>> charlie: we continue our coverage of the situation in iraq. this week the government of nouri al-maliki requested the u.s. air strikes against the insurgency led by the islamic state in iraq and syria, i.s.i.s. earlier today president obama said the u.s. is ready to take action if and when the situation on the ground requires it. >> the united states will continue to increase our support to iraqi security forces. we're prepared to create joint operation centers in baghdad and northern iraq, to share intelligence and coordinate planning to confront the terrorist threat of i.s.i.l. through the new counterterrorism partnership fund we're prepared to work with congress to provide

additional equipment. we've had advisors in iraq through our embassy and are prepared to send a small number of additional american military advisors, up to 300, to assess how we can best train, advise and support iraqi security forces going forward. american forces will not be returning to combat in iraq but we will help iraqis as they take the fight to terrorists who threaten the iraqi people, the region and american interests as well. >> charlie: joining me from kansas, general richard myers, chairman of chiefs of staff from 2001 to 2005 under president george w. bush. pleased to have you back. >> pleased to be here. >> charlie: let me begin with this question, what is the threat to the national security of the united states from what is happening in iraq? >> i think if you listen to president obama both previously and currently and other leaders,

the threat is where this current situation could lead, and i think that is an iraq that has iranian influence more than even today, setting up potential confrontation with the gulf states which are sunni, of course, which are not -- and mortal enemies of iran, they would not be in favor of that. it would lend status combo for what's going on in syria. if the situation continues to deteriorate. and perhaps result in ungoverned areas in iraq itself where folks of like mind in terrorism could plot their next move. if you just look at the region and have this boiling issue, this insurgency, if you will, the sectarian violence, if that could spill over borders to

turkeyy, jordan, maybe even impact israel, i think that's the real concern, and to the oil-rich nations which iraq is one of course, could disturb oil flow to the countries who depend on it for their economic well being. this is the sort of thing if it continues and iraq is more unstable could have an impact on the whole region. >> charlie: what is necessary to stop it? >> i think one of the things, as i read what went on today, in president obama's words, he says it's primarily a political solution that's required for the situation inside iraq. i would agree with that. of all the instruments of power we have at our disposal, the military diplomacy, economic, informational, it seems to me the diplomacy and political part are right now as important and maybe more important than the military part. so, as i read just a minute ago,

sending secretary kerry to the region to discuss the situation with our friends and allies in that area, the fact that they're calling on maliki to have more inclusion in his government and include the sunnis in that government, i think that's really the key here. there are military things that would have to be done if i.s.i.s. gets closer to baghdad and actually threatens the capital, but i think, in the meantime, it's diplomacy and it's the political issues that need to be worked, because that's the reason we're in the situation we're in. >> charlie: do you mean reconciliation between shia and sunni, or something else, when you say diplomacy? >> i think more of what secretary kerry is charged to do and that is to talk to our friends and allies in the region and try to get them to be part of the solution to help maliki think through what it's going to

take to keep iraq together and to rule and to govern in iraq in a way that includes the three major groups there, the kurds, the sunnis and shia. without that, you know, there's no military force that can do that. that has to be done by political will, and i think maliki needs to hear from his neighbors that this is really, really important not just to iraq but to the region and then, therefore, the world because of the economic impact that i spoke of earlier. >> charlie: so are we signaling to the iraqis and to the neighbors that they've got to have a new leader in iraq? >> i think if they're reading our headlines, those that are worried about that inside iraq are probably a little confused. the president i think in his statement today stopped short of calling for maliki to leave office and have another coalition formed, but a lot of other folks in government and

certainly on capitol hill have made that call. so i think they're probably a little bit confused right now. there are a lot of facts that we don't have, so i don't know how the conversations with maliki have gone. my personal opinion is he's had a long time to get this right, he has not gotten it right and, in fact, he's alienated the sunni population to the point where i don't know that he's capable of putting that back together. so it seems to me, just from where i sit, that he probably needs to go, and i think the decision on that would carry a lot of weight inside iraq. >> there is also this -- they want air strikes. is that a good idea as military weapon against these kinds of insurgents? >> i think to know that, the first thing we have to do is get the folks the president said he's willing to send, i think up to 300 advisors that would set up joint command centers with

