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CNN Legal Analyst Greta Van Susteren Offers First-Hand Account of Arguments Before U.S. Supreme Court

Aired December 11, 2000 - 11:30 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: The case of Bush v. Gore is being heard right now by the United States Supreme Court. According to the schedule, arguments have at least an hour to go. Each side is getting 45 minutes to present its case to the justices. Bush attorney Theodore Olson is pleading for an end to the ballot recount in Florida. He says the process set in motion by the Florida State Supreme court is what he calls "a recipe for electoral chaos."

Meanwhile, Gore attorney David Boies has said, if the high court quashes the recount that would be the end of the Gore campaign for president.

I am joined in our coverage by my partner Bill Hemmer in Tallahassee, and also Frank Sesno in Washington, D.C.

And Frank, you take it from here.

FRANK SESNO, CNN WASHINGTON BUREAU CHIEF: All right, Daryn.

Well, according to the clock, oral arguments under way, as you said, in Bush v. Gore right now. According to the clock, lead Bush attorney Theodore Olson should be just about wrapping up now. He will hand it off to Joseph Klock. He is going to have a few words, about 10 minutes on behalf of Florida Secretary of State Harris. And then 45 minutes for lead Gore attorney David Boies.

Now we want to turn to CNN's Bob Franken at the court to talk about some of these players, these lawyers.

First, Theodore Olson, Bob, why don't you tell us a little bit about him.

BOB FRANKEN, CNN CORRESPONDENT: Well, Ted Olson is a former assistant attorney general under Ronald Reagan. He is generally know as the lawyer for the conservatives. HE has been involves in a number of issues, was actually part of a lawsuit to determine whether or not there should be independent counsels. But he has represented the likes of David Hale, who was one of the Whitewater figures, and he has been the chief appellate attorney here. I believe this is his 14th argument before the Supreme Court. And he has been very aggressive, saying that there are constitutional and statutory reasons that this should be stopped, the recount in Florida. But anyway, Ted Olson is somebody who is considered one of the leading appellate attorneys. He is a former partner of Ken Starr, the by now infamous independent counsel, they are former law partners and good friends, and they share legal and philosophical beliefs.

SESNO: All right, the lead attorney for Al Gore is fellow that you have seen a lot on your television set over the last several weeks, his name is David Boies, known for a photographic memory, among others things; government attorney in the Microsoft antitrust case is where a number of people saw some of the real draw on that memory because it's a complicated -- been a very complicated case, as you well know.

He has argued before the Supreme Court in the past, Bob, but some years ago.

FRANKEN: But he did it without notes. This is not a man who is easily intimidated in a courtroom and he, of course, is going to probably be back here when he argues the Microsoft case. He represented the government in -- successfully represented the government in the lower courts in an effort to breakup the Microsoft, the Microsoft company. And of course that is inevitably going to get to the Supreme Court.

The reason that he is arguing here, instead of Laurence Tribe, who is the Harvard lawyer who has had quite a bit of experience himself before the court, is Boies is the one who is now intimately familiar with Florida's state law, and will be able to just about counter any question from the justices about the specifics of that. And of course he is somebody who is very effective in a courtroom, so the Democrats feel they're giving up nothing when they are giving up the experience of Laurence Tribe.

SESNO: And Bob, just to follow on that point for a minute because play with this, that is to say Laurence Tribe, who is not there; as you say, David Boies, steeped in Florida law, we are told by now, that is why he is playing. But Laurence Tribe, who has been before this court 30 times or so, very experienced, also has had some very harsh barbs directed at Bork, Bob Bork, and may have ticked off some conservatives -- not may have, did -- in the process.

FRANKEN: To say the least, among them, it would seem to be, Antonin Scalia of the Supreme Court. Whenever Tribe appears before the U.S. Supreme Court, you can count on the two of them fencing, parry and thrust, pretty brutal stuff, as a matter of fact. And it's hard to tell whether that personality matter really had anything to do with the decision.

Remember Scalia has been the one who has been incredibly outspoken about the meaning of this particular hearing and the quote, "substantial probability" that it is going to go the way of George W. Bush.

May I add one of other lawyer's name to this, by the way, Frank, and that is the name Eugene Scalia. He is the son of Justice Scalia and he works for the same law firm of Ted Olson. The Democrats were making a big deal out of that -- or trying to yesterday -- suggesting that Justice Scalia should recuse himself, although most legal ethics experts say, there is not the conflict of interest, or even the appearance of a conflict of interest, that would be prohibited in the judicial cannon of ethics.

