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Election 2000: The Florida VoteAired November 29, 2000 - 8:30 p.m. ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ANNOUNCER: This is a CNN election 2000 SPECIAL REPORT.
The high-powered lawyers:
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DAVIS BOISE, GORE CAMPAIGN ATTORNEY: Obviously, the court is moving faster than the defendants would like. He's moving slower than we would like. That's often what courts do.
BARRY RICHARD, BUSH CAMPAIGN ATTORNEY: I like and respect Mr. Boies. And he has done nothing in that case that I final personally offensive. I think I became vigorous in my argument at some point, but that's what we trial lawyers do.
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ANNOUNCER: Their even bigger-named clients. Tonight: what it takes to handle cases that make history.
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BARRY SCHECK, PROFESSOR, CARDOZO LAW SCHOOL: You sort of feel like you are in the eye of a hurricane.
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ANNOUNCER: Plus insights on how the Supreme Court may handle the case: a live conversation with former solicitor general, judge and independent counsel Ken Starr.
This is a CNN election 2000 SPECIAL REPORT: "The Florida Vote." From Washington: CNN legal analyst, Greta Van Susteren.
GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Good evening.
It's going to be raining ballots in Tallahassee by this weekend. Let's get right to today's legal challenges to Florida's presidential election results. In Tallahassee, a judge ordered all of the roughly one million ballots from Palm Beach and Miami-Dade counties to be sent to his court in time for a Saturday hearing. That is a victory for the Bush campaign.
Also in Tallahassee, the Democrats filed an appeal hoping the Florida Supreme Court would order an immediate hand count of the 14,000 disputed ballots from Palm Beach and Miami-Dade counties. The courts shut down for the day before that appeal got anywhere. And still in Tallahassee, a Florida appeals court turned down the Bush campaign request to consolidate cases involving possible tampering with absentee ballots applications.
With all that is going on, the Bush and Gore legal teams are getting ready for Friday's oral arguments before the United States Supreme Court in Washington. And joining us to talk about that Supreme Court is someone who has argued cases there before: former solicitor general and former federal Appeals Court judge and independent counsel, Ken Starr.
Ken, thank you for joining me.
KEN STARR, FORMER INDEPENDENT COUNSEL: Good to be here. Thanks.
VAN SUSTEREN: Ken, let's start with the case on Friday. Let's talk about the extremes. I'll start with the first one. The Supreme Court does nothing. You get the other one. What is most profound thing the Supreme Court could do?
STARR: Well, I think the most profound thing the court could do would be to say that: We are going to, in fact, determine that the Florida Supreme Court was quite wrong, and should not have in fact tampered, as it were, with the structure -- the elaborate structure of Florida law. And therefore we would be...
VAN SUSTEREN: So what?
STARR: Well, the "so what?" I think that's a very important question, because as it stands now, in light the of the certification by the secretary of state, this is not a case that is going to make a winner. So the expectations on Friday of last week, when the Supreme Court announced review, should certainly be diminished now, in terms of its importance.
It's very interesting to lawyers. But it has much less practical importance.
VAN SUSTEREN: When you hear the media -- people in the media say that the Supreme Court could be picking the next president: true or false?
VAN SUSTEREN: Why?
STARR: It's false because of what this case involves, which is a very important but narrow issue, which is: Did the Florida Supreme Court act properly under federal law by extending the deadline, by saying that the secretary of state could not certify, by taking the steps that the Florida Supreme court did in its interpretation of Florida state law.
Now, the sides -- Vice President Gore's side and Governor Bush's side -- are very deeply contesting whether, in fact, that action was proper, was permissible under federal law. But in light of all that has since happened, I think expectations, if anything, should sort of be diminished, and that we should in fact concentrate instead on what is happening in the contest proceeding, et cetera.
VAN SUSTEREN: All right, this -- the lawyers walk into the courtroom on Friday. They walk up to the lectern and they address the court. What happens?
