« on: November 03, 2004, 12:36:01 AM »
A most alarming political problem confronting America is the deployment of thousands of lawyers, once again, to litigate the presidential election. No one can think that deciding that contest in courtrooms is healthy for American politics. But as both parties have "lawyered up," the public can only watch helplessly -- and despair.
Democrats are itching to litigate basically because, for them, it is an article of faith that George Bush stole Florida; lawyers, therefore, are a necessary protection against a repeat of this injustice. Republicans have had no choice but to respond with their own legal armada. Thus, the stability and legitimacy of presidential succession, one of the glories of our constitutional system, is being put at risk in large measure because of the fervent belief that Al Gore should have won Florida's electoral votes.
Independent reviews of the Florida ballots indicate that Mr. Bush would have won if the general recount ordered by the Florida Supreme Court had been allowed to go forward, and even if the highly selective recount requested by Mr. Gore had been carried out. Given this evidence, and given what is at stake for our constitutional system, why do so many Democrats still cling to their conviction that the Florida election was stolen?
Two explanations are commonly offered. Each is plausible to an extent, but not fully satisfactory. The first is that cynical party leaders have intentionally perpetuated a falsehood so that a misinformed base, energized by fury, will vote today in droves. But party leaders simply do not have the power to shut people off from the facts. More importantly, it has been clear from their manifest outrage during the campaign that many in the Democratic Party badly want to believe that the Florida election was stolen. So they do believe it -- not in the absence of the facts, but in the face of them.
Hence the second conventional explanation for the persistence of the belief that George Bush has been an "illegitimate" president, which is that since the story of the stolen election meets deep psychological and political needs, it is impervious to known facts. The 2000 election has now achieved mythic status. But this is more a description of the problem than an explanation. Yes, myths are resistant to facts, but why has this particular story become a myth?
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The answer to this question has to do with the suffusion throughout our political culture of certain lawyerly habits of mind. To understand the reckless willingness to put a crucial element of our constitutional system at risk, it is necessary to understand some of what goes on in our law schools -- and thus in the minds of members of America's most powerful profession.
Consider one aspect of the Florida myth that has some basis in reality. It may well be that more people in Florida intended to vote Gore than Bush and that the Bush victory was based on mistakes in marking ballots. To the extent that this is the basis for Democratic outrage, the facts do not matter because the outrage is not based on how the marked ballots were counted but on the failure of the marked ballots to reflect true intentions. But to what kind of mind is it a profound injustice that some voters either did not have the intention that is now attributed to them by the Democrats or, if they did, failed to implement their intention?
The answer is that it is an injustice to those for whom abstractions matter more than actual behavior. And nowhere is that preference more ascendant than in the legal academy. I am not referring to small professional quirks, but to recurrent, fundamental instincts that shape the nature of acceptable argument and of American law. To take but one of many examples, our most influential legal philosopher, Ronald Dworkin, has long insisted that constitutional rights should be defined according to abstract philosophical inquiry, quite independently of the actual impact that the exercise of those rights would have on society.
Now consider another fact-based foundation for the Florida myth. The electoral college votes from Florida were credited to Mr. Bush after the U.S. Supreme Court rejected the arguments of Mr. Gore's lawyers. Those arguments were forcefully made and, as many law professors have since written, the Court may have been wrong in rejecting them. But all controversial cases involve the rejection of strong arguments. In any event, it now appears that Mr. Gore would have lost even if his arguments had been accepted. To what kind of mind is it an injustice that an argument is rejected even if that argument could not have changed anything? Put another way, to what kind of mind does the making of an argument in itself have urgent moral force?
The answer is that it matters to a person trained to spend a lifetime making arguments. Every day in law school, thousands of students are asked to fashion legal arguments on the spot. In theory, the point of this exercise is for subsequent questioning to reveal to students potential weaknesses in their positions. But this so-called Socratic method inevitably teaches a different lesson as well. As students watch each other struggle to avoid intellectual embarrassment or defeat, they learn to admire the capacity to argue for its own sake. In recent years this implicit lesson has become more powerful because standards of political correctness and the right of students to evaluate their teachers make it difficult for professors to ask the kinds of follow-up questions that might lead to real insight and growth. As a result, the tendency to invest argumentation with moral status increasingly lacks humility or self-doubt.
Legal education shapes lawyers' thinking, and lawyers help to shape American culture -- particularly the political culture. Unfortunately, this education breeds and dignifies some dangerous inclinations. It encourages people to favor constructed idealizations over real life. And it confuses the skills of argumentation with morality. The legions of lawyers encamped across the country to litigate their way to political victory are the embodiment of a more insidious process -- the penetration of our society by a relentlessly adversarial mindset, one that is entirely ready to make our democracy unworkable.
Mr. Nagel, a professor of law at the University of Colorado, is the author of "The Implosion of American Federalism" (Oxford, 2001).