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Tribe: U.S. Supreme Court Decision on Hand-Count Case 'Not a Kind of Magic Wand That Turns Back Time'

Aired December 4, 2000 - 12:40 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: Over the Laurence Tribe now, who of course argued in the United States Supreme Court for Al Gore. Your response and reaction?

LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: I was talking to the vice president about an hour before the decision, and I was saying one of the favorable outcomes, in my view, would be to have the case sent back for clarification because it is obvious that the opinion of the Florida court can be read in several different ways. And when that happened, I regarded it as a victory, and then I started hearing what the media were saying, so I am delighted to be able to explain.

It is, I agree very much with Chief Justice Kogan, that no practical change occurs as a result of this because it is simply an invitation to the highest court of Florida to provide a more complete explanation of why they were interpreting the law the way they were interpreting it.

And I don't think that the Florida Supreme Court will have a difficult time providing an explanation that will satisfy the U.S. Supreme Court now that it knows exactly what that court's concerns were.

I do not agree with Chief Justice Kogan that this magically converts the 567 margin to a 930 margin. The U.S. Supreme Court had no jurisdiction over anything other than the judgment of the Florida Supreme Court. The official certification and other actions that were taken in Florida, pursuant to that judgment, are not affected. This is not a kind of magic wand that turns back time.

What it does is sends the opinion back to the Florida Supreme Court, with invitation to explain it, and I'm sure it can do that very well.

SESNO: Laurence Tribe, I do want to thank you for joining us on the phone. I also want to invite in -- don't go away because I want to invite in Greta Van Susteren and Roger Cossack, who have some questions lawyer-to-lawyer for you now.

VAN SUSTEREN: Let me ask you the question that was posed to you in the Supreme Court on Friday, it was Justice Scalia. He said: "Did the Florida Supreme Court make their decision based on the Florida Constitution or the Florida Legislature?" And that made a big difference to him because the U.S. Constitution gives the power to legislature. Do you think this decision tips the Florida Supreme Court how they should rewrite their opinion, should they take that advantage to rewrite it?

TRIBE: Well, if they needed a tip, this certainly gives it to them, but I reread the opinion after the argument, and although I can see the source of confusion and ambiguity, I think that the reading that was suggested by four of the justices during the argument was probably the right one. And that is, they were simply using the Florida Constitution as a way of adding guidance to the process of resolving ambiguity in the state law. And this is not, it seems to me, a case in which...

VAN SUSTEREN: But now they get the tip, right? They get the tip from this decision as to how to do it?

TRIBE: Well, there is no -- they would have to be a little obtuse, but I think they are going to be candid. If I'm wrong, and if they really believed that the statute has to be interpreted in order to create this crazy conflict, where recounts are allowed, but you don't have time actually to include them, but for the Constitution, then I suppose they will say that. But I don't think that's what the opinion means. I have read it now maybe a dozen times.

I am not worried about their ability to explain to the satisfaction of the U.S. Supreme Court why they are not treating their own Constitution as some kind of trump card over the legislature's enactment, pursuant to Article II of the Constitution.

ROGER COSSACK, CNN LEGAL ANALYST: Professor Tribe, this is Roger Cossack. If it was so clear, then, sir, why don't you think the Supreme Court found that they were basing their decision strictly on Florida law, which would be a victory? And, second of all, why did they vacate the judgment? Vacating the judgment means, as I under it, sir, that the judgment does not exist at this time, and I think, since the judgment was so much in your favor, to call this a victory is perhaps a little difficult.

TRIBE: Well, you know, I am just being candid with you. I did not, myself, found the opinion ambiguous, but I admitted when I was arguing the case that one might be able to read it the other way, and when that is the case I think the Supreme Court of the United States is well within its authority to say: We want to be sure, we want to be sure that you didn't mean to be acting in a way that would violate federal law.

Why did they vacate it? Because that's the only way they could get it back downstairs to get clarification. They can't simply say: Here is a post card, we would like you to explain what it is that you meant. This is the standard technique for achieving some sort of clarification of ambiguity.

But when you vacate an opinion, you do not, thereby, create a kind of earthquake that surrounds it, and change all of the surrounding actions that have been taken because of it. You vacate the opinion and see what happens next. After all, this is not a case where some interim emergency relief, like an injunction or a stay, was sought from or granted by the U.S. Supreme Court. So that we don't have a case where the court has changed anything on the ground, as I read it.

SESNO: Professor Tribe, it is Frank Sesno again. You, again, of course, argued before the United States Supreme Court. Are you in any fashion surprised or distressed by today's action?

TRIBE: No, I'm certainly not surprised. It seemed to me from the beginning, once they took the case, and that did surprise me, i have to confess, once they took the case it was because they saw a significant chance that there was a resolution, in a manner that they didn't find appropriate of a federal question by the state's highest court.

