Don’t Knock It: The System’s Working in Florida

Written by Lionel Tiger on . Posted in Breaking News, Posts.

Whatever people think of
its decision, the hearing before the Florida Supreme Court was fascinating for
the legal skill and urgency shown by attorneys for both sides, and the penetrating
archness of the justices’ questions. It was actually rather majestic for
the efficiency with which complex issues were argued. The acuity of all the
attorneys involved was impressive. And in a community in which, as Gore Vidal
once quipped, "Anyone who completes a sentence in America is regarded as
a homosexual," the level of discourse was also impressively high, and the
incantatory nature of legal prose an appreciable art form in its own right.
It represented a major accomplishment of the community at its core. The legal
medium sent a major message about what the country prizes, how it works, and
who is to be trusted with responsibility for decisions that matter.

There have been suggestions
that this protracted process has caused foreigners to scoff at American pretensions
to adept democracy. There is the usual tossed salad of e-mail jokes about this
country not being ready for self-government, suggestions of reoccupation of
the landmass by the British, requests for United Nations intervention and the
like. But these are nonsensical misunderstandings of the gravity of what is
underway and the serious skill with which it is being conducted. This postelection
ballet will long be studied for its representation of the various forces a huge
country has to integrate to move smoothly from individual electoral desire to
a national result.

For too long, the sheer
numbers of votes and the fact that they generally fell into very clear patterns
has obscured the central issue, which is the importance of each ballot. While
the Florida Supreme Court’s admonition to respond to the intent of the
voter where it is discernible may seem to stem from the fact that the justices
were appointed by Democrats, nevertheless their decision is similar to legislation
to the same effect signed into law by Gov. George W. Bush. It is surely neither
Democratic nor Republican as a legal principle, whatever may be its impact on
the election’s outcome–which in itself was unclear at the time the
decision was made.

But herein lies a serious
flaw in this otherwise exemplary judicial system. This is that judges are identified
by the political party of whoever selected them. It is as if an otherwise thoughtful
jurist suddenly becomes infected with either a Democrat or Republican toxin.
This infection renders them thereafter unable to deal with the issues before
them independently from the political programs they are alleged to favor. In
some general atmospheric sense, they are considered diseased by politics. They
are unable to engage in the exercise of reasonal judgment untrammeled by partisan
commitment. The central passion of law, to judge without fear or favor, is somehow
considered a questionable element of their competence as responsible human beings.

Or is it only politicians
who think that judges are only politicians? Preliminary indications of public
opinion about the machinations over ballots in Florida appear to reveal that
members of the public trust the system to generate a fair outcome. They appear
to be willing to stand behind the process the winner of which they are prepared
to support. Inevitably, exactly half of voters would be disappointed because
they voted for The Other Guy. However, it is altogether likely that some few
months after the Inauguration, the normal stew of political concerns will overwhelm
Memories of Tallahassee just as what has been happening in Florida so decisively
dominated public dialogue.

The remarkable fact of the
political system is that during election campaigns–and now after them,
too–desperately awful results are predicted by one side if the other side
wins. The economy will tank, the Russians will invade, global warming will produce
flooded coastal cities, Hollywood will write grade-school texts or evangelists
will teach biology, the moral fiber of the country will dissolve completely,
people will stop trying to enter the United States but will begin leaving in
droves. It is unimaginable by anyone except Dante how bad everything will be.

But much of the national
conduct will be business as usual. People will still have to replace torn shoelaces
and lobby for stop signs at busy intersections. They will fret over the virtues
of oil or gas to heat their homes. They will still hold hands or shake hands
and still protest increases for their house taxes or their cable tv. They will
still bite their lips as they decide whether a family of five can really afford
the nearly $50 daily ticket at the theme parks that have become such iconic
venues for family life. A huge swath of life will remain more or less the same.

There will be some significant
differences, to be sure; for example, in patterns of defense spending and the
role of the military as an agent for social change. There will be variations
in plans for the tax system, and no doubt some tonal difference in how social
and moral issues are approached. Who gets appointed to what will be rather different,
because here is where the conflict between merit and political affiliation becomes
most clear. But few if any amazing jerks or sociopaths will be appointed even
if some genuinely wonderful candidates also lose out. The country will remain
distinguishably itself. Any extraordinary change will be difficult to accomplish.
Neither major danger nor major triumph is likely to mark the next four years.

And what will also remain
clearly itself is the centrality of legality and law–and yes, lawyers–to
the effective and dignified conduct of civic life. The communal spinal cord
has worked this time to support our common purposes, and if Americans are fortunate,
the legal system will continue to do so in the future. So don’t knock it.