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Court Considers California Recall Delay

Aired September 22, 2003 - 16:30   ET


ANNOUNCER: CROSSFIRE. On the left, James Carville and Paul Begala; on the right, Robert Novak and Tucker Carlson.

In the CROSSFIRE: First, there were three. Now it's 11. Will it really take that many federal judges to decide when Californians get to vote? Former Governor Jerry Brown helps us tackle this question.

Plus, there's a surprising new poll out on the presidential race. We'll have results -- today on CROSSFIRE.



ANNOUNCER: Live from the George Washington University, Paul Begala and Robert Novak.



My Redskins lost this weekend. And the question of the day: Are the citizens of California about to lose now and not get to vote? An 11-judge panel of the 9th Circuit Court of Appeals is hearing arguments today about the California recall election. Well, that notoriously left-wing court postponed the vote, which another appeals panel said is necessary under the Supreme Court decision that put George W. Bush in the White House, or will the judges give the go- ahead to vote in just 15 days?

Everyone from constitutional scholar -- oh, I'm sorry. Go ahead.

PAUL BEGALA, CO-HOST: That's fine, Bob.

Joining us right now to debate this -- everybody, as Bob was saying, from constitutional scholars to political junkies to, well, television talk show hosts are watching what's going on in California. Indeed, the eyes of the nation are upon the state of California.

Let's go now to a CROSSFIRE debate featuring former California Governor, current Oakland Mayor Jerry Brown. He joins us from the Bay area -- and Republican California Congressman Doug Ose. Thank you very much for joining us.



NOVAK: Mayor Jerry Brown, I'd like to read you a quotation from a very eminent historian. I'm sure you're familiar with him, Jack Rakove of Stanford University, a liberal, a Democrat. And he says: "Postponing an election fundamentally changes the nature of the campaign. You only want courts to get involved in an election as a last resort."

Courts have no business in this election, do they?

BROWN: Well, they have a business in it, but the lower court erred when they postponed it, because they assumed that the differences in error rates for punch cards with that of other systems constituted a discrimination under the 14th Amendment. I don't think that's true.

There are differences. They're relatively small. It's very hard to tell exactly what causes them. Many of these counties feel they've educated the voters. We've been running punch card voting since I was secretary of state and head of the Voting Machine Commission. I think the lower court went way off base. They relied on a Professor Brady and some other paper from 1986.

The fact of the matter is, the intervention -- and here's where you do have a point -- has caused more disruption to the election than the punch card system ever will. So I'm confident, at the end of the hour here, the 11-judge panel almost unanimously will reinstate the election date of October 7 and things will proceed as set out in the California Constitution.

BEGALA: Congressman Ose, there's one problem with that. And that is the United States Constitution, as interpreted by our Supreme Court. So, the problem is, it seems to me, having read the decision from the lower -- the three-judge panel of the 9th Circuit, all they did was apply Bush vs. Gore, you see.

And let me tell you what one constitutional scholar who took a look at this -- and this is Vanderbilt Professor Suzanna Sherry -- said: "The 9th Circuit decision was" -- I'm quoting her now -- "essentially identical to Bush. vs. Gore. The issue is whether you can favor the votes of people in some counties more than others. There's no way," she says, "to distinguish between the use of punch card ballots in California from the use of punch card ballots in Florida."

Isn't the problem here that Bush vs. Gore from the Supreme Court was a fraud, but no one let the 9th Circuit in on the con?

REP. DOUG OSE (R), CALIFORNIA: Well, it wouldn't be the first time the 9th Circuit missed its vote here. They are reverse 75 percent of the time.

Interestingly, I find myself in agreement with former Governor Brown that the 11th Circuit is -- excuse me -- the 9th Circuit 11- member panel is going to reinstate the election. And I want to compliment now Mayor Brown for his foresight on that.

BEGALA: Well, before you get too complimentary to Mayor Brown, I'd like to ask you again to answer the question, which is, didn't the court just apply Bush vs. Gore?

The Supreme Court stopped the counting of votes in a presidential election because punch card ballots were different from other systems. How can the court not apply Bush vs. Gore in other cases? Or is it, as many of us suspect, wasn't Bush v. Gore just a rigged job that they don't ever want to apply to any other case just to put George Bush in office?

OSE: Well, Paul, that's called leading the witness, if I may.


BEGALA: You've got a point.