There were two outcomes that would have been distressing to me, they could have reversed the Supreme Court of Florida outright, and that is of course what they were being asked to do by Governor Bush. They could have vacated it and directed that the clock be turned back, and not only the numbers go back from the smaller margin of 567 to the larger one of 930, but the contests that are going on, the Bush forces requested, the contest should be deemed out of time because we should pretend as though nothing happened since November 14th, and more than 10 days have passed. None of that happened. None of the sweeping relief that was sought was granted and, as a result, when I heard the decision, I thought this preserved the status quo pending an explanation by the Supreme Court of Florida.

SESNO: Professor Tribe, I need to ask you this, you referenced the clock several times. Isn't the simple fact that, by the Supreme Court's action today, sending this back down to Florida, requiring additional action, delaying Judge Sanders Sauls' decision while they determine what is going on with this United States Supreme Court determination today, doesn't that cost you valuable time? Doesn't that, by itself, constitution a setback for the Gore campaign?

TRIBE: I think if it is treated as a mandate to show things down that is a loss, and it is a significant one, given how little time is left. But there's no reason that Judge Sanders Sauls has to slow down at all. There is every reason why he ought to resolve the case before him, and it is clear we all know that whoever loses is going to immediately appeal that decision to the Florida Supreme Court.

It seems to me that for the Florida Supreme Court to respond to this decision, and to provide a cleared explanation, should take no more than 24 hours at most, and so, although it is a slowdown, it is certainly not critical, if the ultimate decision is to count all of the ballots that were never counted.

If that decision isn't forthcoming in time, then no outcome of this case could possibly rescue the effort.

SESNO: Laurence Tribe, we are grateful fro your time today in the midst of everybody trying to digest this thing. We appreciate your point of view. We want to get another point of view now from C. Boyden Gray, former White House counsel, a Republican obviously.

Mr. Gray, your take on this?

C. BOYDEN GRAY, FMR. BUSH W.H. COUNSEL: Well, I think it is not a short-term victory for either side, but I would rather be lawyer in the Bush camp now than one in Gore camp.

There are two parts I would like to deal with. one is the short- term delay issue that Professor Tribe just discussed. There's at least a day here that's lost, every day is very, very important for the Gore team, and I wonder whether Judge Sauls can actually resolve his case without hearing further from the Florida Supreme Court. So there is some delay involved here.

Longer term, the reason I would rather be a lawyer in the Bush camp is because the Supreme Court is sending quite clear signals that they take legislature supremacy quite seriously here, both in terms of the Constitution and in terms of Article III , Section 5, which is the statute that implements this constitutional scheme.

And the Florida Supreme court can, I think, rewrite its opinion in a way to satisfy this opinion of the Supreme Court, but I think it is a shot across the bow and limitation on how much freelancing they can do in the future. And I think it is a warning also, in a way, to Judge Sauls that he can't go outside the parameters of what the legislature prescribed.

SESNO: Boyden Gray, let me just interrupt, over your shoulder -- over my shoulder, we are seeing a picture from Crawford, Texas, Governor Bush, we presume, returning there -- and I'm sorry that is in Austin, That is the Governor's Mansion there. He is in Austin today, as we heard from Jeanne Meserve earlier, to do some business and continue his preparations for whatever eventually may emerge from this whole thing.

For more conversation with Boyden Gray, I want to bring Roger Cossack, Greta Van Susteren back into the conversation. Roger, first to you.

COSSACK: Boyden, do you think that this Supreme Court decision implies that there is a great legal split within the United States Supreme Court, in which they couldn't agree on what the reasoning of the United States Supreme Court was, and there was a difference as to, if it was what they would rule, and what they are doing is hoping that they can get at least some sense of what it is, not necessarily, because they will uphold the Supreme Court, but because they want to know what it is to get an opinion?

GRAY: I think it is the latter. There may be a split, but it is very hard to tell from this opinion. It is hard for them to rule if they don't know exactly what the basis was for the Florida ruling, and that's what they've gone back and asked Florida to provide. But it does show that all nine justices take Article II, Section 1 very seriously, and by the same token, take very seriously Article III, Section 5 -- excuse me, Title III, Section 5 of the United States Code, the law that implements the statute of the constitutional scheme. So, on that there is unanimity, obviously, at this stage.

COSSACK: Boyden, let's suppose that Florida's Supreme Court writes back and says, we have based our decision on Florida law, which we believe there is no federal question. Do you think that would suffice for say Justice Scalia and perhaps Justice Thomas, who would then say: OK, we will stay out of this?

GRAY: Well, for this round it might suffice to stay out of it, but you mentioned Justice Scalia, he ask some very pointed questions about whether the kind of manual recounts that are undergoing here, which were not really technically part of the case before them last week, whether this had ever happened before in Florida, whether this was ever part of the Florida law, and you got an answer from the state attorney general: No, he was not aware that this had ever happened before this, counting dimple chads.

