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MSNBC
THE ABRAMS REPORT (EXCERPT)
Hosts Dan Abrams, Pete Williams, Edie Lambert
GUESTS: Eugene Volokh, Andrew Koppleman, Dean Johnson, Daniel Horowitz, Mercedes Colwin
Supreme Court Justice William Rehnquist is hospitalized just eight days before the election. With so many justices well beyond the age when most people retire, will George W. Bush or John Kerry have a major impact on the Supreme Court by choosing several justices? Jurors in the Scott Peterson case hear a phone call Peterson made to his brother on the day he was arrested. Did Laci Peterson`s mother change parts of her story when she heard about Scott`s affair with Amber Frey? Judge Delucchi is expected to give the jury the option of convicting Scott Peterson of a lesser charge.
DAN ABRAMS, HOST: Coming up, Supreme Court Justice William Rehnquist is hospitalized just eight days before the election.
(BEGIN VIDEOTAPE)
ABRAMS (voice-over): Rehnquist has been on the Supreme Court since 1972. At 80, he`s not the only justice well past retirement age. Either Senator Kerry or President Bush will likely get to shape the court for years to come. Who would each choose and what would that mean for the big legal issues from abortion to affirmative action?
And Scott Peterson`s lawyers play a tape of Peterson talking to his brother on the day he was arrested, trying to prove he wasn`t on the run from police.
Plus, the defense tries to show that Laci`s mother may have changed her story when she found out about Scott`s affair with Amber Frey. Is attacking the victim`s mother a good strategy?
The program about justice starts now.
(END VIDEOTAPE)
ABRAMS: Hi everyone. First up on the docket tonight, a shiver ran through anyone who remembers the uncertainty and confusion that came with the 2000 election recount after it was announced that Chief Justice William Rehnquist had been hospitalized with thyroid cancer. With the polls showing the country almost evenly divided eight days before voting for president, and the possibility that the election could be decided in the courts, the last thing anyone needs is a court divided into four red jurists and blue jurists -- a 4-4 split.
The good news about the bad news is that Justice Rehnquist will keep working while his illness is treated and expects to be back on the bench when the court reconvenes next Monday. That being said, Justice Rehnquist is just one of four on the court who driven by age and possibly illness could be considering retirement.
NBC`s Pete Williams has more.
(BEGIN VIDEOTAPE)
UNIDENTIFIED FEMALE: Our civil rights and our civil liberties...
UNIDENTIFIED GROUP: (UNINTELLIGIBLE)
PETE WILLIAMS, NBC NEWS CORRESPONDENT (voice-over): But any potential shift in the Supreme Court depends not just on who`s elected president but also on who decides to retire. It would likely change lease, for example, if conservative Chief Justice Rehnquist, who just turned 80, stepped down and was replaced by a President Bush. Not much change either if the more liberal John Paul Stevens, who`s 84, and the oldest justice retired and was replaced by a President Kerry.
But what if the more moderate Sandra Day O`Connor, now 76, stepped down and George Bush was re-elected. Elliot Mincberg of the liberal People for the American Way Foundation, says that could produce a seismic change, a move to the right on nearly all the hot button issues in which Justice O`Connor has cast the deciding vote.
ELLIOT MINCBERG, PEOPLE FOR THE AMERICAN WAY FOUNDATION: No question that Sandra Day O`Connor is the swing vote in a variety of 5-4 cases that could fundamentally shift America`s basic rights and responsibilities for the next 40 years.
WILLIAMS: Close votes have recently upheld affirmative action in college admissions, an expansion of gay rights and preventing restrictions on abortions. Mr. Bush has consistently said he`d favor someone like Antonin Scalia or Clarence Thomas, the court`s two most conservative members.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I will continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law.
WILLIAMS: But some legal scholars say the closely divide U.S. Senate would likely block anyone but moderate nominees no matter who`s elected president.
PROF. MARK TUSHNET, GEORGETOWN UNIV. LAW SCHOOL: The effect will be to drive the justices who get on the court more or less towards the middle or towards where the court now is. So I wouldn`t expect dramatic changes over the next few years.
(END VIDEOTAPE)
ABRAMS: Pete Williams did that story when the court started its term. Dramatic changes or not, it seems change is likely, whether Kerry or Bush is re-elected. Kerry become president, Bush re-elected.
