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Special Event

Supreme Court: Lawyers, Public Heard Clearly From Inside Outside Building

Aired December 1, 2000 - 10:00 a.m. ET

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

DARYN KAGAN, CNN ANCHOR: It is 10:00 a.m. on the East Coast, 7:00 a.m. on the West Coast. Today is Friday, the 1st of December, and this is CNN MORNING NEWS. We will have extensive coverage of this historic day before the U.S. Supreme Court. Oral arguments are due to get underway at this very moment. Good morning once again, I'm Daryn Kagan at CNN center in Atlanta. Welcome to all of our international viewers.

Joining us for this special edition of CNN MORNING NEWS are Frank Sesno in Washington and my partner Bill Hemmer in Tallahassee.

This is a political race that has pivoted and parried over numbers; weeks of legal maneuvering may be muted by 90 minutes -- only 90 minutes -- of arguments, and millions upon millions of votes may be reduced to the decision of nine people.

At this very moment, those justices of the U.S. Supreme Court are about to begin hearing the case presented by George W. Bush's legal team. Those lawyers, in effect, are asking the court to throw out the hand counted votes that narrowed the Bush lead to a margin of 537 votes.

Now with more on what is taking place in Washington and giving us a look ahead at how we'll be able to hear it and some more perspective, we turn now to our Washington bureau chief Frank Sesno.

Frank, good morning once again.

FRANK SESNO, CNN WASHINGTON BUREAU CHIEF: Well, good morning once again to you too; and I assure you that everybody in this town -- politicians and legal experts and constitutionalists all are watching very closely what is happening today. And while history is being made before the bench, few will get to witness it firsthand.

Now, tradition dictates that there are no cameras allowed in the courtroom during the arguments. Among the select few observers inside the courtroom will be CNN's legal analysts Roger Cossack and Greta Van Susteren and our senior Washington correspondent Charles Bierbauer. We'll be hearing from them later on.

Here's a thumbnail sketch of how the 90 minutes of proceedings will unfold: Bush attorney Theodore Olson has 35 minutes to present the Republican case. He's followed by an attorney representing Florida's secretary of state in support. Then 10 minutes are given to an attorney representing Florida's attorney general. Then Gore attorney Laurence Tribe has 35 minutes to present arguments that, essentially, defend the validity of the hand recounts.

CNN national correspondent Bob Franken outside the U.S. Supreme Court joins us again now with some more -- Bob.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, outside the courthouse, of course, several hundred are out here taking advantage of the constitutional rights that are the type of material that the Supreme Court normally considers. In this particular case, it's a question of whether this belongs in the Supreme Court and whether the state courts acted properly and should be the ones dominate.

As you can hear, there's an awful lot of yelling and screaming -- it's turned into a street-fest now, here. Bush and Gore campaigns represented. Some people who are practicing Tai Chi are down the sidewalk a little bit. And a heavy police presence; if you happen to see any bits of paper flying in front of our camera -- they're trying to do this now -- this is not confetti, they say, these are just little chads that they're throwing in the air.

Of course, it's a much more dignified setting inside the courtroom, which is being monitored by CNN White House -- excuse me -- CNN senior Washington correspondent Charles Bierbauer.

(BEGIN VIDEOTAPE)

CHARLES BIERBAUER, CNN SENIOR WASHINGTON CORRESPONDENT(voice- over): The final Bush and Gore legal briefs restated their positions in accusatory terms. Bush: "The partisan struggle in Florida today is precisely the kind of chaotic situation that would have been avoided by adherence to the statutory deadline." Bush's lawyers are asking the justices here to overturn the Florida Supreme Court's extension of the time for recounting votes.

VIET DINH, GEORGETOWN LAW CENTER: The court can give the Bush campaign a very narrow victory by simply saying that they are now resetting the clock back to November 14, and the contest procedures that Al Gore and George Bush or currently going through in Florida can relate back to that point.

BIERBAUER: Gore's final brief says: "Bush seeks not just to run out the clock but, extraordinarily, to have the court turn back the clock so that he can declare the game over."

TOM GOLDSTEIN, GORE ATTORNEY: We've explained that the decision of the Florida Supreme Court is precisely within the bounds of what that court is supposed to do. It's about Florida law; it interprets Florida law and is the final arbiter of what Florida law is.