the iraqis because we need to get eyes on what is actually happening on the ground to know if air power could be effective. my guess is it could be in some circumstances, but one of the things you always worry about is having the right target identified and taking them out. that's how we went into afghanistan initially. we had just a few special forces on the ground coordinating with air power and brought the taliban and the al quaida to heel there for a while. that can work, but i think it's important to get eyes on, and i'd assume that's what the 300 advisors would do is, okay, what's our situation, what intelligence do we have? are there targets out there that would lend themselves to air strikes? >> charlie: because you want to wait until you hear what the men and women get on the ground and determine what the situation is in coordination with the iraqis? >> well, yes. and it goes back to, you know, the issue after 9/11, that this

is not a fight with nation states to have armies, air forces and navies. these are nonnation state actors and unless they group or have equipment that can be struck by air and air be very effective there and we would have the reconnaissance and, of course, all of that to do effective targeting, but until we know that, i don't know that we know that air power is the right solution. so i think we need some folks over there that could put eyes on it and say, you know, we have targets here that would really hurt i.s.i.s. and they would probably make that recommendation. and then it could be put together pretty quickly, i think. >> what do you think about the possibilities of coordinating with iraqi militias that are inspired by the iranians? >> i think that's a dangerous path, frankly, and i think it's in u.s. interest and certainly others in the region that we do

all we can to keep iran out of this conflict, don't give them any encouragement to come in and help because i think they're not going to be inclined to leave. they're already exerting a lot of influence inside iraq. this would just give them another leg up and maybe solidify a bond with the shiauw& militias that i don't think is in anybody's interests to solidify. it just exacerbates the problem with our friends in the gulf states. they'd worry about that a lot. so i don't think we need to encourage that. i don't think we need to do that. i think the shia, by the way, will fight well around baghdad. they have a lot of population there and i think they'll fight very well without help from their iranian friends. >> charlie: i think robert ford said this, the former ambassador to syria, he said iraq and syria are one big conflict now. >> it's certainly connected, and i think that's one of the

dangers. this fight going on right now could spread and make some linkages that would be very, very difficult to eradicate once they get a foothold in both syria and iraq and make it much more difficult for even a political solution to the problem. obviously, syria is a whole different issue, one where we've not been very aggressive in any particular way, and, so, that would be we would have to start from ground zero, i think, to figure out how to help solve that problem with friends and allies. >> charlie: i wonder whether syria informs the decision president is making in iraq because many are criticizing the decision the president made not to do more in syria. >> i think it brings into sharp focus that what was happening in syria was opposite what our u.s. interests in the region are, our vital national interests

because, first of all, it was a threat to israel, it's a threat to stability in jordan, to some degree it's a threat to stability or certainly unrest in turkey as they take on a lot of refugees. so we're seeing it expand again into iraq. by the way, the president had a tough decision to try to figure out what to do in syria because it wasn't clear and the longer you waited the more difficult the decisions became. so we're at the front end of this one and looks like we're taking the sort of steps it seems to me here on the side lines with absolutely no responsibility but they look very prudent, actually, and i just hope we would do this with a sense of urgency so we could be helpful to those iraqi armed forces who want to fight. as we heard the chairman say, i think it was yesterday, on capitol hill, there are some iraqi units that can and will

fight. we saw some that turned and ran or took off their uniforms and wanted to blend into the crowd, but those were pretty far to the north. i think there are a lot that will fight. there are good units there, at least that's what the chairman said and i believe that, so we need to get over and provide the kind of assistance we can provide in that regard while they're working the political issue with maliki and a new government that has to be based on some form of reconciliation. >> charlie: are you surprised how fast i.s.i.s. has moved in iraq. >> i am, but given the tactics they and all terrorist use but they seem to have taken it to the next level if you can do that, i guess, totally ruthless, people are going to be very afraid, so there's not going to be any resistance. i don't think we can assume that the sunni pooplation is cheeñ>ig them along because they're so extreme that my guess is the

