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Burden of Proof

Supreme Court Ruling: Is it Political or is it Legal?

Aired December 15, 2000 - 12:30 p.m. ET


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, the ruling of the Supreme Court. Is it political or is it legal?

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

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

Well, the presidential race may finally be over, but the legal fight that decided the outcome is raising some new questions about the Supreme Court. The court's future makeup was a key issue in the campaign. And now that its 5-4 ruling has resulted in victory for Gov. George W. Bush, there is some concern by some that the nation's highest court has acted more politically than legally.

Joining us now from the Senate gallery on Capitol Hill is Republican Sen. Charles Grassley of Iowa.

Senator, you are on the Judiciary Committee of the Senate. You are responsible -- and your committee is responsible -- for vetting nominees to the Supreme Court. Isn't that by definition a political act? And doesn't that make the Supreme Court into more of a political body than it should?

SEN. CHARLES GRASSLEY (R-IA), JUDICIARY COMMITTEE: The selection and the approval is a political part of the process. But the court's process at all levels, including the Supreme Court, is nonpolitical. And let me say, the best estimate that is the political scientists who refer to the executive branch and the legislative branch as the political branches of government. And the Supreme Court also has deference to the political branches of government when they refuse a case because of a political question and they don't take the case. And so they themselves separate themselves as a nonpolitical branch.

COSSACK: Senator, let me give you a hypothetical. Suppose that someone -- a president nominated someone to the Supreme Court bench and that nominee was pro-choice, perhaps something that you do not agree with, and perhaps, even more importantly, perhaps something that your constituents really do not agree with. Wouldn't you feel, as representing your constituents, that you would have to be very careful about putting that person on the bench because you might have to answer to your constituents at sometime in the future? GRASSLEY: Well, I went through that 20 years ago when Sandra Day O'Connor was nominated. It was pretty important to some of us at that time that she let know her views on abortion. She didn't because it was a prospective question before the courts. We talked to President Reagan about it. He had not discussed it with her. We were really infuriated at Democrat members of the committee at that time because they said you had no right to ask those questions.

She got approved and I voted for her. And, you know, she's been pretty pro-life, but she's also voted for the Casey case, as an example, and so that would put her maybe more pro-choice.

But regardless, about eight or nine years later when people like Clarence Thomas were up, you know, they wanted to ask those litmus- type questions to those nominees. And by then, I had come to the conclusion that asking those specific questions were wrong. And I think I'm going to have to stay by a pattern I've had since about the mid-1980s not to answer those questions. But quite frankly, I'm going to continue to remind Democrats on the committee that how they lectured us Republicans in 1981 to remember their position then and not to be too litmus-test oriented towards the Bush nominees.

COSSACK: But Senator, what you're just describing is some political squabbling between you and the Democrats regarding how prospective members of the court should be vetted. I mean, why is it wrong? You've decided that it is wrong to ask these litmus-test questions. But why is it wrong?

GRASSLEY: Well, I think society as a whole -- in fact, even including those of you in journalism -- have decided it's wrong because -- or at least it's wrong from the standpoint of some -- that it's wrong to ask a prospective judge if they're pro-life, but somehow it's not wrong for President Clinton or Vice President Gore as a candidate to say, I'm going to see that those judges are pro-choice. That's just as much of a litmus test.

So I think there can be a claim that there's an inconsistency between the two parties and maybe more of leeway to Democrat presidents than there would be to Republican presidents on this point.

But I think the real measure of this being a pure, white approach is that the nominee themselves, either when they're talking to the president of the United States to get the nomination or when they're before the Senate Judiciary Committee, they probably should not entertain those questions and respond to those. And most of the judges haven't. And I think we might not like it, but we have to accept that because they should not be stating a position on a case that might come before their court.

COSSACK: All right, thanks to Sen. Grassley for joining us today.

And when we come back, is the court's decision more of a movement towards judicial activism? Stay with us.

(BEGIN LEGAL BRIEF) The "Washington Post" reports that none of the tapes the FBI pulled out of a New Mexico landfill are those downloaded by U.S. nuclear scientist Wen Ho Lee. Lee told Investigators he threw the material into the trash. Lee had been indicted on 59 counts, but pleaded guilty to a single count after it was shown that an FBI agent gave false testimony.



COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

The Supreme Court is being scrutinized for ideological partisanship following its decision in the presidential race.

And joining me in the studio is Marie Sardelli (ph); Bradford Berenson, a former Supreme Court clerk for Justice Anthony Kennedy; Peter Rubin, a former Supreme Court clerk for Justice David Souter; and in the back, Matt Pillsbury (ph) and Katarina Stasny (ph).