BIERBAUER: Gore's attorney also say: "The possibility of direct legislative appointment of electors by the Florida legislature raises a host of Constitutional issues." But they've asked this court not to address the matter of the Florida legislature. In fact, the U.S. Supreme Court does not have to make any decision. DINH: They're still the final word as an interpretation of the law, but they may not have the final word as to who is president; and so, in that case, they may dismiss this case as improperly granted.

BIERBAUER: Al Gore would not mind that. It would acknowledge things have changed and allow all legal actions in Florida to proceed.

(END VIDEOTAPE)

FRANKEN: Now, the Supreme Court is really divided into various members who are appointed by various presidents. Frank, there are seven who were appointed by Republican presidents, two appointed by a democratic president -- that would be President Clinton -- Frank.

SESNO: Bob, they've hardly marched in lock-step over these years, so what indications, what hints as to how they may be thinking do we have from their own past?

FRANKEN: You know, what's very interesting about this is that there are conservative positions and there are liberal positions. But there's really kind of a mix here. First of all, the states' rights issue that comes up -- whether, in fact, this should be a matter decided by the Florida Supreme Court -- usually it's the conservatives who support states' rights. But there's a separation of powers argument; and normally it's the conservatives who say that, in fact, the court should stay out of it. That's sort of an opposite point of view in this particular case.

But here's how there is a breakdown. There are, in fact, five justices who are normally considered the ones who can be counted on to vote conservatively: the Chief Justice William Rehnquist, Sandra Day O'Connor, Antonin Scalia -- one of the most conservative -- Anthony Kennedy and Clarence Thomas. Now, on the other side, there are four who are less inclined to vote that way; in fact, they are inclined to vote more liberally. That would include David Souter, who was appointed by a Republican president, and Justice Stevens, also appointed by a Republican president -- President Ford. And, of course, the two Democrats are normally considered the most liberal of the justices: Ruth Bader Ginsburg and Steven Breyer.

But, having said all that, it's impossible to predict how they will look at the specific merits of the case, even one as significant at this -- Frank.

SESNO: All right, Bob, we'll be back to you.

And, again, that noise outside the court, protesters who gathered to herald this event which is, as we understand it, underway inside if all have hit their time cues as we expect.

Let's go back to Daryn, now, in Atlanta.

KAGAN: Frank, thank you very much. How many of us would just die to be inside the courtroom right now.

Of course, we can't, but we can get some perspective and understand a little bit better about what is happening with our guest Robert Shapiro.

We should say, not that Robert Shapiro -- not the O.J. Robert Shapiro, but I'm sure you mother says that you are the Robert Shapiro. Also we should tell our audience that you are a constitutional law professor here in Atlanta at Emory University. Good to have you here with us this morning.

PROFESSOR ROBERT SHAPIRO, EMORY UNIVERSITY: Nice to be here.

KAGAN: First of all, because we can't get into the courtroom where they're having this very important proceeding, give us an idea of what it is like inside there. What, kind of, the lay of the land is -- and we have some pictures and some graphics to help our audience understand that as well.

SHAPIRO: Well, certainly. In the front of the room the justices sit, and it's a curved bench. So when you're talking to them, there are some to the left and some to the right and some right in front of you. And what surprises a lot of people is how intimate it is, how close the podium is from which the lawyer argues to the justices.

Now, on the lawyer's right is a seat reserved for the families of the justices. Special benches there; I expect those will be full today. And behind where the justices' families sit is a special place for the law clerks. I'm sure those seats will be also be standing room only today. Behind further where the lawyers are arguing are the members of the Supreme Court bar, the little boxes there. I'm sure, also, that would be a very popular seat today; and then seats reserved for the general public behind that.

KAGAN: Those very coveted seats that we've been talking about...

SHAPIRO: Absolutely.

KAGAN: ... in recent days. If only they could be scalped, that would be the hottest ticket in Washington, D.C.

Looking at this graphic -- if we could put that graphic up one more time, where you see the justices one through nine. Any significance of who sits where?

SHAPIRO: Well, they sit in order of seniority. The chief justice sits in the center and then they alternate left and right by order of seniority.

KAGAN: So it has nothing to do with political views, or who might be more conservative or...