STARR: Well, after you get out, you know, "Mr. Chief Justice" and "May it please the court," the questions will begin very promptly thereafter. The court is very active in its questioning of the lawyers. They don't listen to speeches. They ask lots of questions -- many, many questions, some of them just sort of cascading at the lawyers.
And it's the lawyers job, then -- in light of the fact that the court -- it's a very able court, an energetic court -- will have read the lawyers' briefs, their written submissions. It's really the lawyer's job to respond as effectively, as persuasively as the lawyer can to the questions that the justices are posing.
VAN SUSTEREN: How do you know when your time is up?
STARR: Oh, you know very readily, because you have a red light on the podium. And the court tends to be very vigorous in enforcing the time limits.
VAN SUSTEREN: After the argument on Friday, the justices will then retreat. You have clerked in the United States Supreme Court. What do the justices do when they leave the bench?
STARR: Well, when they go into conference, either that very day or a couple of days thereafter -- we would have to assume, in light of the importance and the expedition of the case, that they would go immediately into conference. No one else is there. The chief of the United States presides. The other eight justices are there.
The chief justice, by tradition, speaks first, sets forth his view about the case: what he thinks the result should be. And then each of the other justices, in turn, in order of seniority -- most senior first, down to the most junior justice -- express his or her views as to what, in their view, the result should be, and say anything about the case that they want to. No one else is present.
I think that is critically important. There are no notes, other than the justices' own notes. There are no transcripts, no tape recordings. It is the simply the justices communicating among themselves.
VAN SUSTEREN: Now, obviously, this is done quietly. But there is awful lot of discussion with transfer of draft opinions after the conference. When you were up there, did the justices ever get angry with each other and fight over it? Or is it all civil?
STARR: It was all civil when I was there, even though feelings would run very high. I was there during a very difficult period for the court, in terms of death penalty cases, when the Campaign Finance Act Case -- Buckley versus Valeo -- was argued and decided. So the stakes...
VAN SUSTEREN: But do they get mad at each other? I mean, they must. I mean, they sit there and they must disagree with each other, and at some point, act human and get a little bit angry at each other -- or don't they?
STARR: I certainly saw absolutely no evidence of it. What happens in private I can't say, obviously. But when I was clerking for the lay chief justice, Warren Burger -- and I clerked for him for two years -- not once did he say a nasty word about any of his colleagues, even when the going was getting pretty rough. And he would be surprised at the way a particular justice was viewing a particular case -- never a malevolent or mean word. It's a very civil and dignified atmosphere. It really is.
VAN SUSTEREN: You speak about surprise. The Supreme Court is going to release an audio tape within a short time after the arguments. Does that surprise you?
STARR: Yes, it does. And I think the court is moving in the direction of being more open, more sensitive to -- as the chief justices' response to C-SPAN had Brian Lamb, in the response to the request to televise, indicated a majority of the court says no cameras in the court. But nonetheless, we are very aware of the national interest in the case. And so we are going to make the transcript very readily available.
So this is a first, by the way. It's at least my understanding that the court has never done this, in terms of making an audio tape available. There is an archive procedure and so forth. And they are jettisoning all that in the interest of public information. I think that's a good thing.
VAN SUSTEREN: And maybe some day we will get cameras, but who knows? Ken Starr, thank you very much for joining us.
When attorneys for the Bush and Gore campaigns head to the Supreme Court Friday, the stakes couldn't be higher or the pressure more intense. I can tell you, as a lawyer myself, it doesn't get any more stressful.
CNN's David Mattingly has a closer look at these two legal teams and their big-name clients, and at other attorneys who became household names by arguing history-making cases.
JAMES BAKER, BUSH CAMPAIGN OBSERVER: I would like to introduce the senior members of the litigation team.
DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): They are the new Bush legal team: on a mission, according to point man James Baker, to set the record straight. Irvin Terrell on ballot recounts in Miami-Dade:
IRVIN TERRELL, BUSH CAMPAIGN ATTORNEY: And in each instance, they've been found to not be votes.
MATTINGLY: Fred Bartlit on alleged Republican intimidation:
FRED BARTLIT, BUSH CAMPAIGN ATTORNEY: There were no shouts. There was no pressure in the room. There were many, many police there. There wasn't a single arrest.
