It garnered headlines across the country, stirred turmoil at one of the nation’s leading universities, and then fell apart completely. In the end, North Carolina’s attorney general announced that the three players — Reade Seligmann, Colin Finnerty, and David Evans — were innocent and called Mike Nifong, the local district attorney who brought the case, "a rogue prosecutor."

A new book by Stuart Taylor and K.C. Johnson called "Until Proven Innocent" takes a hard look at what happened. Stuart Taylor, a longtime legal journalist and currently a columnist for the National Journal, joins me now.

Welcome to you.

STUART TAYLOR, Legal Journalist: Nice to be with you.

JEFFREY BROWN: You suggest that the flaws in this case were apparent from the very beginning from the police investigation. Give us a good example.

STUART TAYLOR: The woman who ended up claiming she’d been raped didn’t say anything about it for 90 minutes. She first claimed she has been raped while she was being checked into a mental hospital for involuntary confinement. That was her ticket out.

As soon as she was out, she recanted the rape allegation and told Sergeant John Shelton, "No, I wasn’t raped." And while he was calling that in, somebody says, "Well, she’s changed it again. During the course of the night, she said she had been raped by 20 men, five men, three men, four men, take your pick."

And her story continued to be wild and crazy and inconsistent and implausible, self-contradictory and contradicted by all medical evidence from that point forward. None of the police at the hospital believed her.

JEFFREY BROWN: But somebody believed her or what? How did it take off?

STUART TAYLOR: A hospital nurse believed her, who turns out to have been a woman who’s in training to be a sexual assault nurse. She said, she later told defense lawyers, she had never disbelieved any rape complainant.

And then some bad cops, whether they believed her at first or not, decided that they were going to make a case out of this. And then a bad district attorney, the rogue District Attorney Mike Nifong, grabbed hold of it to try and win an election and, in the face of massive evidence of innocence, tried to put three innocent young men in jail for a long, long time.

JEFFREY BROWN: He’s now been disbarred. He’s been sued by the players. What do you conclude was his motivation? You said political. Does that mean…

STUART TAYLOR: I think it’s quite clear. He was about to lose an election that he was desperate to win. A woman named Freda Black was running against him. It was a May 2nd primary in 2006. This case comes to him on March 24th of 2006. The primary’s five weeks away or so.

It was his only opportunity to win the election, was to inflame the black vote by lying to the voters, and telling them that there had been a racially motivated rape, and inflaming the black vote. And he did it, and it worked, and he did it in the face of evidence that must have shown him long before the election, if not from the beginning, that this was all a big fraud.

JEFFREY BROWN: You write that Nifong’s persecution "may well be the most egregious abuse of prosecutorial power ever to unfold in plain view." How did he get away with it for so long?

STUART TAYLOR: Of course, a lot of the worst things he did were secret for a while, but one thing he did very overtly and publicly was proclaim these young men guilty from the moment he got involved in the case in a series of almost unprecedented media interviews, you know, inflammatory, false, "They’re all guilty," "The ones who didn’t do it are accomplices," "There’s a wall of silence," "It was a racial thing," lie, lie, lie, lie, lie.

But even if they hadn’t have been lies, even if it had been true, that’s unethical for a prosecutor to do. Everyone should know that. The media ignored that, and instead of saying, "Why is this man violating the rules of ethics?" They said, "He must have the evidence," and went charging ahead, which at first was perhaps understandable. But after the evidence that it was a fraud came pouring into the public record, many in the media barely slowed down.

JEFFREY BROWN: You look at the media a lot here as one of the institutions that you look at over the course of the year here. And generally you think that it did not perform very well. Why?

STUART TAYLOR: I think they didn’t perform well because many of them joined the rush to judgment. The New York Times…

JEFFREY BROWN: No, I mean, what do you think would have made them?

STUART TAYLOR: Their motivation?

JEFFREY BROWN: Yes.

STUART TAYLOR: I think it was two things working in synch, old-fashioned media sensationalism — everybody knows what that was, as this is a sensational story — working together with political correctness, as I call it. You could call it something else.

Bias in favor of the idea that, well, the privileged white male athletes are accused of abusing the poor black woman, we love that. It’s in synch with all of our preconceptions and our ideology. Let’s pile on and make it a morality play. And an awful lot of people, including the New York Times, for example, were not a bit deterred by contrary evidence from making it a morality play of that kind.

JEFFREY BROWN: Well, it’s one thing to say that they got the story wrong or they over-sensationalized. That happens a lot in our media. It’s another thing to say that it’s ideological. What’s the evidence for that?

STUART TAYLOR: The evidence is, first, the fact that they ignored the evidence so completely. Second, the way they wrote it. Selena Roberts is a sports columnist in the New York Times, not a reporter, but a columnist. Her columns seethed with class hatred.

I think the first one was headlined "Bonded in Barbarity." And it was full of "the privileged this, the white that." They wore that pretty much on their sleeves more in the columns than in the reporting. In the reporting, it was more a matter of going directly in the teeth of the evidence over and over and over again in almost every story they wrote for many, many months.

And then the question is, well, why would they do that? That’s the question you asked me, and I think that’s why.

JEFFREY BROWN: At the same time, you point out that this brought out the best in some people. You cite a number of other cases.

STUART TAYLOR: Yes. Yes, in fact, the late, great Ed Bradley of "60 Minutes," among others, did wonderful work on this, came in on the late side, but wonderful work.

Early on, two New York Times columnists, since I’ve been criticizing the New York Times, I should mention David Brooks and Nicholas Kristof both did distinguished work cutting against the biases of their paper generally. Dan Abrams of MSNBC did good work. There were others, reporters from the Raleigh News and Observer, Joe Neff.

There were a lot of people who did good work, but at the beginning, it was a chorus of condemnation and rush to judgment, with very few exceptions.

JEFFREY BROWN: The president of Duke University, Richard Brodhead, recently apologized for not standing by the students and the families as much as he thought he and the university should have.

STUART TAYLOR: He did apologize. I’m not sure that’s how I’d characterize his apology. If you go parse it, I think he apologized that he didn’t privately show them more support.

I don’t believe he apologized for not publicly showing them more support. And I’m quite sure he did not apologize for smearing them with misleading, defamatory statements over and over again in his own voice in public.

JEFFREY BROWN: You mentioned political correctness. Now, a number of reviewers have read the book and seen how you’ve carefully built the case in the Duke instance, but noted that you’ve tried to extrapolate that into a much larger case against academia, the media, the culture at large being too politically correct. Why take that one case and make something much bigger out of it?

STUART TAYLOR: Well, I know that criticism. I respect that criticism. And I respectfully disagree with it in this sense.

One of the most important reasons I wrote this book is that I think what happened to Duke says a lot, not only about what the Duke faculty and administration are like, but what the state of the American university is today. We generalize admittedly from that. And along chapter 25, readers of the book will judge for themselves whether we’ve made our case.

I might note that others — and not all of them conservatives, including some liberals — have made very similar cases in some excellent books over the years. So we’re not out there by ourselves.

JEFFREY BROWN: All right. The book is "Until Proven Innocent." Stuart Taylor, thanks very much.

STUART TAYLOR: Thank you. Appreciate it.

The post NewsHour: Author Discusses Duke Case – November 1, 2007 appeared first on Stuart Taylor, Jr..

But, before then, the court issued 68 decisions on legal controversies, ranging from political redistricting to physician-assisted suicide, and from the death penalty and other criminal law matters to military recruitment on college campuses. The term was notable, too, for the midway replacement of Justice Sandra Day O’Connor by new justice Samuel Alito.

We assess the term now with four longtime court watchers: in California, Douglas Kmiec, a professor of constitutional law at Pepperdine University Law School; and Kathleen Sullivan, director of the Constitutional Law Center at Stanford University and former dean of its law school; and, here in Washington: Stuart Taylor, a columnist for The Legal Times and senior writer for "National Journal" magazine; and Jeffrey Rosen, a law professor at George Washington University and legal affairs editor at "The New Republic," and, I should say, author of a new book as well about the courts.

Welcome to you all.

If this is the beginning of the Roberts’ era, Kathleen Sullivan, to what degree did he put a distinctive stamp on this court?

KATHLEEN SULLIVAN, Constitutional Law Center Director, Stanford University: Margaret, the term this year is best described as the Roberts conservative court in waiting. He was unable to put a clear stamp on the court in any new direction.

And let’s make no mistake about it. Chief Justice Roberts and Justice Alito are very conservative. Justice Alito voted with the conservative bloc 15 percent more of the time than Justice O’Connor, whom he replaced.

But, in the big decisions this term, Margaret, there was a real rebuke by the court to the extreme grab for executive power by the Bush administration in both the Hamdan vs. Rumsfeld case about Guantanamo and the Gonzales vs. Oregon case about physician-assisted suicide.

And environmentalists got a reprieve in the big environmental case of the term, the case about the Clean Water Act, which still gave Congress a lot of power to protect the environment. So, in the big cases, the liberal bloc, plus Justice Kennedy, held to keep the court at a more moderate or liberal place than you might have expected.

MARGARET WARNER: Doug Kmiec, do you see it that way; he was really unable to put a clear stamp in this first year?

DOUGLAS KMIEC, Professor of Constitutional Law, Pepperdine University Law School: Margaret, I think it’s been a very successful year for the Roberts court.

I think he told us what type of approach he would have in his confirmation proceeding. He said he viewed his role as that of an umpire calling balls and strikes, that he had a conception of the judicial role that was carefully limited to cases or controversies in deciding particular cases.

And that’s what he came in with: an attitude of judicial humility, an attitude that respects precedent, and a great deal of charm and collegiality. And while, yes, he didn’t get everything he wanted, and there were some significant disappointments at the end of the term, he also demonstrated a capacity to work with the court as a whole.

There were a higher number of unanimous opinions this year than previous years. There was a declining number of divided opinions. I think all of this augurs very well for the future of the court under John Roberts and the work of Sam Alito as well.

MARGARET WARNER: Jeffrey Rosen, he did say at his confirmation hearing that, in effect, he wanted to build consensus on the court. How well do you think he did in that?

JEFFREY ROSEN, Law Professor, George Washington University Law School: I think he did quite well, actually. There were 40 percent of the decisions that were unanimous, as opposed to about 30 percent last year, and fewer 5-4 decisions, too.

You know, there was a very interesting speech that he gave at Georgetown for their commencement just a few weeks ago. And he said the chief justice has a unique role in creating consensus. No other justice can do it. And he said that unanimity or near unanimity fosters respect for the law and allows for lower courts and for citizens to understand what’s actually going on.

MARGARET WARNER: But he was able to do that?

JEFFREY ROSEN: Well, he was. I mean, I was…

MARGARET WARNER: On the big cases, the contentious ones?

JEFFREY ROSEN: I was — I was impressed that, in the Solomon Amendment case, for example, unanimously…

MARGARET WARNER: That’s the one about recruiting on college campuses by the military.

JEFFREY ROSEN: Exactly. Congress is allowed to deny federal funds to campuses that refuse to give access to the military.

Who would have thought that he could have created consensus? He did it deftly and with some style. And, then, of course, there was an abortion case, which people thought would fracture the court terribly: Do you have to have a medical emergency exception? And he came up with a neat procedural dodge which sent it back to the lower courts.

So, in all of the Sturm und Drang of the final decisions, I hope we don’t lose sight of the fact that he has a vision, a very distinctive one, which he has set out. And he believes that deciding cases as narrowly as possible allows justices on both sides to coalesce.

It’s true, though, that he did say, when people disagree, we shouldn’t suppress disagreement.

And he himself proved very able, in the three cases where he filed separate dissents, to really go at it. He called Justice Souter — he sort of ridiculed his idea that a man’s home is his castle, and provoking an angry response from Souter. He could give as well as he took.

But seems to think, when you can, be unanimous; when not, that it’s important to express dissent very firmly.

MARGARET WARNER: How do you see the impact, Stuart, of Justice Roberts and the other new justice, Justice Alito?

STUART TAYLOR, Senior Writer, "The National Journal": Well, in terms of trying to foster consensus, Jeff you the half-full part of the glass. I will give a little bit of the half-empty.

It’s important to remember that Chief Justice Rehnquist, his predecessor, for whom he clerked, once said that Supreme Court justices are as independent as hogs on ice. You can’t herd them. They’re like cats would be another thing.

And Roberts made a mighty effort to foster consensus. But it’s an uphill battle with these very independent people. And I think how uphill it is was shown in two decisions toward the end of the term on big political issues, gerrymandering in Texas and campaign finance, in which, each case, there were six separate opinions of various coalitions of justice, no coalition numbering more than two.

That’s not exactly fostering consensus. That’s not something for which Roberts can be faulted. I think he’s not a magician.

In terms of the court’s political complexion, if you will, Roberts’ voting patterns are a great deal like those of the man he replaced, Chief Justice Rehnquist, allied with Scalia and Thomas a lot of the time, not quite all of the time.

For example, he did not join their opinion suggesting that all campaign finance reform legislation be thrown out. He joined Justice Breyer’s more modulated opinion on that.

Justice Alito so far seems to be what a lot of people predicted: more conservative on — here and there than Justice O’Connor was.

MARGARET WARNER: And a more reliable one.

STUART TAYLOR: Yes. But she was not particularly conservative in her last few years.

And I’m not sure that he will be a whole lot, I’m not buying into the idea that he will be a consistent ally of Scalia and Thomas. We will have to wait and see. But I doubt it.

