Bob Franken on the legal wrangling over Florida recount

Bob Franken

CNN National Correspondent Bob Franken is in Atlanta at the 11th Circuit Court of Appeals, covering the legal battle over the manual recount of the presidential ballot in Florida.

Q: Why was this case taken to a federal court when many view the Florida situation as a state matter?

FRANKEN: The Republicans are using every legal avenue they can to try to thwart the recounts. They are going the federal route in the face of the long tradition that elections are administered by states and local governments. The Bush campaign argues that what's going on in Florida violates the Constitution and, therefore, has a place in the federal court system. They are arguing mainly that the recounts are in violation of the 14th Amendment, which is the equal protection clause of the Constitution -- that certain people in Florida are being deprived of the equal process of the law by the way things are going on down there.

Two federal district judges, one in Miami and one in Orlando, have rejected those arguments as flimsy, but now they are coming up to the 11th Circuit Court of Appeals in both Republican-inspired cases, saying that this belongs in the court.

Interestingly, the appeals court here is bypassing its normal procedure of handling it by a three-judge panel, going immediately to the entire court en banc. All 12 judges will hear the case.

Q: Republicans are typically seen as the trumpeters of state rights. Is it unusual that the Republicans are the ones taking the appeal to federal court?

FRANKEN: Many people do find it in unusual that the Republicans, who for so long have considered the federal judiciary something to be criticized, that they're the ones seeking relief in the federal court. They claim that there are compelling constitutional issues.

One of the things that you have to watch for is that the lawyers on both sides may be trying to lay traps for each other. They could make arguments in this case that might be the exact opposite of arguments they might make as this unfolds in other cases and that each side is going to be looking at what the other says so they can throw it back in their face later if necessary.

Q: What's the make-up of the 11th Circuit Court of Appeals?

FRANKEN: It's seven Republicans and five Democrats. Four of the Republicans were appointed by President George Bush, the father of the Republican candidate. Four were appointed by President Clinton, which is of course of the Clinton-Gore administration.

There are many times when claims are made that judges are above political points of view, but there are a number of people in and out of the legal profession who believe that's not so.

It's interesting to check out such a line-up like this in the light of so many people claiming the political conflicts of interest in Florida.

One other thing, five of the judges are from Florida. Of those, two are Republicans and three are Democrats.

Q: Can the judges recuse themselves if they feel they have a conflict of interest?

FRANKEN: They could, but it would be very surprising if they did because judges do hear political cases all the time.

There were charges flying back and forth in the Monica Lewinsky case, for instance. (People claimed) that whichever judge was hearing that would allow his or her political persuasion to color his view.

That, by the way, is not in contradiction with the idea of (the appointed judges). Whichever president appoints a judge is going to portray to some degree the political ideology of the judge. However, we have found that time and time again on the Supreme Court that a president will appoint a justice only to be very surprised by how he or she turns out. The most prominent example is that of Earl Warren, who was appointed by President Eisenhower and became the darling of the liberals, causing Eisenhower to later say Warren was the 'biggest disappointment' that he had as president.

Q: Can the recounts go ahead even while this case is in appeal?

FRANKEN: That's a question the local canvassing boards are dealing with right now. There's such a hodge-podge of legal rulings right now each board almost has to decide which one it's going to abide by.