If You Can’t Be Fair, Be Arbitrary

The words of Felix

Frankfurter sum up the post-election dilemma: “If you can’t be fair, be

arbitrary.” Simply put, there is no right or wrong answer to the deadlock in

Florida, in part because it reflects the larger deadlock throughout the country. A hundred million of us went to the polls on Nov. 7, and the result

was a statistical tie. Our great institutions

have subsequently ratified the people’s ambiguity: The new Senate will be split

50-50; the Florida Supreme Court was split 4 to 3 in deciding to allow hand

counts; the U.S. Supreme Court was split 5 to 4 when it ordered those hand

counts to stop. No argument, no party, no candidate can claim to represent the

people’s will.

So, if you can’t be fair, be arbitrary. It’s the only

solution to a dilemma with a thousand shades of gray.

For example, take Al Gore’s argument that every vote should

count. It sounds perfectly reasonable, but as a practical matter, we’ve yet to

have an election in which every vote counted. As we’ve learned over the past

four weeks, votes by the tens of thousands are routinely discarded, ignored or

otherwise not counted because of technicalities, machine breakdowns and human

error. Were the Gore Principle taken seriously, we would be awash in pregnant chads, undervotes, overvotes, missing

absentee votes and broken-down voting machines as we scoured the country

in search of uncounted votes.

Ah, but take the Bush team’s position: The election in

Florida is certified, the counting is done, and any further action changes the

rules after the game is over. But certification, of course, is just a

bureaucratic procedure; the rules allow challenges of certified results. The

counting is not done; the question is how much longer should the counting go

on. (See Gore Principle, above.)

Amid the legal complexities and two-handed political

dilemmas, certain issues and conflicts stand out. Together, they simplify, and

perhaps even clarify, the intriguing drama of this most extraordinary

post-campaign campaign:

· Due process vs. equal protection: The 14th Amendment,

passed during Reconstruction, guarantees

both, and lawyers and the courts have spent the last century or so

pitting one clause against the other. Article I of the 14th Amendment reads, in part, “… nor shall any State deprive

any person of life, liberty, or property, without due process of law;

nor deny any person within its jurisdiction the equal protection of the laws.”

Those 30 words are the foundation of the modern Court’s interpretation of civil

liberties, from Brown v. Board of

Education of Topeka to Roe v. Wade .

Due process protects citizens from unfair treatment at the hands of the state;

equal protection ensures that the law treats all citizens equally.

The Bush team has said

that due process and equal protection favor its argument-that, for

example, counting some votes by hand but not others violates the equal-

protection clause. Mr. Gore’s lawyers, for their part, have cited due process

in arguing in favor of the hand re-count.

Thus, we are witnessing a classic American legal argument writ large.

· States rights vs.

federal authority: Another American classic, the issue that has bedeviled

politicians, lawyers and jurists since the days of McCulloch v. Maryland in 1819, South Carolina’s Ordinance of

Nullification in 1832 and, more recently, the debate over the Voting Rights Act

of 1965. This great tradition was revisited in the climactic argument before

the U.S. Supreme Court on Dec. 11. And again, there would seem to be no right

or wrong answer-after a decades-long trend towards centralization, the Supreme

Court this year issued a number of decisions favoring states’ rights,

reflecting the Court’s conservative bent. And yet, in the re-count case, it

seemed as though the Court’s conservatives were looking for a way to overrule

Florida’s Supreme Court-just the sort of intervention that conservatives


· A Supreme last hurrah: Eight years ago, baby-boomer Bill

Clinton defeated World War II vet George Bush, marking the transfer of the

Presidency to a new generation. That transition has yet to be made on the

Supreme Court, where eight of the nine justices were born in the 1920’s and

30’s. The eventual decision in the Presidential race will mark the beginning of

the end of a Court formed during the Republican near-monopoly of the White

House from Richard Nixon to George Bush. That Court reflected the partisan and

ideological wars of the last quarter-century, during which Republicans

represented conservativism and Democrats, liberalism. A future Court made up of

baby boomers will see a blurring of

party affiliation and ideology.

Incidentally, the

obvious tension between the Florida Supreme Court and the U.S. Supreme Court

clearly has an edge of class conflict. Eight of the nine Supreme Court justices

went to either Harvard, Yale, Columbia or Stanford law schools. The Florida

Supreme Court judges haven’t an Ivy League credential among them; they went to

such schools as the University of Florida and the University of Miami. The U.S.

Supremes no doubt believe they must instruct the yahoos in the law; the Florida

judges no doubt resent the condescending tone of their intellectual betters.

· Divided, we stand: The

nation’s 50-50 split is not such a terrible thing. In fact, in a

consensus-driven democracy like ours, it may be just right. We fear that too much liberalism will send the economy into a tailspin, and that too much conservatism

will perpetuate social injustice.

We’re looking for something in the middle.

A 50-50 split symbolizes the quest for moderation.

The events of the last month have been described as a

Constitutional crisis. They are nothing of the sort. If George W. Bush lost in

court and decided to mobilize the Texas Rangers (meaning the state police, not

his former baseball team) for an assault on

the White House, that would be a Constitutional crisis. If Bill Clinton announced that the Army was behind Al Gore, that

would be a Constitutional crisis.

The spectacle of David Boies and Ted Olson arguing their

cases in front of nine Supreme Court justices may be many things, but it is not

a Constitutional crisis. It is merely a high-level lawsuit. The opposing sides

have chosen remediation in the courts and will abide by the results. One way or

the other, the courts will rule and the nation will have a President-elect. The

contest will be over.

The process may not be fair. It may even be arbitrary. But

an end is at hand. If You Can’t Be Fair, Be Arbitrary