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Will the Nation's Highest Court Determine Who Will Occupy the Nation's Highest Office?

Aired December 1, 2000 - 7:30 p.m. ET



UNIDENTIFIED MALE: Oye, oye, oye. All persons having business before the honorable Supreme Court of the United States are invited to draw near and give their attention to the court that's now sitting.


ROBERT NOVAK, CO-HOST: Tonight, the presidential election moves to the United States Supreme Court. Will the nation's highest court determine who will occupy the nation's highest office?

ANNOUNCER: Live from Washington, CROSSFIRE.

On the left, Bill Press. On the right, Robert Novak.

In the CROSSFIRE: Barbara Olson, former assistant U.S. Attorney and a Bush supporter and Stan Brand, former counsel to the House of Representatives and a Gore supporter.

NOVAK: Good evening, welcome to CROSSFIRE.

In the courtroom war over the Florida recount, Al Gore lost a skirmish today. The Florida Supreme Court rejected a request by the Gore campaign for the immediate hand count of 14,000 disputed ballots in Miami-Dade and Palm Beach Counties. The court also threw out a taxpayer suit for a Palm Beach revote because of the famous butterfly ballot there. And the last of the million ballots from South Florida arrived by truck in Tallahassee today, maybe to be recounted, maybe not.

But the big news today was in Washington at the U.S. Supreme Court. Reporting is CNN's senior Washington correspondent, Charles Bierbauer -- Charles.

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT: Bob, most of the Bush and Gore demonstrators have moved on from outside the court and they've swept up the trash here. It was a bit of a circus outside, but it was still a court of law inside where attorneys for George W. Bush argued that the Florida Supreme Court had gone too far in extending the time for counting votes and attorneys for Al Gore argued that the Florida Supreme Court was only trying to assure that the will of the voters was fully counted. The arguments raised more questions. What about the role of the Florida State Legislature? What about the role of Congress in finally choosing the president, if necessary? What was different about this day in court from others that I've been at here at the U.S. Supreme Court was in part the audience inside: the four Gore children; Warren Christopher; Bill Daley, Senator Edward Kennedy; Caroline Kennedy Schlossberg; a gaggle of Congressmen and Senators and the audience outside, around the world listening to an unprecedented airing of a U.S. Supreme Court argument. It went on for an hour and a half and of course, the one thing that was unusual was the fact that the U.S. Presidency, the next president may be at least in part determined by the U. S. Supreme Court -- Bob.

NOVAK: Thank you, Charles. Sitting in for Bill Press tonight is Jake Tapper, Washington correspondent for -- Jake.

JAKE TAPPER, GUEST CO-HOST: Thank you, Mr. Novak. Barbara, first of all, it's wonderful to see you. I saw you at the Supreme Court today. I had the cheap sheets with the reporters and you were front row center sitting in-between Ted Kennedy and Fred Thompson. So anyway, it's nice to see you in the flesh and not from afar.

Let me tell you something. Something that you and your husband -- we should mention that Ted Olson, the lead attorney for Governor Bush, is your husband -- something that you and Mr. Olson have been talking about -- you're active in a group called The Federalist Society, and it is states' rights this, states' rights that. In fact, just last year your husband said, "This, more than anything is a distinctive character of the Rehnquist court recognition of the sovereignty of the states and limitations on federal authority over states." That's Theodore Olson at the Concerned Women for America Web site -- a conservative Web site.

Now, the Florida Supreme Court makes a decision that you guys don't like and all of a sudden, states rights'? Forget about the states' rights. What happened? What's going on?

BARBARA OLSON, FORMER ASSISTANT U.S. ATTORNEY: No, I think the argument today was perfectly consistent because what we're really talking about -- did the Florida Supreme Court change the law to such a significant effect that they violated the U.S. Constitution? That in fact, the Florida Supreme Court is deciding the manner that we choose legislators. Legislatures are chosen by the state legislature. And so therefore you've got Title V, which you head a lot about today, also says if you change the law too much and you have post-election laws, you violated the federal statute. So, it really wasn't looking at state law by a state Supreme Court. It's a U.S. Constitution and federal law which keeps federalism perfectly intact.

TAPPER: Well, I don't know about that. And, I'd like to say, I'm not the only one that was a little but skeptical. In fact, we have some audio clips from Justices Kennedy, Souter and Scalia that I'd like to play right now.





DAVID SOUTER, ASSOCIATE JUSTICE OF THE UNITED STATES: Why should the federal judiciary be interfering in what seems to be a very carefully thought out scheme.