SHAPIRO: Absolutely not. Justices often end up sitting right next to justices with whom they disagree with most of the time just based on seniority.

KAGAN: And then they go from there, to -- where do they discuss the case?

SHAPIRO: Well, there's the conference room, which is off the chief justice's chambers. They meet in the conference room, and when they justices meet there, it's just them. No law clerks, no messengers, only the nine of them. And then they normally discuss the case, in order of seniority, also. The chief justice will say what he thinks about the case, give a tentative vote; and then go around the table in order of seniority.

KAGAN: Much has been made of this particular court -- of how divided they are, so many decisions coming our five to four. How important that, if something of this historic magnitude -- how important they come out as a unified body, or at least not so split, five to four?

SHAPIRO: I think there will be a lot of internal pressure for the court to reach unanimity on a question of this kind. I think people look back to other historic decisions of the United States Supreme Court: Brown versus Board of Education about desegregating schools; the Nixon tapes case -- those cases, the court was unanimous. Also the case about whether the civil suit could proceed against President Clinton -- that case was unanimous also, the Paula Jones suit.

So I certainly think that there will be pressure, and I think the chief justice would very much enjoy having a unanimous court.

KAGAN: Bob Franken pointed out that, with many of those historic cases like you just mentioned, the court acted very quickly. Do you expect to see the same thing here?

SHAPIRO: I do expect to see that. I think they understand the fluidity of the times. They acted with amazing quickness in taking the case and having it briefed and argued, and I would expect a quick decision.

KAGAN: OK, now for our civics lesson, since you're a constitutional expert; doing my homework, here, looking at what the arguments are, these are constitutional elements and these are arguments -- and what comes up: the First and 14th Amendments in the Bush argument.

First, the First Amendment: Why is that important here and why is that -- and don't worry about that earpiece popping out, you can just -- there you go. First Amendment, why is that important here in this case today?

SHAPIRO: Well, the First Amendment is somewhat important about the right to vote, and the 14th Amendment about equal protection -- although the constitutional provisions that really are of most significance today are really ones about Article 2, Section 1 of the Constitution, a part of the Constitution we don't normally talk about, which sets out the procedures for choosing presidential electors and says that a state, acting through its legislature, can decide how to choose those electors.

And that's the issue here. The Bush people saying, oh, what the court here did was to take the decision away from the legislature and decide it itself. And, of course, the people from the Gore campaign saying, oh, no, all the court did was interpret what the legislature did.

KAGAN: And there's probably going to be plenty of material today for future classes that you'll be teaching.

SHAPIRO: Absolutely -- look forward to it.

KAGAN: Look forward to it, and the students should be taking notes, as we will here at CNN.

Robert Shapiro from Emory Law School, thanks for stopping by today.

SHAPIRO: Thank you.

KAGAN: Nice to have you here.

And with that, we will go up to Washington and Frank Sesno -- Frank.

SESNO: Daryn, thanks. And we're going to go right back outside the courtroom there -- the court -- and talk to Bob Franken, who's been following this throughout.

Bob, we were just listening to Mr. Shapiro talk about some of the constitutional components of this argument, and we should tell our viewers and listeners that what they're hearing is the crowd outside the court behind you.

FRANKEN: Exercising their constitutional rights.

SESNO: Exercising their constitutional rights, as are we.

FRANKEN: That's correct.

SESNO: The question is this: some have suggested that this whole thing -- that the court could, in the end say this is rather a moot exercise and just walk away from it. Talk a little about that.

FRANKEN: Well, as a matter of fact, that was something people were talking about earlier in the week when there was a feeling that, perhaps, the Bush campaign would decide that it really didn't need any action here -- it had prevailed in the recount.

But subsequent to that, there have been a number of other lawsuits filed, and the Bush campaign has decided it needs to pursue its case. The Supreme Court has made no indication that they consider this moot. The issue is going to be -- the issues are, of course, whether the Florida Supreme Court acted appropriately and whether the U.S. Supreme Court has any business getting into this case. That's the fundamental question.

And there are arguments that include statutory law in Florida, the U.S. code, the law of the United States and, of course, the many issues in the Constitution -- Frank.

SESNO: Bob, all along we have been saying that this is a battle between Gore and Bush -- it's fought on three levels: in the courts, in the halls of power -- politics -- and among the public. And we are hearing the public behind you right now loud and clear.

