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Election 2000: Supreme Court Finishes Hearing Case of Bush Versus Palm Beach County

Aired December 1, 2000 - 11:31 a.m. ET


DARYN KAGAN, CNN ANCHOR: And welcome back to our special coverage here on CNN. It is 31 minutes past the hour, 11:31 on the east coast of the United States.

According to the clock, it should be coming very close to the end of oral arguments at the U.S. Supreme court of the case of Bush v. the Palm Beach County Canvassing Board.

We've heard from our Roger Cossack about what he heard inside the courtroom, and we're going to be hearing from other people as they come out as well.

Want to remind you, in this history-making moment, the Supreme Court has said that as soon as this is over, they will be releasing audiotapes of what took place this morning. As soon as there's a turnaround, we will have those tapes and play them for you in their entirety here on CNN.

And we're getting word now that court has ended. That would stick to the very strict timeframe that, we understand, the U.S. high court likes to keep. Once again, there may be a little bit of time in getting those tapes to turn around as they go ahead and transfer hem, but as soon as they push the play button, you will hear them in their entirety on CNN.

In the meantime, as soon as lawyers come out, we'll have comments from them.

And want include our Frank Sesno, who is in Washington, D.C., to talk with some of our guests we have there -- Frank.


Reinforcing, of course, those oral arguments over, as Daryn just said, and the tapes forthcoming. Also, our senior Washington correspondent Charles Bierbauer's been in there the entire time, Greta Van Susteren's been in there the entire time, so we expect to hear from them shortly.

Roger Cossack, you were in there at the top of this. You've given us a great leg up and flavor for what this sounded like at the outset. In terms of what was left to say, there was going to be 35 minutes from the lead Gore attorney, Laurence Tribe, as well. ROGER COSSACK, CNN LEGAL ANALYST: Well, that's right, and we just know that it is just ended, and I must say, Frank, out of the corner of my eye, I see Greta Van Susteren, who has just came out of court, who will be able to update us on what went on with the final part of the argument.

What I suggest is the same kind is that the same kind of grilling that, in fact, Ted Olson went through Tribe was going to go through. Look, this wasn't just a one-sided argument, this was a side that are two sides, there is a legitimate issue to be discussed about whether or not the rules were changed, and if they were changed, that would violate the Constitution.

So as I've tried to say time and time again, just because the justices seem to be focusing in on one particular point, that doesn't mean it's the end of the battle, and again, we heard half of it.

As soon as Greta gets wired up, she will be over here and she'll be able to finish up telling us what went on.

SESNO: Roger, let's let Greta get wired up and come back.

I want to, very quickly, though -- joining me in the studio here is Ron Barron. He's argued before the Supreme Court three times, on election law, specifically.

You've heard some of this teed up -- and also Bill Schneider with us and Ken Gross -- you've heard some of this teed up and explained by Roger: your impressions and what are you expecting to hear when we hear the rest?

RON BARRON, ATTORNEY: Well, I think that Roger is right that this is a very aggressive court in questioning, and they're going to be very aggressive with both sides of the issue. That hasn't always been true. Twenty years ago, when I had my first case at the court, under the Berger court, some lawyers referred to it as Sleepy Hollow. These days, these nine justices are very active, and what we have heard, from Roger, is basically the top of the first inning, and we haven't seen the other side and what their play has been.

SESNO: And let's just take a moment to step back and reflect on what this is really all about. What this is all about, at the U.S. Supreme court, is whether the Florida state Supreme Court exceeded its authority and wrote law -- and made law -- rather than merely interpreting law when they said you can hand count and you can exceed that first deadline that the secretary of state said she was to certify Florida's vote by?

BARON: That's correct, and it's a very narrow issue. And what happens with Supreme Court cases is they may decide a very narrow issue, but the way in which they decide that issue that can have large implications.

SESNO: Explain.