majority of sunnis in the country don't want anything to do with them, but they're also really, really afraid. that was the situation we found in alamare province when sectarian violence erupted even worse than when i was in office and part of it was the fear factor, and that was part of the strategy, we can do away with the insurgents and hold territory and make it secure for those left behind. i think a lot in mosul don't have that feeling. there's no one to protect them, so i think i.s.i.s. can have its way for a while. i think that will be different close to baghdad and they're finding it out. >> charlie: thank you for joining me this evening. >> thank you, charlie. >> charlie: we'll be right back. stay with us. head olson and david boyd are

here, friends and super lawyers who have been in largest case in history. they teamed up to successfully overturn proposition 8, the california ballot initiative that banned same-sex marriage. in "vanity fair" magazine, lionel barber writes, their partnership is living proof that bipartisanship is now not dead and buried in washington. they tell the store in a new book, called redeeming the dream, the case for marriage equality, the subject of an h.b.o. documentary, that film cause the case against ache. a scene from the film. >> this lawsuit is about the courts saying that no matter how blind people may be, the constitution guarantees everyone deserves the equal rights that every human being is entitled to. >> when we announced the case, one of the people at the press

conference stood up and said, how can we trust what you're doing if you're doing it with ted olson? >> there was a reaction among conservatives that i was somehow a traitor to conservative beliefs. >> it's a betrayal of everything ted olson purported to stand for. >> what's happened to ted olson? he used to be one of us. >> when you feel your fellow conservatives are so against this issue -- >> because -- >> charlie: i am pleased to have david and ted at this table. welcome. let me begin with this small question. in everything that you have done in the legal rei arena, where du put this? >> i think it's the biggest case we've ever done. i think the impact it's had on hundreds of thousands and millions of people's lives, the

pain that it has begun to help erase i think has made this, for me and i know for ted, too, the most satisfying case we've ever done. >> absolutely. it's number one because of the people and what we've done in the case and what we've done by talking about discrimination against persons because of their sexual orientation may have helped changed the attitudes in this country and the law. we haven't been doing it ourselves, but the people whose lives we're affecting, we feel every moment of this case we felt that we really had to do our very best because we had to succeed for these people. >> charlie: how do they express that? >> oh, my gosh, it's just overwhelming and gratifying. the tears in people's eyes that i've seen them come up to david and me and i have one gentleman, i was sitting on the shuttle at

washington, d.c. and he walked past and pointed to his ring and said, thank you. and we're feeling that all over the country. now, we hasten to say we didn't do this all by ourselves. lots of other people were involved. but people saw us a lot talking about this case and these issues, and the trial of this case helped us understand how much damage we do to our fellow citizens by putting them in a box based upon sexual orientation and to deny them and their families equal treatment under the law. it's so painful every single day. and the documentary that you started with, the case against 8 by hbo, is an absolutely spectacular rendition of the case and the emotions involved in the case. >> charlie: how did this begin? >> began for me with a call from ted. ted had been asked by a small group of people in california who were upset with proposition

8 and who wanted to challenge it under the federal constitution. there have been a number of attempts to challenge these kinds of laws under state constitutions but no one had brought a case under the federal constitution and federal court to try to challenge these laws, and they've contacted ted, asked him whether he would be willing to do that. he said he would, and he called me and asked me if i would be interested in working with him and i immediately said yes. >> charlie: why did you do that? >> i have been pretty well known as a conservative, and i thought it was very, very important to have someone who is well known on the other side of the political spectrum so that people would see this through our eyes, not as a liberal-conservative-republican- democrat issue, but an issue involving american values, constitutional principles, and i thought we would be a perfect

team. david is the best lawyer on the planet i know, and i knew we would have fun working together, but i knew putting our two law firms together and doing this not only in court but in the court of public opinion, we would have opportunity possibly to change people's minds. >> do you compliment each other or have different skills or simply the same skills with different teams? >> i think we have a lot of the same skills. i'm more of a trial lawyer, ted is more of an appellate lawyer, though he does some trials and i do some appeals, so i think in that sense we were complementary. but i think in a lot of respects our skill set is overlapping. >> charlie: and what is that? i think it's a combination of things. i think partly preparation. you can't do what we do without being prepared. >> charlie: you can't do anything good without preparing. >> i think that's exactly right. and you also, i think, need to

