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At the height of the election conflagration, no newscast was complete without an attorney appealing in calm, reasoned tones for the “rule of law.” They all had very different ideas about how that rule should work, but no doubt about where it should be decided: in a hushed courtroom filled with lawyers. The attorneys’ intentions may have been honorable, but their argument was perverse. The election of a president is democracy in action, and the legal process is far from democratic. Lawyers aren’t the thin, pin-striped line between us and anarchy. David Boies versus Ted Olson isn’t exactly the “will of the people.” The rule of law’s biggest selling point is its alleged neutrality. But although the law may be neutral, a generation of legal scholars has argued mightily that those who interpret and enforce it are not. In this analysis, Republicans have good reason not to trust the Florida Supreme Court; Democrats rightly tremble at the sight of Katherine Harris. Nobody is disinterested; nobody is disengaged — a fact that became painfully clear as both the Florida and U.S. Supreme Courts split along party and ideological lines. Even if the legal system were neutral, the voters aren’t, and it’s their election. The people in the governor’s mansion and on the canvassing boards may be partisan, but they’re the chosen representatives of the Florida citizens. Lawyers are not — a fact that may surprise a few of them. Inevitably, Marquis of Queensbury rules weren’t observed. This is politics; it involves politicians, and they act politically. Were the Republican governor and the Republican secretary of state predisposed for Bush? Of course. Did the Democrat-controlled canvassing boards use creative techniques to “divine” voters’ intentions? Absolutely. Politics is not an exact science. Like basketball, some contact must be allowed or the game degenerates into endless squabbling. The problem, of course, is that lawyers have a talent for making themselves indispensable. Recount observations and ballot challenges quickly became their turf, as if passing the bar exam conferred special insight into dimpled chads. That only put further distance between ordinary citizens and their own election. The only thing that could have saved us from this flood of lawyers was the judgment of Gore and Bush. But given their determination to use every weapon in their arsenals, that hope was quickly drowned in a sea of briefs. The only saving grace of the courtroom scenes that followed was the respite they provided from the chaotic protests outside. Is our only choice in public life between the lawyers and the mob? At the end of the day, it was inevitable that the courts would intervene, and that lawyers would assume their customary outsized role in our democracy. But this was a development to be tolerated, not celebrated. The situation called for more discretion and less action, for more restraint and less “zealous representation.” Contrary to their carefully measured pronouncements, lawyers were not the last, best hope for our democracy. The country would have been just fine without them.

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