BARON: Well, from Roger's report, if the court concludes that this case is really, at this point, up to the state and to the state Supreme Court because, ultimately, it's the decision of Congress, well, that has enormous implications for this whole process, because that takes us to January 6th, or January 5th, this year, if they pass a joint resolution, at which time both the House and the Senate are going to open up the ballots for the electoral college. And, as we know, politically, the House is Republican, the Senate is going to be Democratic -- at least, evenly divided with the vice president presiding -- and that has the recipe for an impasse.

SESNO: Let me just interrupt. The picture that you see here is the audio technician in the pool -- network pool truck getting those audiotapes, we presume, and getting ready to play them. So very shortly, we're going to hear what took place for 90 minutes before the U.S. Supreme Court today.

Ken Gross, as we watch this, and I may cut you off quickly if this thing gets ready to roll here -- because we don't want to miss a thing -- actually, I'm going to ask you to stand by, because we do have Greta Van Susteren, who was in that courtroom for all 90 minutes.

Greta to you.

GREAT VAN SUSTEREN, CNN LEGAL ANALYST: Yes, Frank, it was quite interesting. During the first argument, when the Bush team was up, you would think that they were having a very tough time right out of the box. Justice O'Connor was pummeling Ted Olson, the lawyer on behalf of Bush, with questions, and he had a rather difficult time.

But as with every case, you've have to hear both sides, and when Larry Tribe -- Harvard law professor Larry Tribe -- got up, he equally got his time from the justices, and probably most significant is this: the question of Larry Tribe by Justice Scalia. He said, in essence, in his questions to Larry Tribe -- and this is lawyers reading tea leaves, we have no idea how Justice Scalia will ultimately rule, but it's what we lawyers do, we have fun with the questions -- he said: Florida Supreme Court says -- this is Justice Scalia talking -- the Florida Supreme Court says, in essence, in their decision, our state constitution right to vote trumps the conflicting statutory law created by the Florida legislature.

And the problem Justice Scalia had for Mr. Tribe was this, is that: Article Two gives the state legislature the power to determine the manner of selecting the electors, so when the Florida Supreme Court used the right to vote and used the Florida Constitution, and not the Florida legislature, Justice Scalia wondered if that went too far.

Now, on the good side -- at least from the Larry Tribe's were most perspective -- is that two justices, Justice Ginsburg and Justice Stevens, were most concerned with the fact -- they said: Look, are not Florida's -- wasn't the Florida state Supreme Court just interpreting its own law? And Justice Ginsburg said: When we refer to Florida law, shouldn't we give great deference to the Florida Supreme Court when they interpret their own law.

But for the Bush own side, Justice O'Connor came back and said that it was a dramatic change when the Florida Supreme Court changed the time for certification. She was saying, in essence, that the court was going way too far, that they were going over the line, that they were enacting law, and courts are supposed to interpret law.

Bottom line: a very, very active court, the lawyers had a very rigorous, active time, it was aggressive questioning -- very challenging -- but no one knows how this court will rule.

SESNO: All right, Greta, don't go away.

Again, as we remind you, we're seeing pictures of the audio technicians preparing to receive or transmit the tapes by arrangement with the network pool and the Supreme Court -- again, unprecedented -- these tapes brought out and to be replayed for you as soon as this session over.

Charles Bierbauer, to you, also inside that court for those 90 minutes.

CHARLES BIERBAUER, CNN CORRESPONDENT: A very intense 90 minutes, Frank, as Greta Van Susteren has explained.

Perhaps I can tell you why there's so much noise around me: This is, largely, a Bush crowd in front of me, and Warren Christopher, who is the pointman for the Gore campaign, is about 20 feet to my left, and they're sort of focusing on that.

The important aspect -- I'm sorry. I was being interrupted there.

A couple of points to add on to what Greta said: There was strong concern about whether there is a federal role here. Justice Sandra Day O'Connor repeatedly saying what is the federal role here? but Justice O'Connor, similarly, in questioning Larry Tribe, the attorney for Al Gore, saying that the court in Florida had to be aware it was changing the date, and therefore, changing the law.

I would say that this court was fairly predictable in some aspects, but it's not going to be predictable, Frank, in its final result

SESNO: Charles -- excuse me, Charles, I'm sorry to interrupt, but Larry Tribe who argued for Gore now at the microphones.



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