[Leon Harris, Cnn Anchor:] Well, there's a lot of information now to absorb in just a little amount bit of time, which seems to be a pattern in this post-election period. To help us out with that, we've got two insiders joining us now: in Washington, former Supreme Court clerk Paul Clement, and also joining us this morning from New Haven, Connecticut, Akhil Amar. And these two gentlemen were clerks, now, to were former clerks for Supreme Court justices. Clement Mr. Clement I believe you were with Justice Scalia.
[Paul Clement, Former Clerk To Justice Scalia:] That's right.
[Harris:] And Mr. Amar, you were with Justice Breyer, correct?
[Akhil Amar, Yale University:] When he was on the first circuit.
[Harris:] Got you. Now, rather than asking the two of you to help us decipher exactly what this means, because we're going to get that all day today, as we got last night, I want to ask you all about the process by which you think these gentleman and ladies came to this conclusion that they did. It seems as though there quite a bit of dissension here, and there might have bee some very passionate arguments going on here. Beginning with you, Mr. Clement: How do you think that whole process worked out?
[Clement:] Well, I think part of the reason that we waited until very late last night to get these opinions from the court is because the process of writing dissents and going back and forth between the per curiam opinion and the various dissent takes some time because even those who wrote the majority opinion, or joined the majority opinion, wanted the opportunity to, at least, respond to the dissents or see what the dissents had said before they put the final touches on their opinions. So I think that was what was going on all day yesterday was back and forth, with various opinions circulating. That's a process that usually takes place over a couple of weeks, and I think it was all going at hyper-speed last night, going back and forth, back and forth, all evening.
[Harris:] Yes, but if all that was going on, Mr. Amar, do you think we should have seen more unanimity among the judges, because it seems as though every single person seemed to have a different opinion.
[Amar:] Well, the bottom line of the case in its resolution was five to four, and that was the same bottom line as we had with the stay that was issued over the weekend. And when I came on CNN over the weekend, I said if it's going to be five to four, when this five to four, the five better have very persuasive reasons that are going to stand up to the judgment of history. I've taken a look at the opinion. I have my doubts about whether the five, who I am sure are acting in absolute good faith but I do have my doubts about whether this decision really stands up when analyzed by its logic, by its resonance with text, history and structure of the Constitution, and it's conformity with precedents that are actually in the neighborhood. It's a bit of a stretch.
[Harris:] OK, if you can, quickly, give me the very best reason that gives you that doubt. And then I want to get Mr. Clement's response to that.
[Amar:] OK, the basic idea is that the recount had some imperfections, some genuine imperfections. That's absolutely right, but whether those imperfections are an inequality violation of the Constitution, when the underlying count itself was probably infected with much greater inequalities inequalities that actually had racially disparate impacts and that disproportionately hurt people in poor precincts equality is a very deep Constitutional issue, but this case relies on a rather Pickwickian and odd and, literally, unprecedented view of the equality. There's no case out there that I know of, having taught constitutional law for 15 years, that's really close to this one on its facts and the text, history, instruction of the Constitution and logic. If you're going to have this rule for a recount, why not for original counts?
[Harris:] Let me get your response to that Mr. Clement: What's your view of that?
[Clement:] Well, they only had one issue in front of them, so there may have been other equal protections lurking out there in the woods, but they only had this one issue of the recount before them. And seven of the justices, not five, found some equal protection problem with the recount procedures. Justice Souter, for example, in his dissent said that when you actually got down to the level of saying that different counties with the same ballots were counting the same kind of chad or hanging chad in different ways, there was no absolutely no state interest in that differential treatment. And I think equal protection, especially in the context of a fundamental right, like the right to vote, is a well-established principle in our jurisprudence. And although the court may take a hit in the short run as people say five-four on the remedy, and this was very political, I think, in the long term, the equal protection holding of the court will stand the test of time.
[Harris:] Well, we're going to see about that.
[Amar:] We shall see, we shall see.
[Harris:] Yes, we shall see and just one of the many interesting questions both raised and solved by all this and many are saying maybe nothing's gotten solved. We want to thank both of you gentlemen for your time this morning, Paul Clement and Akhil Amar, thanks very much. We'll have to talk to you all later on about this and some other things, too.