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United States Supreme Court to Hear Bush Campaign Appeal

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

STEPHEN FRAZIER, CNN ANCHOR: We'd like to go back now to Bob Franken at the Supreme Court and to weave in Roger Cossack, our legal analyst, about this remarkable development over the last few minutes that the United States Supreme Court has agreed to hear one of the two Bush arguments in favor of stopping the hand recounts in Florida. Gentlemen, new developments even since we last spoke?

BOB FRANKEN, CNN CORRESPONDENT: Well, just that we've gotten a chance to chew over this just a little bit, Stephen. The Supreme Court justices here, which is going to hear the case now on the conduct, really, of the Florida Supreme Court, apparently were receptive to an argument by the Bush campaign where they said that Article Two of the Constitution, quote, "Reserves to the state legislatures, not the state courts, the authority to determine the rules." That was from one of the briefs that was filed by the Bush campaign.

I've decided not to put Roger on the spot to see if he's memorized Article Two, but I did write it down, Roger, and it says: "Each state shall appoint in such manner as the legislature thereof may direct a number of electors equal to the whole number of senators and representatives to which the state may be entitled." They're relying on that word, the legislatures, thereof. Roger, that seems to me pretty much a boiler plate separation of powers issue.

ROGER COSSACK, CNN LEGAL ANALYST: That's right, Bob. This is what it's going to get down, and of course, within the Bush petition for certiorari they pointed out that the United States Supreme Court does have authority and does have jurisdiction to review these things. The Gore camp counted in their brief that they didn't, but apparently the Supreme Court believes that they do have the right to review the state court's ruling, particularly when it has to do with a federal election.

And, to put it more succinctly, this is exactly what they're going to review. They're saying what would be the consequences of this court's finding that the decision of the Supreme Court of Florida does not comply with a federal law requiring states to resolve controversies regarding the appointment of electors under laws enacted before Election Day? So, what they're saying is, and during, I remember, they were making this argument that in fact, what the Supreme Court was doing was reviewing laws that were made after this election by bringing, trying to bring these things in and reconcile them. The Bush camp all along said that that violated separation of powers. They made that argument before the Florida Supreme Court. Apparently it didn't resolve itself well there, but the United States Supreme Court has decided now to now look into it and see whether or not this is a separation of powers. There are some things that only the legislature and the courts and the judges cannot get involved.

FRANKEN: Well, you know, to expand on that a little bit that is one those arguments that you hear within the political and legal realm all of the time. The Supreme Court is frequently accused -- courts everywhere are frequently accused of being too active.

Normally it's the conservatives who say that they should just stick to deciding cases and not make law and it is a fight that goes on all the time and it's going to be a fight before the U.S. Supreme Court. By the way, the Democrats, the Gore campaign in their brief, used quite strong language when they said, Supreme Court involvement, quote, "would only diminish the legitimacy of the outcome of the election." That is a pretty hard hit at the U.S. Supreme Court.

COSSACK: Yes, well, that is how that it is viewed, I'm sure, by Vice President Gore's team, but on the on the other hand, it is the United States Supreme Court who is vested with making sure that each citizen's rights are not diluted, particularly when it comes to voting or particularly any other rights that are enumerated under the Constitution.

And so the notion that the Supreme Court, if they believe that there may be a problem in voting in a federal election, isn't going to get involved is pretty far-fetched. On the other hand, here we go with the United States Supreme Court being actively involved, the -- usually the kinds of things that Republicans criticize the judges for doing, but I suppose, you know, beauty is in the eye of the beholder, and this time they are going to look at that Supreme Court and say, you see, we told you so.

FRANKEN: Now, here is another interesting aspect. Without getting into the politics of the people, who was Republican appointed, who was Democrat appointed, it is interesting to note that on the U.S. Supreme Court, five of the justices at least are really quite passionate defenders of state's rights. They're the ones who come down on the side of state's rights. So some people might be surprised that they decided to get federally involved.

COSSACK: Well, yes, but they're also very passionate about not -- and pride themselves on not being activist judges, which is what the criticism here is of the Florida Supreme Court, that this -- what this court did was usurp the power of the Florida legislature, and that the Supreme Court -- it wants to take a look at and said, if that's true and if there are statutes that give certain powers to the legislature, you know, the Supreme Court cannot be involving itself.

FRANKEN: Well, now the next question is, since the United States Supreme Court is commonly referred to as the court of last resort, is it plausible to you, Roger, that really this election may be decided in that building in back of me? COSSACK: Well, I suppose so. You know, Bob, I hadn't even gotten to that next step, but clearly, that's why this briefing schedule is being set out the way it is and that's why they are -- as we started off this conversation, that is why there is such an emergency proceeding in having these briefs done and arguing next Friday at 10:00 a.m. And, you know, in some ways, I guess it's fitting, where else should it end up but the United States Supreme Court, in an issue of this kind of magnitude and the fact situation of this kind of magnitude.