TAPPER: Those are not, by the way, Clinton justices. Those are -- that's Justice Scalia, one of the most conservative, as well as Kennedy and Souter, somewhere in the middle on this very conservative Supreme Court. Again, I ask you, is this not a complete violation of everything you and your husband stand for about states' rights, letting the states decide?

The federal -- I mean, the Florida Supreme Court interprets the Florida laws but you guys don't like it so you run to the U.S. Supreme Court.

OLSON: No, and it's interesting because Justice Scalia is very, very strong on federalism and states rights, and as a matter of fact the Supreme Court has given great deference to the state courts, state legislatures, but here once again Ted Olson I think, even though he's my husband, was the perfect person to argue this because he is know for federalism. He represented the federalism issues in Ronald Reagan's Justice Department. This did not involve state laws being construed by the a state Supreme Court. What this was is United States Constitution.

Who is going to see if the U.S. Constitution was violated, but our U.S. supreme Court and in the end, if you notice, the justices realize that. And the last thing which I thought was very important in the argument today, Chief Justice Rehnquist had his back and forth with Larry Tribe and Larry Tribe was trying to say the state legislature just interpreted the constitution of the state. They didn't make, you know, the Supreme Court wasn't making new law.

Chief Justice Rehnquist brought up a case, and it was the Becker case and it was the last thing he said and he says, "I don't buy your argument because the Becker case, which is a case in the late 1800s, stood for that a state legislature could not use the state constitution and rewrite law particular, when you're talking about a presidential election.

NOVAK: Stan Brand, I thought that the go-around between the justices and Larry Tribe, the great constitutional lawyer, is some of the most gripping theater I've seen and I've heard in Washington in a long time, and at one point Larry Tribe arguing the case for Al Gore was told this, was asked this by Justice Anthony Kennedy, who is considered a swing justice. Let's listen to what he asked him?


KENNEDY: You have said or suggested here, in your reply brief that the Florida legislature now has no role. You are now suggesting that this court has no role. That means the Supreme Court of Florida is it.


NOVAK: Larry Tribe didn't answer the question. He didn't have to, but I'm going ask you, does that make any sense that the Florida Supreme Court is the final word -- no appeal from it?

STAN BRAND, FORMER HOUSE OF REPRESENTATIVES ATTORNEY: Well, it might be on these issues in terms of the construction of Florida election law and there's nothing unusual about that. Remember where we are now, Bob. We're in the post-certification phase in Al Gore's election contest. It's not even clear to me that there's anything left for the Supreme Court to address that would change the outcome. The votes have already been certified. We're now in the next phase of the process.

NOVAK: You know, Stan, I know people you hang around with don't like to read the Constitution, but some of us are still interested in it. You say there's nothing that can be done about it. I want you to look what Antonin Scalia said, also addressing Larry Tribe. Let's listen to him.


SCALIA: I read the Florida court's opinion as quite clearly saying, having determined what the legislative intent was, we find that our state constitution trumps that legislative intent. I don't think there's any other way to read it.



SCALIA: There's a right of suffrage in voting for the legislature but Article II makes it clear that the legislature can itself appoint the electors.


NOVAK: That is the point. The Federal Constitution says that the legislature appoints the electors.

BRAND: It says they determine the manner and the manner is determined under the state election law.

NOVAK: Oh, please. BRAND: There's nothing to suggest, and I find it incredible that Republicans are suggesting that somehow judicial review is abrogated because there's a textual provision in the Constitution that gives the state legislature a role. I don't see how it's abrogated any more than it is in Article I because the Congress is delegated authority to decide all kinds of things that don't say anything about the legislature.

NOVAK: Let me read Article II, Section 1 to you. This what we're talking about. that's what Scalia was talking about.

"Each state shall appoint in such manner as the legislature thereof may direct, a number of electors equal to the number of senators..." etc, etc. That means that at any time the legislature can come up and say, these are the electors we want to vote in this election and the Florida Supreme Court can't say anything about it.

BRAND: Well, that's what we're going find out in this case and you're perfectly within the rights to quote Justice Scalia, but I also heard some other justices asking questions about whether we don't owe deference to the highest court of a state.

NOVAK: That was Ruth Ginsberg. She's a liberal Democrat, very partisan.

BRAND: I didn't count five votes for any particular position.

NOVAK: I did. I counted five. I counted, one, two, three, four, five for the Bush position. You didn't count that many?

BRAND: I didn't count five for the Bush position based on the questions.

NOVAK: Read the transcript again.

