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tv   [untitled]  CSPAN  June 20, 2009 5:00pm-5:30pm EDT

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>> will try it now. >> [inaudible]
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[inaudible] i'm bored love you to address [inaudible] >> you can see in that exchange the tension evident in the courtroom on that day because o'connor is a very precise kind of judge, and the court in fact
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granting review had rephrase the question that was going to answer in the case, getting away from the boards and valid thing as to whether or not the specifics of the statute are constitutionally valid. and o'connor was pushing and it turns out justice kennedy also was pushing, but as you can hear in a rather a deft way, katherine colburn said i will get to your point and i will argue the pennsylvania statute but i want to get back to the standard by which she meant what standard are we going to sustain roe versus wade and the argument went that way throughout and justice kennedy also jumped in with a similar kind of attempt to push culbert back on to the specifics.
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>> your are doing there's a fundamental right -- [inaudible] [inaudible] >> well, indeed -- [inaudible] under that standard there is no dispute -- [inaudible]
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statutory positions did not necessarily cut to improve versus wade. >> if this court was to change -- [inaudible] that will undercut roe versus wade, to abandon -- [inaudible]
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[inaudible] [inaudible] >> as you can see, the pattern set early continued. i should mention to be fair there were two other lawyers arguing in this case in the chapter that i wrote to deals briefly with them, but the performance of catherine i think ultimately proved worth of her choice because she did shape the conversation thereafter occurred on long the justices. finally in the and justices kennedy and o'connor and david
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souter got together and fashioned the way by which the court could sustain roe versus wade at least in substantial part and they did indeed strike down only the one part of the requirement a woman contemplating abortion notify her husband that she was doing so. it is to my mind a classic demonstration of deciding what you want to argue, going in to make that argument and no matter how hard the resistance is in to making the argument and to holding to rate, sticking to it on till the bitter end and hoping for the best, and it was a very classical performance, really talented lawyer and in fact to this day a good many years later rose still survives in the form that emerged as a
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consequence. direct consequence i would suggest of catherine's argument. thanks, paul >> thank you, paul and tama for including me. the year 2000 was also a presidential election year so it wasn't terribly tough to select bush v. gore as one of the cases to write about for this collection. indeed, it was a case unique in the history of the country for starters in american politics and in the circumstances of the supreme court. obviously this was great importance. one might even suggest as a political reporter which was part of my responsibility in addition to covering the court, but the best five weeks of the 2000 election campaign were the five weeks between election day and december 12th when the court handed down its opinion in bush v. gore because that we saw
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pretty much laid out in front of foss and without the bamboozle met of a lot of political eckert rising but the courts were going to do both here in washington and in the state of florida and we were kind of commuting figuratively if not literally between the courts in tallahassee and other places in florida and the supreme court. in this span of today's the supreme court heard arguments related to the election not once, but twice. that in and of itself is extraordinary. and this was not something that had been ripening for five or ten or 15 years and lower courts but was still festering on the political scene only days after the election so that not only were voters, the public, the world at large, but the lawyers who had to deal with it and the justices who had to decide dealing in a very contemporary
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setting of one certainty. what actually happened? what did those ballots we saw people looking through or trying to look through represent and what were the kind of things that had to be judged here in the u.s. supreme court itself? added to that from a broadcasters perspective, i was the cnn correspondent, was the opportunity to not just sit in the court but run out in front of the court and have those tapes played back on the air, the audio, alas it was only audio and not video as well, but the audio was released as soon as the arguments were concluded. so, no sooner had justice rehnquist a third the words the case is submitted within moments we were able to turnaround and here justice rehnquist say we will now hear arguments in the case of bush v. gore 2000. and so that unfolded and people got a chance to hear what was happening in the court.
