{"id":50003,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/a-new-analogy-for-the-current-election-predicament.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"a-new-analogy-for-the-current-election-predicament","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/a-new-analogy-for-the-current-election-predicament.html","title":{"rendered":"A New Analogy For The Current Election Predicament"},"content":{"rendered":"\n
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A NEW ANALOGY FOR THE CURRENT ELECTION PREDICAMENT: THE O.J. SIMPSON TRIAL <\/h1><\/td>\n <\/tr>\n

By EDWARD LAZARUS<\/h2><\/a><\/td>\n <\/tr>\n

Tuesday, Nov. 28, 2000<\/td>\n\n <\/tr>\n <\/table>\n

\tLike most everyone else these days, I find myself channel surfing cable news shows or tuning into NPR to sample the expert commentary on the election. Although the pundits marvel at the novelty of the current electoral predicament, they strain for historical analogies to provide context and perspective.<\/p>\n\n\n\n<\/b>

The Historical Analogies Pundits Favor<\/p>\n\n\n\n

\tBy now, the junkies among us have become virtual experts on the Hayes-Tilden election of 1876 \u0097 in which, in essence, the Democrats gave up their claim to the Presidency in exchange for a Republican promise that their candidate, Rutherford Hayes, would withdraw federal troops from the South. What had been the party of Lincoln made the devil\u0092s bargain; Reconstruction ended; and Jim Crow took hold.<\/p>\n\n\n\n\n
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\tEven older lore is resurrected with enthusiasm. In 1824, John Quincy Adams, another son of a President, outfoxed Andrew Jackson, who\u0092d won the popular vote but not a majority in the electoral college. Adams cut a backroom deal with another candidate, Henry Clay. Adams unknowingly did the country a great service: he guaranteed an eight-year Jackson presidency, albeit one starting four years later. <\/p>\n\n\n\n

\tFinally, back in 1800, Alexander Hamilton thought about trying to rig the choice of electors for the electoral college. The presidential balloting ended in a famous 12-week deadlock between Jefferson and Aaron Burr. During that time, Jefferson essentially declared himself the president-elect. (Sound familiar?) Mainly because Hamilton despised Burr more than he despised Jefferson, the Virginian prevailed. Of course, Hamilton would pay for that later at Weehauken.<\/p>\n\n\n\n

\tAll of these analogies have virtues, but also deep flaws. In this election, as opposed to 1876\u0092s, there are no great issues to be brokered in exchange for the presidency. Ralph Nader may have played the spoiler\u0092s role, much as Henry Clay once did, but today, unlike in the 1824 contest, the third party candidate has no electoral votes to trade. And in contrast to the 1800 election, the nation seems bereft of statesmen, such as Hamilton, with the paramount national stature to seal the deal for one candidate or the other.<\/p>\n\n\n\n<\/b>

Another Analogy, From Much More Recent History<\/p>\n\n\n\n

\tFaced with such clear distinctions, I have my own favorite analogy. It has nothing to do with elections, or even politics. It is the O.J. Simpson murder case.<\/p>\n\n\n\n

\tObviously, there is much about that infamous trial that is entirely irrelevant to the current power struggle over the presidency. But I\u0092m struck by a fundamental similarity. Both that case and this election have shattered illusions of common ground.<\/p>\n\n\n\n

\tFor most of the people I spend time with — and that means mainly white professionals living on the west side of Los Angeles \u0097 O.J. Simpson was guilty of multiple murder beyond a shadow of a doubt. The DNA evidence proved it, and the jury\u0092s failure to convict was an act of pure lawlessness. <\/p>\n\n\n\n

\tFor another L.A. community, the black community, a different truth held sway. O.J. was the probably innocent victim of a frame job by a racist police department whose evidence-tampering included Detective Mark Fuhrman\u0092s planting the bloody glove.<\/p>\n\n\n\n

\tMonth after month, the O.J. case dominated public and private discussion, but there was no real communication between those with opposing views. Conversations either escalated into shouting matches or ended in resentful silence. Each side was so convinced of its righteousness there was no brooking dissent. <\/p>\n\n\n\n

\tAt least here in Los Angeles, the main lesson many of us took from the aftermath of O.J.\u0092s acquittal was that whatever progress had been made over the years in race relations, blacks and whites still live in two worlds unbridgeably divided by experience, perspective, and mistrust. In the last few years, perhaps that pessimism has faded to some extent, but a strong residue remains.<\/p>\n\n\n\n<\/b>

A Lack of Common Ground, Revealed<\/p>\n\n\n\n

\tHistory is now repeating itself, though the divide is along political, not racial, lines. In the law office where I hang my part-time shingle, voices are raised, arguments scoffed at, relationships reassessed. Republicans are certain Al Gore is trying to steal the election through fraud-laden recounts belatedly authorized by a complicit Democratic Florida Supreme Court. Democrats are equally sure that Bush is the thief, scheming to deny Gore victory by intimidating local election officials and arbitrarily preventing the accurate tabulation of all the votes. Neither side recognizes the least shred of merit in arguments mustered by the other.<\/p>\n\n\n\n

\tWe like to comfort ourselves with the notion that our political differences are quite mild in this country. But just as our sense of racial progress is part illusion, so too is the myth of our vast political center. As the increasingly bitter end to this election draws out, the country is riven by a political divide as wide as the Grand Canyon \u0097 and the partisans who stare at each other across the chasm distrust and dislike each other passionately. <\/p>\n\n\n\n

\tThe depth and breadth of this political division may have great consequences for our institutions of law. We look to our courts as a place where we can, at least partially, reconcile the irreconcilable. Acts of judicial statesmanship, and powers of reason, imagination, and persuasion, are all supposed to dampen the fury of a political storm. And judicial decisions are to be accepted as legitimate and fair, even if they are adverse \u0097 or at least, that is the ideal. <\/p>\n\n\n\n

Now the question is inescapably posed whether our courts are up to the task. This election will be decided in two fora: the Supreme Court of Florida and the Supreme Court of the United States. How these respective courts handle choosing the next President of the United States, and how we receive those courts\u0092 decisions, will be fair measures of how much the forces that divide us have frayed the ties that bind us. <\/p>\n\n\n\n\n\n\n<\/span>\n\n\n

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\n\n\nEdward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.<\/u>\n\n\n

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