TAPPER: You know, Barbara, there's one thing that was in one of the Gore briefs that I thought was very interesting. It didn't come up today, but I'd like to ask you about it. It said in the Gore Supreme Court brief, quote: "While state courts are still struggling to determine whether all the lawfully cast ballots will be counted, petitioner" -- meaning Governor Bush -- "seeks to secure this court's blessing for leaving to historians the question of who garnered the most votes for president in the state of Florida on November 7th, 2000."

And this is one of the most interesting comments I've heard out of the Gore campaign in quite some time, if not the only interesting comment in quite some time.

OLSON: Please, do tell.

TAPPER: And that is Florida has the most progressive open government. They call it the sunshine law. Those -- those ballots -- as you probably know, your good friend Larry Klayman is inspecting those ballots right now. He can check out any ballot he wants. The e-mails, the phone records of Governor Jeb Bush, those are all public domain.

Those ballots are going to be counted. Those 10,750 votes that have never been counted by hand from Miami-Dade, those are going to be counted. The 60,000 or so undervotes from throughout the state, those are going to be counted. Isn't it better to have the votes counted now instead of into the third month of the Bush administration, then it comes out that Governor Bush actually didn't even win Florida? Wouldn't it be better to do it now?

OLSON: Well, as a lawyer, you assume facts not in evidence. They have been counted. We've all heard that. We've heard the machine count, the recount.

TAPPER: They've been hand-counted.

OLSON: They have not been hand-counted, they haven't been foot- counted. They have been counted, and they've been objectively counted.

You know, if you could convince anyone that hand counts are more objective and a better way to count, then you're right, they're wouldn't be a case. But that's not true, and the court has to decide...

TAPPER: It's the law in Texas. First manual recount in Texas is a hand recount.

OLSON: But if -- if we were under the Texas law, this case would be over and Governor Bush would be President-elect Bush, because there is one recount and that's it. There's not the multiple recounts. In Florida, there's a machine recount.

And so I wouldn't go so far as to say they're going to be hand recounted. I think what we've seen is the ballots are no longer in any shape to be recounted.

NOVAK: They're mangled.

OLSON: There's a real problem. There's chads. There's hundreds of affidavits that have been put in to the 11th Circuit, the district court, and there's going to be an argument next week on that issue.

TAPPER: Barbara Olson against -- against the sunshine law. But in any case...


We'll come -- we'll come back. Take the debate online tonight. Gore supporter Stan Brand and Bush supporter Barbara Olson will be taking your questions after the show at And we'll be back in a second.

And I have a very tough question for Barbara Olson. One might even call it a stumper. But before we do that, I want the audience to see some of the A-list celebrities that were at the Supreme Court today. (COMMERCIAL BREAK)

TAPPER: Welcome back to CROSSFIRE. I'm Jake Tapper, Washington correspondent for, sitting in for the magisterial Bill Press.

In the governor's mansion in Austin right now, Governor George W. Bush is hosting a Christmas party, enjoying a delicious meal or arugula and fennel salad, and Gulf Coast blue crab cakes with jalapeno tartar sauce.

But here in Washington, we're chewing over today's Supreme Court case, with Bush supporter and former assistant U.S. Attorney Barbara Olson as well as Stan Band, a Democratic attorney and Gore supporter -- Mr. Novak.

NOVAK: Stan, this is -- this sounds like the Barbara Olson show, but this was really Ted Olson's day, and I want to show you a little clip of what he said after the arguments, which was maybe more understandable to the layman than what was said in the arguments.


THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: We've argued that the Florida Supreme Court overturned the work of the legislature, that in this area, the Florida Supreme Court does not have the right to do that, because the Constitution vests the responsibility for determining the manner in which electors are appointed in the legislatures of the states.


NOVAK: Now, isn't that -- you know, I have searched my -- of course, I have a limited imagination. But I've searched my mind for an answer to that. I can't find a good answer to that argument. Can you?

BRAND: It's a very simple answer.

NOVAK: What is it?

BRAND: Judicial review. There's nothing that prevents a court from construing a statute, which is ambiguous or conflicting, within the four corners of the statute. That's as American as apple pie and something that courts do all the time.

NOVAK: Stan, I'm going to give you an alternative theory, and maybe you can agree with it, that this is a difference between two schools of that. A school of that sells there are rules, you can't change the rules, and there are people who say, like some of the liberals on the Supreme Court, that we're talking about justice and values, and the court in its judicial review can do anything, it doesn't have to follow the rules. Isn't that what the fight is really about?

BRAND: No, I think the fight is really about whether courts have any say in interpreting statutes passed by the legislatures or not, and that to me was settled in Marbury versus Madison when the Supreme Court it is indisputably the duty of the courts to say what the law is. And that's what Florida's Supreme Court did.

