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Burden of Proof

Election 2000: The Nation and the World Await Historic Ruling from U.S. Supreme Court

Aired December 12, 2000 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: The nation and the world await a historic ruling from the U.S. Supreme Court.


DAVID BOIES, GORE CAMPAIGN ATTORNEY: When you're up there answering questions, all you're trying to do is respond. You really don't have a sense of whether you're getting your point across or not. And one of the things that I've learned is that it's very hard to predict what a judge is thinking.

THEODORE OLSON, BUSH CAMPAIGN ATTORNEY: I think the Supreme Court is going say that the Florida Supreme Court does not have the right to take away from the Florida Legislature the way to set up how the election is conducted and how controversies are resolved, how votes are tabulated, especially after the election.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello, and welcome to BURDEN OF PROOF. I'm at the U.S. Supreme Court, where nine justices are considering the case of Bush versus Gore.

GRETA VAN SUSTEREN, CO-HOST: A George W. Bush victory could end this historic presidential race. A ruling in favor of Vice President Al Gore will launch a massive recount of votes across Florida.

Joining us today from Los Angeles is law professor Eugene Volokh, a former clerk for Justice O'Connor.

COSSACK: And from Tallahassee, we're joined by former Florida Supreme Court Justice Ben Overton.

VAN SUSTEREN: And here in our studio, Barbara Zimmerman (ph), attorney Bradford Berenson, a former clerk for Justice Kennedy, and Juhie Vijayvargiya (ph). And in our back row, Matt Pillsbury (ph) and Hadiza Buge (ph).

Roger, let me go first to you. How is the Supreme Court going to get the decision to all of us? What are the mechanics, are there lines there?

COSSACK: Greta, I'm sorry, were you speaking to me?

VAN SUSTEREN: I was asking you, how are you going to get the Supreme Court decision? You are out there, how are you going to get it?

COSSACK: Greta, I'm sorry, with a little bit of help, as you know, we have many assistants, there are lines, the press is jammed into the press information office there, everyone is eagerly awaiting, and of course, Greta, as you know, the rumors are everywhere, you know it is coming down 15 minutes ago, it is going to be here 15 minutes from now, they are going to do this, they are going to do that. Of course, no one knows. But you can how many of the press are here from around the world, and they are all outside waiting, lined up, and jammed into that press information office, waiting for the decision to come down with court clerks by the score telling them all to hold their voice down while they are in the halls so work can get done.

VAN SUSTEREN: Justice Overton, you were on the Florida Supreme Court, take me down to the Tallahassee -- to the Supreme Court down there. Are the justices watching this with sort of baited breath like we do, or do you think it is business as usual?

BEN OVERTON, FMR. FLORIDA SUPREME COURT JUSTICE: Well, they have an awful lot on their plate right now. The have the other appeals of the other cases that are here in the election -- in the election process. They have had two death warrants before them, so they have a lot to do. But I would imagine that they are also, like everybody else, waiting to see what the United States Supreme Court does.

VAN SUSTEREN: Justice Overton, you know, obviously the Florida Supreme Court has human beings on it, and there is seven of them, they have now been -- had one case sent back down with a little bit of a slap, in my view, from the U.S. Supreme Court to have a clear decision. Do their noses get a little out of joint when they get reversed by the higher court?

OVERTON: Well, you know, trial judges sometimes feel that way when they get reversed, and district court of appeal judges feel that way when they get reversed, but you look at it in the standpoint as that's part of the system. And the fact that we have that type of structure, I think what is happening here is that the people are getting a civic lesson in how the justice system works.

COSSACK: Eugene, tell us about what is going on among the justices at this time. We know, from just in the stay they issued that there is at least some dissent, or split between them. What is it like, what is going on, how do they conference, what do they do?

EUGENE VOLOKH, FMR. SUPREME COURT CLERK FOR JUSTICE SANDRA DAY O'CONNOR: Well, the general rule is that after oral argument, usually a couple of days after oral argument, although in this instance I'm sure it was the day of oral argument, the justices meet in a conference room, have so-called conference, where they talk about the case, and they cast their votes on the case. And then the -- one of the justices writes the majority opinion. If there is a dissent, there is a justice who is in charge of writing the dissent, and other justices can write their own opinions, concurrences, secondary dissents and such.

Usually that process takes months, and usually there is a lot of give and take. So some justice might read one of the opinions and say: I might be willing to join this, but you could please make this correction, or I'm more persuaded by the dissent, I might change my vote.

