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Supreme Court: Pivotal Decision, if any, Is Indeterminable

Aired December 1, 2000 - 1:20 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

FRANK SESNO, CNN ANCHOR: I'm Frank Sesno in Washington, you have just heard an audio tape replay of 90 minutes of important argument inside the United States Supreme Court in the case of Bush versus Palm Beach County Canvassing Board. Among the comments you heard from the various justices: Scalia -- he has a real problem with what the Florida Supreme Court did. Ginsburg: "We owe the highest respect to the state court interpretation of state law." O'Connor: it is dramatic change to change dates relating to an election.

Roger Cossack, Greta Van Susteren, Charles Bierbauer all were inside that courtroom.

Greta, let's start with you as we go left to right here on our screen; in terms of your impressions, and whether any persuasive points were made or lost.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Listen, Frank, this is very exciting for all of us -- for Americans and for the lawyers who had the opportunity to sit inside, and also for the Americans around the world who got to listen to this.

But, can we predict what the United States Supreme Court is going to do? Absolutely not. And, in fact, what I found most interesting about the arguments is that both sides had lots of questions thrown in their direction and both sides got tough, aggressive questions. But I think it's important to point out that it wasn't until 24 -- no, 34 minutes after the argument began that we heard for the first time -- and it was a question by Justice Breyer, when he wanted to know, what is the practical effect of any ruling by the court?

So it was 34 minutes into the argument before that question was posed, and that's very significant because, you know, the court wants to know, if we rule for Bush, then what? If we rule for Gore, then what? And it was very interesting because both sides sort of dodged that issue and never really confronted it; and that was a specific question that the Supreme Court said they wanted to know the answer to.

SESNO: Roger Cossack?

ROGER COSSACK, CNN LEGAL ANALYST: Well, one of the things I'm absolutely convinced of, moreso after hearing at least half of the argument here today, that whoever the four voters were that voted to hear this case, and the fifth to have it -- you need five for an expedited hearing -- was that they all didn't agree on the same reason for hearing the case because you heard two different viewpoints.

You heard what Greta came out and said that when Larry Tribe got up, that he had a rough time. If you would have heard just the part I heard, the first half, you would have thought that Governor Bush would have had a very difficult time. So it's clear they were troubled with the issues: Should there be a -- is there be a federal issue? Should they override a state court? Are they troubled with what the Florida Supreme Court did, as Justice Scalia pointed out?

So I am sure, if I can bet on one thing, that I do not think this will be a unanimous court. Now, as I've said, I've watched it come out with a unanimous decision, but I don't think it will be.

SESNO: Charles Bierbauer, you've been following this court very closely, you've heard a lot of these arguments. How did this one differ -- and with the specific look at the merits and the issues involved in this case, what's your read?

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Well, a lot of people are concerned that this may not be a court case that really merited this court's attention. People were not sure why they took the case here; and we heard Justice O'Connor and others say, what is the federal issue here? Why should this be in front of this court, the U.S. Supreme Court, after it's already been decided down in the Florida Supreme Court? As Greta points out, Justice Ginsburg kept saying, we owe a lot of respect to the Florida Court. Courts -- the Supreme Court does not hastily overturn a lower court and certainly not the Supreme Court of another state.

But as Roger points out, you don't try and second-guess these justices. They are sort of equal opportunity interlocutors; they'll be as tough with one side as the other. How did the lawyers, themselves, who argued these cases feel about it? Shortly after the arguments were finished they both came out and addressed those questions.

Let's hear first from Ted Olson, who argued on behalf of George W. Bush.

(BEGIN VIDEO CLIP)

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: Well, the court took this on a very, very short schedule. It was last Friday afternoon, less than seven days ago that the Supreme Court agreed to take the case. So they've moved very fast. They've asked us to -- each side filed two sets of briefs and they heard oral argument in seven days. I don't think that's a record, but it must be close to it. The court obviously knows that this case is important, and a decision should be forthcoming soon, I would guess.

We're very gratified that the justices of the Supreme Court, as they always are, were extremely well prepared; they had read the briefs, they're very interested in the case. They asked very difficult and penetrating questions of the lawyers on both sides, and now we'll see what happens.

(END VIDEO CLIP)

BIERBAUER: And both the primary lawyers arguing here are Supreme Court veterans with many appearances that have -- we don't try and guess what the justices are going to do, nor do they.

Here's Laurence Tribe, who argued on behalf of Al Gore.

(BEGIN VIDEO CLIP)

LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: I felt more optimistic just because it's also nice to have one of these ordeals over. But I have learned from 29 other arguments that you can't always guess anything about where the justices will come out from exactly what they ask. I certainly didn't think there were any curveballs, and there was nothing that disturbed the court that we were unaware of. And in that sense, it's always a relief to know that the case doesn't have any time bombs in it.