have patience, particularly when you're doing a case like this. i think it's critical to have patience and i think we both, although we can be anxious to get on with things, i think we also both have the ability to be patient as something is developing. i think it also requires people who are pretty smart and i think both ted and i, without being immodest -- >> charlie: well, sure. -- are pretty smart. i think it also requires people who are prepared to be objective and really look at issues, not just from your side, but try to look at it from every side, and from the way the judge, the jury and yourponent will look at it -- your opponent will look at it because i think that informs how you approach communication because this is all about communication and persuasion. so i think ted and i share those kind of attributes.

i also think -- and this was important for this case -- that we were both committed to this case as a matter of principle because this required an enormous amount of resources. both of our firms were enormously supportive, taking people off of our paying complaints and putting -- paying clients and putting them on this case, taking our best people and putting them on this case for tens of thousands of hours, i think was an enormous commitment we asked our partners to make, and i think one to have the things ted -- i think one of the things ted and i have done over the course of time is build up enough credibility with our partners so they were willing to back us in this venture. >> charlie: was the idea of what rush limbaugh and some of your friends may have said to you, did they get serious? did they try to encourage you not to do this, say you can't do

this? >> i think this is the kind of thing ted have had much more the brunt of it than i. every time i'm involved in a high profile case, i get a lot of hate mail, but it's all from people who hate what i do but expect me to do it, and that's been true when i defended cbs against westmoreland, it's true when i did bush and gore, when i sued the republican committee on behalf of the democrat national committee. but the hate mail i get is hate mail that comes after me more what they think i am. i think what ted got was people who thought he had somehow betrayed them and i think that's always a more bitter type of attack. >> i don't dwell on that. there were people that were unhappy with what i was doing. many of them said so. some of them didn't say so.

some of them i didn't hear from. and there is stuff that comes through email these days and people say things, but what i focus on is the overwhelming sense of support from people that i knew or didn't know. i tell a story in the book of someone who came up to me after we filed this case in my own law firm, a woman who came up to me in a different part of the law firm and came up to me one night, we were both working late, and she said, you don't know this, but i'm a lesbian, my partner and i have two children, and i can't begin to describe what you're doing for us. you know, we both burst into tears because it's that important to the individuals that are being affected. so i see stuff like this and i

think, doesn't matter if you can really do some good for some people. and the other thing is i thought it was an opportunity for me to try to persuade people to say, wait a minute, why is marriage not a conservative value? it's two people who love one another coming together in a stable relationship to form part of a neighborhood and community and to live together in love, that is a conservative value, so listen to us. and discrimination is not a conservative value, so let's move on. let's do better. so we both felt it was an opportunity because of the odd couple kind of connotation, what are the two of you doing together, because people would ask, why are you collaborating on this case together, gave us a chance to talk and be advocates for our clients. >> charlie: one of the advantages is it put it in public debate. >> yes. >> charlie: the fact you were doing this and the case was there made people think about debate the idea of marriage

equality. >> right. and this is an issue that i don't think if you debate it, that is if you really look at the issue and think about the te issue that you will come out two ways. the other side doesn't have a credible principle argument. >> charlie: was it an easy case? >> in one sense. once we had brought in all the evidence, the experts and demonstrated that marriage is a fundamental right, second that depriving gay and lesbian citizens of the right to marry seriously harmed them and seriously harmed their children and, third, that depriving gay and lesbian citizens of the right to marry didn't help anybody else, didn't strengthen anybody else's marriage, didn't strengthen the institution of marriage. in fact, allowing loving couples, committed couples to marry, that's what strengthens the institution of marriage. once we've proven that, the case is an easy case. >> charlie: the supreme court