NOVAK: I think Marbury-Madison was a bad decision. But that's neither here nor there.

BRAND: Oh, well, it's been the law of the land for 200 years.

NOVAK: I know. I know. It's still a bad decision.

TAPPER: Well, just to change the subject to another court case for one second -- now, Barbara, I want you to play a little game with me, OK. Imagine if you will a Democratic county in Florida, and imagine if you will a Democratic election supervisor who gets all these absentee ballot applications printed up the Democratic Party of Florida and they're missing voter ID numbers. And instead of throwing them out, as is the law, she somehow or somehow the state Democratic Party finds out that these are missing the numbers, and two employees of the ballots presentations printed up by the and they are missing i.d.numbers and somehow the state Democratic party finds out that these are missing the numbers and two employees of the Democratic Party camp out in her office, fill in these voter ID numbers.

What would be your reaction? I cannot believe that you wouldn't be outraged, that you wouldn't be writing a book about it right now. I find it hard to believe that this double standard is just so apparent. No?

OLSON: Well, once again, Jake, you know, if there was a law that said you could assist people in filling out their application for an absentee ballot, I wouldn't have a problem, because understand, in this case, no Republican actually helped with the ballot itself, which is the document where the vote is. This was just a request for an absentee ballot, and they didn't have a voter ID number. So it's a far stretch to say that there was some fraud, which actually is what the court has to find.

It has to come to the level of fraud to throw out all those precious votes that we hear daily that Al Gore wants to count, suddenly because Governor Bush received a huge amount of absentee ballots, those votes should not count.

TAPPER: As well versed as you are -- I know you are in Florida law, I know you're aware that in 1997 in the mayor's race in Miami, all the absentee ballots were thrown out because there was evidence of tampering, evidence of fraud and all sorts of accusations. And in 1998, the Florida legislature passed a law saying the only people who can apply for absentee ballots are the individual, his guardian or an immediate family member.

Now these Republican operatives were not in that category for 4,700 Republican voters.

OLSON: These were operatives filling in an ID number. You know, that case is very interesting because there was fraud. And there was so much fraud in that Miami case that they couldn't tell which vote was for who. It was fraud in the actual ballots, not in the applications. So I don't think it does apply.

And I do think that this is a case where you have absentee ballots only done by the voter and sent in. And you have an application. Do you really want to shut out people, not let them vote because an application had a number put on it?

NOVAK: Stan, I want to go back to what I think is the essence of this argument today, and Barbara mentioned it, and that was the chief justice's remarks near the close of his dialog with the -- with Larry Tribe.

Let's listen to them.


WILLIAM REHNQUIST, CHIEF JUSTICE OF THE UNITED STATES: It seems to me a federal question arises if the Florida Supreme Court in its opinion rather clearly says that we're using the Florida Constitution to reach the result we reach in construing the statute.


NOVAK: They just can't use the Florida Constitution on a federal voting rights case.

BRAND: But the part you didn't play was the part with Larry Tribe describing the myriad other sections of the opinion where they are simply parsing Florida law.

NOVAK: Nice try, but I'll take Rehnquist over Tribe.

Thank you very much, Stan Brand, Barbara Olson. And please, viewers, these two guests will be in the CNN chat room immediately after we're done. But before that, Jake Tapper and I will be back with closing comments.


NOVAK: The debate continues online right after the show with guests Stan Brand and Barbara Olson. Just log on to

Jake, this was a historic day there the U.S. Supreme Court, but the action seems to have shifted to Seminole County, as you mentioned, where the Gore people are trying too steal the election by getting rid of 15,000 ballots that are perfectly legally cast. The question was some of them were -- they were improperly filled out for the application. There was no question of help in casting the ballots.

Question: How can the Gore people talk about every ballot counting when they have shredded and diced these South Florida ballots, and they want to throw away 15,000 perfectly good ballots in Seminole County...

TAPPER: That is...

NOVAK: ... because they're for Bush?

TAPPER: As you know, Mr. Novak, that is not a Gore campaign case. And the one thing I would like to say...

NOVAK: Do you believe that?

TAPPER: ... I'd love to leave the readers with -- the viewers with, which is the ballots are going to be counted, whether it's by CNN and "The New York Times" or by a judge before a president is anointed, and I think it would be horrible -- and I think it would be horrible to have a President Bush realize that he's not actually the president.

Anyway, sitting in on the left, I'm Jake Tapper and good night for CROSSFIRE.

NOVAK: On the right, I'm Robert Novak join.

Join us again next time for another edition of CROSSFIRE.



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