In a recent interview with CourtTV.com, Graham talked candidly about his views on the Supreme Court's historic and—he believes—partisan decision, which effectively ended the election, making George W. Bush president. He shared his opinions on what this decision will mean for the court and future elections, on the challenges facing the new president-elect, and on how the U.S. Constitution is faring through all the turmoil. He even offered anecdotes about Christmas-party encounters with President Bill Clinton and Chief Justice William Rehnquist.

CourtTV.com: We understand that you have recently changed your opinion about the Supreme Court's actions in this presidential election. Would you describe the evolution of your thoughts about the court's decision?

Fred Graham: Before the Supreme Court agreed to hear the first appeal, [Bush v. Palm Beach County Canvassing Board, in which George W. Bush challenged the validity of hand counts and the Florida Supreme Court's delay of certification], I was fairly certain—like all the other so-called experts—that they would not take the case because it didn't appear to be the kind of case the Supreme Court takes, particularly a conservative court that has stood so strongly for state's rights. But when they took it, I saw a sort of logic to it. The logic was that this was the first presidential election that had ever been challenged in court, and thus would be decided by a court. And it did seem logical that the Supreme Court of the United States should be that court. Also, I was encouraged that there would be an end to this thing. It seemed that closure would be good for the country.

Then, during the first round of oral arguments—after some initial skirmishing about jurisdiction and whether there was a federal issue—it appeared to me that the familiar conservative-liberal blocs in the court were squaring off against each other. I was concerned that we might have what would appear to be a partisan split, with five Republican-appointed justices giving the presidency to George W. Bush.

At the end of the court's first decision—their first remand—it was pretty obvious that they couldn't agree on much, but there was a chance that the Supreme Court of Florida, having been chastened perhaps by the remand, might end it themselves. And of course they didn't, and instead started the recount again.

The thing that really jarred my thinking was the Saturday order of the Supreme Court stopping the recount[handed down on Dec. 9], which went right along ideological-and in this case partisan-lines. The five justice majority ruled that George Bush might suffer irreparable harm if the counting continued, but, logically, it was Al Gore who would suffer irreparable harm if the counting were stopped. So I then thought, well, maybe at the second round of arguments, we would see that the justices were looking down the road at a partisan decision and would start to build some other kind of a consensus. So I withheld further judgments until that hearing.

During the second hearing, I was looking for signs of some consensus beyond the five, but it didn't seem likely. Because what Justices [David] Souter, [Stephen] Breyer and, to a certain extent, [Ruth Bader] Ginsburg were saying was that there was an equal protection problem. I couldn't see how the conservative five would join them in this if it would just mean going back to the Florida courts for continuation of the hand count.

When the decision didn't come down later that day and when it stretched throughout the following day, it was pretty easy to speculate that the justices were divided and were writing their various opinions.

CourtTV.com: How did your view change after you read the opinion?

Fred Graham: When I had a chance to read all the opinions, it seemed there was so little logic behind these five justices making this decision that you just couldn't ignore the fact that they were all Republican justices and, for the most part, had no substantial track record for being sensitive to claims of equal protection violations. They were all staunch state's rights supporters. Yet they all signed on to it.

I think they all felt that there was a value in having closure, but also their decision was apparently going to preserve the Republican majority of the court. But ironically, if Rehnquist now retires with the country as divided as it is and with the Senate split 50-50, Bush may have to appoint a more liberal chief justice than Bill Rehnquist. Someone like former Sen. John Danforth. Who knows?

CourtTV.com: There have been rumors that some of the conservative justices, such as O'Connor, are thinking of retiring, but want to make sure that, when they do, they are replaced by a conservative to maintain a conservative majority. To what extent do you think this could have affected their decision?

Fred Graham: That's speculation and rumor. I don't know about that, but I do know that justices tend to stay on a lot longer than you would think despite the rumors that they're going to quit. However, I do think the Chief Justice will retire.

When this began to unfold the way it ultimately did, I didn't have much sympathy at first with the complaints of the liberals who complained that this was a results-oriented decision to put a Republican president in power. You know, I was there when the five liberals in the Warren court sometimes ran roughshod over the Constitution to reach liberal results. And they were very arrogant about it at times. And yet some lawyers who cheered that process on were squawking about this conservative result-oriented decision.

