May it please the court: What in the world are you doing to our democracy?
Forget the judicial robes and the judicious behavior. The events of early December have become a spectacle reminiscent of a three-ring circus. Lawsuits abound. A handful of jurists offers a handful of opinions, and nothing is clear. What, exactly, did the U.S. Supreme Court think of the Florida Supreme Court’s decision regarding certification deadlines? Can anybody explain anything without resorting to legal mumbo-jumbo? The only decisive moment after four weeks of argument was Florida Judge N. Sanders Sauls’ unambiguous dismissal of Al Gore’s contest of the state’s certified result. Judge Sauls managed to deliver what appears to be the first clear decision in this long morass. But even though the judge seemed to deal a mortal blow to Mr. Gore’s legal chances, analysts pointed out that there was yet another lawsuit hanging around, this one in Seminole County, which had yet to be decided. Oh, what a lovely legal war!
Meanwhile, the lawyers in their legions persist in arguments and strategies that seem to bear no relation to the imperatives of public welfare. The professional spinmeisters on television impugn the motives of everybody on the other side, including their colleagues, purely for tactical advantage.
And we, the citizens of the Republic, are left … exactly where? We are neither judges nor the jury; neither plaintiff nor defendant. We are the bit players in a legal drama rather than the principal actors in a democratic process. The nation is awash in convoluted arguments rather than campaign slogans. And banality never sounded so good as when the shrill tones of the stump speaker gave way to the modulated ambiguities of the attorney at law.
The U.S. Supreme Court has weighed in on our electoral crisis, and those nine learned men and women have reminded us that they are not, after all, wise and objective gods and goddesses of reason, but simply winners in the great law lottery that found them at the right time and place. Nobody better exemplifies the truth behind the robes than Clarence Thomas, who obviously is doing his best to make sure that mediocre minds have an ally on the highest court. Mr. Thomas owes his rank not to merit but to clumsy racial politics. When the Court’s first and only African-American justice, Thurgood Marshall, retired, President George H. W. Bush scrambled to find a black Republican. The best he could do, apparently, was Mr. Thomas, a man who remains silent while his colleagues ask questions of the high-and-mighty lawyers in their courtroom.
Remember, too, that when Chief Justice William Rehnquist was an associate justice, he had to recuse himself from the landmark case of The United States v. Nixon , in which the Court unanimously instructed the President to turn over his tape recordings. Before being appointed to the court, Mr. Rehnquist had worked as an assistant attorney general in Mr. Nixon’s Justice Department, a job he received through his friendship with Richard Kleindienst. Not the most stellar of resumes, and hardly evidence of Olympian wisdom. More likely the sign of a well-connected lawyer who got lucky.
Let’s not forget, too, that judges may be subject to the same kinds of pressure that plague the rest of us. They know they have to cover their hindquarters when issuing opinions–after all, they live in Virginia and Tallahassee and Atlanta, and they certainly don’t want to be cast out of polite society because of an unpopular decision.
So we find ourselves in the absurd position of relying on a flawed and undemocratic branch of government–the judiciary–to tell us who our next President will be. It’s crazy, but it also tells us something about ourselves.
We are the most litigious society on earth. We claim to despise lawyers (with reason), yet we turn to them when we feel in the least slighted, offended or discriminated against. Our cult of victimization does little to resolve society’s problems–in fact, it exacerbates them–but it certainly lines the pockets of the ambulance chasers and professional victims’ advocates who clog the dockets of our civil courts.
Any society in which lawyers unabashedly advertise their skills at “recovering” damages is a society in deep trouble. New Yorkers need only listen to the radio, or take a subway ride, to spot the names and telephone numbers (with catchy slogans along the lines of 1-800-GET-CASH) of the charlatans we turn to when we feel offended or, in the words of one lawyer’s radio ad, when we are “hurt in any way.”
As of this writing, Mr. Gore seems destined to be hurt in many ways. Will he continue to seek “damages” of sorts? Or will he decide that he is sending the wrong message at the wrong time?
This variation on a cliché has been stated in this space before, but it is worth repeating: We are supposed to be a nation of laws, not of lawyers. But it is easy, these days, to conclude otherwise.