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what they heard from my judgment was to extremely competent attorneys arguing. ted olson on behalf of the bush campaign and david on behalf of the gore campaign somewhat in contrast to your attorney, dahlia lithwick, these were accomplished basis although david argued previously at the u.s. supreme court he had been handling the arguments in the florida court and was probably as familiar as anyone with the florida law as it unfolded. but he and countered in particular and i spent time talking with each of them subsequent to the arguments in preparation for this book was what had become a bit of a to attract possibility in the way the court was going to decide the case of bush v. gore article to issue as to whether the court
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in florida adhered to constitutional provisions, really kind of a structural approach as to whether the court in florida was respecting the desires and wishes of the florida legislature in terms of how all the electors would be chosen for the vote on the presidency, or whether there was an equal protection issue and the way everyone who cast a vote within the state of florida but particularly in four of the county's was being judged. whether each ballot was being given the same scrutiny, the same quality of potential for being counted because we were dealing with not only ballots that had hanging chad's and dimpled chad's and pregnant chad's which is to say ballots that were not completely market. we were dealing with over votes and under votes, that is to say some ballots that didn't have
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any markings for the president and some might have had to markings for one or another and the whole variety of different ways in which the ballots were constructed from county to county the most notorious was known as a butterfly. we won't go into the details by you can get the notion it had two wings and they didn't quite line up. what became interesting in terms of the arguments was which way was the court going to go. one of the clips i would like to please state it is representing al gore and the democratic campaign, and as quickly as he set out to try to make an argument on one point, he was diverted by justice kennedy. >> i think at that point you can conclude what it has done is changed the law. i think the standard is the standard the court generally
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applied indifference to the state decisions. >> but is it in line with article 2i am also sure. i would hope that is on a standard whether it completes it is in the legislature. does that not mean that a court has to interpret a legislative end and give special deference to the legislation's to moises? i would think that is accountable. and especially in light also of the concerns about section 5. >> i think, your honor, if the courts can import a rule of law i think what needs to take account the fact the legislature does have the -- i think when
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the supreme court if it does so within the interpretation that this subject for florida's civil courts. >> we are responding as if there were no burden to show -- [inaudible] in the context of selection of presidential electives. isn't there a flag up there and? >> i think there is now. i think the supreme court -- [inaudible] >> justice o'connor joining the conversation shortly after justice kennedy where mr. boies started. he barely uttered the words thank you, mr. chief justice may i start with the extra that had
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reference when justice kennedy said can we begin with jurisdiction first and mr. boies says yes of course the reason being he had real target sitting on that bench in front of him. kennedy and o'connor. he knew going in this was a 5-for court because the court had taken the step of issuing a stay on the accounting procedures in florida. that was done on saturday. arguments were on monday. the issuance suggested there were already five votes stacked against mr. wise and vice president gore and if he was going to persuade anyone he had to focus his attention on kennedy and o'connor and if justice kennedy says could we start here there is only one response and that is yes, justice kennedy let's start and discuss that. in fact what eventually happened was the five votes but ultimately decided this case preferred not is a decidedly
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election that was the carry over for the florida numbers resulted in some people think the election was only decided by nine people ultimately it came down to justice kennedy, justice o'connor and the three much more conservative members of the court, chief justice rehnquist, justice scalia and justice thomas issuing the procurer am that was an on signed for the court the authorship later became evident was kennedy's and was only because kennedy and o'connor were comfortable with the equal protection aspect that is is every boat being counted like every other vote which clearly was not the case that they were able to muster the five votes even though there is one place in the opinion that says seven of asa agreed and those of less that scrambled out in front of the court afterwards
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found out and said perhaps momentarily it is seven to two vote let me look, there are one, two, three, four dissenters in trying to parse out with this opinion was that it did come down to a question eventually and ultimately on how the ballots were being counted and there is a very short exchange between ted olson representing mr. bush and justice souter. >> [inaudible] what they have done is provide a process virtually impossible to have these issues resolved and the constitution controversy's resolved in time for that statutory deadline. furthermore it is quite clear the process has changed. >> [inaudible] why didn't you let the process
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run instead of asking -- >> what the justices souter is saying if he would have led ago we would find exactly how these ballots had come out but that was not the intent of mr. olson and governor bush at that particular time. many justices will say that oral arguments don't change their opinions but the help them close the gaps and narrow some of the inconsistencies. i am not sure but in hindsight looking at this and listening to the arguments again just the other night, you see justice kennedy in particular trying to wrestle his way to the conclusion that works for him, and it was sent by more seemingly draconian article to approach but rather if there is a way that he could find the result that said equal protection was not being afforded every voter that was a comfort zone for him.