SESNO: Bob, one hears lots of complaints about the mail arriving late, Amtrak trains arriving late, even President Clinton arrives late. But the United States Supreme Court is one branch of government that likes to operate very much on time. And if it is doing so, a man by the name of Joseph Klock should be standing up and presenting his arguments now. He gets 10 minutes today. He argues on behalf of or on the side of George W. Bush, but he is actually representing the secretary of state of the state of Florida, Katherine Harris.

FRANKEN: Right. And of course there is a belief that is shared by the court and by the Bush lawyers, that although Katherine Harris has a parallel interest, she has a slight different interest in that it is relevant to a case, particularly one where the argument is that this should be left up to the state. So Katherine Harris's lawyer in this argument and the one that occurred prior, the -- about 10 days ago -- the Republicans have believed that there is an important difference that has to be represented by a separate lawyer.

SESNO: All right, Bob, let me just jump into you, because as we did last time, we do so again this time: We have first word out of that courtroom, the United States Supreme Court. Our Greta Van Susteren was inside, heard the presentation.

Greta, who spoke? What did you hear? What's your assessment?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: What I heard, Frank, I heard one side, one side alone. That was the Bush side. And he got -- and the lawyer representing Gov. Bush is Ted Olson and he was aggressively questioned about two issues: number one, why are they there? Is there a federal question? Did the Florida Supreme Court overstep and do something nonjudicial? Ted Olson says, yes, but he got grilled by the court because some members of the court were quite suspicious or unsure why the -- Gov. Bush was there.

But remember, we've only -- I've only heard one side and they may get the answer -- they may do the same thing to David Boies when he speaks on behalf of Al Gore.

Now, the second thing, very important. Justice Breyer kept asking Ted Olson, OK, if we do send this back for a hand count, hypothetically -- he did not say he was going to -- but hypothetically, if they do send it back for a hand count, what standard? And Ted Olson dodged that a couple times, but other justices jumped in on it.

Justice Souter wanted to know, what if we remand it back to the Leon County Circuit Court and have that judge ask the secretary of state, Katherine Harris, for a standard? What about that? Ted Olson said he didn't think that that was necessarily something that was bad or that would be against the law, so he was not opposed to it. He said, however, that there was no standard. He kept going back to that issue, that the standards were different for different counties, different times, the sliding. And that was what the problem was from the Bush side.

Interesting enough, though, Justice Stevens came back then following Justice Souter's question about the standard and said this: Isn't the fact that the secretary of state has never set a standard other than the voter's intent, isn't that a standard? Ted Olson disagreed.

Justices Rehnquist and Thomas were silent, never asked a question.

SESNO: Greta, what about Justices O'Connor and Kennedy? We've been told that both sides would be most strenuously trying to influence them because they're the fulcrum of this court. They often swing one side or the other. So what indication do you have from their questions as to where they may have been on these?

VAN SUSTEREN: Both Justice O'Connor and Justice Kennedy started out doing a lot of heavy questioning in the beginning. They seemed to be focused on the federal question: Does this really belong here? Was this merely the Florida Supreme Court interpreting the Florida election law pursuant to their obligation to interpret the statute, or did they go beyond? That was where they seemed to focus their attention. It was Justice Souter, Ginsburg and Justice Stevens who were more focused on the issue of the standard. But the two people that we see as swing, Justices Scalia -- or Justices Kennedy and O'Connor, clearly were interested in the issue of the federal question: Does this belong in the United States Supreme Court?

Now, remember, the other justices who signed onto that five- person majority on the stay were Justice Thomas and Justice Rehnquist. And they didn't ask one single word of Ted Olson. So there's no sort of tip as to what may concern them in this particular case. So, you know, we have no idea. We can't really read into what may interest them in this discussion.

But the underlying thing that, you know, that Roger emphasized last week when he was sitting in this chair is that when you only hear one side -- and I have only heard one side -- it's a very different argument than when you get to hear the whole thing. And when we get to hear the audio, we'll have that advantage. Or when Roger comes out, having heard that, we'll get that advantage.

But clearly the court had done its homework, the court was very concerned with whether or not the case should be there at all, and the court was concerned about whether or not they could send it back down for a hand count with a standard other than just simply voter's intent.

SESNO: All right, let me bring in Daryn Kagan here for some more questioning and I'll come back to you in just a minute -- Daryn.