OSE: The 9th Court -- I've been listening to the arguments on the radio. The 9th Court is just grilling both sides. They're going to determine whether or not the law has been adequately applied.

I think Governor -- former Governor Brown, now Mayor Brown, is correct, that only in the most egregious circumstances should the justice system intervene here. And the threshold has not been met. But we'll see what the 9th Court does.

NOVAK: Mayor Brown, I cannot let this moment pass without noting what a disgrace to the legal profession and to the justice system the 9th Circuit Court of Appeals are.

Let's just look at a few of their decisions: no Pledge of Allegiance. That will be reversed.

BROWN: I disagree with that.

NOVAK: Procreation by prisoners. That has been reversed. Upheld medical marijuana. That has been reversed by the U.S. Supreme Court. And granted homophobia as a cause for political asylum. I'm sure that will be reversed.

Isn't it a fact that -- Jerry, you're a liberal, but you're a sane man.


NOVAK: These are crazy people on that court, aren't they?

BROWN: No, they're not.

Well, first of all, you had got real conservatives there. Kozinski is there and a couple of other folks. It's a very diverse court. Yes, they reach out. I thought the flag decision was clearly wrong. I think the one of the three-judge panel was clearly wrong. But I think -- if you want to decide all the decisions, this program would have to go on a lot longer. I think we ought to stick with this voting question, because it does raise an important point.

And that is that, because the punch card system is not perfect and other systems have been adopted by different counties, is that a reason to delay the election? I think the important point is that if people -- and this is simple. You vote yes or no on the recall. You vote for your replacement. And there's two ballot propositions. This does not take a genius here. When you got that little stylus, you push the darn thing down and your vote will be counted.

If somebody doesn't quite catch it, the result will be random. And I think it's somewhat paternalistic and insulting to say minorities can't push that stylus down as well as majority. I mean, first of all, there is no majority in California. There are only a collection of minorities. I think that decision reeked of abstract truisms that were not grounded in the empirical reality of California as the voting system now today works.

BEGALA: Mayor Brown, it is not an abstract truism to tell you that, right now, the court is hearing the arguments. CNN has been allowed -- all the networks have been allowed in the courtroom. And take a look at it right now, as Douglas Woods, who is California's deputy attorney, makes his case to that court panel.

UNIDENTIFIED MALE: We drew the distinction, in Sports Form, between a preliminary -- and Coalition For Economic Equity -- between a preliminary injunction that depends on a determination of law by the district court, which we may reverse on a de novo determination that the district court got the law wrong, and A preliminary injunction where the district court has not made a conclusion as to what the law is, but only evaluated probability of success on the merits.

And that, we review only for abuse of discretion under Sports Form. And as I read lines 19 through 24 of page 22 of the district court's decision, he's very careful not to make a determination on the law under Section 2 of the Voting Rights Act, only to make a determination of probability of success on the merits with regard to Section 2 of the Voting Rights Act. Am I missing something there?

DOUGLAS WOODS, CALIFORNIA DEPUTY ATTORNEY GENERAL: You're correct, Your Honor, that he was looking at the likelihood of success on the merits, making his best judgment based on what he had in front of him and based on his understanding of the law, which I submit was correct, that he had to take into account the totality of the circumstances as to whether or not a race, color or language minority group had been denied an opportunity to participate in the political process.

UNIDENTIFIED MALE: But that would depend on external circumstances in Los Angeles County, things like polarized voting, whether or not there were a variety of candidates of the same race and so on (AUDIO GAP) that came from those districts.

And the only information we have about that is Garza (ph), where, 11 years ago, we held that there was a violation of the Voting Rights Act in L.A. County. We said there was, in fact. I mean, we upheld the district court's findings in that case that there was, in fact, racially polarized voting, that there was in fact, a variety of factors that supported a violation of the Voting Rights Act. That's all the information we have. Have things changed in L.A. County so much in 11 years? Well, maybe they have.

WOODS: Your Honor, and that would be a fair consideration if plaintiffs had presented that to Judge Wilson for his consideration. But they elected to submit their Voting Rights Act claim strictly on the statistical disparity between residual vote counts in punch card counties and residual vote counts in nonpunch card counties.

If they had wanted to consider and wanted Judge Wilson to consider The Garza information, that would have been a fair consideration. All of the other Cinas (ph) factors in the Cinas (ph) report in support of Section 2 of the Voting Rights Act also would have been fair consideration.

UNIDENTIFIED MALE: But you do agree that the district court did not apply the Cinas (ph) factors. Are we in agreement that far?

