that if there is a problem, that eventually it's Congress that decides, with a hint that if Congress doesn't do it right, perhaps then there's a federal question, and then the Supreme Court could be involved.

SESNO: And, Roger, as you were looking around inside that incredible courtroom today and reading the faces and the body language of some of the others -- and I'm thinking of Laurence Tribe, who you didn't hear but who will be arguing for the Gore campaign -- any sense, any reactions? Where did he write? Where did he jot down something to rebut later?

COSSACK: No, there was great note-taking being done by all. The lawyers were too busy, I'm sure, thinking about their own moment in the sun to be looking at what else is happening.

There was one, I thought, interesting moment When Ted Olson, who, as I say, was being peppered with questions and once was being asked a question by Justice Ginsburg, looked up and began to answer and said: Well, Justice O'Connor -- I mean, Justice Ginsburg -- and I thought, he is having a tough time up there. But let me assure you, that he has acquitted himself very well.

SESNO: All right, Roger, we'll be back to you for sure, with your bird's-eye view on this process.

KAGAN: Before we let you go. Roger, it is Daryn, in Atlanta.

COSSACK: Yes, Daryn.

KAGAN: You just got up from a seat that just about every American in this country would have love to have had. Can you tell us a little bit more about what the mood was in that courtroom, and what it was actually like to be there during that history-making moment?

COSSACK: Well, it was very quiet and very somber. I actually just in at the end. We initially started off in the lawyer's listening room. As luck would have it, Greta and I were the second and third people that didn't get in. The line stopped right in front of us.

KAGAN: You are kidding. COSSACK: So we are were in the lawyer's listening room, which was also very quiet and very filled with very serious and scholarly lawyers and all of us were writing tremendously, and then I got in right at the end and was able to see quite a bit of it.

KAGAN: And the deal is, though, once you leave, you are gone. you can't get back in, right?

COSSACK: I am with you. That is it. I am out.

KAGAN: Well, we appreciate the first early glimpse and early words of what is taking place.

COSSACK: I want to tell you that Greta is still in there. We will be hearing from her shortly.

KAGAN: And Charles Bierbauer, as well, too.

COSSACK: Yes, I think so.

KAGAN: OK, stand by I think Bill in Tallahassee has a question for you as well.

Bill, go ahead.

BILL HEMMER, CNN ANCHOR: Daryn, thank you.

Roger, sitting across from the building, the Florida State Supreme Court, where the Bush folks believe this all started about a week-and-a-half ago. Can you give us more specifics what they are wondering? What their line of question was about the state Supreme Court's ruling here in Florida?

COSSACK: The Supreme Court, in their questioning, and I want to underline that this questioning, Bill, started immediately. Ted Olson probably had probably spoken for a minute to two minutes at the very most before the questions started, and they really seemed to be focusing in on, when is it proper for a United States Supreme Court, a federal court, to be overruling a state supreme court when this seems to be an issue of state law?

And, as I indicated earlier, Justice Ginsburg gave, quoted from cases, that apparently Ted Olson had cited to her and to the court, when she said: You know, isn't it -- isn't it very rare -- and I am paraphrasing of course -- when a United States Supreme Court would be involved overruling a state court over state law? The sense being, you may not like the result of this Florida Supreme Court, but it's the Florida Supreme Court. We should only be involved in federal questions, and they kept going to Olson, saying, where's the federal question, where's the federal question?

And he was -- he would cite to Title 2 of U.S. Code and the -- and what it contained. And at the end, just before I was leaving, there was a sense that they were saying, but really, shouldn't this be Congress in the first instance, if there is a dispute, shouldn't it be Congress that decided it, and then perhaps we get involved? Not the other way around.

HEMMER: Yeah, I think that, Roger, the other thing that most of our viewers will remember, when we saw the public hearing inside of state supreme court about a week and a half ago. Again, a lot of people described the nature between the justices and the attorneys of one of a contentious battle going back and forth, on both sides really. But you say it was a little more civil than that. Could you explain a little more as to whether not was argumentative at times or not?

COSSACK: No, I would describe it as very civil. Look, this is the United States Supreme Court. You know, Ted Olson is a consummate professional. This is not the first time that he has been here. They didn't choose him for any other reason other than he is a terrific lawyers.

