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Election 2000: Attorneys Herbert J. Miller, Elizabeth Holtzman and Sarah Weddington Discuss Arguing Before Supreme Court

Aired December 1, 2000 - 9:39 a.m. ET


DARYN KAGAN, CNN ANCHOR: You're looking at a live picture of the U.S. Supreme Court, where just about 21 minutes from now, the high court will take the question: Did the Florida Supreme Court overstep its authority when it ruled that manual recounts should be included -- could -- should be included in the state's final presidential election totals?

Quite a bit happening in the nation's capital. You have the hearing about to begin, and you have a number of protesters outside the U.S. Supreme Court, trying to have their voices heard as well.

You can only imagine the butterflies in the stomach of the attorneys that are about to appear before the supreme court, and to get an idea of what they're going through, we have three attorneys with us who have all argued before the high court -- and not just any cases, very important case, we should stress.

Herb Miller, I want to pick up where Elizabeth Holtzman left off: the idea of preparation. Is the idea here, or the key, to try to pre- guess the nine justices and try to anticipate every questions that they might throw at you during your time before them?

HERBERT J. MILLER, FORMER NIXON COUNSEL: Well, obviously, the first thing you have to know is the facts and the laws applied to the particular case involved. Then you, generally, can understand where the various justices will be coming from, in term it is of their questions.

What we do at Miller-Casty (ph) law firm. We have several former Supreme Court law clerks, and we have moot courts -- which was mentioned earlier -- where these lawyers who have served on the Supreme Court do the actual interrogation in this moot court, and it is very, very helpful, because they have a sense of what the Supreme Court practice is all about and are able to be perceptive, shall we say, as to what questions might well be asked. That in addition to totally knowing the case is a major part of any appearance before the supreme court.

KAGAN: Elizabeth Holtzman, back to you. I think people might be taken with the fact that this whole thing is going to last 90 minutes, and yet that's twice as long as most cases are before the high court. How fast does it go, or is it like a slow-motion camera? ELIZABETH HOLTZMAN, FORMER U.S. REPRESENTATIVE: No, is goes very fast because, you know, you know all the weaknesses in your case, and you know the strength of your case, and you're playing it all in your mind -- you're trying to make an argument, but you don't get very far because they are peppering you with questions, and it just goes so fast you can't believe it's over. And you have a dialogue with them on what the significance of the facts are of you case, the law and how it fits into the constitutional statutory frame work of the country, and it just goes like that...

KAGAN: And our time here is going very quickly.

In the little bit of time we have left, Sarah Weddington, have to get you in one more time. Give us a historical perspective: I understand in 1996, which was not that long ago, there weren't even facilities for women who might argue before the court. Is that right?

SARAH WEDDINGTON, ROE VERSUS WADE ATTORNEY: This time, in 1971 and 1972, I was in the lawyer's lounge getting ready to go argue and suddenly discovered there was no ladies' restroom in the lawyers lounge; only men had argued for so long. I had to run to the basement. And today, it's only men arguing, but there a lot of women arguing other cases.

I think there is a zone that the lawyers are going into right now where they've studied the cases, they studied the justices, they know they could be asked a question they don't know. I was asked one by Justice Rehnquist. And so now is the time they are getting quiet, they are going inward and they are trying to...

KAGAN: What was that question? What was the question that justice Rehnquist...

WEDDINGTON: For me -- of course, it was the abortion case -- and Rehnquist's question was when was Texas readmitted to the union? I just didn't think about that as something I needed to know. So I had to say I...

KAGAN: And why it was important?

WEDDINGTON: Well, I don't think it was. I think I was a young lawyer, and he wanted me to lose, and he was just seeing if he could throw me and make me ineffective. So I said: I'm sorry, your honor, I don't know -- I'll go home and look it up, send it in up in a supplemental brief -- and my students now ask me if they can file supplementals after finals.

But it is this moment when you're just -- you're going into an inner place. Because once you're up -- I agree with Elizabeth Holtzman -- you don't look at your notes, you don't -- you're not aware anything in the courtrooms -- not the 13 columns of marble, not the high ceiling, not the formality of the court -- you're just looking at those nine judges and trying to guess what they're thinking.

And when was it was over, I actually had to say to people, what did I say? Because you are so intense, and they are getting to that point now.

KAGAN: Well, the beauty of today's proceedings: The lawyers will just have to tune on CNN, and they'll be able to hear the audio of what takes place today. We'll have it for our viewers.

Go ahead.

