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How Will the U.S. Supreme Court be Affected by Election 2000?

Aired December 14, 2000 - 4:43 p.m. ET


JOIE CHEN, CNN ANCHOR: The past five weeks have certainly been trying ones for George W. Bush.

NATALIE ALLEN, CNN ANCHOR: And now he faces what may be an even bigger challenge: putting the past behind him and making a positive place for himself in America's future. But can he do it? We are going to talk about that and take your questions as well. But Rick Shenkman has stayed with us. He is a presidential historian.

Rick, are you ready for the really tough question now from the viewers?

RICHARD SHENKMAN, PRESIDENTIAL HISTORIAN: Sure, historian on the hot seat: Let's go.

ALLEN: Historian on the hot seat. Sounds like the name of a new show.

All right, let's take our first call then. We have Terry from Wisconsin. You have a comment -- Terry.

CALLER: Hello.

ALLEN: Go ahead, Terry.

CALLER: I would like to ask, as far as George Bush, does he feel that George Bush is a threat to national security? I feel that the whole election process, as well as the Republican and Democratic primary, were conducted criminally. A lot of criminal activity took place. And the media did not cover it properly.

CHEN: I think, Rick, what he is talking about is some suspicions about George W. Bush. And maybe how certain people in some communities might be suspicious of what happened in Florida. Can you speak to that issue?

SHENKMAN: Well, any time we have a controversy like we just went through, there are always a lot of suspicions. We have a long history of that, whether it's about the Kennedy assassination or the Lincoln assassination. Some people may think that this is kind of a political assassination of Al Gore in kind of an extended sense. But, look, I -- all I know is what I read in the paper and what CNN reports. And I don't have any information about anything else.

CHEN: Let's go to Cynthia from Illinois now on the line with us -- Cynthia.

CALLER: Hi. Well, what I am really concerned about is, I don't feel we can say that Bush is president-elect. I think he's been court-appointed. We never counted the votes. So we really don't know who would have been elected. And I feel that the court really shouldn't have stepped in here, because...

CHEN: Was there a question there, Cynthia?

CALLER: Yes. Did the Supreme Court nullify the votes of the people of the country?

CHEN: Rick?

SHENKMAN: Well, the court has done something extraordinary here. It's done something it's never done before, and that is to decide a presidential election. And, you know, this is not something that the founding fathers anticipated. They thought that the courts would be the third and the weakest branch in the government. They said that the Congress had the power of the purse. The executive branch, the presidency had the power of the sword.

And the courts: well, not really all of that much power. But look at this. They just decided an election. That's going to hang over the Supreme Court for some time. And I think that's going to diminish the authority of the justices. And I think that this woman isn't alone in thinking this.

ALLEN: And, Rick, quickly, what will it mean if someone does go down to Florida and it comes up that Al Gore got the most votes?

SHENKMAN: I think it's going to be devastating to a Bush presidency. Here's the problem: Bush has had already two strikes against him. One strike was simply that, when the election was held, he didn't win a majority or a plurality of the national popular vote. Secondly, the court made him president. And third, if we find out that the ballots were really marked more for Gore than for Bush -- however you count those ballots -- and, of course, that will be an issue: the standards -- that would be devastating.

And it didn't help Bush that in the last five weeks, he did not conduct himself in a particularly statesmanlike manner. And let me add quickly that neither did Gore. Neither of these guys really stood the test of statesmanship. They -- each of them kind of maneuvered too much and played too many tricks with the system to where they can be regarded as statesmen. And we want our presidents to be statesmen.

CHEN: Let's see what Mark in Massachusetts wants to know about -- Mark.

CALLER: Yes, I was wondering if the results of this scandal, this so-called election, will result in some more stringent policing by Congress of the Supreme Court, in that the Supreme really has gotten out of control since 1803, with the Marbury vs. Madison decision, where they illegally...


CHEN: ... in the history books, too, Rick.

CALLER: That is, they stole the ability to override what Congress does, when, in fact, Article III of the Constitution says that Congress rules over the Supreme Court. And throughout the history of the country, the Supreme Court has supported slavery. They have supported segregation right after the people voted to go to the war.

CHEN: All right. Let's let Rick talk about this issue then.

SHENKMAN: All right. Well, in the Federalist Papers, it was agreed that the Supreme Court would have the power to review the constitutionality of congressional acts. So that wasn't a shocker when that decision came out in 1803 that he was talking about. It was a landmark decision. But it wasn't a shocker. We anticipated it.

The court has a mixed history. Look, on the occasion of the Dred Scott decision in 1857, the court made a terrible blender. They tried to end all of the controversy in the country about slavery. And they thought that they had enough clout and enough authority that, if they issued a ruling saying that the Congress has no right to the interfere with slavery in the territories, that that would end all of the controversy about whether it would. But it didn't. And this is another one of those decisions. It's not going to end the controversy over this election.

ALLEN: We thank our callers. And we thank our historian on the hot seat, Richard Shenkman. Rick, thank you.

SHENKMAN: All right.

CHEN: Pin the tail on the historian. I think that would be another name for this.



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