maule at LAW.VILLANOVA.EDU
Thu Nov 16 16:22:16 PST 2000
>>> masinter at NOVA.EDU 11/16/00 08:16AM >>> writes
Lawyers argue, on behalf of clients; judges decide. Neither Ms. Harris
(who is not a lawyer) nor Mr. Butterworth (who is a lawyer) is arguing;
neither has a client (though both seem unable to grasp that fact); both
have sought to arrogate power to decide a contested election for their
respective candidates. Both draw from a rich tradition, most recently
exhibited by the former president of Yugoslavia, of focusing upon outcomes
to the exclusion of process. It is that tradition, not the disagreement
of lawyers expressed in arguments, that leads to insurrection.
Judges decide. So do lawyers (in making decisions about how to proceed with representation, lobbying, etc). But so, too, do governors, administrative officials, police officers, all sorts of executive branch officials, etc, etc. An executive officer has the right and duty to make a decision. And then those who are in disagreement can seek their legal remedies, that is, they go to court. Florida law (even as interpreted by the court) compels Ms Harris to make a decision. Until her decision is overturned, it stands because she has the delegated power to make it.
If your point in the latter half of your posting is that the PROCESS by which she made a decision is flawed, the courts can examine that (to the extent that an official's discretion can be reviewed). There is no way for her to make an unbiased decision, especially as this is not a situation in which the facts are undisputed. In fact, the facts as recounted by each side seem to change as the needs of that side change. That's a different matter. Ms. Harris is not appropriating to herself powers that are not hers to exercise. She is exercising powers delegated to her by the law. It is not insurrection merely because there are those who disagree with the decision. Insurrection occurs when folks try to rewrite the law to suit their needs as the hours pass by, or when decisions legally made are disobeyed by those who put themselves above the law. And we know what the track record is on that score (which is that few can call themselves innocent).
All I'm doing is trying to separate the process into its pieces and note that criticism of one part of the process does not necessarily mean that other parts of the process are worthy of the same criticism.
Professor of Law
Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
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