Kodiak, this one's for you - editorial on Gore's trial lawyer assault.
opinionjournal.com
Al Gore's Class-Action
Trial lawyers try to litigate their man into the White House.
Friday, November 17, 2000 12:02 a.m. EST
Notwithstanding the sound and fury of 24-hour cable and Internet coverage, clearly the punditry is struggling for a legal precedent that makes sense of Florida's contested vote. Let us suggest that this is because they continue to look in the wrong place. The operative guide here is not election law but tort law, specifically plaintiff lawyers' class-action lawsuit. Earlier this week the American Trial Lawyers Association, now an informal subsidiary of the Democratic Party, put out an e-mail asking 500 of their members to volunteer for the Florida campaign. It shows.
Keep this in mind in the immediate aftermath of the state Supreme Court's order late yesterday allowing Florida's counties to go ahead with manual recounts, particularly because the order does not stipulate whether the Secretary of State, Katherine Harris, will ultimately have to accept that count. Because if we know anything about the trial lawyers it's that they view the law as mainly a pick-ax to chop down the opposition and get what they want.
Accordingly they have approached the contest not as though it were a question of discerning the proper meaning and enforcement of the Florida constitution, but a class-action on behalf of voters who have been swindled by some dark power. Which is also why, 10 days after the Floridians cast their ballots, Al Gore has placed his hopes for the White House in the National Law Journal's 1999 Man of the Year: plaintiffs attorney David Boies.
Now Mr. Boies is well known for having slain the Microsoft dragon. Less well known is that his $1.7 billion settlement reached at the same time with the pharmaceutical industry, one of Mr. Gore's famous "special interests," was the largest class-action settlement in history, or that he was involved in suits concerning oil drilling in Alaska, HMOs and even trade auction houses.
Here the Boies-Gore assault on Florida invokes the will of the people even as it aims mightily to denigrate any controlling legal authority that gets in the way, whether the Florida constitution itself or any officer who deigns to administer it, such as Katherine Harris.
At the moment, Mr. Gore's Democratic operatives are trying to smear and ruin Ms. Harris's standing as a public official. Mr. Gore learned this technique from President Clinton, whose associates deployed it against RTC investigator Jean Lewis, Kathleen Willey, Linda Tripp and Billy Dale, to name only a few.
Mr. Gore on Wednesday called for elevating "the tone" of the dispute, in the same week that his own top officers had likened Ms. Harris to "a Soviet commissar," a "lackey," a "crony" out to "steal" an election, and in the words of Harvard's eminent professor Alan Dershowitz, a "crook."
Meanwhile, as this paper reported on our front page yesterday, Democrat Bob Beckel, who managed Walter Mondale's 1984 campaign and has close ties with Team Gore's Warren Christopher, announces a plan to start doing opposition research on the nation's electors. He says he's asking around, "Who are these electors, and what do you know about them?"
The squads of trial lawyers that ATLA called forth are smothering the state's vote in litigation. This has the advantage of giving the operation a patina of legitimacy, looking like you are operating inside the system of laws when in fact Florida's procedures are being exploited with the least admirable tactics of the trial lawyer bar: venue shopping for favorable Democratic counties, court shopping for favorable judicial decisions, and relentless spinning of a press hungry to fill its 24-hour cycle.
If Broward County doesn't produce enough new votes, try Palm Beach County and after that Dade County and if that doesn't work sue to have the whole state recounted until Chicago's Bill Daley manages to produce enough Democratic counters with enough Democratic chads to put Mr. Gore over the top.
In this world, the law is whatever you can get by with saying it is. So when Ms. Harris required Florida counties seeking to get her to reconsider her state-mandated deadline of 5 p.m. Tuesday to provide a legal basis--in writing--this was cast not as fidelity to law but an example of mere arbitrariness!
Indeed, those at the center of the Gore legal hurricane almost never justify what they are doing on its own terms. As this litigation drags on and the public loses patience with the lawyers, the Gore camp takes to the airwaves to shift the burden onto their opponents, suggesting that "If the shoe were on the other foot, you Republicans would be doing the same thing."
As it happens, the evidence inclines to precisely the opposite: In this election Missouri's Senator Ashcroft gracefully conceded to the dubious victory of a dead man; in 1960 Nixon conceded to Kennedy despite the fairly understood cheating of Daley père, and, just as important, in 1974 it was a Republican group led by conservative James Buckley that called on then-President Nixon to resign, for the good of his country and his party. By contrast, notwithstanding Mr. Gore's Saturday Night Liveish protestations that he has only the country's interests at heart, where is the evidence of a similar act of political grace?
And so the lawyers proceed, even as Ms. Harris moves closer and closer to a final certification that looks perfectly in accord with the Florida constitution. As the Bush team argued in court yesterday, Mr. Gore and his lawyers "Are not saying 'please enforce a law,' they're saying don't enforce the law." Should she go ahead and certify the election after counting up the absentee ballots today and tomorrow, she will have completed the exercise of Florida's executive authority and put on the record a result.
And once again, Al Gore and the trial lawyers will simply litigate and spin some more in the hope that the defendant will throw up his hands and offer to settle. It is becoming increasingly hard to see what these tactics are doing in the company of a democratic election. |
