Law profs discuss role of judiciary in 2000 election

Abbie VanSickle

It was not ordinary men and women who were on trial Friday afternoon at Northwestern Law School – it was the courts themselves.

About 150 people gathered in Thorne Auditorium on the Chicago campus to hear a panel of legal experts talk about the judicial system’s role in the 2000 presidential election. It was one of five panel discussions during Northwestern’s two-day conference on the election.

The legal experts soon went from discussion to debate.

“Each panel member had their own political ideology, and it was interesting to see each side talk about their ideology and defend it,” law student Aimee Mackey said.

Beginning the discussion, moderator James Speta joked that he was the only lawyer in the country who wasn’t questioned by the media about the election. But Speta, a professor of law, said he was excited about the technology that televised every detail of Election 2000 and the 36 days that followed.

“Boy, was that a great time to be a lawyer!” Speta said. “The lawyers and judges involved produced work at a high quality.”

Not all panelists, however, shared Speta’s view.

Elizabeth Garrett, a University of Chicago law professor, said she supported judicial restraint.

“The Supreme Court should stay out of issues that have possible political and electoral ramifications,” she said. “The court’s understanding of political parties is naive. The court appeared to deal with them just as they would a private business.”

Garrett, who identified herself as a Republican, said the matter should have been left to Congress.

“You’ll hear people criticize the Bush v. Gore decision but say, ‘It’s certainly a good thing the courts got involved.’ But we did not need the court involved,” she said.

Steven Calabresi, a professor of constitutional law at NU, also was quick to deride the Supreme Court’s decision. He questioned the generous opinion the public has of the Supreme Court and attributed it to people regarding the justices as “umpires of the democratic system.”

“Low expectations for democratically elected officials may turn out to be a self-fulfilling prophesy,” he said.

Thomas Merrill, also an NU law professor, focused on another legal aspect of the election: the litigation strategies of the parties. He criticized Gore’s strategy of selective manual recounts in areas with heavy Democratic populations.

“It was increasingly obvious to judges and the American public that Gore’s recount was fundamentally unfair,” he said. “Gore’s lawyers acted like deer caught in the headlights. If they would have acted differently, the election result could have been quite different.”

Although their litigation strategies may have been different, the parties’ political morality standards were equally low, said Chief Judge Richard Posner of the U.S. 7th District Court of Appeals.

“Bush had to plant in the public’s mind that a recount would be Mickey Mouse business and that Gore would be President Dimples,” Posner said.

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