MATTINGLY: Phil Beck on butterfly ballots.
PHIL BECK, BUSH CAMPAIGN ATTORNEY: It was sent to and approved by the Democratic Party and the Republican Party. It was posted in newspapers so that citizens could comment on it.
MATTINGLY: And Daryl Bristow on votes in Nassau County:
DARYL BRISTOW, BUSH CAMPAIGN ATTORNEY: No one, at no time, declared these votes illegal. They are not non-votes. They are not over-votes. They were real votes.
MATTINGLY: Together, a collection of high-powered attorneys and an extremely high-profile case: the possible makings of a new dream team. Republicans reportedly call them the "Boies killers." That's David Boies, the former defender of Napster and government attorney in the case against Microsoft -- now part of a Gore legal team that includes Kendall Coffey, former U.S. attorney and spokesman for Elian Gonzalez.
If this all sounds like the hype leading up to a big game, you're not far off.
SCHECK: Some of the cliches that you always hear professional athletes utter before they go into the big games. You know: We're going to take it one game at a time. We're just going to do our job. We're just going to execute our plays.
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SCHECK: That's where cross-contamination contamination occurred in the way they handled these swatches.
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MATTINGLY: Barry Scheck is a veteran of the original dream team -- the O.J. Simpson defense team -- and believes that, among the current host of attorneys, David Boies holds an edge in big-game experience.
SCHECK: You kind of hear people talk about, you know, a Joe Montana, you know, was the great performer in big games, because he kind of went into a zone and tuned everything out. And you can see that the great effectiveness of a lawyer like David Boies is that he's disarmingly direct, unflappable, reasonable. MATTINGLY: To perform well in this kind of environment invites instant recognition and celebrity appeal. For example, after O.J., Johnnie Cochran was nationally known. Roy Black won notoriety defending William Kennedy Smith. Greg Craig made national news representing President Clinton and Elian Gonzalez's father, Juan Miguel. Before O.J., F. Lee Bailey achieved celebrity status for defending Dr. Sam Sheppard, the case that inspired "The Fugitive." But fame and attention has its downside.
One disadvantage was experienced by the man we heard from just moments ago. Ken Starr credentials as an intellectual attorney and conservative judge were impeccable, yet his role as special prosecutor in a Monica Lewinsky case opened him up to partisan criticism, a pitfall that could exist for attorneys on both sides of this presidential challenge.
(on camera): Jack (ph) calls it being in the eye of hurricane. Appropriate, since you have to brave the storm to get in there and to get out. As we watch, we'll learn: Does the Bush team have what it takes to ride it out and reach "dream team" status? Will the Gore team's big case experience protect it from fallout in the politically- charged arena?
David Mattingly, CNN, Atlanta.
VAN SUSTEREN: Good questions raised by David Mattingly.
And when we return: two lawyers who made their names arguing high-profile cases.
VAN SUSTEREN: I'm joined by two lawyers who know the pressure of big cases and big publicity. Roy Black, who we saw in David Mattingly's report, defended William Kennedy Smith, as well as sportscaster Marv Albert and many others; he's in our New York bureau. And here in Washington is Dickie Scruggs, one of the attorneys who helped spearhead the multistate legal assault on big tobacco.
Dickie, let me start with you. You clobbered big tobacco -- do you miss being involved in this case?
DICKIE SCRUGGS, ATTORNEY: Well, I think any lawyer worth his salt would miss being involved in this case. This really is the Super Bowl of all litigations; any lawyer involved in this is going to have a historical role to play. These guys are some of the greatest lawyers in the world, they're playing way above the rim. It's a chance of a lifetime; and certainly every lawyer at this level would love to be playing right now.
VAN SUSTEREN: Roy, would you give your right arm to be involved in this, No. 1; and No. 2, do you care which side you would be arguing? ROY BLACK, ATTORNEY: Well, to be honest with you, I certainly have feelings for one side over another. But putting that aside, you know, I was listening to what everyone was saying before. I think these sports metaphors are a little bit off, though.