MARGARET WARNER: And turning more to specific cases — and back to you, Kathleen Sullivan — would you say the case that this term will be most remembered for is the Hamdan case, is the one dealing with the Guantanamo detainees? And, if so, what message was the court really sending here? KATHLEEN SULLIVAN: Absolutely.

Hamdan vs. Rumsfeld was the most important case of this term. And it ranks in history with the case restraining Truman from seizing the steel mills during Korea, or the case forcing Nixon to turn over the tapes, in asserting from the court that separation of powers is a fundamental principle of our Constitution, important to the founders, and that separation of powers means that the executive branch is not allowed to engage in unilateral assertions of power without authorization by Congress.

Hamdan held specifically that to try detained enemy combatants at Guantanamo by so-called military commissions or military tribunals that did not adhere to the Uniform Code of Military Justice and that violated the Geneva Convention, Article 3, in so far as they didn’t allow the prisoner to be present at the proceedings and didn’t allow him to confront hearsay evidence against him, that to create this new animal called a military tribunal, without clear authorization by a Congress and against international law, was not the prerogative of the president.

We have seen an unprecedented assertion of executive power in the current Bush administration, one that makes President Nixon look like a minor-leaguer, an assertion of power to make up new methods, new laws, to sign signing statements that don’t veto a law of Congress, but say that the president is free to deviate from it.

And the court sent a very strong message in this 5-4 decision that this so-called unitary executive, the executive needs to have energy and zeal, but he also needs to have authorization by law, law by Congress and, in this case, international law, which Congress has assumed to have wanted the president to follow, unless it says otherwise.

So, it’s a very strong rebuke to the Bush administration’s entire theory of unitary and unilateral executive authority, and, in that sense, is the most important decision of the term.

MARGARET WARNER: Doug Kmiec, do you agree, most important decision of the term? And would you agree that it’s a rebuke to the Bush administration’s theory or concept of executive authority, particularly in times of war?

DOUGLAS KMIEC: Margaret, I think it’s a very unfortunate opinion. It’s one that not only, I think, mistakenly interprets the existing law, inserts the court into an area of foreign affairs where it has never been inserted before, but it’s not just a criticism of the president, because, after all, the president was confronted with an extraordinary attack on the United States with individuals who don’t fight in uniform, who target civilian populations, who don’t observe the laws of war.

It was not an extraordinary conclusion on the president’s part that the Geneva Convention that is meant to apply to honorable soldiers and signatory nations didn’t apply.

This court’s decision in Hamdan not only turned away the president; it turns away the Congress of the United States. The Congress had specifically said, in the Detainee Treatment Act, that the jurisdiction of the court was limited. Now, there was an argument on both sides whether it applied to the existing cases or only future cases.

But the court gave very little deference to Congress on that question, in terms of the scope of the language that it used.

MARGARET WARNER: But, briefly, if I can interrupt you, though, do you think that just — not just on the Hamdan case, but that the court was sending a message about executive authority?

DOUGLAS KMIEC: Well, I don’t think that the case should be over-read.

I think it is largely a case about the authority of military commissions. The president and the court disagreed on how to interpret the Uniform Code of Military Justice and whether or not his military commissions were authorized under it.

I think the attempts to link this together with wiretapping, to link it together with signing statements, to link it together with interrogation practices is a mistake, because the court writes more carefully than that.

And the example I would give of that is that we had another foreign affairs case dealing with the war on terror. It’s one that wasn’t really an opinion, and it was a refusal to get involved. It was the Padilla case.

And the justices who wrote explaining why the court refused to get involved were Justice Stevens, who wrote Hamdan, Chief Justice Roberts, and Justice Kennedy. And that, Margaret, I think are the centers of influence on this court. And all three of them wrote to indicate, it is appropriate for the Justice Department to proceed with its transfer of Mr. Padilla into the criminal justice system.

MARGARET WARNER: He had been designated an enemy combatant.

DOUGLAS KMIEC: Well, it designated him as an enemy combatant…

MARGARET WARNER: Yes.

DOUGLAS KMIEC: … but then decided to treat him as a criminal defendant, and gave the executive latitude to do that.

MARGARET WARNER: All right. Let me get to Jeffrey Rosen here. Jeffrey, if we can move on to another area, because — so we don’t spend the whole time on Hamdan, what about the other big area that people were waiting for, having to do with political issues, where there was both campaign finance restrictions, spending restrictions in Vermont, and, also, of course, the redistricting case?

JEFFREY ROSEN: Sure.

These were awfully interesting. And despite the fractured opinions in both cases, it was especially interesting that Chief Justice Roberts, once again, pointedly distanced himself from Justices Scalia and Thomas, who, in both cases, wanted to radically overturn existing precedent and rethink the law from the ground up.

In the case of campaign finance regulation, Scalia and Thomas had Buckley vs. Valeo, which has governed this area for a long time, as insupportable and should be overruled. Roberts pointedly refused to join that, and said there was no need to reexamine Buckley, and joined Stephen Breyer, of all people, in saying that it’s important for incumbents not to be able to entrench themselves. Democracy is served by this regulation.

And, then, in the gerrymandering case, Scalia and Thomas said this sort of stuff should never come into court. We can’t possibly come up with a standard. Roberts didn’t join that either.

He said: I don’t have to decide that. I’m just going to narrowly confine myself to the case at hand.

So, those people who were afraid that Roberts in particular would be a reliable vote for Scalia and Thomas, I think, would have to be disappointed here.

MARGARET WARNER: Stuart, I have to ask you about Justice Kennedy, because the analysis — and, just, if you look at these cases, Kennedy was clearly the swing vote.

One, do you agree with that? But, two, what kind of a swing vote is he? I mean, we spent years analyzing Justice O’Connor…

STUART TAYLOR: Right.

MARGARET WARNER: … and what would move her to join the liberal bloc vs. the conservative bloc. What about Justice Kennedy?

STUART TAYLOR: Well, he plays a similar role now to the one Justice O’Connor played before. In fact, he’s played that role for a while.

There have been a lot of 5-4s over the last 20 or more years, where Kennedy was the swing vote as — and — and either with Justice O’Connor, or he was swinging to the left of her sometimes. Now that she’s gone, he’s all alone in the middle. Unless Justice Alito ends up closer to him than we might think, he’s all alone in the middle. There are going to be a lot of cases where he’s the one that decides.

It’s almost a parity. In the Texas case we were talking about, five justices said: We’re going to uphold this against the gerrymandering charge.

And five justices said: We’re going to strike down one district under the Voting Rights Act. And he was the only member of both majorities.

MARGARET WARNER: He flipped.

STUART TAYLOR: And, so…

MARGARET WARNER: But what is it that drives him, I mean, if you were a lawyer trying to figure out which way he would go on our case?

STUART TAYLOR: Well, I think he’s just more moderate-spirited than some of them. But, also, there are a few real passions he has.

He has a passion for First Amendment free speech. He seems to have a passion for expanding gay rights under the Constitution, a limited passion. And, also, he’s pretty tough on church-state. He’s tough on the church side of the church-state equation.

And then there are just a whole lot of other cases where he’s up for grabs. He’s tough on affirmative action. So, you can pick cases where he’s consistently allied with the conservatives. You can pick cases where he’s fairly consistently allied with the liberals. And you can pick cases where who knows which way he’s going to go. And, in that, he’s not unlike Justice O’Connor.

MARGARET WARNER: I’m afraid we have to leave it there.

Kathleen Sullivan, gentlemen, thank you all.

STUART TAYLOR: Thank you.

KATHLEEN SULLIVAN: Thank you.

The post NewsHour: Analysis – Legal Experts Review High Court – July 3, 2006 appeared first on Stuart Taylor, Jr..

And Stuart, Judge Alito was in the hot seat for upwards of seven hours. They covered a great many subjects during this first day of questioning. Looking at the arc of the day, how did he do?

STUART TAYLOR: Given the rather arcane rules of this game– and it is sort of a game– I thought he had a pretty strong day after a little bit of a weak opening statement yesterday beginning with the joke that fell flat.

But today he managed to duck the questions he needed to duck. He gave very reassuring answers to the questions that people were worried about. You know: yes, I respect precedent. I would have an open mind about Roe v. Wade; I believe in the right to privacy; I believe in the right to contraception, Griswold v. Connecticut. The president is not above the law. I agree with Justice O’Connor when she said a state of war is not a blank check for the executive when it comes to the rights of the nation’s citizens. The one person/one vote principle is a fundamental part of American law.

So these are all areas where he previously said things that shook some people up, and he to some extent took the sting out of a lot of those. And with the help of Republican senators, he gave some counter examples to the claims that have been made that he very rarely rules in favor of a civil rights plaintiff or a race discrimination complaint.

This isn’t to say that he has no problems, but going in the idea was that he would be confirmed unless he stumbled. I didn’t see him stumble.

RAY SUAREZ: Professor Rosen.

JEFFREY ROSEN: I think I’m a little less impressed than Stewart was. I don’t think whether it was artful judiciousness or strategic evasiveness, but he managed on the central issues that are especially of concern to his skeptics not to give a much clearer sense at the end of this day than we had when we began it.

On the question of abortion he pointedly ducked the question of Sen. Schumer — Do you believe as an original matter that the Constitution protects a right to abortion — taking refuge in generalities about the importance of precedent.

And on a series of very pointed and interesting questions about executive power culminating in that discussion from Sen. Feingold that we heard, he refused to say whether or not the president’s domestic spying program violated the FISA statute or was authorized by the Constitution but just said he would have to engage in these questions when they came before him.

So if the standard is did he duck the questions that he had to duck, sure, and I guess that was strategic in his favor but for Democrats who are considering whether or not to oppose him strongly I didn’t see an awful lot today that would have reassured them.

STUART TAYLOR: I don’t question that he ducked a lot of questions. He did. You watch it and you think why doesn’t he answer the question? Sen. Schumer is asking him do you still believe the Constitution — and that’s why I refer to the rules of this peculiar game.

Jeff and I disagree, that I don’t think we learned anything in three days of testimony from John Roberts, anything at all about how he would rule on any of these pending issues.

And frankly, when we’ve got a hot national debate right now about whether the president has acted illegally, even criminally in this warrant-less surveillance program, no nominee for any judicial office is ever going to come close to answering it nor should they. It would be pre-judging the case.

RAY SUAREZ: Well, let’s take a look since you both mentioned abortion and the day ended with some tough questions from Sen. Schumer of New York. He said, for instance, that he does find a right to privacy in the Constitution, which takes him further than earlier some earlier nominees, notably Robert Bork who he said he admires.

He supported the conclusion in Griswold v. Connecticut, which is a landmark decision on contraception, and Eisenstadt, which extended the Griswold protections to single people, not just married couples. Should this reassure those people who had worried about his abortion stances earlier?

JEFFREY ROSEN: I don’t think so. It’s now clear that you can’t get confirmed to the Supreme Court unless you recognize the legitimacy of the Griswold and Eisenstadt cases. John Roberts did that and Judge Alito pointedly distanced himself from Robert Bork in this respect who had questioned those cases, but he declined to say whether or not he thought that Roe was a super precedent or a super duper precedent.

He made an okay joke about that sounding like some detergent that you’d see on the rack at the grocery store. But in that sense he seemed less reassuring about the scope of stability and continuity than John Roberts was.

And even Clarence Thomas, when you think back to his hearings, was almost expansive about the importance of precedent, saying nothing could be more important. He wouldn’t overturn it under any circumstances so on Roe, he really kept his options entirely open and refused to tip his hand in any way. I would not be reassured if I were a Democrat.

RAY SUAREZ: Stuart, options entirely open even after Sen. Specter, who is a pro-choice Republican, made such a point of noting the 38 decisions that upheld Roe since its first decision?

STUART TAYLOR: I agree with Jeff on that. I think he kept his options entirely open. And John Roberts, the chief justice now, kept his options entirely open. And any judge, anybody up for confirmation to the Supreme Court will keep his options open unless he can’t get enough votes to get confirmed that way.

There’s a pretty good argument that you shouldn’t be saying, yes, senator, I promise I’ll vote to reaffirm Roe v. Wade even though that’s going to outrage all the Republicans or, yes, senator, I promise that I will overrule it or I won’t overrule it.

So I think, no, the game at this stage is a ritual. Jeff is right. You have to pledge allegiance to the right to privacy, the right to contraception, Griswold v. Connecticut, to get confirmed. And probably if you say I think Roe v. Wade should be overruled, I’ll have an open mind if I get there, but as I sit here today, I think it should be overruled, you probably can’t get confirmed either.

RAY SUAREZ: Let me turn the question around a little bit. Yesterday during their opening presentations Senators Brownback of Kansas, Coburn of Oklahoma, Graham of South Carolina, all spent a lot of their time in their opening statements talking about abortion.

And today hearing the nominee uphold the right to privacy, uphold Griswold, uphold Eisenstadt, and speak in favor of stare decisis, respecting precedent, might they have something to worry about?

STUART TAYLOR: I think everybody who is worried about, you know, how Roe v. Wade is going to turn out has something to worry about because we have two new members of the court who quite properly in my view have avoided — well, Alito is not on there yet but if he gets there, have avoided saying yes I promise to overrule it; no, I promise not to overrule it. I don’t think they should say that.

I frankly don’t think they will overrule it. But that’s not because of any particular thing either of them have said. That’s because of my possibly incorrect gauging of their temperaments.

Neither one of these guys, it strikes me, is a bomb thrower, is somebody who wants to suddenly throw a lot of turmoil into the system and overruling Roe v. Wade would certainly do that.

