Give Gore’s Lawyers--and Their Client--the Hook

In the battle between politicians and lawyers, the politicians just won a pair of big victories, one in Washington D.C. and the other in Tallahassee.

America is a rich country, so it can afford to have not just one candidate-picking system, but two. That is, first we had a democratic presidential election, which ended on Nov. 7. Then we had a legal runoff, which will no doubt continue for awhile longer, as Al Gore’s lawyers file another million or two briefs. Yet the vice president’s presidential prospects are effectively null and void, in the wake of a minor defeat Monday before the U.S. Supreme Court, and a major defeat in the Leon County courtroom of Judge N. Sanders Sauls.

Most likely, Gore himself was surprised by these defeats, because his own litigation-happy lawyers have been telling him for weeks what a strong argument he has. Indeed, he grew blind to political reality, declaring on Nov. 28: “I’m quite sure that the polls don’t matter in this, because it’s a legal question.”

Wrong. When the crunch comes, the first system of leader-picking (the one that the founding fathers wrote into the Constitution) trumps the second system (the excessive “judicial review” dreamed up mostly in ivory towers over the past few decades).

In fairness to Gore, he wasn’t alone in misapprehending the situation. For the past month, the media, particularly the cable news channels, have been covering the Florida legal campaigning far more intensively than the political campaigning of the previous months. Indeed, the last time cable news covered any single event so obsessively was the O.J. Simpson trial five years ago. So perhaps all the reporters and lawyers and commentators got swept up in visions of becoming the next Johnnie Cochran or Greta Van Susteren. Indeed, Jeffrey Toobin, a very visible pundit during the Simpson saga, and later the author of a book on the case, is one of several writers who has contracted for works on the counting and litigating.

But there’s just one problem. The Florida Fiasco may be fun to write about, and fun to watch on TV, but the American people as a whole don’t want their presidents to be picked this way. That impatience was reflected in the polls. After a month of legal alligator-wrestling, Gore’s poll numbers were going down, and Bush’s were going up. According to Monday’s Washington Post/ABC Poll, Americans, by a 65 to 30 margin, disapproved of the Gore campaign’s handling of the postelection disputation, while by a 48 to 47 margin, people approved of Bush’s handling. Indeed, the same poll asked, “Who do you want to be the next president?” Bush got 46% compared to Gore’s 43%. For the Texan, that’s a small but perceptible improvement over his election night showing.

A bit of political wisdom from the early 20th century pundit, Finley Peter Dunne, still applies today: “The Supreme Court follows election returns.” That is, judges at all levels ultimately yield to the politicians. And that’s what happened here. It’s one thing for judges to preside over enormous class action suits that transfer billions of dollars from deep-pocketed corporations, but it’s quite another to set aside an election result. After all, incumbent politicians, of both parties, have a continuing interest in knowing that a certified win is a win. If not, then every incumbent could be challenged. Seemingly mindful of the power of politicians, judges in Washington and Tallahassee ruled prudently that while there was enough fuzziness in the Florida math to make the Bush victory intellectually questionable, there was not enough to make it legally actionable.

No doubt, Gore’s lawyers will want to keep going and going and going, like the Energizer Bunny. Even if Boies & Co. aren’t getting paid much to try this case, there are all those gigs on Court TV to look forward to.

But their client, Gore, is a politician. And as such, he is ultimately subject to the power of his party. Democrats have been happy enough to use the Chad War to undermine George W. Bush’s legitimacy, but they’re not going to be happy if it starts to undermine their own political futures. And so while Gore’s lawyers have their own power source and will keep going if they can, the political hands that will unplug Gore are now reaching for the wall socket.