argument, how did you approach that? >> well, i think david started off which talking preparation and you acknowledge how important that is. we prepared and prepared and prepared. >> charlie: here are the two best lawyers in america, none better, and the key word for all you young people, we prepared and prepared and prepared. >> absolutely. and the supreme court argument -- you get half an hour to present your case in the united states supreme court, and most of the justices are involved in asking questions, interrupting you, and they interrupt one another interrupting you, and it's very important there to keep your poise, to keep your goal in front of you, to be able to segue back to the points that you want to make, to answer their questions, you have to answer their questions but you also have to keep a clear head about you at all times, and it

happens extremely fast. so the only way, david talked about preparation, i talked about preparation, the other thing is experience. between the two of us, we've had almost 100 years of practicing law. but we've learned something, i hope, in that period of time, but we haven't stopped learning. and in the united states supreme court, there's no higher court. and not only that, but everybody's watching, everybody's listening. so you're not only speaking to the justices, because the audio of the argument is broadcast to the whole world, and, so, the things that you're saying about discrimination are going out there to other people, so you're not only, hopefully, influencing the outcome of the case, but you're hopefully teaching people out there what the issues are and what discrimination is all about and what the constitution is all about. >about. that all takes place in a very short period of time. >> charlie: was there a moment in the supreme court that you

felt this is coming along, this is going our way? >> i think there were a couple of times it looked like things were going pretty well, and then there were a cup of times things happened that gave us some pause. i think one of the most critical portions was, at one point, justice kennedy, who's obviously going to be a critical justice on this issue, interrupted and asked our opponent, what about the children? don't they deserve a voice? referring to the children who were being raised by gay and lesbian couples because the record was absolutely clear that those children were severely disadvantaged economically, psychologically, socially by their parents not being able to get married. and i think when justice kennedy focused on that aspect of it, i think that was something that is a positive indicator. >> it was very important because our opponents said marriage is

all about procreation, and justice kennedy and one of the others said wait a minute, gays and lesbians have children, they brokate and are raising families. that's when he said, well, what about the 340,000 children in gay families in california, don't they count? and that's in one of the opinions he wrote with respect to the cases and it's very important because david helped with cross-examination during the trial to get the opposing expert to say children in a family being raised by gays and lesbians will be better off if their parents could get married. that was a critical moment in the trial. >> charlie: here are scenes from this movie called the case against 8, this is the question practiced for trial. >> how long? as long as i can remember. did you choose to be gay?

no. do you think you have the ability to choose not to be gay? >> i do not. do you want to get married? i do. who do you want to get married to? >> to jeff serillo. why haven't you and paul had a family? >> because we're not married. we're strong believers that we want any child that we have to have the protections that an opposite sex couple's family and children would have. that's very important to us. >> charlie: so a lot of this is trial practice. >> a lot of it is trial practice. and one thing that is worth noting is that, as you prepare these witnesses, it's very important that you not destroy their authenticity, that you not let it come across as practiced and, as a result, when i was preparing jeff and paul and when

ted was preparing chris and sandy, with respect to certain very sensitive questions, we did not go over them in any kind of detail in the preparation because we wanted that testimony to be fresh and the authentic and be fresh and be natural. and when i asked jeff and paul, why do you want to get married and why do you want to marry this person, and they talked about how they loved this person and loved them more than life itself, more than they loved themselves and how important that was to them, you could have heard a pin drop in that courtroom. and when ted asked chris and sandy the same question and they talked about how their life would have had a higher arc if they were able to get married and if they had not suffered this kind of discrimination and

their hopes for other children growing up that they'd not suffer that kind of pain, there wasn't a dry eye in the courtroom and that includes the counsel on the other side. >> charlie: where is the law now? >> well, the united states supreme court struck down as unconstitutional the federal defense of marriage act which said that the federal government would not recognize even lawful marriages in the states that permitted it and would preclude gay and lesbians from marrying gays and lesbians in particular states from getting federal benefits at all. there were some 1100 statutes that discriminated against people who did not have opposite sex marriages. that was struck down as unconstitutional. in our case, the perry case, proposition 8 case, the judge struck it down, proposition 8 is unconstitutional, wrote a 134-page opinion with findings of fact and conclusions of law, as a result of the supreme court