Obviously, this is all very much compressed. But also I think there's going to be a good deal of interaction between the justices. That if there is some uncertainty, justices will be paying very close attention to what the other justices' opinions might say and might change their views accordingly, just as I'm sure they may have changed their views based on the oral argument. What is more...

VAN SUSTEREN: Brad, let me ask you a quick question on this. You also clerked at the United States Supreme Court. What are the actual mechanics? Does one justice write an opinion and sort of send a clerk to rush it down to the next chambers, and they physically pass it around?

BRADFORD BERENSON, FMR. SUPREME COURT CLERK FOR JUSTICE ANTHONY KENNEDY: As a general rule, anything that is written, whether it is a draft opinion that comes out of the chambers of a justice writing, or a memorandum of the kind Eugene was describing, asking for changes, or making a comment on the reasoning, as a general rule, those get circulated to the entire conference, that is to all nine justices.

VAN SUSTEREN: With those tabs that show -- you check them off -- I've been in offices where you make sure everybody has read it. I mean, how do you know everybody has seen it?

BERENSON: Well, I never -- the law clerks never physically walk them around, so I'm not sure exactly. I can't even recall is there's a cover sheet. I think the messengers take them around, and I don't think there are little check marks. But as soon as an opinion has been drafted, and the justice who has authored it is satisfied with it, it will go around in draft form to the chambers of all other -- all the other justices, and they will then consider whether to join that opinion, whether to ask for changes, or whether to decline to join it.

COSSACK: Eugene, are there ever any little conspiracies that going on where perhaps you have two justices in agreement, and they sit down and try to figure out how they can get the third and fourth, and perhaps politic against some of the others that's don't agree with them?

VOLOKH: Well, what you are describing there is actually discussions, and not conspiracies. But actually those are pretty rare. As a general matter, the justices communicate with each other through the process we described, where everything is circulated around to everybody. There are some exceptions, and they are not considered unethical in any way, they are just not the tradition of the court.

However, in a case like this, where the time frame is so compressed you can expect the justices probably do talk to each other physically a lot more than they do for most cases, where it is all done in writing.

VAN SUSTEREN: Justice Overton, in your experience on the bench, did an oral argument ever vastly change what you thought going into the opinion so you sort of reversed how you probably would have decided the case, number one? And, number two, have any of your colleagues ever changed your mind?

OVERTON: Oh, yes. I think how people answer their questions in oral argument can -- and how the lawyers answer those questions can change a decision of a justice, or even more than one justice on a particular case.

VAN SUSTEREN: What about your colleagues? Have they been able to persuade you to change your mind?

OVERTON: Well, I think it is the lawyers that change their minds in how they argue the case. But there are times that I've seen where we made a decision in conference, and then we put it to paper, and when I put it to paper, it just doesn't really make sense, and you reconference it, and rediscuss it, and reanalyze it, and it comes out different.

VAN SUSTEREN: All right, we are going to take a break. We're awaiting a ruling by the U.S. Supreme Court, which could determine the 43rd president.

When we come back, should the high court even have considered this case? Stay with us.


The deadline for pretrial admissions in the disbarment case against President Clinton has been postponed by an Arkansas circuit court judge until January 11.

It has asked that Clinton lose his law license for giving misleading testimony in a deposition in the Paula Jones sexual harassment lawsuit.




BEN GINSBERG, BUSH CAMPAIGN ATTORNEY: The United States Supreme Court is the law of the land and the final arbitrator. And what you've seen down here, the chaotic environments in the recounts, all the different standards, the problems with time deadlines, the problems of figuring out what a vote is and isn't can be put to rest by the United States Supreme Court. RON KLAIN, GORE SENIOR LEGAL ADVISER: It is not the role of the Supreme Court to intervene in a state election dispute, and especially not the role of the Supreme Court to intervene to stop the counting of votes and to deny many voters here in Florida a chance to have their votes counted.


VAN SUSTEREN: At any moment, the U.S. Supreme Court could announce its ruling in the case of George W. Bush and Richard Cheney versus Albert Gore et al.

The nine justices heard 90 minutes of oral arguments yesterday morning. They are also pouring over a 100 pages of legal briefs filed by attorneys Sunday afternoon.

Brad, give me an education. We've heard so much about federal question. What is it, why does it matter here?

BERENSON: Well, the Supreme Court sits atop the federal court system, and it is the ultimate authority in the United States on issues of federal law. So to the extent that an appeal comes up through a state court system, the Supreme Court only has jurisdiction to review it if that state court decision raises issues of federal law that the Supreme Court can decide.