So that's a signal for the future. It is not binding at the present, not in this case, technically, at the present. But if I were Judge Sauls, and if I was the Florida Supreme Court, I would be paying very close attention to the questions that those justices were asking about this matter.

VAN SUSTEREN: Boyden, right or wrong, do you agree with me, I actually think that the Gore campaign got the better end of this tie proceeding for the simple reason that this case will now go back to the Florida Supreme Court? The last thing they want to do is be reversed by the United States Supreme Court. And in this decision, the United States Supreme Court said: What do you base your decision on? They are not going to pick the wrong answer so they get reversed next time up, are they?

GRAY: Well, I suppose you could say it is a victory for Vice President Gore to the extent that they are not shut out of the game. The game hasn't been called because of rain or something. The game is still going to go on. But long-term I don't think they can find a great deal of solace in the opinion. That's my opinion, I mean, I've only had a few minutes to digest it, and I've not talked to any friends of mine who are more expert in these matters than I am. I'm kind of flying blind a little bit here.

But as I said at the outset, I would rather be a lawyer in the Bush camp than in the Gore camp over the long haul. This is not, I think to point to the primacy of the legislature, this is not an argument that -- I think Larry Tribe will accept it, but it is not one he relishes.

SESNO: Boyden Gray, Frank Sesno, again. Let's let you play that role for just a moment of being the lawyer in the Bush camp. If you were on the inside today and you were reading this, and somebody said: OK, at what point do we walk out, and quite apart from the political declarations of victory, we can actually cite a legal declaration of victory or some justification for that? At what point is it over? What do you say as the attorney? GRAY: Well, you can't say this says it over, that's one thing that is clear. I hope I didn't imply otherwise. I don't think they can look to this as saying it is over. They have to let this play out, but I do think it strengthens their hand, even though the arguments have been concluded before Judge Sauls, and it strengthens their hand in the event they lose before him, and in appealing to the Florida Supreme Court.

And ultimately, down the road, it does signal to the public that the Florida Legislature does have a role at some point, if they want to be sure that this electoral slate is not challenged in Congress, because it won't be conclusive as of December 12th, unless it is chosen pursuant to procedures clearly in place before the election was held. So, again, I think it is background, but it is not unimportant background.

SESNO: C. Boyden Gray, thank you very much for providing us with very important background from your perspective today. I do appreciate it.

If you are just joining us, you are digesting this story right along with the rest of us, as is Judge Sanders Sauls down in Florida, himself, where he is trying to determine the impact of this Supreme Court determination today on where he goes with the case pending before him.

Ken Gross has been with CNN throughout our election and legal expert here.

Ken, best of your determination, looking at your global positioning system there, and trying to navigate this, what is next?

KEN GROSS, CNN ELECTION LAW ANALYST: Well, of course, the Supreme Court of Florida now has to act pursuant to this order of the United States Supreme Court. What I expect that they will do because the one thing that the U.S. Supreme Court seemed to have some trouble with, even across-the-board, although Justice Ginsburg I think had a little less trouble with it, was to clarify this issue as to how much they relied on the Florida Constitution. And I think this court did want to, the Supreme Court of the U.S., did want to issue something unanimous, at least for the time being, and they probably all agreed on that.

So the Florida Supreme Court is going to have to go back and rewrite the opinion with the emphasis, assuming they want to come out the same way, with the emphasis that, in fact, it was based on prior case law and the Florida Statutes, not the Florida Constitution.

SESNO: Once they do that, let me start by asking, how long does something like that take?

GROSS: They are probably working on it already. Clerks are looking at the opinion, obviously, of the U.S. Supreme Court, as well as drafting, perhaps, even opinions at this point, draft opinions. The clock, as everybody is saying, is ticking and it is getting louder and louder by the minute, maybe 24, 48 hours, I don't know. We've been guessing days for all the opinions, and they've been coming out even shorter.

I didn't know -- I thought once 10:00 this morning passed we wouldn't see a U.S. Supreme Court opinion today. So I would suspect that everything would go quickly, 24, 48 hours.

SESNO: Ken Gross, thanks very much. And to all our correspondence, top Greta Van Susteren and Roger Cossack, they will be with us throughout the day.

A couple of things for you to keep your eyes on as we move forward. Obviously, we expect more interpretation on the Supreme Court decision itself today.

Secondly, we may well be hearing, as Ken Gross teed up, this idea of the Florida State Supreme Court issuing its reply.

Also, Judge Sanders Sauls is digesting this case from the United States Supreme Court, and we're quite likely to be hearing from him in his contest phase. And we should tell you, political leaders coming back to Washington for this lame-duck session of Congress, how will they react to all of this?

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