decision, that is the law and california has marriages. since those two decisions which occurred exactly a year ago, 12 or 13 federal judges in all parts of the united states appointed by republican and democratic presidents have struck down laws of states prohibiting marriages between persons of the same sex. when we started this three states permitted persons of the same sex to marry each other. today it's 19 states plus the district of columbia, only five years later. if you add the other states, it's another 13 or so states, those cases are still in progress, and those cases are going to wind up, one of them -- we're handling the case in virginia. we won that in the federal district court. it's now on appeal, probably going to the supreme court. one of those cases will wind up in the supreme court and we hope that the outcome will resolve this once and for all for the

whole country. >> charlie: are you taking on anything other than marriage equality? >> my firm is working on a case, and david's aware of this, challenging the te the tenure sn public schools in california whereby teachers who are incompetent, unqualified teachers are kept in the public school system and the students are subject to -- >> charlie: why? because they're granted tenure and you can't fire them and the youngest can stay and the oldest is fired if there's any problem in the budgets. that system was held unconstitutional under california law. what that system did is rotate -- they called it the parade of the lemons -- the poorest teachers would be rotated into the poorest neighborhoods so that the kids you want desperately to rise out of poverty and to overcome

discrimination and adverse circumstances because of their race or ethnicity in the center cities, those were the kids getting the worst teachers. the evidence showed if you have a bad teacher for one year when you're a young kid, you can almost never overcome that. if you have a bad teacher for two years in a row, it's almost over for you. those are the kids that drop out, get arrested, get involved in drugs, get pregnant and were perpetuating that cycle so that's one of the things that we're interested in doing is doing something about the education system. we all value teachers, and the point of this case is that because teachers are so important and so valuable, we want to see the system put those good teachers with those students. >> charlie: are you working on a pro-bono case? >> we're working on very similar issues here in new york. i'm on the board of an organization called students

first that is trying to reform the educational system, trying to get more accountability in schools, trying to reward better teachers and replace the worst teachers, trying to enable charter schools to survive in very difficult current environment. but i totally agree with ted that education is sort of the next civil right that we have to talk about because if you aren't educated, doesn't make a difference whether you're black or white, whether you're gay or straight, regardless of your other attributes, if you can't get a decent education, you can't survive in today's world, and increasingly, access to education is a function of how rich your parents are and where you live. we don't have rules that say, we're only going to send the police and fire department into

rich neighborhoods. we're not going to have the military protect poor neighborhoods. there are certain basic rights including access to courts. we don't say -- whether they have rich and poor courts. everybody's got to go to the same court. and education ought to be the same way. everybody ought to get a decent education. to do that, we've got to reform our educational system. it's not that we don't spend a lot of money in the united states. we spend more money on education than most countries, we just don't get very much more. >> charlie: we rank rather low in terms of the ways to find metrics to measure that. would the decision come down because you had the facts on your side, were a better lawyer or politics was baked into the

court? >> certainly don't think it had anything to do with the quality of lawyering. i think that both sides had extremely qualified lawyering and the chief justice particularly addressed that. there were two supreme court cases. he complimented both sides on the quality of the lawyering and the skill that went into it. i watched david and al gore's team, they were fabulous lawyers, and we had differences of opinion as to whether the court decided it correctly or not, and i respect the views david's articulated and that team articulated, that a presidential election can turn on the outcome of votes in one state. it has to be determined within a certain time frame because we have a constitutional limit on when the new president must take office and the concern david was expressing and he will express it better than me was they wanted every vote counted and i

would say they wanted every vote counted again and again and again and again by different standards and that the rules kept changing after the election with respect to what was a valid vote and what wasn't a valid vote. and when you put the punch cards through a machine, they change every time, so you're never measuring the same thing. so we felt that the process required counting votes in a determinate way according to the rules that were in place before the election took place, not rules that were changing from hour to hour and from county to county. now, there's other sides to those arguments and i'm sure david -- i've heard him and he's really good at expressing that (laughter) the fact is, and i believe this about cases i've lost, is every single one of those justices is conscientious, smart, well-prepared, doing the best job they can, and in the light