RAY SUAREZ: Professor Rosen, today we heard about some arcane terms like presidential signing statements which really don’t make the news very often. But it’s a document generated when a president signs a bill that’s passed by Congress. What is it and why is it important?

JEFFREY ROSEN: This was part of a really fascinating debate about the scope of presidential power. And we know when President Bush signed the recent congressional ban on torture, he included a signing statement saying that it might not bind the executive branch in important ways.

Judge Alito, when he was an advocate, had supported the use of presidential signing statements to preserve presidential authority. And there was a long debate about his support for an important theory called the unitary executive that as Sen. Kennedy said Judge Alito had supported quite recently. This is the centerpiece of the recent debate about the scope of presidential power, and the most dramatic advocates of this theory argue that the president should have the power even to refuse to obey laws that he believes are unconstitutional like the law restricting wiretaps.

Judge Alito was asked: Do you support the use of signing statements under these circumstances? He said that’s a theoretical question that the court hasn’t decided. I’ll have to come back to that.

Do you support the unitary executive theory in its broadest form? He drew an interesting distinction between the president’s control over his appointees and his ability to fire people and the scope of his authority. And he said, no, here I’m just talking about the ability to fire cabinet appointees. I’m not saying that the president should be able to break laws with which he disagrees.

So by bobbing and weaving on that central question, he really didn’t tell us, although he was asked to repeatedly whether he thought that that FISA law, for example, could be broken in light of Congress’ authorization of the use of force after 9/11.

He refused to say whether that put the president in the zone of twilight when he was acting against expressed congressional intentions. He just said I have to consider all those arguments when they came before me. And in this sense although lots of senators really tried to give him a run for his money here we didn’t have a strong sense at the end of the day exactly where he sat on these questions.

RAY SUAREZ: Stuart, did Judge Alito de-claw those questions about the limits of executive power?

STUART TAYLOR: I don’t think he de — well, I think he got by which is all he needed to do. Now, I get the impression from Jeff that he thinks Judge Alito ought to be saying, well, here’s how I would rule on this case. Oh, the president against Congress on wiretapping? No, I’d rule against the president on that. And on Roe v. Wade, oh, I’d overrule that one. Is that really what you want him to do?

JEFFREY ROSEN: Of course not. No, no. There’s no question that he shouldn’t tell how he’s going to rule on cases coming before the court in the future. But when you’re asked very specific questions both about his views about constitutional questions like Roe independently of the stare decisis question — or even there was a nice exchange where he was asked tell us about Bush v. Gore. The election of 2000 at this point is settled. It’s not going to come up again. Was that right as an original matter? He said election disputes might come before me.

Now do I admire him for bobbing and weaving? I do. And I’m especially impressed that he didn’t resort to the mantra that lots of past nominees have used: I can’t answer that; that will come before me. Judge Ginsburg did that. Chief Justice Roberts did that. There’s a certain elegance about the fact that he appeared to be forthcoming without actually being forthcoming.

I’m just saying for my own sake as someone who hasn’t made up his mind on the nomination, I don’t feel like I know a whole lot more about his substantive views about abortion or executive power than I did before the hearing began.

RAY SUAREZ: Stuart, what about some of the issues talked about the anti-Alito activists in the run-up to these hearings, things like his recusal over the Vanguard Mutual Fund ownership when the case came before him, the findings for corporate respondents in hiring bias cases and his membership in this Princeton alumni group?

STUART TAYLOR: Well, those all got some attention today. On the Vanguard thing, his strength is that I don’t think there are many serious legal ethicists who think seriously that there was a problem, that he had a conflict of interest sitting on vanguard cases because he owned some Vanguard Mutual Fund shares but he said he would recuse himself, for how long was kind of ambiguous, and the explanation of why he failed to recuse himself in one case and then changed and then it had to be brought to his attention.

The explanations have been unsatisfying so I think he’s made his own problem to some extent there and added fuel to the fire but the American Bar Association Committee, which is no bevy of administration supporters, it’s a pretty broad group, gave him a very strong thumbs up on integrity after examining the Vanguard matter very closely.

Concerned Alumni for Princeton, this is a group that he proudly said I’m a member when — a conservative group — when he was applying in 1985 for a political appointment in the Meese Justice Department and now he says I have no recollection of that apart from that document. That probably is the hardest thing to believe of all the things that he said.

And the Democrats are making hay out of it because Concerned Alumni for Princeton or some of its members said some pretty far-out things about — we’ve got too many women here; we’ve got too many black people here — that frankly I think it’s hard to believe that Alito agreed with those statements but being associated with an organization where people were making them gets him into problematic territory. I don’t think it’s going to be a huge problem for him but it’s kind of a blot.

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Meanwhile, advocates and court watchers are pouring over the writings, hoping to glean how Alito might rule from the high court.

I’m joined now by two scholars who have been doing just that: Jeffrey Rosen, professor of law at George Washington University and legal affairs editor at the New Republic; and Stuart Taylor, a columnist with National Journal and a fellow at the Brookings Institution.

And, looking over these vast number of documents that have been released in the last month, are you getting a better sense of who Samuel Alito is?

JEFFREY ROSEN: It is possible to get a sense, and it’s interesting to compare them with the Roberts memos. In many ways, Alito’s seemed less deft; I think in particular of that job application that he sent to Attorney General Meese where he said, "I am a fierce conservative. I’m proudest of my opposition to abortion."

There was an earnestness and a rawness that we didn’t see in the wittier Roberts. On the other hand, you have the sense in these memos that Alito is a careful lawyer, always strategically advising the Justice Department to choose conservative and prudent strategies, rather than a fire-breathing ideologue, and in that sense he seems a little bit more reassuring than I might have feared.

RAY SUAREZ: Stuart?

STUART TAYLOR: I’d say I agree largely, but this application in which he said: I am a Reagan conservative, essentially, and I’m proud of what we did on abortion and racial quotas, I don’t read that much into it other than he was a Reagan conservative. He was filling out a job application for a political appointment — he’d been a civil servant — and he was asked on that application, "How can you show us that you’re in tune philosophically with this administration?"

And so he did that. He said that he — there was no — the Constitution does not protect the right to an abortion — obviously, he thought that then. He’ll have to explain whether — what he thinks about that now, whether he thinks Roe vs Wade should be overruled. He said he was proud of opposing racial and ethnic quotas; he’ll be questioned closely on that.

He was critical of the Warren court. But I don’t think it shows him to be a guy who’s going to get on the Supreme Court 20 years later with some kind of conservative agenda to revolutionize the law, as you might think from reading some of the papers.

RAY SUAREZ: Well, let’s look at some of the specific memos: one from 1984 dealt with whether government officials should have blanket immunity from lawsuits when authorizing wiretaps. In the memo he said, "I do not question that the attorney general should have this immunity." Jeffrey Rosen?

JEFFREY ROSEN: This is a very interesting memo. On the one hand he was prudent. He said, "Don’t press the claim of immunity too hard because we’re likely too lose on that point." In the end, he was right because they rejected his advice and the Supreme Court said no, the attorney general can’t look for some — a plot to kidnap Henry Kissinger and engage in domestic surveillance, breaking the law, and have blanket immunity.

On the other hand, since it wasn’t clearly illegal when he did that, he’s off the hook. But privacy advocates sort of focused on this memo because they say that he’s actually pretty sympathetic about the idea that the Foreign Intelligence Surveillance law – this is the law that’s at the center of the current Bush controversies — clarified the landscape and reduced the possibilities of litigation.

And they think that sympathetic reference to law, combined with the fact when he was a Princeton undergraduate, Alito was a big privacy advocate, and wrote a paper basically saying that there should be a federal court of warrants that should have to authorize every wiretap before domestic surveillance is allowed, that these two things taken together might show that he has a secret privacy instinct.

Now, on the other hand, as a judge, he has authorized secret surveillance cameras of suspected bribery suspects and has not been very strongly civil libertarian. He said in his job application letter, I believe in strong deference to the executive, when it comes to crime, and his record there is pretty tough, too.

But I think what we can take from this memo is it that he was giving good legal advice when he said don’t go for broke in arguing for immunity, but he didn’t tell us much more than that.

RAY SUAREZ: Stuart, what do you make of that?

STUART TAYLOR: I agree with Jeff, but let me take a little more simplistic take. This memo has been widely represented by his opponents in the media as evidence that, oh, he approved wiretaps, he’s encouraging wiretaps. That’s flat out false. The memo had nothing to do with whether wiretaps should be authorized or not.

The only thing he did in that memo that’s generated controversy is suggesting that the Attorney General of the United States, who had ordered wiretaps that later turned out to be illegal, should be absolutely immune from civil lawsuits. The people said, hey, he wiretapped me, shouldn’t be able to sue him for money.

That is exactly the same position that the Carter administration’s liberal solicitor general, Wade McCree, had taken in the same general case. It is the position that anybody working in the job Alito had would have taken, and the fact that Alito took that position is utterly unremarkable. And I think – I think it’s been a distortion to suggest that it’s anything beyond that.

RAY SUAREZ: Well, Stuart, in June 1985, Alito was a 35-year-old assistant to the solicitor general and he writes in a memo advising on abortion: "The government should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether and, if so, to what extent that decision should be overruled."

And further said: "The brief makes our position clear, does not even tacitly concede Roe’s legitimacy, and signals that we regard the question as live and open."

STUART TAYLOR: Yes, now, that is more significant, I think, as is a related statement he made in the same job application Jeff mentioned earlier in which he said the Constitution does not protect a right to an abortion, clearly expressing his own legal view.

It’s clear in that 1985 Alito thought that Roe versus Wade was wrong. It’s pretty clear that he thought it should be overruled, that that wasn’t just being a lawyer for the administration.

The question that that leaves unresolved is whether he thinks now that it should be overruled. He probably still thinks it was wrong. That’s not the sort of thing people change their minds about – and, by the way, many pro-choice liberals have always said that Roe versus Wade was wrong.

Where the rubber meets the road is okay, what are you going to do now? Will you overrule it? And I think it’s far from clear that Alito would overrule it now. In fact, the solicitor general, to whom he was writing that memo that you just read from, in ’85, asked the court in 1985, we want you to overrule Roe versus Wade, Charles Fried is his name, the same man now says well, it’s been 20 years, it’s been reaffirmed; it should not be overruled.

My guess is Alito would say the same thing when he gets the issue.

RAY SUAREZ: Professor, far from clear that he would write to overrule it now?

JEFFREY ROSEN: Far from clear, but I’m not sure that I’m reassured by anything in his record that he wouldn’t.

In that memo, after all, he was pretty canny and strategic, he said: I think Roe should be overruled, but let’s tell the court, even if it’s not overruled, you can still uphold all of the restrictions that you’ve been striking down in the past and basically reach the same result without a clear overruling of Roe.

That’s a lack of transparency that some of the fellow justices shared, that might suggest you can keep Roe on the books but really as an empty shell.

It’s also interesting that all of the provisions that he was arguing in favor of back in 1986, the Supreme Court struck down at the time but would then uphold in the Casey case in 1992, and in this sense, I think we have a better sense of his abortion jurisprudence from what he’s actually decided on the bench than in this memo.

But the truth is, although Stuart is right that the central question is his view of the previous weight of precedent, there’s nothing in his record that would suggest that he agrees with Charles Fried that Roe has become a super precedent, though he’s making reassuring noises to Sen. Specter. And this is just a question that the Senate’s going to have to press him on very, very closely.

RAY SUAREZ: There’s a degree to which these memos have a feeling, like that old pot-boiler cliché, "torn from the headlines," "executive privilege," "wiretap," "abortion," and "racial quotas."

In a job election application letter, written to then Attorney General Sam Meese, young Samuel Alito wrote that he was "particularly proud" of his contribution to cases in which the administration argued "…that racial and ethnic quotas should not be allowed…"

Jeffrey Rosen.

JEFFREY ROSEN: This was such an interesting case that he was talking about that he was proud of. It’s a case where unions had made an agreement that black and white schoolteachers who were equally qualified could be fired or hired on the basis of race. Basically, the black teachers could be kept on ahead of equally senior white teachers.

That’s about the most controversial use of preferences available, and the Supreme Court struck it down; they said because there was no history of past discrimination, this couldn’t be allowed. But at the same time, they said you don’t have to prove in advance that there was past discrimination, as long as there’s some evidence of it, you can have affirmative action.

Along the same lines, Alito as a judge joined an opinion saying that you couldn’t fire a white teacher ahead of an equally senior black teacher. Again, this is something that many people consider the most controversial use of affirmative action because all the burdens of the preferences fall on one individual.

Now, what we don’t know from these two cases, the YGAT case, which he was joined as a lawyer in this other case, is what he would do about affirmative action in schools, universities. This is the central question before the courts. Justice O’Connor was at the head of a five to four decision upholding this.

In the YGAT case that Alito lost essentially, O’Connor signaled that you might be able to use role models as a ground for upholding affirmative action in higher education.

No evidence that Alito accepts that theory, so I would just guess, based on this record, that he would be less sympathetic than O’Connor to affirmative action and higher education, and, therefore, it might be actually be vulnerable to being struck down.

RAY SUAREZ: Stuart, how does that look to you?

STUART TAYLOR: It’s not a bad guess, but Justice O’Connor became much more favorable to affirmative action racial preferences later in her career than earlier in the career. Her vote in the case we’re talking about was I think essentially the same position that Alito said he supported — racial and ethnic quotas should not be allowed.

Very few people argue in favor of racial and ethnic quotas. They’ll argue for softer forms of affirmative action or racial preference, and what he thinks about those softer forms is not clear. Jeff mentioned the later case in which as a judge he ruled in favor of a white school teacher who sued because she was laid off on grounds of race. That case was such an embarrassment to the civil rights community, the fact that they actually paid off in a legal settlement the white plaintiff in the case to prevent the Supreme Court from deciding it.