KAGAN: Yes, Greta, you've had the privilege of watching on Dec. 1 and also today. Could you describe the mood either of the court or the mood in the courtroom? VAN SUSTEREN: You have to understand, these nine justices, Daryn, they do their homework; I mean, just like we saw in the Florida Supreme Court. We had the advantage there. We had the cameras so we could see how they did their homework. This court was prepared. They were much like they were prepared before, asking very aggressive questions.

This is not a so-called "jolly group." This is not like something that's funny. You don't see much smirking or laughing, this is business. You hit the gavel, the nine justices walk in, everybody rises, you hit the gavel, you sit down and it begins and the questions start firing right at the lawyer who is up there arguing.

In this case, it was Ted Olson, and so this is business. This is not a social engagement by any means. They clearly did their homework. You can't be certain of what they will ultimately do by their questions, although we lawyers love to listen to the questions to try to discern what it is that may have caught their attention. So that, as you argue, you can attempt to fashion your argument, to sway the justices, you think, may be on your side. And the two -- what most people are the swing justices are the ones that might be able to attract to either side are Justices Kennedy and O'Connor, and those are the ones that most people are watching today.

KAGAN: Greta, it is so much information so fast. Did I hear you correctly when you were talking about Justice Scalia, that he had no questions of Ted Olson, who is there to representative the Bush side?

VAN SUSTEREN: No, the two silent justices, Daryn, were Chief Justice Rehnquist and also Justice Thomas. Now, remember, Justice Thomas didn't ask any questions last time, and he sort of -- he rarely asks a question in oral arguments, so it's not so peculiar that we didn't hear from him today, or hear from him the last time this case was before the Supreme Court.

I wouldn't necessarily read anything into it. It is just that we don't have the opportunity to take his questions and almost autopsy them.

KAGAN: All right, let's go ahead and have you stand by, and bring in Bill Hemmer from Tallahassee -- Bill.

BILL HEMMER, CNN ANCHOR: Hi, Daryn, thanks.

Greta, two questions I am curious about. Number one is the December 4th issue, when the state Supreme Court in Florida had their decision remanded or vacated back here to Tallahassee. Was it touched on at all, number one, based on what you heard inside there? And number two, I am kind of curious about who is in the audience there inside the Supreme Court. Last time, the vice president sent all four of his children inside. Were they there, or anybody you may have picked up on inside?

VAN SUSTEREN: All right, let me answer the first one first, the first question you asked me. There was some mention about the earlier decision, the December 4th, only insofar as Ted Olson, on behalf of Gov. Bush, basically said: Here we go, again, the Florida Supreme Court has gone too far.

Now the U.S. Supreme Court didn't necessarily say the Florida Supreme Court had gone too far, when it issued its decision, it simply said: We are sending this back to do you, figure out what you said.

Now, as to the second question, who's there? It was packed, as you can imagine. Incidentally, I stood in the lawyer's line, because I am a member of the Bar, I stood in six lines in order to get into the court today. So you can imagine how crowded it was.

But Senators Dodd, Hatch, Warner, Kerry of Massachusetts, Leahy, Specter, Carl Levin, Harry Reid, Gordon Smith, and Tim Hutchinson were at least the ones that I saw. Representative Markey, from the state of Massachusetts; Representative Sheila Jackson Lee, Texas; Eleanor Holmes Norton, who represents the District of Columbia. William Daley was present and Warren Christopher sitting obviously, if this were a wedding, it would be either on the groom's side or the bride's side. On the other side, we had Don Evans and Jim Nicholson. Former Senator Dole was present, as well as Jesse Jackson, and Governor Racicot. But it's a very small room and, believe me, it is packed.

HEMMER: All right, we will stand by, Greta, and see who ultimately gets to cut the cake for this wedding. Greta Van Susteren, great reporting outside of the Supreme Court. More coming shortly with Frank and Daryn after we get a quick timeout. Back with more after two minutes.

(COMMERCIAL BREAK)

SESNO: The United States Supreme Court, arguments under way inside in the auspicious chambers. The weight couldn't be greater, the decision more important, because it may affect who becomes the next president of the United States. Not may, but most likely will in one fashion or another.

Greta Van Susteren was in there for the opening oral arguments, she joins us, as does our election law specialist Ken Gross.

Greta, I want to ask you to go back to December 1st. Recall something we heard then, and tell us if we heard threads of this again today, and that was, remembering of course that these cases may not be related, but Ruth Bader Ginsburg saying on December 1: "We have we own the highest respect to what the state supreme court says in the state's law."

Did we hear some of that today in the questioning that you were part of or witnessed?