These are lawyers arguing important cases. Reasonable people can disagree and that is the -- that was the style and substance of the argument. Yes, it was intense. Yes, they pressed him. But there was nothing personal about it.

SESNO: Roger Cossack, it's Frank Sesno here. Don't go away, stay with us here, I understand we have got some more protests gathering and approaching the court itself. There you can see quite a street-load of folks. Let's see if we can hear the sound of the event itself. Just generalized crowd for now as they are milling about.

I want to go to Ken Gross here. He has been our elections expert and stayed with us throughout, You have heard, Roger, that is our first sense of what is happening inside of that courtroom. And again, it's early. I mean, we have just heard the arguments, on behalf of the Bush side, making his case and being interrupted. We don't know what the other side is going to be saying or how they are going to be peppered with questions.

Nonetheless, your first sense of this?

KEN GROSS, CNN ELECTION LAW ANALYST: Well, so far, it's music to the ears of the Gore lawyers. They -- every question that Roger has indicated has been asked far is essentially an embodiment of the argument that Gore has made in his brief, that this is a state issue. That even if you disagree with what the Florida Supreme Court did, is it time for us to step in as the U.S. federal judiciary? doesn't even Congress come before us?

That's exactly what, of course, Gore has argued.

SESNO: The Gore's legal team says this isn't a federal case. It's about a Florida court and in Florida law?

GROSS: It's right out of the Gore briefs. Now my experience is, and I am sure that Roger has had the same experience. When you are up there, defending the other side, the justices pound you with the questions from the opposing brief. Now I am sure that as soon as Mr. Tribe stands up, we are going to hear all of the questions that are presented in the Bush case. Why isn't this something that is within our authority? Why isn't Title 3, Section 5 trump what the state supreme court did? Didn't they legislate?

You're going to hear the opposite questions from them, because they're testing. So I wouldn't read too much into it halfway through the argument. We've heard sort of the pro-Gore side so far because the Bush lawyer has been up there.

SESNO: And the peppering of questions that Roger referred to is also standard operating procedure.

GROSS: Very much so. They did, and they sound like very good questions. Of course they, they are the Supreme Court. They did get right to the nub of the question. They didn't beat around the Bush.

SESNO: Let me invite you, with your expertise, and your perspective on this, and some of your comments to turn back to Roger, and ask him any questions or share any observations you have with him.

Roger, I think you are still out there.

COSSACK: Yes, I am.

GROSS: Roger, wouldn't you expect that, when Mr. Tribe stands up, that we'll hear the other side, or do you think that the justices and the questioning so far really seem committed to kind of leaning towards the Gore position, or is it your sense that we are going through an exercise to really pull out of each, each lawyer, the strongest points of their arguments?

COSSACK: Yeah, Ken, it's hard for me to imagine that they are going to be as intense with Tribe as they were with Olson. But of course, I am not in there to say, and normally, you would be right.

But you, as you know, this issue of whether or not this should be taking place, with, you know, in the federal judiciary, and this is a federal question, is really the heart of the Gore brief. And they were very strong on this. At least in asking questions. And all of them, across the board, Ginsburg, Kennedy, Scalia, you know, they were all asking those same issues, and they were all questioning about: Should we be involved in this?

And you know, shouldn't be we be involved telling the Florida court -- Supreme Court -- what to do about Florida law? You know, the state's right's issue.

GROSS: You know, I think that that's a very good point. That you've got those questions from across the political spectrum. Ginsburg, Scalia, they are at the complete opposite ends of the political spectrum of that court, and they are both coming down the same side, and many of us believe that the court will try and issue a unanimous decision here or just get out of the case altogether and not issue some sort of substantive split decision.

So if there is that much strength of questioning and uniformity of questioning on the political poles of the court, if you will, then maybe, again, we don't want to jump the gun on reading into it, but I think that is an interesting point that you make. Although, four of these justices at least have agreed to take and hear this case, so presumably those are some of them who are themselves now questioning why is it that they have the case?

COSSACK: You know, one could argue that there's a reason for them to take this case no matter what, that there is a reason for the United States, the Supreme Court, because of this magnificent and monumental issue, to weigh in and write an opinion that even in effect affirms state's rights, or clarifies what the laws is in these kinds of disputes.

