[Kyra Phillips, Cnn Anchor:] To the average listener, the Supreme Court hearing was a historic moment. But legal minds are working overtime to dissect the details of yesterday's hearing. We have two perspectives on the case this morning. Viet Dinh is a professor of law at Georgetown University Law Center and Heather Gerken is an assistant professor of law at Harvard Law School. Also, you are both former Supreme Court clerks. Welcome this morning.
[Viet Dinh, Former Supreme Court Clerk:] Good morning.
[Heather Gerken, Harvard University:] Thank you.
[Phillips:] Viet, let's start with you. Let's start with the arguments and let's talk about Ted Olson's arguments. He, of course, is arguing on behalf of Bush. How do you think he did?
[Dinh:] I think he did very well. He is one of the seasoned Supreme Court advocates and he was very deliberate and very conversational and engaged the Justices in the questions that they had. He was a bit slow on picking up on the constitutional argument, the Florida constitution argument that was suggested by Justice Scalia, but I think that once he grabbed onto it, he took it and ran with it and did very, very well.
[Phillips:] Interesting, Heather, I guess if we wanted to talk about Laurence Tribe, he's pretty much the constitutional guru, wouldn't you say? How do you think he did with regard to that?
[Gerken:] He did a wonderful job, as usual. I mean one of the things about watching Larry Tribe is he's able to spin constitutional theory on his feet, which is exactly what you want to be able to do when you're in front of the Supreme Court.
[Phillips:] Viet, Justice O'Connor was the first Justice that had a question, right out of the box. Did that surprise you used to work with her. Did that surprise you?
[Dinh:] Oh, no, not at all. She is usually the first person in any given Supreme Court term to come out with an opinion and so it is not surprising that she asked the first question here. She does have things on her mind and when she does, she asks the question very directly. That's a good thing for the counsel because they would know almost immediately what troubles her about the case and give a chance in order to convince her and since she's usually in the middle of the Court, that is a very, very important opportunity.
[Phillips:] I remember a comment being made, I couldn't remember if it was O'Connor. I remember it was a female voice saying to the attorneys, you know, we're still trying to be convinced on why you should be here. Heather, let's start with you. Do you think the attorneys did a good job of convincing the Court that they should be there in front of them?
[Gerken:] I think that they did convince the Court that there's a federal question here and so I think the Court actually, my guess is from the argument, and you can never really tell, is that the Court feels comfortable going forward with this. The question just is how are they going to rule on it now that they've got the question in front of them properly.
[Phillips:] Viet, what do you think?
[Dinh:] I agree with Heather that I think the Court, if not unanimously, then significant, with a significant majority, will find that this is a federal question. The harder question is the key question in this case, whether the Florida Supreme Court overstepped its bounds of the judiciary into the province of the legislature and that is close not because of any political division, but simply because of a difference in judicial philosophy. But judicial activists would like to think that what the Florida Supreme Court did was in the normal method of interpretation, though the conservatives would think that they overstepped their bounds. And so it is strictly a difference of jurisprudence, if you will.
[Phillips:] All right, one last question, quickly. Heather, maybe you can just answer this before we wrap up. How likely do you think this case will get kicked back to the state level?
[Gerken:] I think that it's very, I think the Supreme Court is going to issue a final decision one way or another, so I don't think it's going to go back to the Supreme Court in the state level, although right now the truth is the game is still in Florida and so what's going on in the lower courts there is going to have a huge impact on this election.
[Phillips:] Heather Gerken, Viet Dinh, always a pleasure. Thank you both very much for getting up this morning.
[Dinh:] Take care.
[Gerken:] Thank you.