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LEGAL AFFAIRS - It's About More Than Which Judge Has the Last Word LEGAL AFFAIRS - It's About More Than Which Judge Has the Last Word

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LEGAL AFFAIRS - It's About More Than Which Judge Has the Last Word

November 18, 2000

"A word is not a crystal, transparent and unchanged, it is the skin of a living thought," wrote Oliver Wendell Holmes Jr., one of our greatest judges. A Kennedy Administration lawyer offered that quote a long time ago to square the language of the U.N. Charter with the U.S. naval blockade of Cuba in 1962. In the charter, the United States had undertaken a solemn obligation to renounce "the threat or use of force" except in "self-defense" against "armed attack." It took some fancy lawyering to classify unfired Soviet missiles in Cuba as an "armed attack." But it seemed a bad idea to wait for someone to fire them.

This may seem to digress from the topic du jour. But bear with me. Much as I might like to predict or opine who should be our next President, I don't have a clue, and it may be all over when you read this. So this is an opportune time to stand back from the cacophony of lawyers, spinners, anchors, protesters, professors, and Palm Beach partisans. To get past the perishable pensees of the pundits (present company included), whose "characteristic flaw has been to exaggerate the importance of whatever is being pundited about," as Wall Street Journal pundit Holman Jenkins observes. To stop bouncing among skirmishes and survey the battlefield from above, as one might from a hot-air balloon. (Oops. Unfortunate simile. Make that a weather satellite, or a B-2 bomber.)

What brings Holmes to mind is the striking unhelpfulness of the words in our constitutions, statute books, and judicial precedents as a guide through our current constitutional conundrum, or crisis, or whatever. This at a time when "the selection of the American President is now dependent on a bewildering array of small judgment calls by local ballot examiners and big decisions by judges and state officials about whether they should be heeded," in the words of The Wall Street Journal.

Florida law doesn't get us very far. It seems to say that the choice between Al Gore and George W. Bush should turn on the meanings of the words tabulation, substantial, and practicable. The first comes up in a statute specifying the sort of error that can justify a manual recount of machine-counted ballots. According to Florida's Republican supervisor of elections, only a machine malfunction can be a "tabulation" error. Nonsense, says Florida's Democratic attorney general: It also includes failure by properly functioning machines "to discern the choice of the voters as revealed by the ballots," especially those with "hanging," "pregnant," or "dimpled" chads.

Perhaps the Florida Supreme Court will divine with certitude what tabulation meant to whichever legislators stuck it into the statute books. But if the seven Democratic-appointed justices went with the Democratic interpretation, how much credence would they get from the Republican-controlled Legislature and Gov. Jeb Bush, who has previously bashed the court for (among other things) failing to respect the will of the voters?

Meanwhile, the fight over Palm Beach County's famous "butterfly ballot" depends on such intricacies as what a law means when it says that machine-counted ballots should conform "insofar as practicable" with a provision specifying the design of paper ballots. All candidates' names must be to the left of the chads, say the Democrats. The butterfly format is fine, say the Republicans. Assuming the Democrats are right about that, the next question is whether the irregularity was "substantial" enough to warrant invalidating all or part of the election.

Democratic lawyers and their journalist-camp-followers slalom speedily through this statutory prose to the conclusion that the butterfly ballot is an "illegal" form of "disenfranchisement." It may also be racist, ageist, and biased against Holocaust survivors, in Jesse Jackson's jargon. Many Republicans counter contemptuously that only a moron could be befuddled by a butterfly ballot. Some of us marvel at the combatants' confidence in their own interpretive powers, and suspect that the partisan cleavage on tabulation has something to do with the underlying assumption that (in the words of The Wall Street Journal's Jenkins) it "has now become commonly accepted that Democrats are ... more likely [than Republicans] to botch or mangle their ballots in ways the vote-counting machines can't read."

Should the outcome of the presidential election depend upon which side is more agile at manipulating such indeterminate words, or which judge has the last word? Is that "the will of the people"?

This is not to suggest that words are meaningless, that law is just politics in drag, or that judges should simply make it up as they go along-the core philosophy of many a professor, some judges, and other "postmodernists" such as the one who so memorably said, "It depends on what the meaning of the word is is." Postmodernists spin volumes coming to the same conclusion as the Red Queen in Alice in Wonderland, who explained that "a word means what I want it to mean, nothing more, nothing less." And as George Orwell's Big Brother, who indoctrinated his subjects with slogans such as "War Is Peace" and "Freedom Is Slavery." Postmodernism provides a ready rationale for redefining constitutional phrases such as "high crimes and misdemeanors" and "equal protection of the laws" to depend upon the party identification of the President and the bloodlines of the person victimized by racial discrimination.

Unhappy with such transparent sophistry, many conservatives prefer literalism and the "original meaning" of the Founders (or of Congress, or any other lawmaker). But the dictionary definitions of phrases such as "equal protection of the laws" have their limits as a road map through our messy modern world. So does the historical evidence of the original intent of the men who adopted the 14th Amendment after the Civil War, while simultaneously segregating the District of Columbia's schools and consigning women to second-class citizenship.

Neither postmodernism nor literalism nor originalism can substitute for an old-fashioned quality called wisdom, the critical attribute of the best voters, candidates, ballot-counters, election canvassers, judges, Senators, Presidents, editors, anchors, and pundits. Wisdom means different things to different people. But surely it is neither Democratic nor Republican, neither liberal nor conservative, neither postmodernist nor literalist, neither certain that Bush won nor certain that he lost. Wisdom pervades the plan drawn up by James Madison, the father of the Constitution, to make free government work in a world in which (in the words of Federalist 10) "so strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts."

Wisdom lived in Judge Learned Hand's assertion that "the spirit of liberty is the spirit which is not too sure that it is right." Wisdom came constantly to the late Meg Greenfield, who gave The Washington Post the nation's best and most fair-minded editorial page. It comes now and then to elected officials such as Sen. Robert C. Byrd, D-W.Va., as when he said during the impeachment trial that it was obvious that President Clinton had committed perjury, and that this could qualify as a "high crime and misdemeanor," but that Clinton should not be automatically removed from office because it would (Byrd thought) be bad for the country.

Wisdom was what I hoped for when I wrote in Colin Powell for President in 1996 and Sen. Bob Kerrey, D-Neb., this year. It is what I grope for when I try to balance disgust at Al Gore's demagogic campaign (and post-campaign) style with admiration for his honorable decision to call Bush to concede (prematurely, it turns out) in the early hours of Nov. 8 and his faithful attendance at his son's high school football games to the very end of the campaign. And to qualify my queasiness at W.'s sunny, shallow enthusiasm for executing people with admiration for his sunny, sincere enthusiasm about bipartisanship and racial harmony.

Wisdom includes hesitating to reach confident convictions about complex matters. I wish I'd thought of that at 6 p.m. on Tuesday after the election, when I expressed an overconfident conviction that Gore had it won, only to develop by midnight a conviction that Bush had it won. (Apologies to MSNBC's Andrea Mitchell, on whose program I exuded my 6 p.m. conviction.)

Wisdom was never expressed more eloquently than by Abraham Lincoln, who went in a dark time to a blood-soaked battlefield to proclaim that "government of the people, by the people, for the people shall not perish from the earth." That was a constitutional crisis. Our little problem-an electoral near-tie between two basically centrist pols whose personal antagonism dwarfs their policy differences-should not be that tough.

Stuart Taylor Jr. National Journal

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