FRANKEN: I suppose we should be reminded here that it certainly didn't end up Election Day.

COSSACK: That's for sure.

FRANKEN: But there are such fundamental questions and such constitutional questions for the court to chew on. But what's interesting is their focus thus far has not been on the Constitution, it has been on whether a federal law has been violated.

COSSACK: Right. But of course, in doing that federal law, the breadth of it is, has that federal law been violated which caused votes and voters to not have their full rights in -- during a vote.

FRANKEN: And does it interfere with the state's role, which is supposed to be the primary role in conducting presidential elections.

COSSACK: That's right.

FRAZIER: Bob Franken, Roger Cossack, let us add to your legal insights there some historical insight now, because we have been down the road through contested and difficult elections in the past -- maybe not down this particular road -- but there are people who have studied earlier elections and know that they have dragged on. In fact, I think the Nixon-Kennedy election was contested well into December.

So let's turn now to Professor Douglas Brinkley, who teaches history and who's director of the Eisenhower Center for American Studies at the University of New Orleans, and who has written about Rosa Parks, the civil rights movements, and "The Unfinished Presidency: Jimmy Carter's Journey Beyond the White House."

Now, Professor Brinkley, we are not even to the White House yet, but have you seen evidence of this kind of activity in post-election, pre-inaugural periods in the past?

DOUGLAS BRINKLEY, HISTORIAN: Well, you really have to go all the way back to that election we are all talking about, 1876, between Rutherford B. Hayes and Samuel Tilden, when it drug on for five months, and you did have the U.S. Supreme Court justice, a man named David Davis (ph), becoming -- overseeing a 15-person electoral commission and Chief Justice Davis then took himself off of that and filled a U.S. Senate seat, and he had all of this wheeling and dealing going on, but that's the closest analogy. We are heading into a brand-new turf here. I don't think there is an analogy to 1960. Nixon conceded right off the bat. There were murmurs, there were some investigations, there were people looking around, nothing like this on this sort of grand, national scale.

But if I could make one point, because I have been listening very carefully, we don't want to make the assumption that this is bad news for Vice President Gore necessarily. The Supreme Court very well might legitimize the hand count, and I think it has to have been a worry for our country and for Vice President Gore without the Supreme Court. Somebody needed to legitimize the hand count. There seemed to be a battle in Florida between Secretary of State Harris and the Bush people and the Florida Supreme Court.

If the U.S. Supreme Court says the hand counts are valid, and what the Florida Supreme Court said is valid, then I think it's a great bonus for Al Gore, if he ends up pulling off this election by a few dimpled ballots.

FRAZIER: Have there been evidence -- have there been examples in the past, Professor, of elections that were so bitterly contested that at the end of the day there wasn't the kind of legitimacy you just described?

BRINKLEY: Well, the one of 1876, it was -- nobody ever -- you know, on the eve of the inaugural, there was actually a private -- it's actually secret, but the Hayes people like to call it a private ceremony. Hayes was inaugurated before the public ceremony, they did a secret White House inaugural for him for fear of dueling inaugurals. That was all the way up to inaugural day that nobody had agreed who the winner was. That's the only case of record and that was so long ago, so again, we're heading into a very new area here.

But I think if I were a viewer, I would just be marking on my calendar December 12. People are wondering when this is going to end -- I think everybody's vested interest is for Florida to have electorates, you know, given to the Electoral College from Florida, the 25, by that December 12, so anything can happen between now and then, and what's astonishing is how quickly both the Florida Supreme Court and now the U.S. Supreme Court seems willing to act. That's unprecedented in U.S. electoral election history.

FRAZIER: Professor Brinkley, thank you for joining us.

We're going to step back for a minute, talk to you in a little bit. But first we'd like to turn down to Tallahassee and to David Boies, who became famous, of course, during his prosecution of Microsoft, and who's now the lead attorney for the Gore campaign.

Mr. Boies, thank you for joining us. If you are able to hear us, what do you think of this decision by the Supreme Court?

DAVID BOIES, GORE CAMPAIGN ATTORNEY: I think that the Supreme Court's decision to hear this case is hopefully the last step in resolving the controversy that's unfortunately arisen about Florida law. I believe, and as you know, I have been very reluctant to predict court decisions in this case, but I will predict that the United States Supreme Court is not going to reverse the Florida Supreme Court.

