Bob Franken discusses federal court's role in legal vote battles
CNN National Correspondent Bob Franken is in Atlanta at the 11th Circuit Court of Appeals, covering the legal battle over whether the manual recount of presidential ballots in Florida should be allowed to go forward.
Q: What is the federal court's role in all of this election legal wrangling?
FRANKEN: The argument here is ultimately about whether federal court should get involved in a state function as outlined by the Constitution. The Republicans are the ones who have asked that the hand recounts be stopped, because they claim the manual recounts are a constitutional violation, which would justify the federal court getting involved.
If, however, the recounts are ultimately stopped by the state court, the judges could very well rule they have no reason to get involved in this case and declare it moot.
The appeals judges have gotten briefs from the two sides. The Republicans argue the federal court should have a role. The Democrats say there is no violation of the constitution and federal courts should not have a role.
That is precisely what's being debated.
The two sides have been submitting briefs over the last couple days. The judges have not left their offices and they are reading the briefs. It's not necessary for them to actually hold a hearing, although both sides have asked for one. It could be decided by a telephone conference call with no actual hearing in court.
Q: What's the make-up of the 11th Circuit Court of Appeals?
FRANKEN: It's seven Republicans and five Democrats. Four of the Republicans were appointed by President George Bush, the father of the Republican candidate. Four were appointed by President Clinton, which is of course of the Clinton-Gore administration.
There are many times when claims are made that judges are above political points of view, but there are a number of people in and out of the legal profession who believe that's not so.
It's interesting to check out such a line-up like this in the light of so many people claiming the political conflicts of interest in Florida.
Q: Can the judges recuse themselves if they feel they have a conflict of interest?
FRANKEN: They could, but it would be very surprising if they did because judges do hear political cases all the time.
There were charges flying back and forth in the Monica Lewinsky case, for instance. (People claimed) that whichever judge was hearing that would allow his or her political persuasion to color his view.
That, by the way, is not in contradiction with the idea of (the appointed judges). Whichever president appoints a judge is going to portray to some degree the political ideology of the judge. However, we have found that time and time again on the Supreme Court that a president will appoint a justice only to be very surprised by how he or she turns out. The most prominent example is that of Earl Warren, who was appointed by President Eisenhower and became the darling of the liberals, causing Eisenhower to later say Warren was the 'biggest disappointment' that he had as president.
Q: Republicans are typically seen as the trumpeters of state rights. Is it unusual that the Republicans are the ones taking the appeal to federal court?
FRANKEN: Many people do find it in unusual that the Republicans, who for so long have considered the federal judiciary something to be criticized, that they're the ones seeking relief in the federal court. They claim that there are compelling constitutional issues.
One of things that you have to watch for is that the lawyers on both sides may be trying to lay traps for each other. They could make arguments in this case that might be the exact opposite of arguments they might make as this unfolds in other cases and that each side is going to be looking at what the other says so they can throw it back in their face later if necessary.