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Election 2000: Former Supreme Court Clerk Brad Berenson Profiles Justices

Aired December 1, 2000 - 10:24 a.m. ET


DARYN KAGAN, CNN ANCHOR: Right now, as we understand it, inside the U.S. Supreme Court, oral arguments taking place in the case of George W. Bush versus the Palm Beach Canvassing Board.

To get a better idea of what could be happening inside the court right now, we are joined by Brad Berenson. He is a former Supreme Court clerk for Justice Anthony Kennedy. He now works for a Washington law firm.

Brad, good to see you. Thanks for joining us.


KAGAN: We have had a lot of discussion this morning about how the lawyers get ready for something like this. But how do the justices get ready for something so important?

BERENSON: Well, it all starts with a lot of reading. They read the briefs submitted by the parties, they analyze those argument, and each individual justice has a different way of approaching things after that.

KAGAN: We are going to get to the individual justices in just a second. But how much do the justices do and how much do the clerks, like the role that you play, how much do they do?

BERENSON: It really depends on the chambers, but in general, it is a very collaborative effort. The justices will identify further research for the clerks to do. The clerks will think up new arguments or theories that they will share with the justice. The opposite also occurs. There will debates within and among the clerks, and between the clerks and the justice. There may be draft portions of an opinion written to evaluate to see how an argument writes as you get into it.

And most of the justices will have formed at least a tentative judgment about how this ought to come out before they enter the courtroom this morning.

KAGAN: And so when they get to the point where they are right now, they are ready to go and fire those questions away at the attorneys?

BERENSON: Absolutely. They will be very well prepared, thoroughly familiar with the arguments and the legal principles involved. They will know what questions they need to have answered from the attorneys, and they will also be armed with a number of questions that are not so much designed to elicit answers that they want, as to persuade their fellow justices of their points of view.

KAGAN: OK, help us understand each individual justice. We are going to start with the chief justice, William Rehnquist. He runs tight a very tight court, as I understand it.

BERENSON: Absolutely. You will not see this argument run one minute past the allotted 90 minutes.

KAGAN: What about -- how did it end up being 90 minutes in the first place? That is about 50 percent longer than it usually is.

BERENSON: Right, the typical Supreme Court argument lasts 60 minutes. The court decided to extend this one to 90 minutes, in part to allow the various interested parties to have oral argument time, in part because these are enormously difficult and complicated questions, and in part because this is such an unusual case, a case of such importance, that the court did not want to give short shrift to any of the parties' opportunities to speak.

KAGAN: And so if he needs to, the chief justice would cut an attorney off in mid-sentence, wouldn't hesitate to do that.

BERENSON: That's happens regularly.

KAGAN: It does. Politeness, in that case, not that important.

BERENSON: Observance of the rules is much more important to the chief, although he insists on politeness as well.

KAGAN: What about the man that you worked for, Anthony Kennedy? Tell us something about him.

BERENSON: Justice Kennedy is a very scholarly, courtly man, very academic in his approach, very thoughtful. He will often try all of the positions available in a case on to see how they fit. He'll sort of, as a devil's advocate within chambers, adopt each position and argue it with his clerks to see how it feels. And when he takes the bench, he will have some very serious questions for the advocates, probably on both sides, and he may be difficult to read from today's oral argument.

KAGAN: What about the first woman to sit on the U.S. Supreme Court, Sandra Day O'Connor.

BERENSON: Justice O'Connor is very similar to Justice Kennedy, those are the two swing votes very often on the court. They may or may not be in this case. But she too takes a very measured, scholarly approach. She works extensively with her law clerks. And she is an active questioner at argument too, and it also is not always easy to tell where she is coming from.

KAGAN: And in fact, much is made that she's the first woman to sit on the U.S. Supreme Court. But, in terms of historical perspective, she tends to be even more important, because as you say she's a swing vote, and you can't exactly tell where she is going to go.

BERENSON: She and Justice Kennedy are the balance wheels of the court. Although for purposes of today's argument, I think the two most important justices to watch are Justice Stevens and Justice Souter. The kinds of questions they ask and the approaches they seem to take to these issue will probably tell us a lot about how this is likely to come out.

KAGAN: One of the more conservative members of the court, Antonin Scalia.