VAN SUSTEREN: Frank, we didn't hear those exact words, but certainly the tone is the same. And the general issue is the same. Back on December 1, the issue was: Did the Florida Supreme Court go too far, step over, and step into the constitutional realm, which would violate the United States Constitution? Did it do something that the legislators are supposed to do in Florida and not the court?

What we did hear is from Ted Olson, is pretty much the same argument. Which said that the Florida's -- the Florida Supreme Court was involved in overhauling the law, major revision. In other words, that they were legislating and not being jurists, which is a very different function.

The Constitution says: It's the legislature that is supposed to be determining the manner by which we select electors. However, what does some of the Supreme Court justices were concerned about, is they were saying: Look, wasn't the Florida Supreme Court just interpreting the law?

So you still have that same sort of disagreement about how far can the Florida Supreme Court go, when it bumps into the United States Constitution?

SESNO: Greta, another one. In the legal briefs, filed by the Bush team, they pointed out that the Florida court ruling all but built on the earlier decision, by including those earlier vote counts, that had come in after the first certification date -- you recall that, which reduced, according to the Supreme Court anyway, the margin between the two candidates to 150-odd votes -- and I am according from the brief, from the Bush team, where they said: "The Florida court not only failed to acknowledge that its earlier decision had been vacated, it openly relied on the manual recounts that had occurred only because of that opinion?

Did that come up today?

VAN SUSTEREN: That specifically didn't. But remember, Frank, these are briefs that were submitted yesterday, and the court has obviously read these briefs, and they are only concerned with issues that seem to be at least unresolved in their minds, that is why they asked the question. They may have resolved that question in their minds, based on it being raised in the briefs. In fact, what was sort of interesting, and which I have never heard the chief justice do, at least not like this is, right before the argument started, he commended both sides on getting their briefs in so quickly, and being so thorough.

Obviously, the justices have read it, and the purpose of the oral argument was not to rehash something that they may accept or agree with, or maybe even they are so convinced otherwise that they are not going to even consider it.

What the oral argument here was to go to the issues that are contested, that they have a problem with. And that is similarly boil down to is: Why are we here? Do you, meaning the Bush team, do you have the right to be here? Do you have a federal question? And that's answered by whether or not you believe that the Florida Supreme Court was within its bounds, or outside its bounds.

The second issue, which was raised by the Bush people, is they are very troubled by the fact that they claim there are different standards implemented in these manual recounts, these hand counts, and whether or not dimples or non-dimples. And what was so interesting was the Supreme Court justices, and especially Breyer, kept pushing: Well, what standard do you want? It even seemed to sort of suggest, as I sort of do the voodoo we lawyers do, is that the United States Supreme Court was looking for a way to figure out what would be a good, safe, constitutional standard in the event that they send this case back down to the Leon County Circuit Court to begin a manual recount again.

They didn't say they were going to. But Justice Breyer, at least said, hypothetically, if we do, is there a standard you can live with?

SESNO: All right. Greta, we are going to will come back to you in just a minute. To Ken Gross now.

Ken, just following up on that for a moment. Does it say anything to us that the court asked no questions to this point raised by the Bush brief, that the court, the Florida Supreme Court, somehow, compounded its error earlier on -- by defying the court's mandate to respond to the case that the U.S. Supreme Court -- sorry to make this so confusing -- that the U.S. Supreme Court sent back to them on December 1st?

KENNETH GROSS, CNN ELECTION LAW ANALYST: Well, it's hard to make too much of the questions that have been asked so far since we're only halfway through the argument, although I'd be surprised if it doesn't come up, because I'm a little puzzled by the fact that the Florida Supreme Court did not issue a separate opinion regarding the remand of the case that we heard before the U.S. Supreme Court last time on Dec. 1. They did try to address those issues in the opinion that's before them now, but, you know, I thought -- I would have thought they would have written a separate opinion. And perhaps these justices are concerned about that, but we haven't heard it yet.

SESNO: Inside the United States Supreme Court, arguments under way now, according to schedule, from the side of Albert Gore Jr.

We'll be back right after this.

(COMMERCIAL BREAK)

KAGAN: Showing you a live picture right now of the U.S. Supreme Court where, as we speak, oral arguments continue in the case of Bush vs. Gore. By our clock, those oral arguments should go on for about another 35 minutes or so. When they're completed and the audio tapes released by the high court, you will hear them here on CNN.

And joining us with some insight into these oral arguments is Mary Cheh. She is a constitutional law professor at George Washington University in Washington.