All right, Brad, I want to go right to you. The Supreme Court should be like Caesar's wife: should be above reproach. And yet there is criticisms of a court that would say, you cannot count Florida, you cannot count your votes even though the highest court in the state of Florida said, yes, go ahead, we want you to count the votes. Doesn't that put the Supreme Court in a position of being accused of acting in a political way?

BRADFORD BERENSON, FORMER SUPREME COURT CLERK FOR JUSTICE ANTHONY KENNEDY: Well, to some extent it's measure of what a brave thing the court did -- that they knew with absolute certainty that they were going to be exposed to this kind of criticism when they ruled.

The substance of their ruling is both reasonable and right, it seems to me. Seven of the justices agreed that the kind of counts that had been ongoing and that the Florida Supreme Court had directed were not fair or orderly or lawful; and, in fact, were so unfair and chaotic that they violated the U.S. Constitution. That much wasn't even that controversial.

What was more controversial was the decision on remedy, that is to say that time simply didn't permit it to be done in a way that would have been fair or orderly or lawful. And I think the Supreme Court really did the country a great service in rendering this ruling, because the alternative to the court deciding this, would have been for this controversy to continue another four to six weeks and to have an utter brawl in the Congress.

And I think the court decided that it was going to spend some of its institutional capital in order to do what was in the national interest and protect the country from that kind of crisis.

COSSACK: Peter Rubin, should the court be concerned with protecting the country from a crisis, or should it be concerned merely on deciding legal issues in front of it?

PETER RUBIN, FORMER SUPREME COURT CLERK FOR JUSTICE DAVID SOUTER: Well, I think the question answers itself. And, I should say, you've introduced me as a former clerk; I was also one of the lawyers for Vice President Gore before the Supreme Court. So I think history will have to judge what adjectives to attach to the Supreme Court's opinion.

But I think the important thing in the ruling and, to some extent, I think Brad concedes this, is that there was no warrant in the majority opinion in the United States Constitution for stopping the recounts. They said that the standards that were being used had to be uniform under the equal protection clause. But then, without any warrant in the U.S. Constitution, which is the authority we've given this court -- it may overrule our democratic branches when the U.S. Constitution requires it to do so.

The opinion doesn't even pretend to have a basis in American constitutional law for stopping the recounts. And it's the first time ever that a court has intervened to stop the process of democracy going on in a state.

COSSACK: And, Bradford, I think that that's something that you should be able to answer. I mean, there is the notion of something within the -- no warrant within the Constitution that the equal protection -- remember, they accepted that this was a violation of equal protection based, pretty much, on a representation made in oral argument. And they also cited the fact that you could not go on because of the safe harbor clause and the December 12 date. And they cited the Florida Supreme Court for that position, which never really held that.

BERENSON: Well, no, the Florida Supreme Court did say that they would not interpret Florida state law to conflict with that safe harbor. That is the intention of the legislature which, under the U.S. Constitution, under Article II, does reign supreme in these matters.

The intention of the Florida legislature was to take advantage of that safe harbor, and no remedy that they could order -- the Florida Supreme Court -- could violate that safe harbor and deprive Florida of the conclusive presumption under federal law.

That is the constitutional warrant for what the court did. It simply deferred to what the Florida Supreme Court said, and none of the dissenters even really took issue with that. The Florida Supreme Court set it as a matter of state law, and the U.S. Supreme Court simply applied it and, in doing so, it did what the Florida Supreme Court said the Florida legislature wanted -- that is, bringing this matter to a close early enough for there to be a fair and effective election of a president through the Electoral College. COSSACK: Do you agree with that? That, in fact, the Florida Supreme Court had held that the December -- that the Safe Harbor Act was part of their holding and, therefore, the December 12 date was the cutoff date?

RUBIN: Your question to Brad was exactly right. They did not hold that, and you can't imagine -- I think no one can imagine -- that a state legislature would say, we want the iffy protection of this safe harbor -- we've talked a lot about the safe harbor -- the possibility of a challenge in Congress is something we want to prevent, if possible.

But no legislature, no rational legislator would say, so we want this to be decided by this date, even if it's the wrong guy, even without finishing counting the ballots -- that this safe harbor, that's never been used in American history is so important to us that it overrides that. And what the Supreme Court didn't do was ask the Florida court to tell us, what did the legislature want.

And Brad talks about Article II but, of course, Article II wasn't in the Supreme Court's majority opinion, the unsigned majority opinion. And, at some point, this will stop being a question of spin. History will judge and the opinion is there in black and white; and, I think, people will read it and understand exactly what's happened here.

