Legal Affairs – It’s About More Than Which Judge Has the Last Word

National Journal

"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?