Joining me now to talk about the big legal issues a revised court might face and the judges, scholars and officials who could be waiting in the wings. I`m joined by two Supreme Court watchers, Eugene Volokh, a constitutional law professor from UCLA, who once clerked for Justice Sandra Day O`Connor and Andrew Koppleman, a Northwestern University constitutional law professor. Gentlemen, thanks very much for joining us. Appreciate it.
ABRAMS: All right. Let me just start right off the bat with the abortion decision. Let me read from a little bit of the 1973 decision. Here it is, Justice Harry Blackmun.
State criminal abortion laws violate the due process clause of the 14th Amendment, which protects against state action the right to privacy including a woman`s qualified right to terminate her pregnancy. And then in 1992, the court sort of tweaked it a little bit.
The court upheld a woman`s right to have an abortion, but gave states the power to impose limits on abortion in Planned Parenthood v. Casey.
Before we get into the whole business of who each one might appoint, Professor Volokh, how do you think the abortion ruling would be changed depending if Kerry becomes president or if Bush remains president?
EUGENE VOLOKH, UCLA CONSTITUTIONAL LAW PROFESSOR: It seems pretty clear that if Senator Kerry becomes president, then abortion rights will be strengthened and conversely what some people see as the rights of the unborn will be even more permanently relegated to the background. On the other hand, if President Bush is re-elected, it`s harder to tell for a couple of reasons.
One is despite some Reagan and Bush senior appointments in 1992, the Supreme Court did not substantially cut back on abortion rights. So it`s possible that even more moderate conservative appointments will still end up voting to uphold the past precedence. What`s more, even if Roe and Casey are overturned, given the politics of abortion today, chances are that (UNINTELLIGIBLE) a great majority of states, abortion would be legal as a matter of state law.
ABRAMS: Right, but that has nothing to do with the U.S. Supreme...
VOLOKH: No, no, I do think it has...
VOLOKH: ... it`s an important point. The question isn`t should abortion be banned...
ABRAMS: That`s right.
VOLOKH: ... or should abortion be legal everywhere.
ABRAMS: Right.
VOLOKH: The question is should abortion be legal everywhere whether it should -- or whether it should be up to each state.
ABRAMS: That`s right. That doesn`t change, though, depending on who becomes -- that`s just framing what the legal issue was that was before the court.
VOLOKH: That`s right.
ABRAMS: Professor Koppleman, do you agree with that analysis?
ANDREW KOPPLEMAN, CONSTITUTIONAL LAW EXPERT: I think that that`s substantially right, yes. There -- it really depends on what your situation is. I think that for most women in the United States who can afford to spend the money on abortions, or if they`re -- or who can afford to travel, that their right...
KOPPLEMAN: ... to abortion isn`t likely to be much jeopardized.
ABRAMS: Right, but let`s talk about...
KOPPLEMAN: If you`re a poor woman...
ABRAMS: But I want to talk strictly about the court, though. I don`t want to talk policy issues on what each state is going to do.
KOPPLEMAN: Well...
KLIEMAN: ... two are related...
ABRAMS: I know they`re related...
KOPPLEMAN: Yes.
ABRAMS: ... but I don`t want to get into a discussion about what each state is going to do. I want to talk about whether the court will continue its statement, which is that it has to be legal in every state. That`s what the U.S Supreme Court has ruled and that`s the question I want to just to determine. Professor Koppleman, do you agree?
KOPPLEMAN: It`s certainly much more likely to say that if Kerry gets to make the next few appointments than if Bush gets to make the next few appointments.
VOLOKH: That`s absolutely right.
ABRAMS: And we`re talking about Chief Justice Rehnquist -- let me go to this piece of sound from Chief Justice Rehnquist. This is last year when he was on the -- interviewed by the "Today" show on the issue of retiring. Here`s what he said.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: At age 79, you can`t help but thinking about retirement.
UNIDENTIFIED FEMALE: Seriously?
UNIDENTIFIED MALE: Well...
UNIDENTIFIED FEMALE: Are you making news here? Are you telling me?
UNIDENTIFIED MALE: No, I assure you I`m not making news. I`m just saying when you get to be 79 years old, you know, your life expectancy isn`t what it once was and you`ve got to think about the possibility of retirement.
(END VIDEO CLIP)
ABRAMS: And of course, we`re, you know, we`re talking about this in the whack of Justice Rehnquist announcing that he has -- is being treated for cancer, although he`s expected back on the court Monday. Let`s talk about another important decision, came out in the last couple of years, want to figure out if it will change based on a Kerry or Bush presidency. Private homosexual conduct, sodomy law, the case was Lawrence v. Texas. Here was the Justice Anthony Kennedy`s ruling.