I think in this kind of case you need some heavy intellectual lawyers who have great stamina. Remember, this whole case is telescoped into a few days. Can you imagine the kind of work that has to be done? So you have to have the intellectual capacity, plus the stamina to do it, and you need an enormous team to get you ready for this. So, you know, it really is quite an undertaking.
VAN SUSTEREN: You know, Dickie, Roy raised an interesting point -- the stamina aspect. When you prepare for trial, what about that? Do you train, physically, for these big trials?
SCRUGGS: Well, you don't train like an athlete, but you've got to, obviously, be in pretty good cardiovascular shape to keep this kind of pace going.
I mean, Roy is exactly right: not only do you have to have the intellectual horsepower for this sort of litigation, but you've got to be able to think on your feet. And things are happening so fast, in this litigation in particular, that a lawyer has to rely largely on his instinct and I think that's why this is such a great spectacle for the American people, because they're seeing the best lawyers in America competing with each other for the highest possible stakes.
VAN SUSTEREN: Dickie, what's the downside of being involved in a high-profile case like this?
SCRUGGS: Well, the downside is that the public sometimes misconstrues the role of a lawyer as an advocate for his client's position. We don't always have the luxury of picking one side are the other. If the client has a meritorious case, we have to take it. Sometimes the lawyer gets stigmatized, as Mr. Starr pointed out earlier, when he takes a position that might be contrary to the majority of the public opinion he gets a bit stigmatized. But lawyers are hired guns, essentially, and we must, ethically, take the position of our client.
BLACK: Greta, can I enter this?
You know, this case, more than any, has the opportunity of having lawyers hated. And I've watched this for the last three weeks -- the vitriol that comes out about this. You know, the lawyers for the other side, if you're representing the Democrats, the Republicans hate you; if you're representing the Republicans, the Democrats hate you. I mean, this, more than any case I've seen, gets people really riled up and you can just see it on television. And another thing I have to say...
VAN SUSTEREN: But why -- let me ask you: Why do they hate the lawyers so much, Roy?
BLACK: Well, it's because of the position that people have taken. People who are rabid Republicans hate the Democratic lawyers. You know, they're accusing them of being illegitimate, of trying to steal the election, spewing out all these things. On the democratic side, they complain about the Republican lawyers, about how they're dragging their feet, about how they're lying about things.
I mean, you see this more in this case than any other. And I'll tell you another thing, Greta -- the thing that really has upset me for the last three weeks is listening to a lot of the legal commentators. Ken Starr is a good example. Depending on your prejudice, you give commentary consistent with it; and I think a lot of that is just totally worthless, people are not really given a fair commentary about what the law is and what to expect in court.
VAN SUSTEREN: Dickie, do you agree with Roy?
SCRUGGS: To some degree. I think that what's happening now in the courts -- this is a bit of a tug-of-war between the legislative and judicial branches of government, especially in the state of Florida. And that's sort of exemplary of what's been going on in the country nationwide, where the political branches of government are basically punting the tough decisions, like the tobacco decision that I was involved in, the HMO decision that David Boies and I were co- counsel in -- are punting these tough social problems to the courts because they're incapable, for political reasons or because of the narrowness of the contest of making big decisions.
So, more and more of the tough social policy decisions in America right now are being punted over to the courts just because the political branches are incapable of resolving them.
VAN SUSTEREN: Dickie, do you care if people hate the lawyers or hate you in high-profile litigation?
SCRUGGS: Well, sure, I guess I care, but I don't think about it. I know what my role is as an advocate, and that's to be fiercely loyal to my client and to my client's position as long as he's honest and it's an honest position.
VAN SUSTEREN: Roy, what about you? Do you care when the newspaper says some scathing thing about you?
BLACK: Anybody who says they don't care is really fooling you. We all have an inside in which we care about that; but the real key to being a lawyer in these kind of cases is to be thick-skinned enough so it doesn't bother your work in the courtroom. A lot of times, lawyers who can't handle it, they want to lash out and respond and what have you. And they will do things that will hurt their case. You've got to be able to, sometimes, sit and take it and don't talk back until the end of the case when you win.