The Clinton administration, which initially supported the firing of the white teacher, reversed its position and asked the Supreme Court, please, don’t take this case, because they were embarrassed by the position. So if you think that the Clinton administration was too right wing on affirmative action, well, you should vote against Alito.

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RAY SUAREZ: Professor Rosen, during Justice Roberts’ confirmation hearings, he said, basically, about the 90s, well I was in private practice and representing the interests of my clients and of the 80s, he said, well, I was working for my bosses and doing what they wanted me to do — and presented himself as — maybe a blank slate is too harsh, but somebody whose own private convictions on these matters could not be understood from his right. Will Samuel Alito be able to do the same?

>JEFFREY ROSEN: It will be harder, because we have much more evidence of what Samuel Alito’s private thoughts are. No one could have any doubt what his political philosophy is. He laid it out in a letter to the attorney general, which said, here’s what I believe: limited government, deference to the police, the ability of states to enforce traditional moral values. You can’t walk away from this.

Now, the question is, can he convincingly say, I’m now a judge. I was then a lawyer. The two roles are different. Sure, and they, and everyone knows that. But in the case of Roberts, there was a better worked out judicial philosophy of modesty and deference, and, therefore, one could trust that he would differentiate. In the case of Alito, we don’t yet know what his judicial philosophy is, and it might be harder for him to walk away from these previous statements.

RAY SUAREZ: Is he going to have tougher hearings, Stuart, because of this paper trail?

STUART TAYLOR: He definitely will have tougher hearings. I thought it was a little bit of a stretch for Roberts to say, oh, those memos didn’t necessarily reflect what I thought, and as Jeff says, it would be more of a stretch for Alito to say that, particularly the job application where he says, "Here’s what I believe, that’s why you should make me" — so I think he’s going to have to answer questions that Roberts was able to duck.

I don’t necessarily agree with Jeff that his judicial philosophy is harder to glean. I think he’s very similar to Roberts. He’s not as smooth an operator – I don’t mean that in a pejorative sense to either of them. He’s a little geekier; he’s a little dweebier. Roberts was someone said the big man on campus type, and Alito is not, but I think both of them come across, from what I’ve read of them, particularly the judicial work, as people whose principal judicial philosophy is that judges shouldn’t be running the country. I think in that, he and Roberts are quite similar.

RAY SUAREZ: Stuart Taylor, Jeffrey Rosen, thank you both.

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We get some insight into Lloyd Cutler’s life and career from Stuart Taylor, columnist for the Legal Times and senior writer for National Journal Magazine. Back in 1977, Stuart was fresh out of law school and a new associate at Lloyd Cutler’s law firm here in Washington. He has since written often and extensively about Mr. Cutler. Welcome.

STUART TAYLOR: Nice to be here, Jim.

JIM LEHRER: What’s the most important thing all of us should know about Lloyd Cutler?

STUART TAYLOR: He was a great lawyer in a time when lawyers could be called great, not just slick or good and when great lawyers could also be great statesmen, when being a great Washington lawyer, a super lawyer, as he and others were called, meant serving the country not just serving a bunch of corporate clients. He served a bunch of corporate clients. The list goes on and on and he served them well.

But he also was in and out of government as you mentioned. He had jobs with six presidents. He worked across party lines. He was a democrat and not a conservative democrat, I’d say, a little bit liberal for a democrat. But he worked with Republicans all the time on all kinds of things and had their respect. In today’s Washington, I’m not sure anyone could do that.

But as you mentioned earlier, six presidents, his greatest headliners were president — he was counsel, White House counsel to each of our last two Democratic presidents, Jimmy Carter and Bill Clinton. But he also served in commissions and various other capacities for the first President Bush, for President Reagan, for the second, the current President Bush. He was, when he died he was at least ex-officio a member of the commission investigating weapons of mass destruction.

And, lastly, I think he believed that the law should be used as a tool for the public good. And for that reason he and his law firm did a great deal of uncompensated public interest work. They were active in the civil rights movement representing the NAACP in the Supreme Court and a long list of other engagements, mostly on the liberal side of issues, but not always.

JIM LEHRER: How would you describe his manner, the way he went about his business, the way he went about his life just as a person?

STUART TAYLOR: It was often said of him that he was never the first person in the room to talk and he was never the loudest voice, but he was the one everybody listened to. He would talk slowly, ponderously but with gravitas as the word goes. You sort of had the feeling you were listening to somebody who had really thought it through who was picking his words very carefully, who had found the formula that everybody in the room could agree on or should understand and he made a heavy impression that way.

JIM LEHRER: Did you have the impression, Stuart, that his wisdom, his power, came from instinct or was it as the result of hard work and study and preparation or a combination thereof or what?

STUART TAYLOR: I think it was both; he whipped through Yale College and graduated at age 18. Most people start at age 18. Then at Yale he was president of the Law Review, so he clearly had the horsepower. But lots of people have the horsepower who didn’t become Lloyd Cutler.

I think he had an instinct for solving things, for finding formulas that people coming from different directions could agree on and for putting them across to people in a persuasive way. And also I think he earned credibility with republicans for example when he supported Robert Bork’s nomination to the Supreme Court.

That was crossing party lines. A lot of democrats were mad at his but Bork was a friend of his. He respected Bork and thought he was good enough for the Supreme Court. Darn it, he was going to support him.

JIM LEHRER: Full disclosure. I was a personal friend of Mr. Cutler. And I remember asking him – when he took the job, he was 77 years old, when he took the job to go back to the White House and be Bill Clinton’s White House counsel.

And I said to him, "Lloyd, why are you doing this?" And he said, "Well I thought about it. I’m 77 years old." Here’s a picture of him, in fact, with President Clinton. He said, "I thought about it. I’m 77 years old. What am I saving myself for?" Which is a terrific Lloyd Cutler kind of answer.

STUART TAYLOR: He had a lot of miles in him. President Clinton, when he was looking for someone to help him out at that time who was, you know, he was having trouble with Whitewater and his previous White House counsel had kind of gotten run out of town. He was heard to say we need a Lloyd Cutler type. Everybody knew what that meant.

JIM LEHRER: Then he convinced Lloyd Cutler to himself to come. Now there’s an interesting — in March, one of Lloyd Cutler’s partners and best friends, John Pickering died. They were two of a kind, were they not?

STUART TAYLOR: They were. They were friends for life. They were the post World War II generation. John Pickering argued one of the great cases in the history of the Supreme Court, the steel case under Harry Truman and led the law firm. Lloyd was more in the public sector, John more in the private sector. But they both had that largeness of ambition and purpose and character that commanded respect and people did not look at these guys by and large and say, "Oh, they’re just hard guns doing it for a client."

JIM LEHRER: I’m interested in what you said finally, I want to come back to a story that you said at the beginning that would be hard for somebody to become a Lloyd Cutler or now a John Pickering, a young lawyer coming along. Why? What’s happened?

STUART TAYLOR: It’s hard to put your finger on it. We’ve changed in a lot of ways. But the most obvious way is the polarization, the lack of bipartisanship, the bitterness across party lines that we see in Congress every day.

Lloyd would like to think and to say that everybody in the room, the democrats, the republicans, the liberals and the conservatives, we’re all reasonable people here. We ought to be able to work something out. That’s not an easy sell these days. And also I think there was more respect for institutions and there was more respect for the legal profession and for the people at the top of the legal profession.

I remember when he was representing President Clinton, he testified in Congress. He said, "I’m not here as a hired gun" — that wasn’t the word but the spirit– "for President Clinton here. I’ve done a factual investigation. I’m here to tell you what my conclusions are as a man of integrity." He expected people to believe that. Some of them did.

JIM LEHRER: Some of them did. You’re saying he may have been among the last who could do that and be believed, say that and be believed.

STUART TAYLOR: I think that’s right, yeah.

JIM LEHRER: Okay. Stuart, thank you.

STUART TAYLOR: Thank you.

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LARRY THOMPSON: Nothing that we have been done has been enacted in secrecy. Every measure that we have undertaken is out in the open. Every measure that we have undertaken has had the sunlight of public attention. And almost all measures are not done unilaterally by members of the Department of Justice. These measures are subject to judicial review by judges and other judicial officers.

MARGARET WARNER: But let me just ask you for instance, the chief immigration judge, who just explained to our viewers also is part of the Department of Justice, Michael Creppi, issued an order saying, and I’ll just read it to you, that these hearings, these deportation hearings, were to be held in secret, "no visitors, no family, no press, not even confirming whether it’s on the docket."

LARRY THOMPSON: The only thing that has been secret, if you will, has been the list of the individuals and the actual hearing itself. But the fact that an individual was taken into custody, the fact that he or she was in a particular detention facility, that was open to the public, if you will, to their friends, to their relatives, they could make phone calls.

This was not done in the dark of night. People do not disappear in this country and we have really not done anything in secret, if you will. The actual administration of justice with respect to some of these cases was done, what we call in camera, because of national security and other concerns, and even that has been subject to judicial review, but nothing has been done in secret.

MARGARET WARNER: A senior member of your staff out of your criminal division, Michael Chertoff, was at the ABA Convention last month– and the ABA has been critical of some of these measures– and his answer was, essentially, this is a time of war. Is that the basic underpinning here?

LARRY THOMPSON: Well, we are at war and we do face the threat of terrorist activity every day, but the fact of the matter is that the measures that we have enacted we believe are balanced, we believe they are consistent with the applicable laws and as I mentioned to you earlier, they have been enacted out in the open.

MARGARET WARNER: So does that mean these measures are temporary or are these measures things that Americans will have to learn to live with indefinitely?

LARRY THOMPSON: Well, I don’t think that there are measures that we will necessarily have to learn to live with indefinitely, but there are measures that are appropriate as long as we are at war and as long as we face the terrorist threats that we do.

Every day, every day since 9/12, I go to work early in the morning and am confronted with a real and credible terrorist threat, and then you have to deal with how do you react to that, and we think that our underlying mission at the Department of Justice, our overwhelming priority, is the prevention and disruption of future terrorist attacks. That’s what we think the American people expect of us. We know that’s what the president expects of us and that’s what we want to try to do.

GWEN IFILL: Now to pick up where the deputy Attorney General left off, we turn to four legal experts here to discuss the impact of September 11 on the justice system. We’re joined by: Loretta Lynch, the former U.S. Attorney for the Eastern District of New York; Stuart Taylor of The National Journal; William Barr, who served as Attorney General under the first President Bush; and Laurence Tribe, Professor of Law at Harvard University.

Professor Tribe, a year after 9/11, do we believe that the justice system is as balanced? Has the right balance been struck, I guess, between civil liberties and war time footing, on a war-time footing?

LAURENCE TRIBE: Gwen, I don’t think the balance really is what it ought to be primarily because the twin pillars of our fundamental system of liberty under law have both been eroded. The sky isn’t falling. It’s not quite as bad as what FDR did with Americans of Japanese origin. It’s not like what Lincoln did. It’s not as bad as it might be, but the twin pillars first of checks and balances.

And second– excuse me– of public accountability and of openness have both been eroded. You just had an interview with the Deputy Attorney General who kept saying that the laws were enacted in the open, but nothing, he said, is in secret, if you will.

Well, that’s simply not the case. The U.S. Court of Appeals for the Sixth Circuit, which I think said quite rightly that democracies die behind closed doors, emphasized that there is in place a routine rule even for the most trivial deportations of someone who has overstayed his visa that as long as the Attorney General says it’s to be heard in secret, it’s heard in secret. When the Deputy Attorney General says it’s only the actual hearing that is in secret, I shudder.

Now the other pillar is checks and balances. We were told that judicial review is always available, but the fact is– and I think it cannot be denied– that the position of the administration is that when they say someone is an enemy combatant, even if it’s an American citizen arrested in an American city like Jose Padilla, that person has no access to court, no right to a hearing, no access to counsel. That, I think, erodes checks and balances. As I say it’s not as bad as it might be but it’s pretty scary.

GWEN IFILL: Professor Tribe, let Mr. Barr get a chance to respond to that same question about whether we’ve struck the right balance.

WILLIAM BARR: Absolutely. The danger to our civil liberties comes from the terrorists, of people who are afraid to get blown up by terrorists, not the government’s actions. I think the government’s actions have been restrained, moderate, well within the law and pose no genuine civil liberties concerns.

Larry is confusing two separate and distinct realms. The criminal justice realm deals with the rules that we set within a society to discipline recalcitrant members who break the rules and what’s involved there is a process involved in the punishing of those members of the body politic. It’s a wholly separate issue when our society is under attack by a foreign organized force. In that situation, we’re in an armed conflict. We’re at war.

The Constitution doesn’t give civil liberties to our enemies. The Constitution is concerned with us winning the war by either killing or incapacitating those who are trying to kill us. And so I’m afraid that many of the so-called civil libertarians are suggesting that we apply the rules that relate to the criminal justice system and apply them to armed combatants who are fighting a war against us.

That’s never been done in our history and it’s totally inappropriate. Let me just say that as to the people we have dealt with under the criminal justice system, those people who have been detained for immigration violations or have been treated as material witnesses, we have gone through the criminal justice process. They have access to lawyers. That process is in full swing. There’s no derogation of civil liberties. There is a dispute over whether hearings can be secret in immigration cases. That’s going to be sorted out by the Supreme Court.