And one of the arguments here has been that there are no federal questions implicated by the Florida Supreme Court's jurisdiction, and therefore, that the U.S. Supreme Court cannot sit in review of that decision.

I think that's a borderline frivolous argument. All the U.S. Supreme Court is doing here is what it always does, and that is measuring a state court decision, or a state legislative enactment or ordinance, against the commands of federal law.

VAN SUSTEREN: And I suppose the way that you sort of slide -- and I don't mean it in a derogatory fashion, but you move federal question into this, is that the Constitution gives the legislature the obligation to select the manner by which they select the electors for president, and to the extent that the Florida Supreme Court is interpreting is it is OK, to the extent that the Florida Supreme Court sort of steps on the legislature, and then it becomes a federal question.

BERENSON: Right. The U.S. Constitution not only defines the boundary between the federal government interests and the state government interests in a presidential election like this, but it also, as you point out, has something to say about who, within a state government, has what role in the context of picking presidential electors.

And the Supreme Court is really just policing those boundaries here, as it often does in other contexts.

COSSACK: Ben, why do you think the Florida Supreme Court felt compelled to issue that opinion last night describing what it based its previous opinion on, and saying that it was -- in a 6-1 opinion -- it was Florida law?

OVERTON: Well, I think when you get a remand back from the United States Supreme Court, I will tell you that remands ordinarily come from them as a top priority matter. Now, of course, how they construed the statutes enacted by the legislature is involved with this case that they have before it. So I think, consequently, at least the majority of them felt that it was necessary to make sure that the United States Supreme Court knew how they construed...

COSSACK: But, Ben, wasn't it a little late to do that? I mean, shouldn't they have done that before the arguments and before the briefs were filed?

OVERTON: Well, I think partly it is a matter of workload, and what they were doing and what they were considering.

VAN SUSTEREN: You know what I think Justice Overton? I am surprised they did it so soon because, frankly, there was no time date set by the United States Supreme Court when they had to do it. It also elated to a different phase, the protest, and probably irrelevant to what is happening today. And in some ways I think that, you know, if they had sat on it for another week or two, we wouldn't have sort of the confusion over what does it mean. Because it wouldn't have made that much difference, do you disagree?

OVERTON: Well, I think, as I stated, they look at one of the issues is whether they were construing Florida statutes that were enacted by the legislature, and they wanted to make clear that's what they were doing.

COSSACK: Eugene, how important do you think it was that the Florida Supreme Court described what they based their opinion on to the United States Supreme Court, and that it showed up after the briefs and after the argument?

VOLOKH: I think the timing isn't that terribly important. You know, judges do things in their own good time, and they try to hurry up sometimes, when the times call for it, but nobody ordered them to do it, indeed, by a particular date. I don't think the timing is that important.

I think the fact that the Florida Supreme Court handed down its decision is significant, but it is not central.

I should mention one thing. In addition on the so-called Article II problem, state legislature versus state judiciary problem, that we have just been discussing, there is also the Equal Protection Clause problem. The federal Constitution says that no state shall deny any person the equal protection of the law. And one of the things that some of the justice of the U.S. Supreme Court seemed to focus on during the oral argument, and we don't know whether they are really going to seize on it in the opinion, but in the oral argument, they did talk about this equal protection issue, the notion that there is this irrational, arbitrary discrimination that's happening when, within the same recount process, counties that use the same tabulating machines, some of the counties are counted under one standard, other counties are under another standard. So that's another federal question, the federal Equal Protection Clause might require Florida Supreme Court to set up a uniform even-handed standard for recounting rather just than saying, well, each county should be counted under whatever standards the person in charge of that county would provide. So that is another really important federal question that justices seem to be really concerned about, equal protection.

COSSACK: Eugene, do you think if they have to have -- they have to have the same method, or do you think if each county had their own reasonable method that was consistent, that would meet the dictates of equal protection?

VOLOKH: You know, it is hard to tell because this is quite unusual area of equal protection law. And this case is in many ways quite unprecedented. But I think that, at least the questions in oral argument were suggesting, and I think the sound legal argument would be that if it really is irrational to have disparate standards here, then it is not enough that there will be a consistent standard in one county and another consistent standard in another county. There is no good explanation for why chads in one county should counted one way, and chads in another county should be counted another way. The rational thing -- it seems to me -- would be to count them the same way.

So I think, at least if the U.S. Supreme Court remands to the Florida Supreme Court, asking it to set forth a standard, I think it will probably be asking that the Florida Supreme Court set a standard that is indeed uniformed throughout the counties that are being recounted.