BERENSON: Justice Scalia is drop-dead brilliant. He is witty and articulate and very creative. He has really a staggeringly powerful intellect, which is often on display during the arguments. He enjoys oral argument. he enjoys the back and forth. He will frequently argue with counsel back and forth, impose interesting hypotheticals that test the limits of the principles that counsel are arguing and urging on the court. And he's usually among the most active justices during an oral argument and undoubtedly will be today as well.

KAGAN: One of the more controversy justices, at least during his appointment process, was Justice Clarence Thomas. How is he proving to be as a justice?

BERENSON: He speaks softly and carries a big stick. He is not heard from very often during oral argument. he prefers to let his colleagues do the questioning. But he takes in everything that is being said, and he writes very powerful and very principled opinions in the aftermath of argument.

KAGAN: An important development in the way that this case has gone is how the audiotapes will be released after this. And that was a development after some organizations, like us here at CNN, after we pushed to try to get cameras in the courtroom, it was David Souter, I believe, who said "over my dead body." This is a man who does want to see cameras in the Supreme Court.

BERENSON: Justice Souter is very old-fashioned. Although his views on cameras in the courtroom I dare say are shared by the other eight pretty strongly. Justice Souter is going to be a very interesting one to watch here because, even though he is a Bush appointee himself, he is among the two or three most liberal justices on the court. And by virtue of his background, ought to have a very deep understanding of what's really happening on the ground in Florida. Having served both as the attorney general of a state and as a state supreme court justice.

KAGAN: And Justice Stevens.

BERENSON: Justice Stevens is iconoclastic. Again, on the very liberal wing of the court, avuncular, friendly. nice to counsel, but also has very sharp and pointed questions. He frequently comes up with creative theories and ideas about how to resolve the case that the other justices have not, and very often the other justices don't end up agreeing with.

Ordinarily, if there is an 8-1 decision, you will often find Justice Stevens as the one. He is another very interesting one to watch here because while he is liberal, he considers himself a Republican. And more importantly, he has a keen identification with members of the military, which we saw in his vote in the flag burning case.

And he may have been very offended by any perception that there were efforts to exclude the votes from overseas soldiers and sailors. He also spends most of his year in Florida and undoubtedly has gleaned some information about what's happening on the ground from that experience.

KAGAN: Has a special feeling in touch with his fellow Floridians. Ruth Bader Ginsburg, here's a woman who understands what it's like to sit on the bench but also to argue before the Supreme Court because she did that a number of times as an attorney.

BERENSON: That is right. She, again, is another one of the extremely scholarly justices on the court. By and large, all nine are scholarly. This may be, in terms of shear mental candle power, the smartest court we've ever had in this country. And she is no exception to that rule.

She is a moderately active questioner at oral argument. It may be possible to tell where she's coming from based on her questions today. And I suspect that she may be viewing this case in a -- in a light favorable to the Gore side. But it is hard to tell.

KAGAN: You compliment this court, this group of justices for their intelligence, and yet it is a very -- it might be a smart group of justices, but it has tended to be a very divided group of justices. A lot of decisions coming out 5-4. How important do you think it is and how much will they consider how important it is that they come out as unified front or at least not so divides, as 5-4, on this case?

BERENSON: I think all nine of them would prefer to see this case not come out 5-4. They would prefer to see a supermajority, and certainly if unanimity could be achieved, that would be better. But these are very principled people, who typically have strong views, especially in high-profile, important cases, and I don't expect any of them to compromise their genuine read of the law in order to achieve a supermajority or unanimity.

I think we are more likely to see a divided court at the end of the day, whichever way the court rules, than we are to see a unanimous court.

KAGAN: Before we let you go, we can't forget the junior member of the court, and that would be Steven Breyer, a couple of comments on him please.

BERENSON: Former Harvard law professor, knows Professor Tribe, who is going to be arguing for the Gore people, as a colleague. Again, powerfully intelligent man, friendly, good to counsel, and will also be an active questioner.

One of the things you are going to find, when you hear the transcript of this argument, is that of the 90 minutes of argument, probably more than half of it will be consumed by the comments and questions of the justices themselves.

KAGAN: Brad Berenson, thanks for introducing us to the players that we can't actually see, but we will be able to hear in just a bit. Good to have you with us this morning.

BERENSON: Glad to do it.

KAGAN: Thanks for your time.



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