GWEN IFILL: Okay. Let me interrupt you because I want to get around to everybody one time here. Stuart Taylor, civil liberties, should that be a flexible concept?

STUART TAYLOR: I think it should be a flexible concept. I agree with the first thing Bill Barr said. I think I agree with most of the rest of what Larry Tribe said. I’ll take it from an Alexander Hamilton quotation. The vigor of government is essential to the security of liberty. Their interests can never be separated.

What he meant and I think what Mr. Barr means is if our enemies are able to blow up people at will in the United States and terrorize us, the freedom not to be wire tapped isn’t really worth very much and the government needs the investigative powers– and I agree they need broader investigative powers– to deal with that. Where I think the administration has gone off the rails– and I’m not the only one who thinks so.

I’ve talked to some conservatives who are similarly troubled – is in their detention policies and in particular in two cases they have people in military detention, American citizens, one arrested in the United States, Jose Padilla, who have not been allowed not only to see lawyers. They haven’t been allowed to see judges. They will never for the rest of their lives according to this administration’s policy be able to go in front of a judge and say, "Here’s my story. They got the wrong guy." No right ever to do that. That is the administration’s policy. I submit that is an outrageous policy that the courts – the Supreme Court I hope would reject.

As to the 1200 detainees that were discussed – and we saw the Attorney Genera on camera talking about if you overstay your visa one day – one thing that I think he tends to fudge and I think people lose sight of is the vast majority of those, 99 percent, had nothing to do with terrorism. It proved. They may have violated some immigration law.

They may have overstayed… but he’s sort of assume inning the way he talks about them that they’re all terrorists. The way they were treated while in detention is consistent with that assumption. They were thrown in with accused criminals or criminals. They were strip searched, manacled. I think the detention policy is way beyond what’s necessary to protect our security needs.

GWEN IFILL: Loretta Lynch, as a former prosecutor how handy is it as you’re trying to investigate these kinds of cases especially in a time of war, I suppose, is it to have access to greater latitude on wire tapping and how much do you have to walk the line to make sure you’re not going too far in violating individual rights?

LORETTA LYNCH: Well, actually that’s a line that you walk in every case. I mean, every case particularly one involving electronic surveillance where you are essentially surveilling people in private situations has got to be reviewed carefully. They are still reviewed by the courts even under the new laws that are passed this most recent year under the Patriot Act.

The issue really that’s been pointed out by the previous speakers is the tension that’s arisen in our current situation. You know, we’re having… we really are experiencing a switch in the law enforcement paradigm in this country. It primarily was reactive. Let’s catch someone, adjudicate the case and convict them.

We are really switching into a deterrence mode. The nature of the threat requires that we try and actually prevent actions before they occur. And that actually does call for a greater use of certain types of techniques.

What it also calls for, however, under our system is the same accountability when you expand these techniques as you used before. One thing that we have to remember is that the system works primarily by the cooperation of everyone involved in it.

One of the problems with excessive detention, for example, of large members of one community or another is it ultimately it’s going to backfire because ultimately we may need cooperation and information from some of the very members of that community that we may not have treated with the way that we would like to be treated ourselves if we were detained. And that’s something that requires foresight and discretion. I mean, everything that the government does– I don’t think anyone doubts their purpose and their goal is to protect us.

However, as they strive to do that, we have to keep in place the essential accountability that law enforcement and government has always got to be subject to.

GWEN IFILL: Professor Tribe, when we talk about the cases of the most notorious cases the one that’s being prosecuted now in criminal court of Zacarias Moussaoui and of the Americans, the American detainees, Jose Padilla and Yasser Hamdi, what is the difference? People begin to think of them all as people who are suspects and should be held. But is there a difference when they’re American citizens and they’re detainees and when they’re not?

LAURENCE TRIBE: So far the courts have treated the fact that someone is an American citizen as entitling that person to better treatment in some respects. But when it comes to the fundamental right to talk to a lawyer, to talk to a judge, not to have the government unilaterally by its own say so draw the boundary between these two models, the preventive wartime model and the reactive judicial model, when it comes to that, there’s really no difference between citizens and non-citizens.

I’m struck as I hear my friend Bill Barr say that I’m simply confused about the difference between war and justice. But I think Bill is confused about who in our system ultimately answers those questions. Of course when it is admitted that someone is an unlawful enemy combatant, that person is not entitled to be treated as a prisoner of war and not entitled to be treated as a criminal defendant.

But striking the balance between war and justice, deciding whether someone who, for example, went to a meeting of a cell of al-Qaida as an American citizen can simply be written off by a unilateral stroke of the executive pen and detained indefinitely– and it is indefinitely– that’s not a function for the president alone. And I do want to stress just a few months ago in May, the deputy attorney general said in a candid– and I think honest– moment, he said there will never be another normal.

This is not like any other war. It’s not like the Civil War, the Revolutionary War, World War I or II. This one by definition can go on forever like the war on cancer or the war on drugs. Because that’s right, we have to be unusually careful about checks and balances and about openness and accountability — just as Ms. Lynch said.

GWEN IFILL: Let me ask Mr. Barr this question which is what is the proper role for the courts in all this? Some courts have been digging their heels in and putting on the brakes at some of the administration’s request. What should the proper role of the courts be?

WILLIAM BARR: I think that’s the core question as we try to determine which is the applicable model. I think Larry is right that– and it’s important to recognize– that when someone is an armed combatant against the United States they don’t have legal rights. They’re not entitled to a lawyer. No charges have to be brought against them.

There were approximately 300 American citizens who were imprisoned in the United States as members of the Varmacht in the Italian army in World War II. They didn’t have access to judges. The president didn’t have to prove they were members of the Vermacht. They were prisoners of war because they were enemy combatants.

The question comes up can the president willy-nilly decide who is an enemy combatant and say I’m going to treat you as an enemy combatant, rather than on the law enforcement side, and what is the role of the courts? I think this is really the crux of the issue. My view is that it’s the president’s responsibility in the first instance to make that determination. That’s important to the power to wage war. The commander in chief has to be able to make the initial decision. This is an enemy combatant and we’re putting him and treating him as a prisoner.

The role of the courts in my view is quite limited. I think Larry was exaggerating when he said these people have no access to the courts. In fact, writs of habeas corpus have been sought in the Hamdi case and the issue is being presented as to what is the role of the judge. In my view, the judge is not to make the decision and it’s not the judge’s determination as to whether in fact this person was or was not a member of al-Qaida. The issue is whether the President has made that determination.

There’s some evidence to support it. It’s made in good faith. You can’t have judges second guessing fundamental decisions during a war as to who the enemy is.

GWEN IFILL: Stuart Taylor.

STUART TAYLOR: I think the reality is illustrative. What we’re talking about here at least in some cases is maybe the Northern Alliance picked up somebody, this fellow Hamdi, hands him over to somebody who hands him over to the Americans. He goes through a chain of people and at the end of the process, a two-page declaration by someone named Michael Mobs in the Pentagon is presented to a judge saying this guy is an enemy combatant and we know it and here’s why.

The administration’s position is, "this guy never gets to go in front of the judge." Some lawyer from outside hired by his father may be able to run into court and say habeas corpus but the guy never gets to go before a judge and tell his story let alone have the… any testing. Now, when the guy is picked up in Afghanistan, that’s one thing. But they could do it to you or to me. Under their position, we’d never be able to see a judge.

GWEN IFILL: Loretta Lynch, quickly and finally, do you think as Deputy Attorney General Thomson said that these changes are now permanent ones?

LORETTA LYNCH: Well actually I hope not, because that would mean that the threat would remain permanent and our sense of fear and insecurity, which led to this quite frankly, would remain permanent. I think there’s always got to be a constant review, a constant scrutiny over the effectiveness of the provisions that we adopt in times of emergency.

I think people understand that the Administration may want to change certain procedures but as I said before the Administration has always got to be able to explain that to the people who are going to be subject to those provisions. Many of the new laws that were passed are not meant to be permanent. There are procedures in place for them to be reviewed in the next three to five years, which is a good thing. Also I think judicial review is important as well. As we learn more about this, as we strike this balance, then I think we’re going to know.

GWEN IFILL: Thank you all very much.

The post NewsHour: Liberty vs.Security – September 10, 2002 appeared first on Stuart Taylor, Jr..

We ask four people who specialize in civil rights, terrorism and the law. Juliette Kayyem is executive director of the Domestic Preparedness Session at Harvard University’s Kennedy School of Government; Frank Wu is a professor at Howard University Law School, he is the author of Yellow: Race in America Beyond Black and White; Stuart Taylor is a columnist for the National Journal and Newsweek; and Gail Heriot is a law professor at the University of California at San Diego.

GWEN IFILL: Juliet Kayyem, you’re an Arab-American woman. Do you believe at any time that racial profiling can be acceptable?

JULIETTE KAYYEM: The easy answer to your question is no. It can’t be. And it’s not simply for the legal issues that will probably get into or the ethical issues. As a person in the terrorism business, I think it’s completely ineffective.

It’s ineffective with the specific problem we’re dealing with here. We have the Al-Qaeda group, we know they’re in 40 countries, from Malaysia to the Philippines to Latin America, so Arab looking people won’t satisfy, if you look for Arabs you’re not going to satisfy it.

But secondly I think it’s ineffective because we have a huge problem in law enforcement and intelligence right now, and that is simply we have no one to translate any of the information that we have. We have, we’re starting to hear hints that we knew something was going on at least a few weeks before this, and we’re still trying to translate some of that information.

If we continue to sort of intimidate and interrogate an entire community, and I should point out that most Arab Americans are Christians, not Muslims in America, we will not get the kind of cooperation we need.

GWEN IFILL: Stuart Taylor, when can racial profiling ever be acceptable?

STUART TAYLOR: I think what — a form of racial profiling, depending how you define it, at airports, people getting on airplanes, or giving special scrutiny to people who look Arab, for a limited time may be a justifiable exception to the general rule I would apply against racial profiling. As a general matter, I deplore racial profiling.

I think people getting on airliners are a very special case. Unless you can thoroughly search everyone, which would be great, but it would take hours and hours and hours, it makes sense to search with special care those people who look like all of the mass murder suicide hijackers who did the deeds on September 11th.

The fact is that although obviously many people might be hijackers, the only mass movement in the world that we know of that includes a number of numerous people who are interested in mass murdering Americans by hijacking airplanes and crashing them and committing suicide in the process, are adherence to this perversion of Islam that centers in the Middle East.

GWEN IFILL: Frank Wu, what about that, special cases should be allowed here?

FRANK WU: Well, once you allow it in one instance, you start sliding down that slippery slope.

Civil rights shouldn’t be a matter of cost benefit analysis. It’s clear — we have to fight back. But when we fight back we shouldn’t lash out at ourselves, and that’s what Arab Americans are, they’re part of our society, they live here, they’re part of our way of life. And who could be better to help us in this war than individuals who understand the cultural background that we’re contending with.

During World War II Japanese Americans formed the intelligence units that did the translation and did much of the intelligence work behind our effort to fight Japan, because there you had a group – and even though it was interned, proved itself loyal and aided the U.S. war effort.

I wish to add too that Stuart Taylor commits a classic logical flaw. Even if every single terrorist involved is of Arab ancestry, that doesn’t mean everyone of Arab ancestry is a terrorist. Even if we were to take an absurd number, let’s say a thousand people of Arab descent within the United States are terrorists, that’s still a fraction of 1% of the Arab population. The other 99 per cent are law-abiding citizens like you or me. Having racial profiling sweeps too broadly using race, it’s simply wrong.

GWEN IFILL: Stuart, you can have a chance to respond.

STUART TAYLOR: I agree we’re talking about a tiny, tiny fraction of Arab looking people. I don’t think that’s inconsistent with my point.

If you want to make very sure that nobody smuggles a box cutter or small knife onto an airplane, and does what was done on September 11th, you’re going to have to either search everybody very, very thoroughly, or search some of the people very, very thoroughly. And when in that particular context you’re figuring on some of the people, I think people who look like those hijackers are among those who need special scrutiny.

GWEN IFILL: Professor Heriot, where do you fall down on this argument?

GAIL HERIOT: Well, let me start out by saying that in general I oppose racial and ethnic profiling. Race and ethnicity are rightly very, very touchy issues in America. But then they’re touchy issues everywhere, not just in America but all around the world.

I’ve thought about the issue though, and I have to say that I agree with Stuart, that I’m not willing to categorically rule out racial or ethnic profiling in this very specialized context. When it’s used, however, it has to be used with the lightest of possible touches.

GWEN IFILL: Is it because wartime is different? Is that why the distinction that you draw here?

GAIL HERIOT: Well, I wouldn’t necessarily call it a wartime/peacetime distinction. But we do have a very special situation going on now, where we can by using very small measures, measures like perhaps searching the baggage of certain passengers extremely carefully, impose not very great costs upon those passengers, but on the other side of the balance, we have thousands and thousands of lives at stake.

GWEN IFILL: Who gets to decide the threat?

GAIL HERIOT: I’m sorry?

GWEN IFILL: Who gets to decide that someone is a threat? GAIL HERIOT: Well, that’s a difficult question, and in fact the questions are difficult generally here. But I think we’re going to have to rely upon those people who are expert in airport security for trying to come up with the least intrusive system possible that will allow us to ensure an adequate level of safety in airplanes.

Of course this is also to the benefit not just of ordinary passengers, but also of Arab American passengers and Middle Easterners generally and people who just happen to look Middle Eastern. There’s a certain cost to being let onto an airplane and seeing a large number of passengers staring at you with fear. If the searches are done more systematically, at least other passengers will be assured what the people who do get on do not pose a threat.