And one of the things I think they were suggesting was: Look, we understand that there this is this compact between the U.S. Code and the state of Florida that says: If you do it this way, then everything is fine, but if you don't do it this way, we have a problem. And the question then becomes: How do you solve the problem? Do you come to us? Or do you come to Congress? And what was the scheme, the statutory scheme that was set out?

And that is what part of the argument was, was that: Look, even if there is a problem, isn't this a problem that Congress very carefully said: OK, if there's chaos, as you will put it, then Congress should decide it, and then perhaps later on, we would review what Congress has done.

But in the first instance, isn't this something where we should be protecting what the state has done and what the state supreme court has done? After all, that is the state supreme court for the voters and people of the state of Florida.

SESNO: Roger and Ken, let me just jump in there, and I want to say one thing, and that is, while we watch what is happening and listen so closely to the Supreme Court and the legal arguments that are made there. Let me assure you that everyone with a political state, Republican, Democrat, and anybody found in between in this town and beyond, is watching this very closely, not just for the legal determination and decision here, but also for the political impact it will have.

There are Republicans and Democrat alike who have said to me over these last several days, whatever comes out of the Supreme Court, whatever headline or document anybody can hold up standing on the steps to claim the victory is going to have a profound effect, they believe, on the political discussion, on where the politicians, elected representatives fall, and the impact on public opinion.

What is happening inside the court has enormous impact, not only on the law, but on the political equation here as well.

To Daryn, in Atlanta.

KAGAN: Yeah, Frank, and we want to remind our viewers that we are so honored to have Roger Cossack with us and so lucky he just actually stepped out of the Supreme Court proceeding and has that incredible unique and very first perspective to add to us. Something that I know that our viewers are interesting in and interested in asking questions, We are going to start taking some of e-mail questions, pass them on to Roger, also to Ken Gross.

Here is our first one, this is from B. Giuliani, and it does address what Roger was going at: "Is it possible, at some point, in all of this mess, that U.S. Supreme Court could take this all away from the state of Florida and settle. Can the U.S. Supreme Court overturn what the Florida legislature or the U.S. Congress might do in this election process?"

Roger, it seems like you were saying, at least from the early questioning and peppering that you were hearing, it sounds like the court might be reluctant to do that.

COSSACK: Initially, at least from -- and remember, I only heard one side -- it seemed like there were -- there was great concern, as I said, in the court about what exactly is the role of the court, at least at this stage in the proceeding.

Now, the question is, do they have the power to overturn the Florida Supreme Court? Yes, the answer is, yes. If they so decide, and they decide that there is a federal question, and they make up their mind that the Florida Supreme Court acted improvidently. Yes, they can do it.

Can they overturn of what Congress may do the future? Do they have the powerful, and is it is a federal question? Yes, I suppose the answer to that question is, without even knowing yet what Congress would do, yes, I think that they probably can.

But, in terms of what they were suggesting today is, they are very concerned and very knowledgeable, if you were, and had a great concern about when exactly should a federal Supreme Court or any federal court use its power to tell a state court that it's done something wrong.

And I think that this whole notion of the difference between the states and the federal government and the notion of federalism is clearly something that was really at the top of the list for the questions that Ted Olson got.

SESNO: Let's go to the phones now.

KAGAN: I was going to give Ken Gross a chance to jump in here and have him comment on that e-mail and the processed and the order of where this particular question might go versus the -- go ahead.

GROSS: Very briefly, I agree with what Roger said. I think that it is before the Supreme Court right now, whether they want to overrule what the Florida Supreme Court did. I do not think that it is right, that's a term in the law, rightness for them to consider whether the U.S. -- whether the U.S. Congress, what they have done, can be overturned. Because they haven't done anything yet. And so the second part of the e-mail about U.S. Congress, I would say no. The first part, they certainly could overrule the Florida Supreme Court.

COSSACK: And I a agree with what Ken said. What I was suggesting is, in the abstract, do they have the power to overturn something Congress does? Yes they do. But Ken is absolutely right, since Congress hasn't done anything yet, there is really nothing for the Supreme Court to decide.

KAGAN: All right, Roger Cossack. Frank, I don't think that we have time for the phone calls quite yet, we will get to those. Roger Cossack, Frank Sesno, Ken Gross all standing by in Washington, D.C.



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