This is a matter of Florida law. It is a matter of Florida law being interpreted consistently by the Florida Supreme Court for 110 years, the Florida Supreme Court reaffirmed that law just two years ago in the Beckstrom (ph) case, so this is a question that has been decided over and over again by the Florida Supreme Court. I believe that it is right for the United States Supreme Court to hear this appeal, because it's a serious question that has been presented for its review. But I believe that the law is clear, and I believe that the Supreme Court will not reverse the Florida Supreme Court.

COSSACK: David, this is Roger Cossack, my question to you...

BOIES: Hi.

COSSACK: ... is this -- how are you?

My question to you is this, as lawyers, we both know that the Supreme Court doesn't have to take every case that it's asked to take, and in a situation like this, you would -- wouldn't you begin to think that the -- by the mere fact that they're showing such interest in it, there must be members of the Supreme Court who are concerned about this issue, or else they wouldn't be hearing it; and number two, aren't you particularly concerned with the fact that they appeared to couch it in a separation of powers' argument, which I think at least for your side, may be the most vulnerable side?

BOIES: Well, remember, this is a challenge to the Florida Supreme Court in a case by one of the nominees for president in the closest election we've ever had. To the extent that, that challenge raises constitutional questions, I don't think it's surprising at all for the United States Supreme Court to hear that case.

The United States Supreme Court hears a very small fraction of the cases that it's asked to hear, but it's not usually asked to hear cases of this constitutional significance. So, I think that you can't interpret what the court does in this particular case in view of all of the general statistics. One thing -- I don't mean to sort of get out of my role as an answerer of questions, but I'd like to ask, you know, your view as to whether you think there is any chance the United States Supreme Court is actually going to reverse the Florida Supreme Court in this case?

COSSACK: Well, I'll tell you what, as an -- usually I get to ask the questions, but as an answerer...

BOIES: I know.

COSSACK: ... I will answer you and give you an affirmative yes. I think there is a chance, and I'll tell you why, David -- and again, I agree with you, I don't know what's going to happen, and I want to make it very clear that just because the Supreme Court decides to review a case does not mean in any way they're going to reverse it. Having said that, this is a decision by a state court, the highest state court of Florida, the Florida Supreme Court. We both know that normally, presumptively, these kinds of decisions should be left to the Florida Supreme Court.

By the fact that the United States Supreme Court has, one, decided to hear it and, two, is couching it in terms of whether or not the court has overstepped its boundaries by taking and doing something that is solely within the discretion of the legislature, I think is a hint that they may be seriously thinking about doing something with this, perhaps reversing it, because you know, you don't...

BOIES: You are being drowned out a little bit.

COSSACK: The Supreme Court does not take -- all right, I am sorry, what I am just saying is it's highly unusual.

BOIES: They bussed the people from Miami up here and you are being drowned out a little bit by them.

COSSACK: All I am saying is -- and I think we both agree -- that it's highly unusual for the United States Supreme Court, even in this kind of magnificent fact situation, for the United States Supreme Court to take on a unanimous verdict from a state Supreme Court when that state Supreme Court has made a decision regarding voting procedures, which is presumptively within their -- within their jurisdiction.

So do I think that they're going to reverse it? I don't know. But I think this is something to be highly concerned about if I was on your side.

FRAZIER: I have a question for either of you, if you can hear me. I don't, Mr. Boies, if you're able to hear what.

BOIES: I can hear you on and off. All those people that stormed the election building down in Miami the last couple of days have been bussed up here. And every now and then, they do what you just heard them do.

FRAZIER: They are storming you, are they.

(CROSSTALK)

FRAZIER: Well, I have heard you say and agree with Professor Brinkley that this is a good thing for the United States Supreme Court to take on an issue as fundamental as voting. But as a non-lawyer, I would expect that you would have filed preliminary briefs in that suit before the Supreme Court arguing that it does not belong to them.

BOIES: No, our view is that it's fine to have a hearing on this, and, indeed, that a hearing may well benefit us, because it will put to rest the kinds of arguments that have been made. And we think that that is a desirable thing.

We think this question ought to be resolved in the courts and not on the streets. Having people storm election buildings, knock people down, punch them, disrupt things, the way the press has been reporting, the way it has been reported on ABC News yesterday, the way it was reported in the "New York Times" today, and the way I think all the major networks have been viewing today, is not the way we handle the elections in this country.

So I think that anyone that helps to have that resolved by the courts, whether it's in Florida or the United States Supreme Court is useful. I believe that the United States Supreme Court is not going to reverse the Florida Supreme Court. And Roger, we'll get together after the decision and talk about who's right.

COSSACK: Well, I haven't said, David, that they're going to reverse it. The question you asked me was: Whether or not I thought -- yes, you did asked me if I thought they were going to reverse it. And I am begging the question. But I am saying, though that...