SCRUGGS: Greta, I have to agree with that. I think one of the advantages of having a lawyer is that we have involved in this case, now, on both sides -- is that they are experienced lawyers, they've been in front of the camera before. They're not going to be posturing for the cameras and they're not going to be changing their positions or their hairstyles to suit national television. VAN SUSTEREN: Roy, let me ask you about playing the media. I mean, it used to be that all battles were fought in the courtroom -- how much do you, also, sort of, work the media?
BLACK: Well, Greta, any lawyer today -- if you're not, you know, aware of what's going on in the media you're not doing your client a good service. I mean, you have to have that sort of word out there about your case; if you don't, you lose by the time you get to the courtroom.
So you can't be a lawyer in the 19th century anymore, you know, being oblivious of what going -- what's going on in the public, you have to be able to answer public questions, the public wants to know.
And one thing I wanted to say, you know, Ken Starr said the Supreme Court is now being a lot more sensitive -- right, we had radio in the 19th century. I mean, we ought to have television in the courtroom, and who is this court to say the American people can't watch what's happening in their courtroom with the most important decision in many years.
VAN SUSTEREN: Dickie, you want to weigh in on cameras and the audio feed we're going to get after the hearing on Friday?
SCRUGGS: Yes. I totally agree with Roy and the advocates -- at least a minority of the Supreme Court at this stage for having cameras in the courtroom. I don't think there's any excuse in this day and age not to let the American public see exactly what's going on in the United States Supreme Court. The power that these nine men and women have is enormous, especially in circumstances like we have today, and I think the public has the right to take their measure and see them actually perform.
VAN SUSTEREN: Roy, do people recognize you?
BLACK: You know, Greta, one of the best things -- I'm sorry.
One of the best things that we saw was the Florida Supreme Court, how well prepared those judges were, how tough the questioning was, how the lawyers responded, and people get an idea of the legal issues from watching those two hours of television.
VAN SUSTEREN: Roy, do people recognize you, and is it fun?
BLACK: Well, most of the time, people are a lot of fun with it. You know, being on television, one of the great things about it, it's a very warm medium and people think that they know you and it really -- it's fun talking to people like that.
VAN SUSTEREN: Dickie, in the short time we have left, do you get recognized and is it fun?
SCRUGGS: Once in a while. I'm probably not as familiar a face as Roy is, but yes, I get recognized and it is fun, and it's a bit flattering. It's not something that bothers me at all.
BLACK: Dickie gets recognized at the bank a lot.
VAN SUSTEREN: Anyway -- well, that's all the time. Thanks to both of you two, lawyers Roy Black and Dickie Scruggs.
And I will be back in a minute with a little flag waving.
VAN SUSTEREN: Lawyering doesn't only involve looking up old court cases in heavy books. Whether you're before a judge or talking to a client, presentation counts for a lot. Have you noticed something about the presidential candidates' presentations lately?
Tonight, a case study in flag waving: After Florida certified its votes Sunday night, Joe Lieberman made a statement standing in front of two flags. Then George W. Bush addressed the nation also standing in front of two flags. But by Monday, the flags were multiplying. Look at the backdrop behind Dick Cheney: 14 flags. That night, Al Gore had to have his allotment of flags as well. There were eight, in all.
So here's my take: We can't ignore the importance of impressions -- who looks presidential and what props up the candidates -- but its ideas, wisdom and leadership should be the primary reasons why someone should be president, not just the number of flags they wave. Are they acting presidential, or just being copycats, or a little bit of both?
I'd like to hear your take on flags, lawyers, and anything else about the post-election battle. Send me an e-mail, the address is one word, email@example.com. That's one word, askgreta.
Next on CNN, Larry King has Joe Lieberman and John McCain in his lineup. Don't go away.
I'll be back tomorrow night at 8:30 Eastern from the United States Supreme Court. We'll see you then.
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