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Black-Robed Lawmaking Rides High

November 23, 2000|JAMES P. PINKERTON | James P. Pinkerton, who writes a column for Newsday in New York, worked in the White House of President George Bush. E-mail:

Maybe the Democrats should just find a judge who will appoint Al Gore as the 43rd president.

The lawyerization of the Democratic Party has never been more obvious than in the last two weeks, but it's also never been more obvious what a mixed blessing it is. Yes, lawyers have power and money, but the law is inherently anti-political. The legal mind-set oscillates between two extreme modes: attack-dog nihilism and woolly-minded utopianism. And so Gore could win the legal battles and yet still lose the presidential war.

The vice president has never been ahead in the official vote count in Florida, and yet he still has a chance of emerging as the victor because a load of lawyers, many from out of state, have cast their shadow on every polling station, courtroom and microphone in the Sunshine State.

To be sure, the Republicans have plenty of lawyers, but the Democrats have the big stars, such as David Boies, the man who clobbered both Michael Milken and Bill Gates, and Alan Dershowitz, who brought the saga to a new low last week when he labeled Katherine Harris as "corrupt."

This lawyering of personal destruction breeds backlash. Last week, for example, attorney Mark Herron circulated a five-page letter to fellow Florida Democrats giving them tips on challenging overseas ballots. As a matter of legal-eagling, his effort was a success; perhaps 1,000 military absentee ballots were disqualified. But as a matter of politics, Herron's memo, quickly leaked to the media, was a disaster. Sen. Zell Miller (D-Ga.) was typical in his revulsion: "I don't care when it's dated, whether it's witnessed or anything else," he told the Associated Press. "If it is from someone serving this country and they made the effort to vote, count it and salute them when you do it."

Yet at the moment when some Democratic lawyers are trying to disenfranchise selected voters, other Democratic lawyers--these ones wearing black robes--were trying to enfranchise nonvoters, or even nonexistent voters.

As the court put it, "The will of the people, not a hyper-technical reliance on statutory provisions, should be our guiding principle in election cases."

Such words would sound good if they had been uttered by an elected official. But under the constitutional separation of powers, judges perform a different function; they are not put on the bench to identify the "will of the people," but rather to do the tedious work of adjudicating "hyper-technicalities."

But who wants to split hairs when one can save the world--or at least the Democratic Party? The Florida court approvingly cited an Illinois Supreme Court ruling, which showed a similar contempt for dull detail; in a 1990 decision, that Illinois court gave near carte blanche to voter-intent-guessing, based on the slightest dimple, or whatever.

Under different circumstances, of course, liberal activists are sticklers for "hyper-technicalities." The Democrats' Dershowitz, for example, kept such malefactors as Claus von Bulow and O.J. Simpson out of jail not because anyone really thought they were innocent, but because nobody could prove them guilty.

But in the political arena, the Legal Left has invented a whole new language--"The Living Constitution"--to justify its overweening activism on everything from civil rights to welfare rights to student rights. Many Americans, of course, applaud such legislating from the bench, but on just as many occasions, such black-robed lawmaking has caused a counterproductive backlash.

And that appears to have happened in Miami-Dade County. The canvassing board, composed of Democrats and independents, voted Wednesday afternoon not to hold a recount after all. These elected officials appeared to understand that, given the time pressures, no manual recount would be perceived as fair. Moreover, even attempting a recount would open up a can of precedential worms that would never be cleaned up; that is, long after the Tallahassee court had moved on to other things, folks in Miami-Dade would be stuck counting and recounting votes in every election forever. That's a virtue of politicians: Much as they enjoy bestowing benefits, they also have to be mindful of costs.

Gore's relentless litigators sued Miami-Dade, on the theory yet again that judges know better "the will of the people" than politicians, but were rebuffed by the Florida appeals court. They are now planning to take their argument to the Florida high court.

No wonder Democrats, in Florida and across the country, are starting to conclude that the advancement of Gore's career could come at the expense of their own.

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