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Tuesday, Nov. 28, 2000

Like 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.

The Historical Analogies Pundits Favor

By now, the junkies among us have become virtual experts on the Hayes-Tilden election of 1876 — 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’s bargain; Reconstruction ended; and Jim Crow took hold.

Even older lore is resurrected with enthusiasm. In 1824, John Quincy Adams, another son of a President, outfoxed Andrew Jackson, who’d 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.

Finally, 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.

All of these analogies have virtues, but also deep flaws. In this election, as opposed to 1876’s, there are no great issues to be brokered in exchange for the presidency. Ralph Nader may have played the spoiler’s 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.

Another Analogy, From Much More Recent History

Faced 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.

Obviously, there is much about that infamous trial that is entirely irrelevant to the current power struggle over the presidency. But I’m struck by a fundamental similarity. Both that case and this election have shattered illusions of common ground.

For most of the people I spend time with -- and that means mainly white professionals living on the west side of Los Angeles — O.J. Simpson was guilty of multiple murder beyond a shadow of a doubt. The DNA evidence proved it, and the jury’s failure to convict was an act of pure lawlessness.

For 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’s planting the bloody glove.

Month 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.

At least here in Los Angeles, the main lesson many of us took from the aftermath of O.J.’s 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.

A Lack of Common Ground, Revealed

History 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.

We 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 — and the partisans who stare at each other across the chasm distrust and dislike each other passionately.

The 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 — or at least, that is the ideal.

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’ decisions, will be fair measures of how much the forces that divide us have frayed the ties that bind us.

Edward 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.

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