NOVAK: OK. Coming up next on CROSSFIRE, CNN's Jeff Toobin joins us live to analyze what's happening in California now and what might come next.

And new polling numbers are startling. Has it been better to play coy the last nine months for a Democrat instead of running hard for president?


BEGALA: Welcome back to CROSSFIRE.

Joining us now live from New York is CNN's Jeffrey Toobin. He's got the latest on the legal wrangling in California.

Jeff, we were watching a bit of that debate before the appellate court. Look, Jeff, I've got a legal degree and I didn't understand anything they said. Can you help sort it out for us? What are these guys arguing about?

JEFFREY TOOBIN, CNN LEGAL ANALYST: I think the minute that you dipped in had the most arcane legal jargon of the entire 45 minutes that have been argued so far. In fact, it's not all that incomprehensible, even though you heard a snip that was on the esoteric side.

The bottom line is, the judges have shown as a group a great deal of skepticism for the previous panel's decision on Monday. It's looking very much, based on the questioning of the judges -- it's an imperfect science, to be sure, but there seems to be a lot of skepticism of their colleagues' determination to move it to March, a lot more sentiment to keep the decision in October.

BEGALA: Jeff Toobin, ever ready, ever able to translate into plain English. Thank you very much for helping us out, figure out what's going on in California with the case.

TOOBIN: All right.

BEGALA: Let's turn now back to our two guests. Republican Congressman Doug Ose is joining us from California; and Mayor Jerry Brown, the mayor of Oakland, the former governor of the state of California.

Congressman Ose, if in fact Jeff Toobin is right and the court sets the election back on October 7, which I gather you would like, don't you think your man, Arnold Schwarzenegger, owes it to the voters to do at least even just one debate where he doesn't get the questions in advance and he can't use a stunt double?

OSE: Well, first of all, let's get the facts right. Arnold asked for the questions not to be disclosed. He was the first one to ask for that. So let's make sure we get the facts correct. He put out a letter immediately after receiving the invitation that he did not want the questions beforehand. He's ready, willing and able to sit down on that basis and do it. Others made the decision to put up the questions.

As far as the other, I'm looking forward to the debate. I'm looking forward to October 7. I think Arnold is going to do fine.

NOVAK: Jerry Brown, apart from these legal wranglings, do you think that the recall provision that old Hiram Johnson put into the state are a good idea? They're getting a lot of abuse from my colleagues in the press. I like recall. And, secondly, apart from that, do you think Gray Davis, who has made such a mess of the governorship, should be recalled?

BROWN: The answer to the second question, no, I don't think he should be recalled. There's a mess there, but it's the mess of the economy, the mess of both parties. And it's not really dissimilar to many messes and of previous governors. So I'm going to vote no on the recall.

But now, as to, do I like the recall? You bet I do. It's a force, a power in the people. It disrupts the hegemony of the two- party system, even now, with Schwarzenegger and McClintock fighting it out on the Republican side, Bustamante and Davis going back and forth. This is something from the people that Hiram Johnson in 1911 put in to contest the railroad monopoly.

So, like the initiative, like the referendum, it is a check and balance. It's important. We have the court. We have both houses of the legislature. And we have the power of the people to make their own laws or to kick out public officials. I think it's very important. And I support its going forward quickly. But I think that's part of the price you pay when you get into office.

NOVAK: Jerry Brown was always my kind of liberal. I'll tell you that.


NOVAK: OK. I agree with you, Governor. All it took was a general to jump in to scramble the numbers in the coming presidential race. And our audience question today wants to know: Which presidential candidate had his own brush with a recall once upon a time?



NOVAK: Welcome back to CROSSFIRE.

A new CNN/"USA Today"/Gallup poll shows that former NATO Supreme Commander General Wes Clark is the man to beat for the Democratic presidential nomination by nearly a 2-1 margin. And, in a head-to- head contest, President Bush loses to General Clark 49 to 46 percent.


NOVAK: Our guests: Oakland Mayor Jerry Brown and Republican Congressman Doug Ose.

BEGALA: Gentlemen, thank you both for sticking with us. First, let me say, as a longtime political professional, head-to-head poll numbers this early don't matter. Even if they're good news from my party, they don't matter.

But here's what does matter, as somebody used to do this for a living, Congressman Ose. And that is the president's job approval rating. In April -- put this up on the screen for our viewers at home -- in April, the president's job approval rating was 71 percent, robust, healthy. Today, it is down to 50 percent. Now, he's collapsing. He is melting down.

