January 2001

Two Cents' Worth

by Mark A. Panitch, Editor

The staff of Bar News is pleased to welcome Mark Panitch as the new editor. Mr. Panitch brings to this position a wealth of experience in journalism and law.

As the Washington correspondent for the Anchorage Daily News, he was part of a team of writers who won the 1976 Pulitzer Prize for their coverage of the construction of the Trans-Alaska Pipeline. Mr. Panitch has also written for the Associated Press and McGraw-Hill Publications. He was a press secretary for Senator Joseph Montoya during his tenure on the Watergate Committee, and a speech writer for Secretary of the Interior Cecil Andrus.

Highlights of Mr. Panitch's law career include working as a Washington assistant attorney general, an organized crime prosecutor in New York, and a judge pro tem in Seattle Municipal Court. He has been both a felony prosecutor and a felony public defender, and has worked on both sides of the mountains. Mr. Panitch currently volunteers with the King County Bar Association Spanish Language Neighborhood Legal Clinic and is in private practice.

Mr. Panitch welcomes your comments and suggestions. Please contact him by e-mail at pan-law@uswest.net; by fax at 206-727-8319; or by mail at WSBA, 2101 Fourth Ave., Fourth Fl., Seattle, WA 98212-2330.

This is a letter to the future. By the time you read this we will all know who our next president is. As I write this, though, the only certainty about this election is that the new president will be sworn in on January 20, 2001 while standing on the steps of the United States Capitol surrounded by members of Congress, members of the diplomatic corps, and hundreds of thousands of ordinary citizens.

At noon the chief justice of the United States will administer the oath of office prescribed in the Constitution. The president-elect will swear or affirm that he "will protect and defend the Constitution of the United States," and with those words he will become the president of the United States — arguably the most powerful individual in human history.

The only military presence at the Capitol will be honor guard troops in full dress uniform carrying unloaded weapons and a small battery of artillery for firing a ceremonial 21-gun salute with blank ammunition. Later there will be military bands and marching units representing all branches of the armed services in the inaugural parade.

As I write this, there is a reasonably good chance that the winner of the "popular vote" — the man who would be the president in virtually any other country — will not become our president. Instead an arcane construct called the Electoral College, created by the authors of our Constitution to insulate government from the people because they thought democracy a radical notion, may lead to the "election" of the loser.

That is why attorneys are before the Florida and U.S. supreme courts arguing about how ballots should be treated and how voters' intent should be determined. The arguments are passionate and occasionally emotional. This is high-stakes combat, fought with words and ideas, and it may be ugly and brutal — after all, the prize is the presidency of the United States. And the decision hangs on how former lawyers who are now justices interpret ambiguous evidence and poorly written statutes.

But this is not some schoolyard name-calling contest. The arguments are legal arguments, supported by citations to cases and evidence, and drawing on well-established rules of analysis. While each advocate seeks to bolster his position by presenting a different view of the evidence, there is general agreement about what that evidence is. The justices dissect the arguments with constant questions. They question both the lawyers and their arguments, probing for flawed analysis and testing the application of authority. The question for the Court is what that evidence means.

Lay people watch and see well-dressed and well-spoken adults apparently quibbling about the most subtle and nuanced differences in meaning. Sometimes they even see the same authority cited to support opposing contentions. Television news stars complain that the process is taking too long, but what they really mean is that it is too deliberative to make good television. Late-night TV hosts joke about lawyers talking out of both sides of their mouths. Some people even refer to an almost universally misunderstood quote from a 17th century play, and snidely proclaim that "Shakespeare was right."

Those same comics and citizens are just as quick to joke about "banana republics" whose political and legal systems are little more than reflections of which faction has the most vicious thugs and the most powerful weapons. We may make jokes about the death squads, but we are just whistling in the dark. We understand all too well the chaos and horror that informs the lives of most of the people living on this planet. How many of us have not seen images of mutilated bodies lying where they fell or neat rows of corpses lined up like trophies — the losers in somebody else's "free and fair election."

Fortunately, the same men who distrusted democracy and "the mob" distrusted even more the unbridled authority of the crown, so they created a third branch of government, a judiciary with the power to say no to the president. But as every lawyer knows, it was Chief Justice Marshall's opinion in Marbury v. Madison that really breathed life into our courts and gave us – as lawyers – the power to be more than just articulate pleaders for special interests. Because the courts have the power to interpret law, lawyers have the right to question laws in those courts. And citizens have a place to go when democracy gets out of hand and the rights of the minority are ignored.

In a very real way, we have learned to move our ultimate political and social battles from the streets to the courtroom. When fewer than a thousand votes stood between the candidates and the presidency, the campaigns didn't call in the thugs to steal the ballot boxes and intimidate election workers. They called in the lawyers to investigate the facts, research the law, write carefully crafted briefs, and offer their best arguments to the Court. Resorting to law is time consuming and arcane and difficult for many to understand and appreciate. But consider the alternative.

Of course the law, the courts and we lawyers are far from perfect. Like many in my generation, I spent time doing civil rights work in the South in the mid-1960s. I helped rebuild African-American churches that had been burned down after hosting civil rights meetings. I was threatened and verbally abused. The family I lived with received death threats, and windows in their home were shot out. Others fared far worse, and the law did nothing for them. A few years later I was privileged to work for California Rural Legal Assistance, and once again I saw people brutalized for seeking basic human rights. I watched in amazement as morally corrupt judges and juries mocked people seeking justice. But times do change, and lawyers and judges have been among the most important and courageous agents of change. Despite the bad jokes and misunderstanding of what we do, lawyers and courts retain a level of legitimacy unmatched by most other institutions in our country.

Sometime after this is written, a court will determine the next president of the United States. Many people will grumble and editorial writers will propose legislation to make elections more democratic. But, the colonels will stay in their barracks, the only people in the streets will be celebrating a peaceful transfer of power, the politicians will start planning for the next election, the band will play "Hail to the Chief," and the president will be sworn into office with the pomp and circumstance and routine of all his predecessors.

It could be so much worse.