FRANKEN: Well, let me just amend that a little bit. These are people who are fighting the issue on television. These are people who, when they see that somebody is going to be on television, they move almost en masse over to wherever that person is talking. In this particular case, yours truly, and they decide to put on a little demonstration. Of course, trying to shout you down a little bit. It's really kind of pesky, but it's a good time.

The police have made it clear that they don't believe that there's going to be any problem, but they are certainly prepared if there is. There's a really large police contingent here, mainly just keeping the Gore people and the Bush people apart. But really it's quite friendly. There are even other people who are here -- for instance, a little Tai Chi demonstration going on down the street. I haven't quite figured out what that has to do with things here.

But it's just as I said: a happening. It's a street event, it's the kind of thing that, so often, now, accompanies major events throughout the United States, particularly in Washington.

SESNO: Now, Bob, one interesting point, I'm told, is that those justices who have their chambers in the front of the building, if they're in their chambers they can hear these events, though they dismiss them. But in the courtroom itself, they will not hear any of this noise from the outside, from the street?

FRANKEN: No, no; the courtroom, in fact, real exudes a sense of insularity, which was really what the framers of the Constitution had in mind. The federal judiciary, as you know, was designed to be above the political fray by the fact that the members of the federal judiciary are appointed for a lifetime. And, of course, the justices in particular make quite a point about that. That they, in fact, operate in this legal-Constitutional ivory tower and that they make their decisions based strictly on the law -- the law mainly being the Constitution, which calls itself the supreme law of the land.

SESNO: And Bob, again for our viewers and those who may be joining us, the arguments are underway now. Our Charles Bierbauer, Greta Van Susteren, Roger Cossack, all inside.

But, Bob, how and when are we going to be hearing those tapes?

FRANKEN: The tapes are supposed to be made available, quote, "immediately." The practicality is that would probably be just a half hour. And this, of course, is a remarkable development here. It may not seem like much to many people, but the Supreme Court has never done this before -- made its arguments available so quickly.

Usually they're sent at the end of the term -- the Supreme Court term -- usually then sent to the archives where you can go through a process, finally, and hear them. But after the networks were turned down in their requests to have live television coverage here -- that was in the fat chance category all along, the justices surprise people by saying, we will, however, make the tapes available, quote, "immediately" -- almost immediately, anyway, so everybody can share in this argument which, of course, affects everybody.

SESNO: All right, Bob Franken, thanks very much.

Very high stakes -- what's happening inside that courtroom. One official in the Gore campaign telling me yesterday, everybody realizes enough dominoes need to fall in the right place for their effort to succeed. That's not pessimism, said this official, that's reality.

And the biggest domino, at least for this day, anyway, is what's happening at the United States Supreme Court. An enormous amount of legal action, of course, as well, underway in the state of Florida, and we'll be talking about that throughout this day as well. Right now, though, focused on the Supreme Court.

And for the people gathered outside of the court, this is an opportunity to witness the high drama surrounding its activities. Not many people get the opportunity to see what happens inside.

Garrick Utley gives us a glimpse behind the mystery.

(BEGIN VIDEOTAPE)

GARRICK UTLEY, CNN CORRESPONDENT (voice-over): Behind the imposing towering columns, seated in their majestic courtroom, what is it like to be a justice of the United States Supreme Court? They too are mortals.

MICHAEL DORF, FORMER SUPREME COURT CLERK: I think Chief Justice Rehnquist sometimes plays poker. I think Justice Scalia has been know to attend that card game. Sometimes pairs of them will go to a baseball game.

MARCI HAMILTON, FORMER SUPREME COURT CLERK: These are people who are good friends, they socialize together, some of them play tennis together. It's not the kind of ivory towerish atmosphere people think.

UTLEY (on camera): If that comes as a surprise, it shows how little we the public really know about what happens inside the Supreme Court, which is just what the court wants. Since its beginnings, the court has achieved its authority not only through its interpretations of the Constitution, but also through a finely honed mystique, a mystery.

(voice-over): But then that is what the men who wrote the Constitution wanted, to protect the Supreme Court from prying eyes and public pressure. Unlike Congress, the court's hallways are not filled with peddlers of influence.