GWEN IFILL: Let me ask Juliet Kayyem to respond to that.

JULIETTE KAYYEM: Well, the argument is incredible in that it’s so vague in terms of the kind of discretion that both of them are talking about.

First of all, Arab looking? I’m not quite sure how you qualify that or who you determine – and then we know that the personnel who are in these airline securities, how do you define things like suspicious, they were doing things suspiciously?

And how do you do this in a manner that doesn’t totally intimidate Arabs and Muslims, who I should say are suffering enough discrimination from the private sector, it’s sort of not a good thing to tell the government it’s okay to do this.

But finally, I just, no one is making the case that this is an effective counter terrorism measure, except for what happened on September 11th to the extent it involved not Arab Americans, let’s be clear here, Arabs and who were Muslims who hijacked all four planes, how it’s going to help us in the future is entirely unclear.

And I want to go back to a point that Stuart made. It is possible to frisk or screen people who may pose a threat without using ethnic qualities. We have systems in place, and one in particular the computerized airline security system, which I think is at least in place in Detroit, in which there are criteria which are nonracial, which sort of raise a bell. Did you buy the ticket one way, did you buy it in cash, did you buy it yesterday — those kinds of things that should raise someone’s barometer in terms of is this person a security threat — not are they Arab looking.

GWEN IFILL: Stuart, how about this effectiveness question, is this effective – a profile system?

STUART TAYLOR: Certainly this alone is not effective, and I hope that if we have effective ways of searching everybody, such as better X-ray machines, and if we had guards on planes with guns and if we had impregnable pilot doors and the risk of a repetition of September 11th were prevented in an airtight way, then you wouldn’t need this.

I think a lot of people, and a lot of liberals, by the way, Floyd Abrams, the New York lawyer; Lawrence Tribe, the Harvard Law Professor, have either said or suggested that for now, it would be crazy to sort of ignore the danger of a repetition by people who look like the people who did it the last time.

The other thing I’d like to quickly refer to is the slippery slope that Frank Wu referred to. I think he’s right to worry about a slippery slope; it’s a danger. I think there’s another danger though; I think that racial profiling as I define it of people getting on airplanes is going to be done, whether or not it done openly. If it’s done and it’s lied about, that will send a message to police around the country that racial profiling is okay as long as you lie about it. I think it’s better to articulate a general rule against racial profiling and a very narrow exception for people getting on airplanes.

GWEN IFILL: How about that, Frank Wu?

FRANK WU: What would be best is if we didn’t engage in it at all. There are other effective measures. We all recognize that in this time of crisis, our society has to bear a burden, each and every one of us.

But we shouldn’t purchase national unity by ostracizing one group. This asks one discreet identifiable minority group to be singled out. What we should do instead is ask the government to protect that minority group, especially when you listen to what Stuart Taylor was talking about, all Arab looking persons.

Well, one of the groups that’s most heavily hit by this backlash is Indian Sikhs; they’re not Arab, they’re not Muslim, they just happen to look Arab and Muslim. So they look suspicious. But the very first person who was killed by someone who was a self-proclaimed patriot, was someone who is Indian and Sikh. That’s not just a hypothetical law professor case, that’s what’s really happening out there.

GWEN IFILL: Professor Heriot, assume this is something, as Stuart Taylor says, that’s going to happen. How do you craft a racial profiling or whatever you want to call it, policy that doesn’t take away people’s rights — the 99 per cent of people of Arab Americans who are Arabs who are not terrorists, for instance?

GAIL HERIOT: I think again we have to use the lightest possible touch here. No one is talking about banning Arab Americans or anyone from the nation’s skies. But it may be in order at least in the very short run before other methods can be developed to take special care in searching people who are more likely to be Middle Eastern than it would be, than others. But it’s not just a question of ethnic profiling.

There are lots of things that might raise suspicion. Juliet mentioned several that of course should be used.

If we find someone has purchased a one-way ticket, if I were to get onto an American Airlines flight from Paris — and my passport said that I had spent the last six months in Afghanistan, I would expect, and, in fact, I’d be troubled if it didn’t happen, to be searched much more carefully than the average passenger. And these are things that we may just have to put up with in the short run. I’m hoping this won’t last long, and I think that Frank is quite right that we have to be especially on guard for the slippery slope problem. At the same time, again, thousands of lives are in the balance.

GWEN IFILL: Stuart Taylor, one final question. The FBI already has had profiles, perhaps not ethnic or racial, but profiles of people they should be on the watch for.

Those profiles show that people were young, were single, were poor, poorly dressed, and that didn’t fit the profile of any of the people who are suspected of having been the terrorists in this case. So how does profiling help?

STUART TAYLOR: Profiling is a very imperfect way of trying to prevent danger. But it’s better than nothing. And they obviously need to revise their profiles to take account of what we learned September 11th.

But on the Arab American point, yes, these people were not Arab Americans, but identification documents are so easily forged in this country that you cannot assume that because somebody presents a drivers license that says he’s an Arab American that that’s true.

Lastly, I think it’s really quite wrong to associate the deplorable acts of bigotry that we’ve heard about with efforts by rational security people to prevent mass murder.

GWEN IFILL: Juliette Kayyem, there’s time for a quick response from you.

JULIETTE KAYYEM: Well, everyone is for preventing mass murder. And the question here – I mean clearly we all are – the question is: how do we do that? And we’ve already seen as Stuart says, well-trained personnel from the airlines taking people off of planes for no reason whatsoever. And unless Stuart sort of has in his mind massive training for all these people, the standards he proposes, I think the cost is borne on a particular community and we have to take that into account.

GWEN IFILL: Well, we’re go to have to let and you Stuart settle that some other time. We’re out of time.

Thank you all for joining us.

The post NewsHour: Racial Profiling – September 26, 2001 appeared first on Stuart Taylor, Jr..

STUART TAYLOR: Not from what meets the eye immediately. It’s legal for the brother of the First Lady to lobby the president. It’s legal for him to get a huge fee for a small effort, as seems to have been the case in the Braswell case. However, I think… I hope we’re getting to the point in this country where something doesn’t have to be illegal to be recognized as inappropriate and smelly.

JIM LEHRER: We’ll get to that part of it in a moment. Joe Conason, have you discovered anything about what Hugh Rodham did or did not do that’s against the law?

JOE CONASON: Well, I’m not a lawyer, Jim, so I’d be hesitant to offer an opinion about that. But on the face of it, there was nothing illegal, as Stuart said, in his representing someone or collecting an exorbitant fee for it either.

JIM LEHRER: David, Tom, either of you come down differently on that?

TOM OLIPHANT: No, not at all at that point.

DAVID BROOKS: No.

JIM LEHRER: All right, then, back to Stuart, to your point, if it wasn’t illegal, what’s wrong with what he did?

STUART TAYLOR: Well, what’s wrong is that, most fundamentally, that a process in which personal influence of the relatives of the first family is brought to bear on behalf of people who suddenly emerge from the pack and get a presidential favor. There are thousands and thousands and thousands, for example, of small-time drug defendants who are for far more deserving of commutations of their sentences than Mr. Vignali was, who was a big-time drug defendant. But he gets the pardon. Why does he get the pardon? Well, partly because a lot of political influence from his wealthy father and partly, apparently, because he has an insider in the White House. I would think any president would be well advised to basically tell his staff, "When my family are here, they’re social guests. Don’t do business with them, period."

JIM LEHRER: Joe Conason, what’s your view of this, just on the simple matter of propriety?

JOE CONASON: Oh, it has the terrible of appearance of impropriety, which I assume is why the Clintons prevailed on Hugh Rodham to give the money back immediately. At least that’s what they say. They say they found out about it and thought it was terribly improper that he collected money for doing this. It is, however, you know, an old story, that people approach White House insiders or those who have connections to the White House for pardons.

President Bush’s father, the first President Bush, responded to a pardon request from Armand Hammer in 1989 that was brought by Ted Olsen, a very prominent Republican lawyer, who is now a candidate for Solicitor General. This is not really something new and I don’t know the fee that Mr. Olsen collected. But the reason the Clintons are so upset about this is because of the terrible appearance that the huge fee gives and the connection between Hugh Rodham, who’s been caught in other unseemly behavior before, brings to this situation.

JIM LEHRER: David Brooks, what’s your view of this?

DAVID BROOKS: There’s a step further than what Bush did. The quote that crystallized this whole story was the a quote that Carlos Vignali gave in the "Los Angeles Times" where he was asked by a lawyer and he said, "Word around prison was that it was the right time to approach the president." And you can imagine the prisoners sort of whispering to each other, "approach the president."

And what the signal was that the White House had decided they were give pardons outside the Justice Department process, even hiding things from the Justice Department. And this created this piñata party where everybody who could grab some candy, grabbed candy and it left room open for Hugh Rodham; it left room open for the Hassidic men who were pardoned in New York State. It left room open for everybody who had a political connection, including Marc Rich through Jack Quinn. And this was the essential problem, it was the going around the Justice Department that created all the scandals that are now flowering.

JIM LEHRER: Tom.

TOM OLIPHANT: Let’s stay with Hugh Rodham for a second. I don’t think this is a matter of an appearance of impropriety. I think, to go back to Stuart’s point, if this isn’t impropriety itself, then it doesn’t exist. You don’t go to the president’s brother-in-law– I don’t care if he’s a lawyer like Oliver Wendell Holmes or something– for any other reason other than his family connection.

But one can’t absolve former President Clinton from the impropriety here, in contrast to his wife, because after all, at some point in all of this– forget the money for a second– he was aware that his brother-in-law had some kind of involvement in pressing these cases. And if you’re going to properly behave as President of the United States and you find out something like that is going on, literally in this case under your roof, that’s when the whistle blows, that’s when somebody gets kicked out. That’s when you stop it.

JIM LEHRER: The president should have told his brother-in-law "out of here?"

TOM OLIPHANT: Right.

DAVID BROOKS: He instigated it. He’s the one who set the conditions where anybody with political connections could come into the White House.

TOM OLIPHANT: It’s interesting, you know… I agree with you in part. There was an atmosphere in which a number of lawyers with connections to the Democratic Party in a prominent way or to the Clintons personally were approached by various people seeking pardons. Not all of them got pardons. It’s an interesting thing to… but the atmosphere, particularly at the last minute, when Clinton is not sleeping at least the last night, possibly the last two nights of the presidency — it’s as if he thought that the only thing he had left to do as president was pardon people. And… but he had an awareness at some point that his brother-in-law was doing this.

JIM LEHRER: Do we know for a fact, Joe Conason, that the… has the President — President Clinton pretty much admitted that he knew his brother-in-law… he didn’t know about the money, but he knew he was working to get these guys off, right?

JOE CONASON: I don’t believe that the denial that he gave about the money included not knowing that Hugh Rodham was involved at all. As Hillary Clinton, said she didn’t know at all, but what I’ve read so far doesn’t indicate that the president had no knowledge that Hugh Rodham was among the advocates for either of these men.

JIM LEHRER: Do you agree with Tom, that if he knew that, he’s the one who should have stopped it?

JOE CONASON: Yes. I do. I think he should have said – or at least he should have said to Hugh Rodham, "I’m not doing this for you. Please remove yourself from this. I want to consider the appeals made by other people, like the cardinal of Los Angeles who made an appeal for Carlos Vignali," which he’s since said he regretted, but there were a number of people advocating for these men.

And I think the president ought to have said to Hugh Rodham at the very least, you know, "Leave my office right now." On the other hand, I think what David said exaggerates a bit because– and perhaps a lot– because if you look at, for example, the largest single contributor to all causes Clinton, the library, legal expense trust, Clinton campaigns, Democratic Party and the library, except… was a man named Ron Berkel. He’s a supermarket billionaire from Los Angeles, and he was a major, major advocate for a pardon for Michael Miliken, the convicted junk bond felon. He was not the only one, but he gave something like 20 times as much money as Denise Rich did, and Mike Miliken was not pardoned. Arguably, he had a better case than Marc Rich on the face of it. He did time in prison, he faced the charges against him. He’s said to be rehabilitated, and yet he didn’t get a pardon. From the explanation of bribery as the motive for these pardons, I think you’d have trouble explaining why Rich got one and Miliken didn’t.

JIM LEHRER: Stuart, what’s your view of that?

STUART TAYLOR: I agree with that. I don’t think you can jump to conclusions that any one of the mix of political influence factors in the Marc Rich case for example was the one that put him over the top, or whether it was all of them together. For example, in the Marc Rich case, I think it’s highly relevant that the only person who knew the facts of the case, who the president ever talked to about it was his former counsel, who was also Marc Rich’s lawyer. That’s Jack Quinn. Maybe that was it. Maybe it was all the money that Marc Rich sprinkled around Israel.

And you know, maybe… so I think you have to look at this from the objective facts. For example, all of the defenses the president gave for the Marc Rich pardon are full of holes. His claim that he wouldn’t be criminally prosecuted today, or his suggestion is flat wrong. I’m told by experts that Marc Rich would be in worse trouble today if he had done the same thing.

And I think what’s key is the honesty of the process. The reason it’s so important for these things to go through the Justice Department is not so much that the president should do what the justice department should say– I happen to think the Justice Department is often too reluctant to support pardons– but he needs to know what he’s doing. And you don’t know what you’re doing if it’s you or your aides are having the brother-in-law whisper in your ear or the former counsel and you’re slipping it through on the 11th hour of the administration without the Justice Department knowing what’s going on.