Professor, good morning. Thanks for being with us on this historic day.

PROF. MARY CHEH, GEORGE WASHINGTON UNIVERSITY: Sure, good morning.

KAGAN: Don't know if you were able to hear Greta Van Susteren's report as she came out of the courtroom there, but she says one of the big questions, one of the main questions the justices asking of Ted Olson, the Bush attorney: Is this a federal question? Do we even belong here in the first place? What's your take on that line of questioning?

CHEH: Well, I think it illustrates the fact that there really are two momentous decisions that the court has. One is the effect that it will have on the presidential election, but the second is its own legitimacy. If, in fact, it is intervening in a case where it is perceived that it is a matter of state law and that they reached out in an extra legal way to go forward, they will put in doubt their own legitimacy about acting in a political way. So they're obviously concerned about that themselves.

KAGAN: And you think they're very aware of their imagine and their legacy as they try to decide this?

CHEH: Oh, absolutely. But, you know, it does cut both ways with them. On the one hand, they don't want to overstep their bounds, I imagine. But on the other hand, there's a lot of momentum for the court itself jumping in as sort of the wise institution, the neutral institution and actually settling this and putting things to rest. But I think that the first cut, the issue about their own jurisdiction, the issue about their own proper involvement, should take center stage and will take center stage in any opinions that are written.

KAGAN: Professor, we are able to turn the tables here and have an interactive chat. We are going to bring Greta Van Susteren back in from Washington, D.C., and professor, give you a chance to ask Greta a question of what she saw inside the Supreme Court this morning.

CHEH: Greta?

VAN SUSTEREN: Yes.

CHEH: You know, in terms of what you are seeing, I imagine that the questions are exactly as we expected, that is to say that the court is concerned about what it's doing in this case.

VAN SUSTEREN: That is the first thing, is that: Why are we here? Should we be here? Which of course is the basic question in almost any case that comes before the United States Supreme Court, but in this one in particular, did Florida Supreme Court go so far that it became a federal question, it belong in the U.S. Supreme Court?

Ted Olson says, absolutely, that they overhauled the Election Code and that, for that reason, it belongs here since the Constitution gives the right to the legislature and not to the court to make decisions about how the manner of selecting electors.

The other side, which we haven't heard, but the arguments predictable, and it's in their brief, saying: No, this was simply the Florida Supreme Court interpreting the Florida law. They did not go too far.

The most interesting aspect, though, is the question that the justices posed, and it was a hypothetical. It in no way meant they were going to do this. But they said, if we do send it down, what should be the standard? And how should we determine the standard? Should it go back to the circuit court, to Judge Lewis? And should Judge Lewis solicit an opinion from the secretary of state, Katherine Harris, as to what she believes to be the uniform standard throughout the state? Is that the right way to do it?

And then Justice Stevens came back and said: Has she written an opinion already? And Ted Olson said no.

Justice Stevens said: Well, doesn't that tell you what she thinks the state of law? It's the intent of the voter, which of course is what the legislature wrote, and what the Florida Supreme Court hung its hat on on Friday, saying that when you look at the ballots, it's the intent of the vote, and that's left to the discretion of the person who is determining whether there is a vote or not. In a contest, it's the judicial branch.

KAGAN: Professor, does it strike you as odd that we have gotten to this part, gotten this far, and we still have not exactly defined -- the courts have not defined exactly what a vote is?

CHEH: Well, that is not surprising in the sense that we thought we had a basic understanding about that, and now this issue about whether the standards are clear enough really puts in doubt elections all across the country. You know, all across the country, we have always relied on a decentralized system, where you have counties, or sub-divisions of counties deciding on how they are going to have ballots -- how they are going to have the ballots crafted, how they are going to count them, what kind of machines they will have.

If the court should accept the idea that every ballot has to be counted in precisely the same way, under a precise standard, then potentially it puts in jeopardy the counting of all ballots in every election, that they could all violate due process and equal protection.

It's the notion here that you have to have something that is more precise than the clear intent of the voter that is at issue as well. But I also wonder what the public is thinking if the court is question what is this case doing here? It might wonder why the court suddenly stopped the count, and put everything on hold, and allowed the momentum to shift to Governor Gore, when at this point they are saying to themselves: But, gee, should we be here?

KAGAN: Professor, one thing we can't wonder about, we are running against the clock. I have to cut you off there. I thank you very much, Prof. Mary Cheh at George Washington University. More with Greta Van Susteren, and more on those oral arguments that continue in front of the U.S. Supreme Court at the top of the hour.

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