The nation`s laws and traditions show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.
Professor Volokh, this was a sort of surprise ruling, I think, to some. Again, does this change, do you think, depending on Kerry versus Bush as president?
VOLOKH: Well, if Kerry is elected, then certainly this decision will be reaffirmed. It probably wouldn`t even be challenged. If Bush is re- elected, then it`s possible a couple of retirements, things might change. Again, though, it doesn`t seem -- it doesn`t seem by any means certain Kennedy and O`Connor, who are both appointees of President Regan are pretty conservative Republican, voted with the majority there.
And, in fact, I think there are relatively few people on the right who feel very, very strongly about the supposed need to change this. This isn`t the same, I think, hot button thing as abortion is. The really interesting question is what will happen with regard to gay marriage rights. I think that today`s court, and certainly a court that would be there after President Bush named some more justices, will almost certainly say that it`s up to each state to decide whether same sex marriage is to be recognized.
ABRAMS: All right.
VOLOKH: Whereas with Kerry, it`s at least conceivable, even not President Kerry has not announced himself of being in favor of same-sex marriages. The kinds of people that it`s likely that he would appoint come from kind of an ideological wing of the party that is more likely to say wait a minute, you know, not only must same-sex conduct be legally permitted, it has to be legally sanctioned through same-sex marriage.
ABRAMS: That`s what he said. But he said he`s opposed to that...
VOLOKH: Well that`s right, but it`s almost certain...
ABRAMS: You`re right...
VOLOKH: ... he won`t use as a litmus test...
ABRAMS: Right.
VOLOKH: ... oh, no same-sex marriages...
ABRAMS: Right. Right. Right. Right...
ABRAMS: Professor Koppleman, do you agree with it?
KOPPLEMAN: It seems to me that there is zero likelihood of the Supreme Court legalizing same-sex marriage under either Bush or Kerry. Imagine that Kerry got four appointments to the Supreme Court, and that`s the most he`s going to get. Five justices of the court are relatively young and healthy. It doesn`t seem likely that any of them will leave the court, even in the next eight years. There`s not a single judge on the Supreme Court today who`s inclined to recognize same-sex marriage.
KOPPLEMAN: You look at the opinions in the Lawrence case. Not one, so I don`t see where the votes would come from.
VOLOKH: You know Andy might be right. It`s hard to tell. They didn`t have to opine on that subject. I do think...
ABRAMS: Yes.
VOLOKH: ... that Justice Kennedy and O`Connor, for example, the swing voters in Lawrence were unlikely to recognize it. But I think it`s certainly possible that Justice Souter might vote to recognize a right to same-sex marriage, much like the Supreme Court in Vermont...
ABRAMS: It`s a long shot...
ABRAMS: It`s a long shot. It`s a real long shot.
ABRAMS: I think Professor Koppleman is right, but it`s a real long shot no matter who gets...
VOLOKH: You know it was a long shot, the Vermont decision...
ABRAMS: Yes, I understand...
VOLOKH: ... and the Massachusetts decisions were thought to be long shots I think five or six years ago, too.
ABRAMS: Yes.
VOLOKH: It`s very hard to predict what`s going to be happening...
ABRAMS: Well, it`s always hard to predict. All right. Let me just play two pieces of sound. We`re going to go to break with this. This is President Bush and Senator Kerry talking about what they`re looking for when it comes to certain issues related to the Supreme Court.
(BEGIN VIDEO CLIP)
BUSH: Because the union of a map or woman deserves an honored place in our society, I support the protection of marriage against activist judges. And I will continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law.
SENATOR JOHN KERRY (D-MA), PRESIDENTIAL CANDIDATE: I subscribe to the Justice Potter Stewart standard. He was a justice on the Supreme Court of United States and he said the mark of a good judge, a good justice is that when you`re reading their decision, their opinion, you can`t tell if it`s written by a man or a woman, a liberal or a conservative, a Muslim, a Jew, or a Christian. You just know you`re reading a good judicial decision.
(END VIDEO CLIP)
ABRAMS: Professor Volokh and Professor Koppleman are going to stay with us. Coming up, on the question of who the court -- who might make it to the court? Who might each of the candidates appoint? We`re going to talk about that. And how conservative are they? How liberal are they? (cut)
ABRAMS: Coming up, the next president could shape the U.S. Supreme Court like few other presidents have. The question - who would Senator Kerry or President Bush choose in the next term? Coming up.
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