That gives off a stench, and I think, back to the criminal front, we all agreed earlier that there’s nothing on the face of the Hugh Rodham that creates a criminal problem. But when there’s a stench, prosecutors tend to dig harder.

JIM LEHRER: David Brooks, speaking of stench, do you pick up one on this other one involving Hillary Clinton’s campaign treasurer, Mr. Cunningham?

DAVID BROOKS: No, no. That looks like honest legal work. The fee wasn’t that large, and it doesn’t look like there’s any…

JIM LEHRER: Tom?

TOM OLIPHANT: It’s a very important point. Because Bill Cunningham is Harold Ickes’ law partner, who is the brains behind Mrs. Clinton’s campaign in many respects.

JIM LEHRER: And worked at the White House?

TOM OLIPHANT: Indeed. And Mr. Cunningham– it was $4,000– to fill out the forms, get the paperwork right and send it in. According to Mr. Cunningham, no phone call, no… I mean to the extent pardons are a fair process– and I don’t think they are because they do at some point depend on whimsy whether they’re going on in the Justice Department process or something outside it in the White House– but if you want to see as clean a process to the extent you can have one in this, that is it.

JIM LEHRER: Because the applications did not go to the White House. They went to the Justice Department the way they were supposed to go.

TOM OLIPHANT: That’s right. And these guys were Republicans.

JIM LEHRER: Yeah, right. Joe Conason, is Congress right to continue their various investigations?

JOE CONASON: Well, I think to the extent that they can uncover facts that the public ought to know about how this occurred, yes. I mean if I felt that Dan Burton were going to conduct a fair and unbiased investigation of this, then I think everybody should welcome it. I’m not sure that’s the case.

It’s to be hoped that the Democrats on his committee try to keep this narrow and as nonpartisan as possible. But you know, presumably, Americans now believe in a majority that something was wrong with this, and to the extent that facts can be uncovered, I think they should be. I think it’s very likely… the president, perhaps the ex-president ought to testify.

JIM LEHRER: Do you think he will?

JOE CONASON: I have no idea. I don’t know.

JIM LEHRER: David Brooks, what do you think of Congress’ role in this?

DAVID BROOKS: Only modestly. We’ve sort of got this two-track system in this country. It’s like Europe where you have one group of boring people who are running the country and another group of self-indulgent famous people like in the royal families who are involved in all these scandals. We now have in Washington these two circles. The boring people are running the country, which is now the Bush administration and the Democrats in Congress and then the Clintons, you know, Bill Clinton as the Princess Stephanie of America. And if I were in the political class doing the worthy dull work of governments, I’d be very careful about getting into that other ring with all those other people.

JIM LEHRER: Will you buy David’s analogies there, Stuart?

STUART TAYLOR: I think it’s a beautiful analogy. I wouldn’t dare tamper with it. I do think that the Congressional investigation, to get back to your question, is… they need to be very careful. On the one hand, it’s useful for Congress to tell us all facts that we all want to know. On the other hand, there isn’t a whole lot Congress is going to do, it appears, about the pardon power here. So you get to a point where you wonder how much legislative utility there is to it and how much of it’s just beating the political drum.

They also need to be careful not to interfere with the more serious investigation that’s going on, which is U.S. Attorney Mary Jo White of New York, a Clinton appointee, who’s got a very serious criminal investigation going on and sometimes Congressional investigations can mess up criminal investigations, as happened during Iran-Contra, for example.

JIM LEHRER: Tom, what about the more general question that arises, particularly right… today. Here’s the president… the current President of the United States holds a news conference, his first in 30 days, and he didn’t quite get wiped out by Hillary Rodham Clinton’s news conference and these developments over her brother, but it’s close. Is this thing out of hand?

TOM OLIPHANT: Well, for a while during this rather bizarre process, you could certainly make the case that he was being overshadowed and what are you going to do? There’s not much you can do about it. But in watching the press conference today, what occurred to me was that this is up to him because, if he is aggressively– I hate to use the hackneyed word– leading, pushing the country to adopt an agenda that he campaigned on, that he believes very firmly in and is marshaling all the arguments, using that pulpit, he’s going to do fine on the news. I think what we saw today, however, is, either intentionally or accidentally, downplaying of his own power as president to lead the country. And that is what is taking over now, I think.

JIM LEHRER: But is he right, David, quickly, to just not talk about the Clinton pardons problem?

DAVID BROOKS: Absolutely. The problem is he’s got this media structure now built in filled with people who are not interested in policy, columnists who’ve never written a column about tax reform or educational policy, who’ve been feeding off the Clintons for all these years and what’s going to happen to all of these people? They’re going to want to feed off of him.

JIM LEHRER: I got you. Gentlemen, thank you all four very much.

The post NewsHour: Pardon Probe – February 22, 2001 appeared first on Stuart Taylor, Jr..

PAM KARLAN: Well, I don’t think that it makes much difference – the Supreme Court’s ruling. There is a slate of electors on file. So, if, for example, the U.S. Supreme Court were to reverse the Florida Supreme Court and end the recounts right now, there is a slate of electors on file with the National Archives, and that slate is within the "safe harbor." Anything else that happens takes you beyond the safe harbor and really out to a completely uncharted sea. There is no way there could be a slate pledged to Al Gore that would fit within the safe harbor. And if the Florida legislature votes a slate through tomorrow, that slate too won’t be in the safe harbor so you’re virtually guaranteed if there is a slate for Gore and a slate for Bush, that there will be a contest in Congress.

MARGARET WARNER: John Yoo, how do you see it, the relationship between today’s date and a possible Supreme Court ruling or not?

JOHN YOO: I pretty much agree with Pam. If the Supreme Court ends all this litigation and the recounts by the end of the day today, then the current electors that Florida has already chosen will be treated conclusively and validly by Congress. If the Supreme Court doesn’t act by the end of the day today, then the electors that Florida has already chosen could be subject to a vote in Congress on whether to accept them or not. Furthermore, say the Florida Supreme Court and the U.S. Supreme Court agree to allow the recounts to go forward after today but before the 18th, you get some kind of answer, in that situation you’d have two slates of electors, one perhaps authorized by Governor Bush that was done last month, and one authorized by the Florida Supreme Court. Congress under the voting rules would have the right to choose between them because we haven’t conclusively finished the litigation by today. And ultimately, perhaps if the Congress can’t agree, then the one that Jeb Bush signed originally would be Florida’s electoral votes.

MARGARET WARNER: But, Pam Karlan, explain. If Florida already has a slate of Bush electors that has been certified… Jeb Bush sent them to the National Archives or whatever — what do the Republicans gain by what the Florida legislature – the House did today and the Senate may do tomorrow? In other words, why do they need other slate of Bush electors?

PAM KARLAN: Well, I don’t think they do. And I think if the Florida legislature had understood Title 3 of the U.S. Code correctly, they wouldn’t have done anything today, and they’d be unlikely to do anything tomorrow, because I think nothing that the legislature does now increases the chances of a Bush slate being accepted by Congress. I think those chances are pretty good for the reasons John Yoo just spoke to. But I don’t think the legislature’s action measurably increases the chances of a Bush slate being seated.

MARGARET WARNER: How do you see that, John Yoo?

JOHN YOO: It seems to me that one thing it does is it’s a reaffirmation that Florida and its other elective branches do agree with the selection of the electors originally last month. In the case that people in Congress — if we move beyond the safe harbor date of today – begin to wonder whether to choose between what the Florida Supreme Court had decided or what Katherine Harris had decided — the Florida legislature now is acting more in a political vein to state its own preference, and they are elected by the voters of Florida too.

MARGARET WARNER: Stuart Taylor, weigh in on this. What do you see could be the reason for, or the benefit to Republicans of the Bush forces to have the Florida legislature act?

STUART TAYLOR: I think I agree with the thrust of what has been said, which is it’s more a political benefit than legal. There are already Bush electors sitting – figuratively speaking — in Washington, D.C. Nothing makes them disappear. The legislature weighing in is probably a debating point for people in Congress who want to say, here’s another reason we should take the Bush electors if it ever comes to that.

MARGARET WARNER: So you don’t think they’re afraid, though, that there could be a court ordered recount and a court could order the current slate of Bush electors replaced, say, with a Gore slate?

STUART TAYLOR: I suppose that’s a remote contingency. But my reading of the United States Code provisions, which Congress passed in 1887 on this, is that it would violate federal law for any court to try and make the slate of electors that’s already certified disappear, and that if you get another slate certified, the solution is Congress figures out which ones to count and the courts have no part in it.

MARGARET WARNER: All right. Let me ask you now about the U.S. Supreme Court and right now we’re still awaiting a ruling. They told the Florida Supreme Court that the Florida Supreme Court ought to be mindful of this deadline of December 12 and that the Florida legislature obviously wanted to take advantage of the safe harbor. Does the U.S. Supreme Court not feel or is it not bound by the same admonition at all?

STUART TAYLOR: No I think the real importance of December 12 is if the state can get a judicial process done by the state courts by December 12, then that might qualify for the safe harbor if they didn’t change the law in the process, which is part of what the court’s deciding. That’s gone now. That can’t happen. You know, they can’t do it in the next three or four hours. You know, the Supreme Court decides it, remand it – ain’t going to happen. So now the question is, what’s the real date? The real date is December 18.

MARGARET WARNER: Next Monday.

STUART TAYLOR: Yes. And for the U.S. Supreme Court I can imagine that the failure of the state courts to…I sensed yesterday in argument that Chief Justice Rehnquist might — one of the things he might want to reverse the state Supreme Court for is starting a process in the order Friday that couldn’t possibly be completed by December 12 and therefore not really being serious about the safe harbor. One other thing — I think John Yoo mentioned the other day if the Supreme Court decides this and makes the whole lawsuit go away by tonight, then maybe that puts the- the Bush slate in the safe harbor; I think the court would have to think twice about doing that and if I were them I might want to delay it until after midnight so no one was accusing me of doing this as on a quick, rush, last minute thing to lock Bush in.

MARGARET WARNER: All right. Tony Lewis, yesterday, and I know you and Stuart were both in the courtroom yesterday, there was a lot of discussion about could there be new standards for a recount and so on. Do you think this Supreme Court has both the statutory and constitutional authority to essentially order a new process, the same kind of new process they really told the Florida Supreme Court not to do?

ANTHONY LEWIS: Margaret, just before I answer that question, could I register my dissent from what has been said by the others about the safe harbor.

MARGARET WARNER: Please do.

ANTHONY LEWIS: I don’t think the Bush slate that was certified last month is entitled so the safe harbor because the statute — the federal statute — says it’s only if contests have been concluded and decided and it wasn’t concluded and decided. There is a contest still going on. I’m also a little skeptical of Stuart’s concern that the court might look as if it was a little political if it did something before midnight. I think it’s looking totally political to most of the country in what it has done so far, stopping a recount. That comes to your question, Margaret. I don’t think there is any federal question in this matter at all. I don’t think the Supreme Court has any power whatever to interfere in the Florida election. I’ve listened to the argument. I’ve read the briefs; I’ve thought about it; I’ve talked to a lot of people and I don’t see the federal question. I think that the Supreme Court is just acting in a most extraordinary display of willful power of a kind that conservatives used to accuse the Warren court of doing, but the Warren court was a mere baby compared to what the Supreme Court of the United States and its five more conservative members have done in stopping this recount.

MARGARET WARNER: John Yoo, a willful display of raw power?

JOHN YOO: I don’t think so. I think most people agree there is a federal question involved here. Now, what the right answer to that federal question might be you can have a honest disagreement about, although I might add even Justices Breyer and Souter, who are proposing sending the case back with a new objective standard for a recount, even by suggesting that remedy, they have already accepted that there is a federal question here, and that the federal court does have the power to intervene. But that power comes from the Constitution. The Constitution requires that the state legislature set out the rules for how an election is going to proceed and if someone, anyone, has a question about whether those standards have been violated or not, they can bring a federal case. That is a federal question, whether someone has violated the text of the Constitution or not.

MARGARET WARNER: Let me go back to you Tony Lewis. Are you saying then that you think the Supreme Court doesn’t have the power to give Gore what he wants, which is to perhaps order a new kind of a recount? I mean, he probably would like the old recount to continue or the old standards. But are you saying that you don’t think the U.S. Supreme Court has the power, authority, to do the kind of thing that Breyer and Souter were suggesting yesterday?

ANTHONY LEWIS: First of all, I’m not so sure that Justice Breyer was actually suggesting that. He may have been. On the other hand, as I listened, I thought he may have just been testing the reach of each side’s argument. But assuming that that is a possibility, maybe it’s a good idea. And maybe the Supreme Court will do it and we’ll find it out before the morning. But it would be a most unusual thing. I don’t know the basis in any federal law or the Constitution for setting up a new system of counting — for the Supreme Court of the United States to set up a new system of counting votes in Florida. But let me say, Margaret, in answer to Professor Yoo that the language is there in the Constitution. But if you use that to make this a federal question, then every state’s vote for presidential electors is potentially a federal question to be taken to the Supreme Court. It’s never happened before. I think it’s a very, very long reach.

MARGARET WARNER: Stuart?

STUART TAYLOR: Two points. I think there is pretty clearly a federal question and I think the December 4th order of the Supreme Court kind of puts all nine of them on board of the idea that there’s some kind of a federal question. Otherwise, why are they telling the state Supreme Court to clarify it. And here’s why I take a — this is a presidential election. We’re not talking about a county sheriff. Article I, Section 2 of the federal Constitution does says the legislature, doesn’t say the state, doesn’t say the court, the legislature decides. Let’s suppose – and I’d be interested in Tony’s – let’s suppose what the state court had done was the following — their opinion said, and I’m reciting the whole thing — all of our friends voted for Gore — Gore must have won; therefore we certify Gore as the winner. Would there be a federal question there or would the Florida Supreme Court just say, well, that’s what they said, state law, you know — we can’t second guess ’em?