(END VIDEO CLIP)

BIERBAUER: And when the justices were finished and disappeared behind the curtains inside the courtroom they first assess where they stand on this case, to sort of a straw vote. But we cannot tell you when we will get an opinion from this court. They're certainly aware of the exigency of the matter. The last words that you heard were on that tape were the marshal of the court saying the court is adjourned until Monday next. Do not read anything do into that. Monday next is when the justices sit on other cases already scheduled before this court.

We'll let you know when we know, but it's certainly not going to be too long -- Frank?

SESNO: Charles, we heard the questions -- clearly we won't hear the deliberations. How do they work?

BIERBAUER: How do they work? Well, the justices proceed to the conference room, as is the normal practice here. We're in a slightly abnormal situation, but, what they try and do is assess whether there is -- what the majority of the court may be, where that majority lies and then the chief justice, if he is in the majority, he will assign someone to draft an opinion for the court.

If the chief justice is not in the majority, then the senior justice who is, Justice John Paul Stevens would be the next senior justice -- then he has the assigning authority, and a draft of the opinion is circulated to the justices to see how many will sign on, what kind of changes must be made. This is a case where this court would like to be unanimous, but it's very hard to judge that they will be -- Frank.

SESNO: OK, Charles.

Over to Roger and Greta now.

We heard an awful lot of talk, about Section 5 -- that's Title 3, Section 5. Specifically, laws enacted prior to Election Day that govern the settlement of any dispute or contest regarding the electors. A lot of back and forth on that.

Greta, Roger, translate a little bit for us.

VAN SUSTEREN: Well, here's a problem, Frank, is, according to the Bush campaign is you can't change the rules midstream, after the fact. They say that Election Day was the drop-dead date and that the rules were changed -- the rules that Congress has given, the state legislature, the sort of a safe harbor in terms of when they have to resolve the dispute.

What the Gore side has said is, wait a second, the rules weren't changed; all the Florida Supreme Court did was interpret the existing law in the state of Florida. In fact, there was Justice Stevens, who commented during the argument, is that what he -- when he asked a question he made the statement that, wasn't the Florida Supreme Court simply interpreting, using the sort of, standard, statutory construction rules? Weren't they just interpreting conflicting state laws? Or were they creating new law, something that Justice O'Connor might perhaps think because she made the statement that there was a dramatic change when the Florida Supreme Court changed the time from when the certification would have to occur.

Now, what the Supreme Court will do -- you got me.

SESNO: Roger?

COSSACK: Well, the other side of it is -- and I think the other part of the argument was, look, let's assume that there was something wrong under the dictates of Article 3, Section 2, then -- or 5 -- then the next question is, what do we do about it? What is the proper remedy? Is the remedy here before the Supreme Court? And let's suppose that the Florida state Supreme Court did act out of line.

And what they were suggesting is that the remedy may very well be with Congress, and not with the Supreme Court and that they shouldn't be here with the Supreme Court -- that, perhaps, down the line, if Congress does something that the Supreme Court doesn't agree with, then maybe come back then. But as for now, they were suggesting that Section 15 of that statute that you cited would seem to indicate that they should go to Congress for a resolution, rather than the Supreme Court.

VAN SUSTEREN: And here's the interesting thing, Frank: what Charles was talking about is, they may never even reach the issues that Roger and I were just talking about. I mean, they first have -- the first thing they confronted the lawyers with is, why are you here? Do you have a right to be here? Is this a federal issue or is this a state issue? And it's completely possible, plausible that the court would suddenly decide, look this isn't even a matter we should get into. This is a matter that should be left to the state.

On the other hand, they may think that there's a sufficient constitutional argument, and for that reason it does belong in United States Supreme Court, and then they move to the second question: whether or not the Florida Supreme Court violated the federal law or violated the Constitution. And if so, we go to sort of the third question, which the Supreme Court may never answer, it's really a matter for the parties, is -- if they do find a violation, now what? What's the practical effect?

And at this point we have a very, very shifting landscape on this case both in state court in Florida and here in the Supreme Court -- is that no one's really sure what would be the practical effect.

SESNO: Greta Van Susteren, Roger Cossack, many thanks. And if there's ever a special day for "BURDEN OF PROOF," this is it. You've got an awful lot to get your arms around, we wish you luck on that.

To Charles Bierbauer, Ken Gross and all the others who've been with us this day, we're going to have a lot more ahead. We'll leave you with a quote, as I said, from Ruth Bader Ginsberg, who teed up this question as to whether this is a federal issue at all, she said: "We owe the highest respect to state court's interpretation of state law."

Will that be what carries the day or not? I'll be back with a little bit more of this, right after this very quick break.

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