DORF: There's no -- what we talk about in Congress as log- rolling. It's considered completely improper for one justice to say, well, I'll vote with you on this case, if you vote with me on this other case.

UTLEY: Each year, or term, the court receives more than 7000 appeals. How much work do the justices have to put in?

HAMILTON: They'll kill me for saying this, but probably about nine to seven, five to six days a week can get in all the work that needs to be done at the court right now.

UTLEY: That's because only about 100 cases actually get argued before the court each year and lead to formal written opinions. And what can the lawyers before the court expect on Friday morning?

HAMILTON: My guess in this case is that the first person, the petitioner to stand up, will get about maybe 50 words out, and then there will be questions, and it will be a free for all from there.

UTLEY (on camera): A legal free for all perhaps, but conducted with the decorum and traditions of the court. And one of those traditions involves a simple human gesture: Before the justices enter the court room to hear a case, all nine shake each other's hands to show that although their opinions may differ, they share a common purpose.

(voice-over): To serve as the ultimate judge of what the Constitution describes so eloquently and simply as the due process of law.

Garrick Utley, CNN, Washington.

(END VIDEOTAPE)

SESNO: The due process of law that makes this a nation of laws.

To Carl Rochelle, outside, now, where we have been seeing and hearing throughout the morning protesters making their points and making their noise, largely for the cameras.

Carl, give us some sense as to who's there and, as we said before, why?

CARL ROCHELL, CNN CORRESPONDENT: Frank, there is a mix of people here. Many independent people who have come in. A lot of them from the local area come in just to express their opinion on this. It's interesting, I had one gentleman come up to me and tell me that he was sworn in, took the oath as U.S. citizen yesterday, and he felt like he needed to come out today and express himself, express one of his freedoms that are guaranteed under the Constitution.

Now, one the things that you can notice is that when the camera goes on and when one begins to talk live, you become a magnet. So I am sort of in a well here. If you could look around, and you can see from some of the other camera positions, you can see all of the people who are out here now, numbering up into the hundreds.

Now, this particular side where I am standing is the Gore- Lieberman side. They're calling for the count of all of the votes. Behind me, over on the other side of the Supreme Court, you'll see a group that are supporting the George Bush and Dick Cheney faction. And they're, of course, saying that it's over, that Al Gore should go home -- that it's all done with.

So you see a mix here. One of the reasons you're getting this separation is because security personnel from the court came out here an hour or so ago and split the group. Divided them right down the center to make sure that one side wasn't arguing with the other, because what was happening is some people which -- you can see a little bit about what's going on. Everybody's walking through now. This is Al Sharpton who's coming through, off to the side now and bringing a group through. They've got a megaphone; they're walking and talking their way through the crowd.

Here, again, this is chant, "every vote counts." This is the Gore-Lieberman side. Over behind me is the Bush-Cheney side. And they're trying to keep them separated so there isn't a confrontation, and there has not been. But, Frank, very interesting here -- interesting group of people.

SESNO: And, as you say, Carl, both sides very much represented in all of this?

ROCHELLE: They are; both sides are very much represented. When we first got here this morning the Bush-Cheney side far outnumbered the people who were here for Gore and Lieberman. But as time came on and we got closer to the actual time of the arguments beginning in the courtroom, then more people came on this side.

And, as you can see, I describe it as being in a well -- I can't see anything behind me. I'm sure you can't see anything directly behind me except the signs. One sign we did see here, though, that's not a Gore-Lieberman, there's a sign for Elizabeth Dole for president in 2004. So there's quite a mix here, Frank.

SESNO: A little advance planning, perhaps, Charles -- or, rather, Carl Rochelle; thanks very much.

Let's go back to Atlanta now and Daryn Kagan -- Daryn.

KAGAN: Frank, thank you very much. Of course, we here at CNN have had a lot of questions about today's proceeding. We can only imagine that you, too, at home have some of those same questions and maybe some additional ones; so we're going to encourage you to send those questions to us. Any questions you have on the Supreme Court, on the proceeding today, especially, and on the Florida Recount. Send those questions in to us via e-mail: cnnlive@cnn.com; then we will take those questions and pass them on to our experts. Also taking your phone calls: 404-221-1855. Little hint there, you'll be paying for that phone call -- you might want to put off your phone calls for just a bit, but send your e-mails in right away.

And we'll take a break and be back after this.

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