BOIES: I know.

COSSACK: I am saying that I believe that this is something that you -- your side is and will be substantially concerned about, because obviously taking and reviewing a unanimous opinion a state Supreme Court, which presumptively has authority in their own state's elections, is something I think that the Supreme Court rarely does. And we both know that.

FRAZIER: I have one last question for you both.

BOIES: Absolutely. And this is a very rare case.

FRAZIER: Mr. Boies, will you be the person arguing before the Supreme Court then?

BOIES: I doubt that. I think that probably will be Larry Tribe, who has been handling the federal court litigation. I suspect I am going to be here the election contest here in Tallahassee. That may not have been entirely decided. But my expectation would be that Larry, who has been handling the federal court litigation, would take this, and I would continue here in Tallahassee.

FRAZIER: David Boies, thank you for joining us.

Roger, this leaves us with a case where we almost have more courtrooms and more hearings requiring presentation that we have lawyers to make those presentations.

COSSACK: Yes, this is the Full Employment for Every Lawyer Act that is going on. I am sure my brothers and sisters out there are flocking to Washington for are what is going to be going on -- as well as Florida.

BOIES: Thank you very much. Thank you .

FRAZIER: Mr. Boies, thank you. Roger, thank you for those insights.

COSSACK: Thank you, David.

BOIES: Thank you. Take care.

FRAZIER: Let's turn back to Professor Brinkley once again, who has been standing by very patiently listening to all of this.

You can hear the delicacy with which these issues have been brought up among lawyers. Historically, has it been this delicate or has it been more bare knuckles?

BRINKLEY: Well, I mean, there is nothing quite like this to match it to. I mean, when you say has it been more bare knuckles, I think we are seeing the bare knuckles right now everywhere we are looking. Who knows what is going on in the state of Florida.

You mentioned earlier the Justice Department looking into Miami- Dade Count. Why did suddenly Miami-Dade County decide that they could not do a recount in five days? Why didn't they go on a kind of double-triple shift? The Justice Department will be looking into that. There is going to be an investigation after investigation, lawsuit after lawsuit.

The good news for people watching is the Supreme Court moving in now is basically giving a message: Enough is enough. We are going to be -- there is no place to appeal after the U.S. Supreme Court. We are going to weigh in on this. And we are going to rule for which is the big question: Is the Florida Supreme court a -- the actual -- legitimate in allowing the hand counts to continue? Or was that an illegitimate overstepping of their bounds?

If that one issue could get settled by the Supreme Court quickly in early December, I think we will start getting get some clarity to the situation. Yet, Miami-Dade County, of course, is still another factor lingering out there. But we've never had this sort of situation to compare it to. And I think the closest we've had of a presidency, not an election, is of course with Watergate. And you have -- we have been making analogies to it over and over again. But it's really quite vastly different.

So I think, today, the Supreme Court is simply saying: Enough is enough. We are going to make some sense out of all of this anarchy.

FRAZIER: And, as an historian looking at this across a time frame, do you think enough is enough? Or do you think that the electorate needs some clarification, perhaps some closure? Or, in the past, have voters and have bystanders had a high tolerance for this stretched out over time?

BRINKLEY: We have a very high tolerance in this country for all sorts of things. I mean, you know, as I said before, the 1876 one went on for five months. That was too long. But Franklin Roosevelt was inaugurated in March, because we used to have -- you know, it would take that long to make sure things could be sorted out. And it got moved to a January inaugural.

What is important are those dates that, on Inauguration Day, either Governor Bush or Vice President Gore is going to be sworn in. Our country has a president, Bill Clinton, right now. We are not in the middle of a constitutional crisis. We are in the midst a very, very close election and a few hundred votes difference one way or another. It's only natural that people, after working so hard for the last few years to reach that pinnacle of politics, the -- on the cusp of being president of the United States, it's only natural that this would end up -- in our highly legal society -- in the courtrooms.

And that is what is happening. And I don't think that we should be too surprised that this is taking on a legal dimension.

FRAZIER: Or too appalled, either.

BRINKLEY: Or too appalled, yes.

FRAZIER: Professor Brinkley, thank you for joining us -- Douglas Brinkley, professor of history and director of the Eisenhower Center for American Studies at the University of New Orleans.

Just to recap what is happening in just the past hour or so: The latest turn in this long road of twists and turns in the presidential election and recounts is that the United States Supreme Court has agreed to take on -- has agreed to hear arguments on behalf of the Bush campaign -- that the hand recounting in Florida should be stopped.

Let's take a break here -- catch our breaths. And we'll be back in just a moment.

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