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Jewish World Review Dec. 6, 2000/ 10 Kislev, 5761

Marianne M. Jennings

Marianne M. Jennings
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The company we keep: Lawyers and elections -- RICH IRONIES surround the battle for the White House. Baby boomers who rioted at Kent State and sat unrepentantly stoned as they occupied Columbia now see anarchy in every assembly of Republicans with "Sore/Loserman" placards. Those who defended to the cob the right of Gen Xers to dress as ears of corn in the streets of Seattle in protest of Frankenfood, thereby disrupting the flow of Komodo Dragon Blend Starbucks (a felony in Washington), are suddenly skittish about shouting young Republicans in khakis.

But there is unsurpassed irony in a nation held hostage by lawyers, both on and off the bench. 'Tis disconcerting. One of the Florida Supreme Court justices queried on the "electorial" college during oral argument. Ruth Bader Ginsburg sounded like part of a vaudeville team cueing Laurence Tribe with softballs. This woman once found the Alabama Supreme Court incapable of handling damage limitations and imposed a silly "raises a judicial eyebrow" standard on the local yokels. Now she bows to the Florida Supreme Court for Al Gore, whose boss appointed her.

Lawyers nearly gave themselves whiplash rushing to get to Florida for a piece of the action. Mr. Gore's lawyer, Laurence Tribe, a constitutional scholar and Harvard law professor, is walking proof of William Buckley's theory that we would be better off governed by the first 500 souls listed in the Boston phone book than by Harvard's faculty. Tribe's 30 appearances before the U.S. Supreme Court cannot disguise the fact that he is little more than a bottom-feeder trial lawyer. He was part of the tobacco cases and now shakes down gun manufacturers for billions for cities. He led the successful and vitriolic fight against Robert Bork's Supreme Court nomination. Tribe is the founding father of the destructive modus operandi Democrats have used ever since to get their way. Mr. Gore is a perfect client for Tribe.

David Boies, Mr. Gore's Florida point man, was ousted from Northwestern Law School for having an affair with a professor's wife who later became his second wife. However, Yale Law School (alma mater to Hillary, Bill and that nice Lieberman boy) took him in and the faculty call him "absolutely brilliant." Not brilliant enough to sustain a marriage - he is on his third.

These are seedy folk, these trial lawyers, the number one contributors to the Democrats in the last three federal elections. Boies' temporary victory for Gore in the Florida Supreme Court (all 7 justices were trial lawyers) had its cornerstone in a false affidavit he filed stating that Illinois counted dimpled chads as votes. The court ruled just the opposite. Mr. Boies has yet to retract the affidavit, something even loosey goosey lawyer ethics demand. Justice John Paul Stevens relied on it in oral argument with no correction by Mr. Tribe forthcoming. Mr. Tribe is the perfect lawyer for Mr. Gore.

These lawyers come as close to ethical lines as one can without doing hard time. The Leon County omnibus hearing on hand counts found Gore's Yale statistician humiliated during cross-examination because Team Gore filed his incorrect and contradictory affidavit before the Florida Supreme Court without his knowledge, review or signature. Gore's recount case is embarrassingly contrived and weak - and that's with the lying. It is only Boies' name that prevents guffaws. Boies serves as the handmaiden of trial lawyers who fear controls should Bush prevail. He reigned them in in Texas.

Boies et al. are part of an elite group of legal technicians who can argue any side of any case for any body. Tactically brilliant, they are artists of argument and wizards of briefs. But the law they practice comes with the price of moral disengagement. Legal technicians never question the merits of their clients' claims or the implications of their victories. Like gunslingers, it's the notch on the belt that matters. Morality is in the win, not the cause, case or client.

The president of the Arizona State Bar (take our leader, please) responded, when asked for his proudest moment, that it was when it took a jury only 12 minutes to reach a "Not guilty" verdict for a client who had confessed to killing a convenience store clerk. The Circle-K murderer is free and his morally disengaged technician brags.

Legal technicians now hold democracy hostage. But, we have been imprisoned by lawyers and activist judges for some time. They have been unilaterally remolding society for decades in everything from product liability to sexual harassment. Still, their work in Florida for Al Gore's "counting the votes" is a real coup. They need not bother with litigation end-runs around voters if they can control what votes count. Stalin was right, "Those who count the votes decide everything." Trial lawyers' Florida litigation has them moving beyond the judiciary they already control. They are there for the kill in the legislative and executive branches. The fight for votes is not Gore's alone.

From the tactical depths of moral disengagement, lawyers lay siege to the will of the people.

JWR contributor Marianne M. Jennings is a professor of legal and ethical studies at Arizona State University. Send your comments by clicking here.


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08/18/00: Resenting the accusations of racial prejudice
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04/18/00: Womyn who want it both ways
04/11/00: The monsters we're raising with the ergo proposition
04/05/00: Endowing the Hooters Chair for Literature Appreciation
03/28/00: Dr. Laura: The passive/aggressive kid's mom
03/21/00: Dough and campaigns
03/14/00: The volunteerism of conscription and pomp
03/07/00: Hope and pray that religion remains a force in politics
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10/28/99: Live by litigation, die by litigation
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09/09/99: Selective censorship
09/01/99: The village, the children, judicial imperialism and abortion
08/24/99: Naughty Newt?
08/17/99: In defense of Boy Scouts and judgment
08/10/99: Ruining the finest health care system in the world
08/03/99: Nihilism and politics: ethics on the lam
07/26/99: Of women, soccer and removed jerseys
07/23/99: Not in despair, a mere mortal doing just fine
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07/06/99: An Amish woman in a Victoria's Secret store
06/30/99: That intellectually embarrassing Second Amendment
06/24/99: Patricia Ireland eat your heart out --- but check out the recipe in 'women's mags' first
06/22/99: Dems and the Creator coup
06/17/99: True courage is more than just admitting troubles

© 2000, Marianne M. Jennings