ANTHONY LEWIS: My answer to that, Stuart, is that, you know, parades of horribles really don’t decide serious constitutional questions.

STUART TAYLOR: Well, here, I think there is a serious constitutional suspicion –

MARGARET WARNER: Let me get Pam Karlan back in this. Go ahead.

PAM KARLAN: I feel like I may be somewhere between the little bear and Goldilocks – Sandra Day O’Connor – in trying to split the difference here. It seems to me there is a federal question here but it’s not under Article II, Section 1, about legislatures appointing electors; it’s under the equal protection clause to the Constitution. And I think that’s what the Justices were pressing on in the oral argument yesterday — can we be sure that a recount conducted by Florida comports with the equal protection clause – that is that the same standard is used statewide? Now my own view on that is the Florida standard is perfectly consistent with the equal protection clause and that happens all the time, that there are slight variations, but that’s not a denial of equality. On the question whether the Supreme Court could order a more detailed standard or what Justice Breyer in perhaps a double entendre kept referring to as a substandard, I think they could.

There are other areas of law where courts issue quite detailed remedial decrees ranging in, for example, prison litigation to things like the temperature of the shower water to reapportionment litigation, where they talk about going down the west side of the street rather than the east side. They could do that. The problem here is that they will be perceived if they do that as, first of all, doing what they told the Florida Supreme Court not to do, and there is an inconsistency there; and, second, legislating after the fact when everybody knows that the standard you pick may have a really dramatic effect on the recount.

MARGARET WARNER: John Yoo, a final brief comment from you on that prospect, whether you think they’d be inclined to do that?

JOHN YOO: I find unlikely. One way to look at it is what is going to happen after this election if the Supreme Court were to say that you can raise a due process challenge as to how any county counts your votes and what standards they use. It would open up a floodgate of litigation that would be available for any election not just a president but all the way down to county commissioner. And this is a court that’s not very sympathetic to expanding equal protection and due process causes of action in federal court.

MARGARET WARNER: All right. Well, thank you all four. I’m sorry. We have to leave it there. Thanks very much.

The post NewsHour: Supreme Showdown – December 12, 2000 appeared first on Stuart Taylor, Jr..

Jeffrey Rosen is a law professor at George Washington University, and legal affairs editor at the New Republic Magazine. Stuart Taylor is a legal affairs columnist for the National Journal. What we didn’t tell our viewers which was that we insisted you take a speed reading course because these just came out.

But, Stuart, the gist of Bush’s appeal was that the Florida Supreme Court had overreached when it extended the vote- counting deadline down there. What do you think were the strongest arguments that the Bush brief makes in support of that?

STUART TAYLOR: Just to give the gist a little more fully, the claim is that the Florida Supreme Court violated federal law, both an act of Congress from 1887 that was passed after the Hayes-Tilden problem, and Article II of the Constitution violated federal law by changing Florida law after the November 7 election in an effort by the Gore camp to change the outcome of the election, which the Florida state Supreme Court, the Bush camp argues, basically went along with.

Now the strongest points, I think, are the state court did say in its opinion that the state’s legislation on this was hyper-technical, and the seven-day deadline for completion of hand counts and the certification of the election results just seemed sort of silly to them and didn’t work in this instance because you needed more time for hand counts, and therefore, they were going to junk that and write their own rules.

Now, the… this is called an act of judicial legislation by the Bush brief. And they cite specifically this 1887 law which says that any dispute should be resolved under state, "laws enacted prior to" , election day. If this is a presidential election, part of their case is federalism is not the issue here. This is a presidential election. We have a specific act of Congress passed to regulate presidential elections to prevent precisely the kind of thing the Florida Supreme Court did. So don’t preach to us about federalism.

They also said that the Florida Supreme Court’s violated the Constitution of the United States which assigns to the state legislature, not the state courts, the power to determine how electors are made.

And the last, I guess, point I’d make the rhetoric behind their thing was well summarized in a New York Times op-ed that I’ll take the liberty of reading from. They called it "a bold example of judicial activism. It says the Bush lawyers could argue plausibly that activists, Democratic judges changed the counting rules in the middle of the game only after it was obvious that the Democratic candidate needed dimpled ballots to win, and that this would taint any… taint the legitimacy of Gore victory." That op-ed was written by my friend Jeff Rosen.

MARGARET WARNER: What would you add to the Bush brief in terms of what are the main points or you can respond to Stewart as well.

JEFFREY ROSEN: I think Stuart has summarized the Bush argument well. The Gore argument is one that I’m happy to summarize because it’s one that I think even those who think that I did that the Florida Supreme Court may have been a little precipitous in imposing a firm deadline and in arguably changing the counting rules. Even so, Gore argues, the Bush argument is implausible.

Here is Gore’s strongest point. He says this is not an act of judicial legislation by the Florida Supreme Court. Even if you disagree with it, as I did — the court was doing what courts do all the time. They take competing parts of difficult statutes, they reconcile ambiguities and they attempt to come up with a plausible way of harmonizing all this. If the Supreme Court agrees with Bush that the Florida Supreme Court legislated merely by engaging in acts of interpretation, Gore claims, this would call into question all sorts of act of state law that courts do all the time. And this would be impossible to reconcile with federal court’s traditional deference to state courts on questions of state law, so that’s their first big point.

The second point they make is also quite powerful. They say the federal law in question cannot be violated by a state court. It was a law passed in the wake of the Hayes-Tilden debacle when — amazing the analogy is so precise — two competing slates of electors from the state of Florida, one endorsed by the Republican canvassing boards, the other by the Democratic legislature. Congress ended up voting on the two. In the wake of this debacle a law was passed saying that we want to make sure that this is decided according to previously enacted laws; we don’t want Congress stepping in and making a political decision.

So says Gore as long as the state law is being interpreted by ordinary judicial or other methods or proceedings as the federal law requires, then any result has to be conclusive on Congress. Congress has to respect that, regardless of any dispute with the legislature. Now, the most interesting question is one that’s almost not raised by this brief. It’s raised by the Florida legislature itself. But I’ll tell you about that in a moment.

MARGARET WARNER: Your assessment of the Gore argument.

STUART TAYLOR: Well, since he’s given the strengths of it very well, I’ll try the weaknesses. Yes, it’s true that courts do judicial activism all the time. In fact, the Supreme Court has done quite a bit itself. And, therefore it’s not going to be very easy to argue to the United States Supreme Court that, you know, we can’t be having any judicial rewriting of legislation. That wouldn’t sit well with them. It would particularly with the more liberal members. They do do it all the time.

But here we have a unique situation in a unique statute, this 1886 post-Hayes-Tilden statute. It’s never been interpreted in the history of the United States. The situation will probably never occur again in the history of the United States. And it is a presidential election. So if this was a county sheriff election in Florida, there would be no basis for the federal courts to intervene, fine. This is a presidential election. We have a very specific law. Mr. Gore hasn’t given us any reason it shouldn’t be enforced. Second, hypothetically, let’s suppose that the Florida Supreme Court — and the Busheys aren’t saying they did this — let’s suppose they just transparently rigged the election by adopting an absolutely indefensible so- called interpretation of state law that everybody knows is bogus such as we think more people wanted to vote for Gore than Bush so Gore won. I think the Gore argument is… comes very close to saying, "so be it." The U.S. Supreme court has no power to do anything about it.

MARGARET WARNER: You disagree.

JEFFREY ROSEN: The Gore argument explicitly says if the Florida Supreme Court were in fact to clearly enact a new procedure, if the state court were to appoint electors itself, then this would be reviewable ultra veras. But in this case Gore says it would be an outrage, such a violation of ordinary, simple principles of interpretation that this is an easy case, says Gore for the federal court to intervene.

In some ways — and they’re supported by this in some ways by the argument of the Florida legislature. The Florida legislature has filed a separate brief. They make a very interesting argument. They say, Supreme Court you were wrong to take this case. You acted precipitously in jumping in, just as I argued in that op-ed when I said the Justices should stay out of it. The Florida legislature says this is a non-justaciable political question. It’s ultimately up to Congress in the case of competing electoral slates to choose. Therefore, the Florida legislature says dismiss the case as non-justaciable… and let Congress decide. Gore would agree with that part of the argument. However there’s one wrinkle. This is actually where the action is going to be over the next couple of days. We know that much of this case is not terribly significant because even if Bush wins, the contest will proceed and even if Gore wins he still has to win the contest.

MARGARET WARNER: While these other legal challenges go on…

JEFFREY ROSEN: Precisely. So the Supreme Court case, ironically the Justices rushed in precipitously. It may not be central to the outcome of the election. But there is one central dispute, and that may be between the Florida legislature and the Florida Supreme Court.

There are some people who are already advising the Florida legislature, indeed the people who signed the Supreme Court brief, to act and appoint its own slate of electors now. They’re saying even if the Florida Supreme Court ultimately endorses a set of Gore electors in a contest, the Florida legislature can override them. The central question — and this is an interesting question of technical interpretation– is whether or not…

STUART TAYLOR: Teacher.

JEFFREY ROSEN: This is great stuff.

STUART TAYLOR: Teacher, teacher, my turn.

MARGARET WARNER: He wants back in here.

JEFFREY ROSEN: Let me finish the argument because I’m laying it on the table. The question is, should the…should the state Supreme Court or the legislature have the final word? And Gore says until December 12, the federal statute clearly leaves that up to the state Supreme Court. After December 12 if the thing isn’t resolved, then the legislature can step in.

STUART TAYLOR: Now before Jeff went off on all those interesting professorial digressions, it seems to me he conceded a very important part of the Bush argument. He conceded that if the Florida Supreme Court had done something outrageous enough that then it could be invalidated by the Supreme Court.

MARGARET WARNER: A higher court.

STUART TAYLOR: So the question is not whether the higher court can do it or should do it. The question is how outrageous does this have to be and how outrageous was it? And this gives the Bush people plenty of running room to say it was exactly as outrageous as it needed to be for you guys to overturn it.

MARGARET WARNER: In what circumstances does the U.S. Supreme Court essentially reverse state Supreme Courts when they’re interpreting state laws? Isn’t that fairly rare or not?

STUART TAYLOR: Almost never. But I think the answer to that from the Bush side is this statute here has never been interpreted for. It’s unique. We’re talking about a presidential election under rules determined by the state, and Congress wanted to make sure that the state courts didn’t hijack a presidential election. Second, it’s not unheard of for them to second guess state interpretations. Of course they strike them down as unconstitutional all the time in to ex post facto jurisprudence as to whether you’re punishing somebody for a crime after he did what it is, sometimes if the state courts say, oh, no, no problem because the state law didn’t real he’ll change, the U.S. Supreme Court will come along and say oh, yes it did.

MARGARET WARNER: Do you think the ultimate decision, Jeffrey Rosen, will depend ultimately on just an interpretation of this old law, this 1887 law, or are there broader issues at stake here? I mean, is there something broader that is even bigger than this presidential election?

JEFFREY ROSEN: There is this fundamental large broad question about what exactly judges do. We heard on the campaign trail George Bush criticizing judges for making the law not interpreting it. This remarkable claim before the U.S. Supreme Court that a state court judge tried to interpret a law in ways reasonable people can reject is itself an act of legislation. For the Supreme Court to accept that claim, to second guess the state Supreme Court in the interpretation of its own law would have broad consequences for ordinary statutory interpretation which is what the Supreme Court does all the time. Now I should say I didn’t endorse this Gore argument that the U.S. Supreme Court should be able to second guess a clearly outrageous act of the Florida Supreme Court. I think I agree. Here’s the….

STUART TAYLOR: That was your assignment.

JEFFREY ROSEN: But here’s the way out of it. The way out of it is for the U.S. Supreme Court really to say that would be a political question. Now it’s up to Congress decide. This statute passed in the wake of the Hayes-Tilden debacle was inspired by a wrongheaded decision to appoint Supreme Court Justices and Congressmen and Senators to judge the plausibility of Florida’s election returns.

STUART TAYLOR: I’m so confused that I’m going to have to make a general point, rather than respond to it.

MARGARET WARNER: I’d like to ask you a general question which is the same question I started with with Jeffrey. Do you think it will ultimately get down to this law or that are there larger issues with broader ramifications involved in this decision?

STUART TAYLOR: Oh, yes. I think the way the Supreme Court is going to start is after a quick look at all these laws, they’re going to say, are the Florida courts trying to railroad this election, whether because they have an odd way of looking at their own laws, or because they’re trying to help out Al Gore? And if they are, how do we… what do we do about it? I think that’s sort of the first thing you think about. And the answer to that may be, no, the Florida courts are doing fine.

MARGARET WARNER: But does it have ramifications beyond this….

STUART TAYLOR: Case?

MARGARET WARNER: Yes, presidential election.

STUART TAYLOR: No. If I could write an opinion for the Supreme Court ruling either way in this that would never be cited again in any other case as relevant to anything — if I were trying to rule for Bush, I would be very sure I did that because Jeff’s right. Going to the … you know, going to the courts and saying, hey, you guys can’t legislate. Well, they like to legislate. You have to sort of say, you guys can’t legislate this time.

MARGARET WARNER: All right. And we’ve got to leave it there. Thank you both very much.

The post NewsHour: The Florida Recount Supreme Court Case – November 28, 2000 appeared first on Stuart Taylor, Jr..