COSSACK: Brad, was it inconsistent that the Supreme Court talked about the equal protection issue and that, in fact, the Florida Supreme Court should have articulated a better standard, or at least describe the standard of the intent of the voter more than they did by just saying, the intent of the voter being so vague.

In fact, if the Florida Supreme Court would've done that, wouldn't they have been doing exactly what the United States Supreme Court would have been criticizing them for doing -- that is, changing the will of the legislature? So wasn't the Florida Supreme Court set up in kind of a no-win situation by the United States Supreme Court?

BERENSON: Well, I think you're exactly right, Roger; I agree with that. But what that does is it strengthens what the majority did, it doesn't detract from it.

The real problem here -- and what underlies the opinion, the subtext of the opinion -- is that there simply, whether you had one day or six days or probably even 60 days, there is no way that you could have done this process that was fair and orderly and consistent with the law. And so they decided to end the process based on the December 12 deadline and what the Florida Supreme Court had said, precisely because there were so many internal inconsistencies -- so many things going on on the ground in Florida that were chaotic and internally contradictory, that it really couldn't have been sorted out, even by the latest date that anyone thinks was available, which was December 18 date.

COSSACK: All right; let's suppose that the Florida Supreme Court -- let's hypothetically turn the clock back -- or, better yet, let's say that December 12 wasn't the date, let's say that December 18 wasn't the date, and let's say that January 6 or 10 was the date; the date -- I don't recall -- the date that Hawaii turned its votes in in 1960.

And let's say that the next day the Florida Supreme Court said the following, we adopt the Palm Beach way of doing these. That is, no dimpled chad counts unless the whole ballot is dimpled chad because that's what we believe -- we would then show that there was -- perhaps that was the intent or there was a problem with the voting machine. That's our standard, move on everybody.

Peter, would there have been anything wrong with that?

RUBIN: Well, I think the important point that's inside the question you ask is this: No one denies that there were some lawful votes that were not counted. Now maybe the standard is the standard you described, and you need a completely hanging chad; but in those boxes are ballots that have not been counted. They could have chosen any standard that was consistent...

COSSACK: That was reasonable.

RUBIN: That was reasonable and consistent; and they weren't permitted to do so. And that's the aspect of this that's most surprising and perplexing...

COSSACK: And Brad, isn't that the notion -- I mean, to get back to our original theory here -- isn't that where the Supreme Court gets these accusations of acting politically? For not -- for picking a date of December 12 which, I understand your argument, and it's legitimate, saying that's what -- if you believe that's what the Florida Supreme Court held. But there are many who say that didn't have to be the date. That to cut off voting or counting votes -- isn't that where the criticism comes?

BERENSON: That's where some of the criticism comes. But you've got to remember that this standard for counting the ballot and determining the intent of the voter was one of about eight different problems that the majority opinion identified. Solving that single problem would not have made the recount process constitutional.

What you would have had to do is, from very early on, right after the election, have some kind of a statewide recount under uniform standards in all counties which permitted judicial review. The Supreme Court identified three or four categories of equal protection problems and due process problems with the way this was going forward. The problem here is Florida law simply was not equipped to deal with a statewide recount in a presidential contest which was utterly unprecedented in Florida or anywhere else.

COSSACK: I have 15 seconds; Peter, respond, was Florida law unable to deal with this?

RUBIN: They had been moving quickly, the courts had acted expeditiously. It's just stopping the counting of ballots, and the opinion's there for people to read. COSSACK: All right.

Up next, some historical perspective on the high court; and how will history look back on this year's presidential race? Stay with us.


Q: O.J. Simpson's lawyers Thursday asked an appeals court to reverse the $33.5 million civil judgment, finding him liable for the wrongful deaths of his ex-wife and her friend. On what grounds are they asking for a reversal?

A: On the grounds that the trial judge allowed inadmissible evidence.



COSSACK: As George W. Bush prepares to become the nation's 43rd president, new questions arise about whether the Supreme Court is becoming too political.

Joining us now is CNN senior political analyst -- who better to tell us than Bill Schneider.

Bill, is the Supreme Court becoming too political? How is it viewed by the American public?

WILLIAM SCHNEIDER, CNN SENIOR POLITICAL ANALYST: Well, you know, surprisingly, even though this was clearly a political decision, people were not surprised by it. When we asked: Do you think the court makes decision based on -- that its political views influence their decisions? They say, of course, they said that even before this decision.

They are willing to accept it. We found that most Americans have not lost confidence in the court. They are willing to accept it because it brought finality, it brought closure. In a way, they accept the Supreme Court's ruling in this matter, not because they think it is above politics, but because they thought it was necessary, necessary to bring the matter to a close. It was driven by need.