And I just want to ask you, are you going to give me that kind of White House line that, all is well, all is well, which I love hearing, because the last time I heard that, it was from the first Bush White House. Is that going to be your line on this, too, or is this a real problem?


OSE: This is not a problem unless you govern by polls. President Bush doesn't govern by polls. Previous occupants of the White House have. And they've established an expectation in the press that, if you don't have high poll numbers, you can't lead.

President Bush has established in his tenure an obvious ability to lead. He's not governing by polls. He's making a judgment as to what's good for the United States and working to implement. The economy's coming back.


OSE: The national security issues are being addressed. Terrorism is a far lesser threat to the United States than it was when he got in office. These are positive things, not driven by poll numbers. It's refreshing to me to have somebody not governed by polls.

NOVAK: Mayor Brown, do you think it makes sense for the great Democratic Party to take a guy who didn't decide he was a Democrat until a couple of weeks ago, who voted for Nixon, who voted for Reagan, who said he would probably, I guess, vote for the Iraq war, who has changed his ideology a couple of times? Is that the kind of guy to lead the Democratic Party, General Clark?

BROWN: Wait a minute. When Eisenhower was being sought by the Democrats to run for president, no one knew whether he was a Democrat or Republican.

So the fact that these party labels are pretty superficial and not all that deep is not the factor. He looks like a president. He's had command positions in the past. He's ahead in the polls. He's a fresh face. I think he's very, very formidable. And he doesn't carry some of that baggage that you pundits like to hang around Democrats, all those labels and mushy, softy, warm-fuzzy. We've got a guy who has fought in battles, been wounded, unlike President Bush.

And he's able to take what is always a key issue. And that is keeping -- taking care of America first. Now, when we're spending $4 billion or $5 billion a month to try to rebuild Baghdad and Iraq, well, I can tell you, places like Oakland and L.A. and parts of the East Coast, Pittsburgh, Philadelphia, we've got to come home and strengthen America and be very judicious about our interventions far away in countries we don't understand.

And when we can't even rebuild our own country and a poverty program, how the hell are we going to do that in Iraq, with a different religion, where a lot of people hate us, and they're shooting at our workers every day? I think the Democrats, with a very strong general, have a very powerful case to make.


BEGALA: Mayor Jerry of Brown Oakland, California -- I'm sorry, Congressman Ose. Thank you also for joining us. Mayor Jerry Brown, a Democrat out of Oakland, California, former governor of that great state, Doug Ose, Republican congressman from there, thank you both for a fun debate. Sorry to cut it short. But we've got to get moving on.


BEGALA: Coming up next: We asked our audience which of the presidential candidates was the battle-scarred veteran of his own recall, his or her, own recall candidacy? We'll have the answers for you coming up next.

Stay with us.



BEGALA: Welcome back to CROSSFIRE. Before the break, we asked our audience this trivia question: Which of the current Democrats candidates for president survived a recall effort? The choices were Howard Dean, Carol Moseley Braun or Dennis Kucinich. And it's about split one-third, one-third, and one- third. The answer is Dennis Kucinich, who has been the boy mayor of Cleveland. He survived by less than 250 votes when Cleveland went bankrupt.


Our first e-mail from Frank Wells of Enterprise, Alabama: "I don't know when I have enjoyed anything as much as seeing the sheer panic by Novak at the word that General Clark is in the presidential race. His criticism of the man must signal desperation and alarm."

Now, I think Paul is an honest fellow. I wasn't panicky. I wasn't desperate. And I wasn't alarmed. But I do believe it is important to give the background of these presidential candidates. And even a four-star general is not immune from that background information.


BEGALA: That is a fair point. You had a tough column on him today. But I think some of this is the White House, who is afraid of him. I think Bob's not at all panicked.

Here's Daniel Cohen in Houston, also writing about General Clark: "How about that Wesley Clark raking in the dough, breaking into the lead, staking out a base, stirring up the race, and kicking George out of the White House and into private life? That's what I call a Southern political hero."



NOVAK: All right.

BEGALA: Daniel Cohen, from my hometown of Houston, Texas.

That is it. From the left, I am Paul Begala. That's it for CROSSFIRE.

NOVAK: From the right, I'm Robert Novak.

Join us again next time for another edition of CROSSFIRE.


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