But, after the decision came down, and I read it and the dissents, I saw that there does seem to be a difference between result-oriented decision-making that is grounded in judicial ideology, and a case in which five Republican justices back a result that doesn't square with their known ideology but places a Republican candidate in the White House.

CourtTV.com: What do you think the legacy of this decision will be for the Supreme Court?

Fred Graham: Over the years, I've seen the Supreme Court make some very unpopular decisions, some very dubious decisions. But for the most part people got over them, so perhaps they will get over this one. But lawyers won't forget it, and politicians won't forget it. It has set a precedent. In the future, it will encourage challenges to all kinds of state elections. I've seen over and over throughout the years justices do what they did in this case—say 'this decisions is limited to this case'—and later judges ignore that.

CourtTV.com: What are you hearing in Washington about this decision?

Fred Graham: Last weekend was a big weekend for Christmas parties in Washington, and I hit the Christmas party circuit as I always do at this time of year. And it was just stunning the extent to which people from the legal world were talking about this case. It started with President Clinton at the Christmas party Sunday [Dec. 17] at the White House. He told me with great relish that a law professor, whom he didn't identify, had concluded that this was the worst decision that the Supreme Court has ever made. 'Worse than the Dred Scott decision,' he said. Clinton kept repeating the part about "worse than the Dred Scott decision, and he obviously wanted me to pitch in and agree. And I thought to myself, the Dred Scott decision led to the Civil War. I'm not sure I'm quite that worked up about this case. But I did say to him that I thought the decision was unique in that it was a political case that decided the presidency. The President obviously felt more negative about it than that. Every lawyer I talked to in the White House that day was talking about that decision, because all of them were on the losing side and were bitter about it.

The next night at the Swedish Embassy's annual Christmas party, and I got into a conversation with Chief Justice Rehnquist, a Swede who is a regular at that embassy's events. Rehnquist said he was very pleased with the reception that the playing of the court's audio tapes had gotten. He said he watched it on television, and he thought it worked well—the way they put up the pictures that identified the justices and the lawyers who were speaking. I told him I thought the first audio tape of the first argument didn't didn't play too well with the public because the argument was too technical. But the second one, which was so much about the way we vote and the way we pick our president, really interested the public. The impression I got from the Chief Justice's response was that he really was thinking about extending this to routine cases. Of course, this could be the camel's nose under the tent to eventually get radio and television coverage contemporaneously of Supreme Court arguments, which he's against. One of the things the justices are worried about is being recognized in public, but their pictures were shown on TV in this situation, and he didn't seem bothered by it. He thought that the coverage communicated to the public what was happening in an extremely important case, and he was pleased.

CourtTV.com: The Clinton presidency is ending, which means the indictment of Clinton for lying under oath during the Monica Lewinsky hearings could be follow. Do you think that will happen?

Fred Graham: I don't think he'll be indicted. One of the factors that goes into the decision of whether to indict him or not is that Bill Clinton would be bulletproof before a D.C. jury. They'd never convict him. Also, the Independent Counsel would be sparing the country a lot of trauma by not bringing him to trial. It seems to me it's a slam dunk decision not to indict him.

CourtTV.com: There have been two "constitutional crises" in the last two years—the Clinton impeachment and Bush v. Gore. How is the document holding up?

Fred Graham: I don't think either of them reached the level of constitutional crisis, considering they were both controversies that worked themselves out within the constitutional framework. I do think that the Florida situation could have spun out of control into a constitutional crisis because it could have careened into uncharted waters, but that didn't happen. If anything, our constitutional system has been strengthened by this. A lot of people are saying they favor the electoral college system despite the near-miss we had with it, because they see that it has values and advantages.

CourtTV.com: What should a legal consumer—a person who has an interest in crime and justice issues—watch for in the coming year?

Fred Graham: If there hadn't been the cliffhanger election and a 50-50 Senate, there'd be a lot to watch for in the legal world. The bankruptcy law would be toughened up; tort reform would be hot on Capitol Hill; there would be a rollback of some of the racial preference programs. School tuition vouchers would be hot, and the Supreme Court would probably approve vouchers. But now, the Bush program will be narrowed because of the slim majority, and I don't think legal issues are going to be front and center. There may be a huge fight perhaps over Star Wars [strategic defense initiative]. There'll be a fight over taxes. And education—that's mostly about pork, only money. But I fear there's not a lot of fuss and fun in store for us legal types.

CourtTV.com: Fred, thanks so much for your time and insights.