as they see it, they're doing justice. i really mean that, and i've lost cases involving big prance pals, and so forth, and i don't want to start naming cases i've lost because we'll be here too long, but the justices of this -- i want to firmly state that, in my judgment, politics had nothing to do with it. it had to do with their perception of what was the right way to interpret the constitution, and people can have legitimate differences about that. but to impugn the integrity of the justices does grave damage to the institution of the supreme court and to our judiciary which is the envy of the world. >> i think that there are two main problems with the way the court came out. the first was that ted is exactly right, that you want to have all the votes counted in a consistent way. the florida supreme court had

set that up. we were in the middle of a state-wide recount, being supervised by a single judge, and it was going to get all of the protests from either side and decide them pursuant to a uniform standard and that was then going to be appealed to the florida supreme court. so you would have had one standard applied statewide. that recount was underway. it was going to be completed, probablyñlwithin about less than 48 hours. it had already been half completed at the time it was stopped. the supreme court stopped that vote before we even had the argument. the petition was filed on a saturday afternoon about 2:30 in the afternoon. the supreme court stopped the votes. i think stopping that vote count before the argument even took

place was undesirable. i think that the second thing that happened was that you had three justices on that court who traditionally had been very reluctant to decide cases based on equal protection grounds, and they had all written or joined in opinions that said you can't attack a state action on equal protection grounds unless you find either that it is invidious or systematic. and here the argument was not that there was anything that was invidious. nobody was claiming the county canvassing boards were doing something evil or intentionally bad and not that it was systematic. in fact, the argument was it was not systematic. so you couldn't justify an equal

protection case pursuant to the very opinions that these three justices had rendered in the past. so i think that when they came out with this case based on an equal protection argument -- and i think there are legitimate equal protection arguments that can be made with respect to what was happening. i think those arguments go more to the fact there were four different kinds of machines used in florida and the different treatment of votes was more a result of the four different kind of machines than any different standard. but i think there are legitimate arguments that could be made. the problem was the three justices in the majority rejected the arguments in the past yet they embraced those arguments to decide this case. >> charlie: why did they do that? >> i am -- i agree with ted on one thing and that is that the supreme court is absolutely

critical to our democracy and the pursuit of human rights. throughout our lifetime, the supreme court has been probably the most important engine in advancing civil rights and human rights in this country and i think its is undesirable to engage in extended criticisms of the court that i think undercut the court. what i think is that the supreme court is made up of people and i think people sometimes make mistakes. i think the supreme court has made mistakes and made mistakes in ferguson where they upheld segregation, in the dred scott case where they upheld slavery, in the japanese internment cases where they rounded up people just because of their national origin when they committed no crime, and i think they made a mistake here. that doesn't mean that i think the supreme court is not a great

inns thighs, i think it is. i also think that every justice on that court is doing what he or she thinks is in the national interest, but i think that there were judges on the court in bush v gore who thought it was in the national interest that bush be president, and i think that was not the way those decisions should be made. >> well, we respectfully disagree and we've talked about this over good wine. (laughter) we supplied the wine on an equal footing -- >> this was a joint operation. (laughter) >> i will just say that seven of the justices felt there were problems under the equal protection clause, including two of the descending justices that would have not stopped the recount and that point and they were sensitive and expressed in their opinion on concerns about

the equal protection clause. there were two decisions from the supreme court. the first one the united states supreme court rejected what the florida supreme court did 9-0. the second one, it was 5-4 on whether it was time to stop the recount, which i think was going not quite as fast as david just said, but i respect his recollection of the facts, but seven of the justices felt there were concerns about the manner of the counting of the thing, so when people talk about it as a 5-4 decision, i said, well, let's count the two decisions 9-0 and 7-2 and it's 16-2. (laughter) >> of course, the first decision was 9-0, didn't stop anything. >> charlie: the 5' 5-4 stopped the counting. >> yes. >> charlie: you have been asked this before, if the counting had been completed -- you know where i'm going. >> sure. and the question is, if you had