WEDDINGTON: And my argument -- my argument was taped. They've taped arguments for years, but what's so different is that it will be immediately available.

KAGAN: It will be a fascinating moment.

It's been a very interesting conversation with all three of you. Our many thanks to Herbert Miller, Elizabeth Holtzman and Sarah Weddington. Thanks for joining us here this morning. Great to have you here.

And we will, we will, actually, go up to Frank in Washington, D.C.

Frank, you take it from here.

FRANK SESNO, CNN ANCHOR: All right, well, quill pens, ladies' restrooms, Title Three, Section Five, protesters: All these among the historic events in the nation's capital today. And Supreme Court Supreme Court justices being asked to rule on a very serious matter on whether Florida state Supreme Court unlawfully authorized that hand recount to be included in the vote tally which determines the president of the United States.

CNN's David Mattingly now on how this day will play out in the high court's hallowed halls.


BEN GINSBERG, BUSH CAMPAIGN ATTORNEY (voice-over): Among the bedrock principles of American election law is that you can't come up with new and different rules after election day for the purpose of counting ballots.

LAURENCE TRIBE, GORE CAMPAIGN ATTORNEY: We are asking the high court to step aside. We do not think there has been any violation of federal law or the federal Constitution to remedy.

DAVID MATTINGLY, CNN CORRESPONDENT (voice-over): Two sides, two polarized viewpoints, and in the center of this presidential impasse, the highest court in the land, the U.S. Supreme Court.

EDWARD LAZARUS, FORMER SUPREME COURT CLERK: There's going to be an enormous crowd outside the Supreme Court, starting the night before, taking numbers so they can get those very few seats that are available in the courtroom to see this historic argument.

MATTINGLY: And it will be tight. Additional seating will more than triple the usual array of press, 119 in all: 75 seats reserved for attorneys admitted to practice before the Supreme Court. Additional seats brought in available to accommodate up to 250 members of Congress, guests of legal teams, and finally the general public.

The lucky few who do get in will watch counsel teams stationed down front argue the seated justices: Ginsburg, Souter, Scalia, Stevens, Chief Justice Rehnquist, Justices O'Connor, Kennedy, Thomas, and Breyer.


PROTESTERS: Fair vote!

UNIDENTIFIED FEMALE: When do we want it?


MATTINGLY: When proceedings begin at 10:00 a.m., at issue: Did the Florida Supreme Court violate federal and constitutional law when it ruled on behalf of the Gore campaign to include manual recounts in the state's final and certified presidential election totals?

One sign of the extraordinary nature of this case: each side will be given 45 minutes to argue, 15 minutes more than usual.

TONY MAURO, "AMERICAN LAWYER" CORRESPONDENT: Chief Justice Rehnquist is -- is sometimes very stern with the lawyers, may correct their grammar. Justice Stevens always has the question that the lawyers never anticipated. Justice Scalia likes to toy with the lawyers. He will ask these crazy hypotheticals sometimes and will just make -- give lawyers a very hard time.

MATTINGLY (on camera): The proceedings will not be seen on television, as they have been in Florida courts. The Supreme Court's never allowed them. But in another sign of extraordinary circumstances, the high court for the first time will release audio recordings after the oral arguments.

We will hear every statement from the attorneys and every question from the justices.

LAZARUS: And the justices will retire into their secret conference. No one will be present at that conference except for the justices themselves.

MATTINGLY (voice-over): Then behind closed doors, Chief Justice William Rehnquist will speak first, followed by each justice in order of seniority...


MATTINGLY: ... with Justice Stephen Breyer, appointed in 1994, speaking last.

LAZARUS: And they will take a tentative vote, and the senior member of the majority group will decide who writes the majority opinion. And then they're off to the races. MATTINGLY: In private, the justice writing the opinion can confer with other justices before circulating a draft to the entire court. If there is a dissenting opinion, more time may be needed. How long, how many days is anyone's guess.

MARK TUSHNET, CONSTITUTIONAL LAW PROFESSOR: They'll troop back into the courtroom, and then the justice, perhaps the author of the opinion, will read usually a short summary of the court's holding and analysis.

MATTINGLY: A short summary with potentially historic implications for future elections. But what impact will the high court have on this presidential impasse, and can the court help the nation avoid a constitutional crisis?

David Mattingly, CNN, Atlanta.


SESNO: Answers to those questions begin to take shape just 10 minutes or so from now with these words: Oye, oye. oye, the court is now in session, as the marshal calls the court to order, and the justices take their seats. We're going go to Bob Franken, outside the court, after this very brief break.



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