We who think about the new economy have grown used to the ground shaking under our feet. Things we took for granted just last year (like that there was a "new economy") now seem up for grabs. But the events of the past four weeks carry the tremors of an even more fundamental quake. If anything makes an economy work, it is a stable political environment governed by the rule of law. Yet this month's events are increasingly drawing our assumptions about that stability into doubt.
About a decade ago, I was a law clerk at the U.S. Supreme Court. I worked for an extraordinary justice, Antonin Scalia. Scalia is a conservative. I am not. This fact confuses most people. How could a conservative justice hire a liberal clerk? How could a liberal work for a conservative?
This is a vision of law that is common today. The events of the last month have only strengthened it. It is the vision Texas Gov. George Bush evokes when he castigates the Florida Supreme Court for "changing" the law. It is a picture of law as politics, or better, politics by other means. Of judges deciding cases according to their political preferences; using the law to achieve what, through the ordinary political process, they could not.
I am a lawyer because I believe this picture of the law is wrong. And no time taught me its errors more forcefully than the year I watched Scalia judge. For there is no real check on a Supreme Court justice's power, save his integrity. And there is no effective limit to the campaign he might wage to bend the law to his politics, save the respect he has for the law apart from politics. And yet this Justice, who has strong political views, repeatedly yielded to what the law required, when the law required it. No doubt, not every case was controlled; not every field of law is governed by strong rules. But where there was a rule to follow, Scalia followed it, his politics notwithstanding.
This is what it means to live under the rule of law. Its essence is simple consistency; the integrity to apply the same rule to similar cases, regardless of the political outcome; the belief that there is a limit to what you can argue, inherent in the logic of what you say.
The events of the past month have done great damage to this ideal. Not because of bad acts by the various courts that have been dragged into this election mess. But because those outside of the judicial process - politicians in particular - don't themselves feel even the minimal constraint of the rule of law. They are not embarrassed by their own inconsistency. They are not constrained in what they will say. They believe themselves free to argue what they will to get what they want. Their words are poison to our ideals.
I won't pretend to be neutral here. I am firmly biased. But my point is not that one side is any worse than the other. My complaint instead is about us, and about how we respond. So if your politics are different from mine, that's fine. Simply fill in examples from the other side. But your alternatives won't diminish the significance of what I've observed our leaders doing over the past few weeks:
Arguing against a manual process to count votes uncounted by a machine, yet signing a bill mandating a manual process to count votes not properly counted by a machine.
Attacking as illegal "changing the law" to permit the hand count of uncounted votes, yet demanding that the law requiring postmarks on absentee ballots (Florida Law §101.62(7)(c): "... only those ballots mailed with an APO, FPO, or foreign postmark shall be considered valid") be ignored so that overseas ballots can be counted.
Demanding constitutional respect for states, and the power of states to act independently of the federal government, yet defending a race to federal court to attack state procedures you don't like.
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