completed the counting, who would have won. >> charlie: yes. i think the answer is no one can know for sure. i think it was a statistical tie and the number of the votes was such a tiny fraction of the total votes that even slight changes would affect the result. what we do know is that there were a number of attempts after the fact to do a recount, and what the results of that were depended on two different things -- did you count both under-votes and over-votes and did you count it pursuant to the standard we were advocating or the standard the bush camp was advocating? one of the ironies is one of those counts -- and there were several attempts -- >> charlie: some by journalistic organizations. >> yes, and actually were

multiple by journalistic organizations and some by academic institutions. but one of those counts said if you counted it pursuant to the standard the bush camp was advocating, gore would have won, but if you counted it pursuant to the standard that the gore camp was arguing, bush would have won. and i think that the real answer is that no one will ever know for sure. i think ted probably believes that bush would have won. i probably believe gore would have won. each of us has some reasons for that. but when you really get down to it, i don't think anybody can tell you with any degree of certainty or confidence who would have won that election. >> charlie: a lot happened because of that decision. >> yes. absolutely. and i agree with david that it's impossible to say, because there's no absolute certainty on this, part of this process and

many people will remember this, people were attempting to ascertain the intent of the voter based upon an indentation in a punch card and, as i said, every time you put those punch cards through, you get a different result. and if you're trying to ascertain the subjective intent of the voter from unclear evidence, it can be counted in different ways and you could say that we still don't know because of things that happened in illinois for sure what the outcome was in 1960. we don't know for sure what the outcome was in 1876 when it took five months to resolve the presidential election between tilden and hayes. there are just some things that happened in american politics that we don't know because it's not science. >> charlie: mr. olson, in what began as two lawyers working

together on an important case ended up with two people becoming best friends. >> absolutely. i can't imagine someone i respect and admire and have more affection for man david. i would say it's david and mary, and my wife lady and i, we enjoy one another, we enjoy jousting about these things, political things and other things like that, there are some things we absolutely agree on and i mentioned wine and good food and we like to bicycle together in various parts to have th of thed so forth, but the experience of practicing law with david as my partner was so professionally gratifying especially because we cared so much about the case and what we did together, and i hope that we'll have opportunities again in the future. probably nothing more important than this case, and that's why we wrote this book because we

wanted to explain to people how we felt about it, why we came together, how we developed our strategy, and we wanted to share the things that we had learned, the educational process that we had experienced, and we wanted to share that with people so that people could sort of understand how people from opposite sides of the political spectrum can accomplish things that maybe you can't do working by yourself, and we felt it was such an important experience, putting it in writing helps us remember it and helps it make the record permanent. >> charlie: i'd like to hear from you, david, on the friendship. >> there's nobody i enjoy working with more than ted, and ted's a great lawyer. everybody knows that. but the thing that impressed me in bush v gore and afterwards was his tremendous integrity. he was someone who made great

arguments, a passionate advocate for his side but didn't misstate, didn't overstate, always respected the process, and always acted with enormous integrity. after the election and he was nominated to be solicitor general, there was opposition to his approval -- >> charlieapproval -- a few of the senators didn't like the outcome (laughter) >> and i, of course, had been chief counsel of the senate judiciary committee, and i went to ted kennedy and i said, obviously, i'm not going to try to tell you how to vote, but this is a person of great integrity, and he deserves a vote. you shouldn't keep it in committee. this is not a situation in which you ought to try to prevent him from becoming solicitor general. >> charlie: so what happened?

it was reported there was a vote, and he was obviously confirmed. >> charlie: exactly. but i and mary both enjoy ted enormously. >> charlie: i have been there so i know how much you enjoy each other's company. >> exactly. >> charlie: this is the dedication to my wife mary and boys, auld there when i need them and my daughter carol boies whose courage and love of justice inspire me every day. to my wife. and to my mother who instilled many me a passion or learning, reading and writing. well said. thank you. >> thank you.

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and their buns are something i have yet to find anywhere else. >> 'cause i'm not inviting you to my house for dinner. >> breaded and fried and gooey and lovely. >> in the words of arnold schwarzenegger, i'll be back! >> you've heard of connoisseur. i'm a common-sewer. >> they knew i had to ward off some vampires or something. >> let's talk dess