COSSACK: So, Bill, what you are saying is is that -- your finding is is that the American people were willing to accept a decision that would have gone either way, as long as it was a decision?

SCHNEIDER: Right, exactly right. There are about a third of Americans who are angry and unhappy. It is rather a parallel with the impeachment period, when two-thirds of the American people said: We think he is guilty, and two-thirds said we think he should stay in office, and a third were angry and disgruntled.

Well, about a third of Americans are angry and disgruntled over this, and very bitter towards the Supreme Court. Two-thirds say, look, at least it is over.

COSSACK: What would have happened, and perhaps I don't know if this is a fair question, what would have happened if the Supreme Court would have said, you know what? We think the vote should be counted. Go back down there and start counting votes, and it wouldn't have been over. Would the Supreme Court have lost the respect of the people? Or did they just want the Supreme Court to make the decision, then end it?

SCHNEIDER: They wanted to see closure somewhere along the line. If the court had said: Count the ballots and you have until December 18th, which is Monday, people would have accepted that. It is another six days, so what? As long as they saw the light at the end of the tunnel. They wanted some finality here and there was no other institution that could bring it, including the president.

COSSACK: So, Peter Rubin, when Brad says, as part of his argument, that in fact the Supreme Court maybe took a little of this extra legal thinking into consideration in make its decision, that ending the chaos -- as he puts it -- for the good of the American people who, wanted to see an end to this, isn't that perhaps a good thing now? I mean, after what Bill said, shouldn't we applaud the Supreme Court for doing that?

RUBIN: I have no doubt that people are relieved that it is over. That's clearly true. I think that, with time, as it sinks in what has happened here, particularly when the ballots are counted, which they will be, the "Miami Herald" has already asked for access to these ballots to examine them, I'm sure we will have them counted under each possible standard, and we will see who actually won the election in Florida, and thus the presidential election.

I think people will be -- after the immediate relief dissipates -- I think they will be more concerned. I don't know that they will be angry and outraged, and marching in the streets, but I think that, in the long run, the Supreme Court has done itself harm.

COSSACK: Brad, what about that? I mean, these votes are going to get counted. What happens when they counts the vote, under any theory, and it turns out that Vice President Gore not only won the popular vote, but won the state of Florida, if that happens?

BERENSON: Well, I mean, I think what you are going to see, when people go in and count, is you are going to see as many different results and outcomes as there are people counting these ballots. Some of the recounts are going to show that Gore won; some of the recounts are going to show that Bush won; they are all going to have different totals, and that exposes the central problem here, and the central fallacy that always underlay the Gore argument, which was that there was some way to do a recount, at this point in time, under these circumstances, that would have produced a more fair and more accurate result. That just wasn't true. It might have produced a different result, but it would have been essentially arbitrary.

This election was, in effect, a tie, and there was no way to determine in some ultimately true sense who actually won. COSSACK: Peter.

RUBIN: We have close elections all the time in the United States, and we don't throw up our hands, we have democracy. We've counted ballots, even punch-card ballots, when it has been too close to call. We've counted them by hand. There are standards available nationwide, 32 states use the intent of the voter standard. And the idea that we have to throw up our hands and just stop counting, oh by the way, while my guy is ahead, really isn't the way we ordinarily do things.

COSSACK: Bill, what is going to happen if it turns out that the "Miami Herald" puts a big banner headline, you know -- we've done recount, Gore won.

SCHNEIDER: A lot of people want to do recounts. I'm not sure it is going to make a tremendous amount of difference. The only problem I can see is if several different agencies, with different interests, do recounts, and they all show Gore winning by a very substantial margin, thousands of votes. Basically what will happen is a lot of tut-tuting, but there is no way you can reverse a presidential election.

I think Americans intuitively understood the underlying statistical problem that Judge Wells cited at the Florida Supreme Court, and it is very simple: The margin of error of any count, whether it is a hand count or a machine count, was going to be greater than the margin of victory. So they basically said: Just figure out a method and go with it, that's all, it is never going to be authoritative.

COSSACK: And Bill, with my final tut-tut to you, that's the final word for the day. Because that is all the time we have, Thanks to our guests. Thank you for watching.

Later today on "TALKBACK LIVE": Now that election 2000 is over, talk to the people who covered an extraordinary presidential campaign. Send your e-mail to Bobbie Battista and tune in at 3:00 p.m. Eastern.

And be sure to join Greta and me again on Monday for one more edition of BURDEN OF PROOF. We will see you then.



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