COSSACK: All right, Eugene, let's take a break. When we come back, we will have more on what the Supreme Court id going to decide, as we await the decision. Stay with us.


Q: Who was the first chief justice of the United States?

A: John Jay. Born on this date in 1745, Jay served as chief justice from 1789 to 1795.



COSSACK: We're awaiting a ruling from the U.S. Supreme Court in the case of Bush versus Gore. As is common, conservative Justice Clarence Thomas was silent during yesterday's 90-minute oral arguments.

Now in a story in the "New York Times" a potential conflict of interest was raised, based on the job held by his wife, Virginia Lamp. Now Thomas is working for the Heritage Foundation, a conservative group which is aiding the Bush team in building a new administration. She told the "New York Times" she rarely discusses Supreme Court cases with her husband, and he should not recuse himself from this landmark case.

Brad, there are sets of rules regarding justices recusing themselves from certain cases. Would this fact situation cause or does it give the appearance that perhaps Justice Thomas should recuse himself?

BERENSON: No, I don't think there's any reason for Justice Thomas to recuse himself. Every one of the nine justices came to the bench with some partisan political affiliation. After all, political activity is one way that a person comes to the attention of those who appoint judges, and each one of them has family members and close friends who are in some way or another involved in this process. If that were the standard for recusal, they would all have to recuse.

The fact is that when a justice takes the bench, he leaves all that political stuff behind, swears an oath to uphold the Constitution, and when they judge cases, they do so impartially.

VAN SUSTEREN: Is that idealistic, Brad? Let me just ask you about this for a second. I think this is a closer question.

At first, about a week ago, when I first heard this, and I heard about Justice Scalia's son working for Gibson, Dunn, which is the law firm that Ted Olson works for here in town, who represents Gov. Bush, is I sort of thought that, too, you know that we expect judges to be immune.

But since then, I can't tell you how many e-mails I've gotten from people around this country who are really concerned with it. And it is not a question actual bias, but it is the appearance of. If the American people, if there is a huge wave of people who find this as really troubling, the fact that his wife works for the organization that is helping with transition, or Scalia's son is working in the firm that's writing the brief for Governor Bush, are we getting close to the line?

BERENSON: Well, this is not a question that hasn't been examined by the court itself, and by legal ethic scholars. And the unanimous view is that this is fine. Chief Justice Rehnquist has a son that works at a law firm up in Boston, and the entire court considered this question a few years ago.

VAN SUSTEREN: That was money and Microsoft, this is democracy and the president. Does that make a difference, I don't know that it does, but this is different?

BERENSON: No. I mean, the key point is that Justice Scalia's son is completely walled off from any of the activities on behalf of the Bush campaign. He has no involvement in it. There is an absolute Chinese wall in between him and the team.

VAN SUSTEREN: What about Mrs. Thomas then, is that different?

BERENSON: Well, it is a little harder to set up a Chinese wall in one's own house.

VAN SUSTEREN: But she works for the Heritage Foundation that is helping in the transition; is that any closer?

BERENSON: Well, the Heritage Foundation is a Washington think tank, like so many others, she used to work on Capitol Hill. I don't think the Heritage Foundation has any official role in the Bush campaign, or the Bush transition. And the fact is, usually, the judges and justices are very, very careful not to discuss pending cases with anyone, including their immediate families.

COSSACK: Justice Overton, was it difficult for you, in terms of cases that you had to make decisions on, to be careful or to be sure not to be involved with, perhaps, friends or decisions like that that perhaps would affect friends?

OVERTON: Well, the judicial canon requires a judge to recuse himself if his or her impartiality could be reasonably questioned. It is not reasonably questioned by the judge, but reasonably questioned by the party involved.

However, the United States Supreme Court is in a different position. They have no way to substitute for a recused judge, and that's different within our court system.

For instance, if a judge was recused, or recused himself on the Supreme Court of Florida, another judge could be appointed to take his or her place. But with the United States Supreme Court, their code of conduct, so to speak, has to be interpreted consistent with their responsibilities as the top court in the United States.

VAN SUSTEREN: And Justice Overton, you know it is a fascinating question, I wish we had more time to talk about it, but that's all the time we have for today. Thanks to our guests, and thank you for watching.

Join me tonight at 8:30 p.m. for a CNN special report. A U.S. Supreme Court ruling: How will it affect you?

COSSACK: And today on "TALKBACK LIVE," Greta and I will be answering your legal questions surrounding the Supreme Court. So send your e-mails to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

And we'll be back tomorrow with the latest on the decision from the U.S. Supreme Court, and another edition of BURDEN OF PROOF. We'll see you then.



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