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tony? >> it's an honor for me to be here as well and was a fun project to work on this book about oral arguments. it is an intense and fascinating process and i am struck how intensive eight days by the fact where we are right now we are sitting at a replica of the supreme court at the university law center where the dimensions are exactly as they are in the court with the lectern the same distance from the justices in the real life and it's incredibly close and i can imagine that it is just a nerve wracking experience for the lawyers. i always feel for them and surprised more of them haven't fainted as has happened but the case like to write about in a way is, well it is a lot less known than the others we have just heard about. but it is in a way the exact
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opposite of what side of the point from dahlia lithwick's case because in this case there was a rookie lawyer who never argued before the supreme court before but he ended up making a spectacularly unsuccessful argument and he, like michael, was totally passionate about facts and background of the case but it fell flat and was too passionate and it makes another point of the supreme court. many cases when they get to the supreme court are much more abstract level than at the trial court and the other lower court levels. in the trial court the issue is the fact is, you know, the police officer do this or not but when you get to the supreme court the facts seem to often fade into the background and the court is just concerned about a
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legal issue and constitutional issue and that is what this all year forgot. the case briefly to summarize is called black man versus wild and brothers and it's a first amendment case and of course the first amendment protect speech but it also has been found to protect in some instances the right not to speak or the right not to have the government force you to say something you don't agree with and in this case it was a group of california fruit farmers and producers, vegetables and fruit in california who every time they sell a bushel of corn or something they have to pay a dollar into a federally backed marketing program and that marketing program than ads commercials on television to advertise the fruit in a generic
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way much like the milk commercials you see or beef is what is for dinner. this group of fruit farmers did not like the ads to were being produced on their behalf through this marketing program. the ads were featuring varieties of fruit they don't grow, they didn't like some of the subliminal sexual images and some of the ads about the loss of fruit so they decided to make the first amendment challenge to this marketing program so thomas payne, a lawyer in fresno had been the lawyer for years and was challenging this program every step of the way. he knew every step there was about this marketing program and as the kid got to the supreme court he wanted to hang on to the case like many lawyers do but some of his clients felt
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this was we are getting away from the facts we need a really good first amend and lawyer and they hired michael mccaul who then went leader on to be a distinguished federal judge because of tremendous first amendment experts as we had to groups of farmers, one sticking with thomas campaign, the other guinn with the new lawyer. they both filed briefs in the case and supreme court didn't know what to do. we had two lawyers, only half hour for them to argue so the clerk of the court actually flip a coin to resolve this unresolvable fight between these two lawyers and thomas campaign had one so he argued the case and almost from the outset you could see that first amendment of the first speech was of no
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interest to him. he wanted to relocate this program about fruit and he started to argue about stipulates and 43 and exhibit to 97 as if he was back in the trial court and there's one clip we have of how unsuccessful that gannett was the first clip. >> [inaudible] [inaudible]
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as a matter of fact to make that stipulation number 57, i'm sorry, 59 -- [inaudible] >> in that stipulation i don't understand -- [inaudible]
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>> he was so wrapped up in the details that chief justice rehnquist became very and the late and told him to stop it and then he kept going, practiced stipulation 57 and it unfortunately just kept going that way. he never took on the first amendment argument that was crucial to the case, and in fact he again got so impassioned about the fruit that his clients grew that it became a real embarrassment and we can go to the third clip, not the second but the third and he was arguing
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his clients grow green plums and the ads should have been about green plums because they have a bad reputation. people think that green plums are on the right and will have that affect some people, so if we play that. >> [inaudible] [laughter] >> said he was directing to justice scalia, who was so flummoxed why are you telling me i shouldn't buy green plums for my wife, i've never seen a green plum. he wasn't trying humor but it came across terribly and completely fell flat. in the end -- maybe that's the bell for me to stop -- but in the end he lost the case five to four and a lot of people think
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that a true first amendment had argued it might have been on the other way. one quick postscript. the faction of the fruit growers who objected to the thomas campaign arguing the case filed a malpractice suit against him and one of the accounts was that it was malpractice for him to fail to refer the case to a supreme court specialist and i thought in a symbolic way that really symbolized the supreme court specialty bar had arrived. it was so deemed objectively better than the run-of-the-mill lawyer that it became the basis of a malpractice suit. the suit didn't succeed. there was a settlement, but it seemed to symbolize that sometimes it really does matter
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to have a good supreme court advocate on your side. >> thank you, tony. at this point i will ask questions of our esteemed panelists and we will talk a little bit more about oral arguments, i will start for a question with dahlia. you conclude an outsider could prevail over a published insider because passion to win. so for instance some of the examples we gave is he violated the command not to use sound effects so he said bam or to cause the courtroom to erupt into laughter and applause, which he did, so to what extent what is the interplay between the presentation of ideas and being colorful and to present one's ideas well as opposed to the ideas themselves and when you think about what is going to lead to your success as an advocate before the crt


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