Shades of OJ as legal fog descends on cliffhanger

By RUPERT CORNWELL

WASHINGTON - We have not quite got there yet. Johnnie Cochran, F. Lee Bailey and Barry Scheck are not in town. Judge Lance Ito is not on the Bench, mostly failing to keep unruly proceedings under control. But shades of the O. J. Simpson soap opera are everywhere, as an ever-thickening legal fog envelops Florida's presidential election cliffhanger.

America's propensity to litigate and its love-hate, "can't live with them, can't live without them" relationship with lawyers has been noted for nearly 200 years.

The tendency also produced the one good line produced by Dan Quayle. America, said George Bush sen's hapless Vice-President who pressed in vain for a simplification of litigation laws, "has 5 per cent of the world's population, but 70 per cent of its lawyers." And, it seems right now, 50 per cent of that 70 per cent are descending on the Sunshine State.

A few cast members from the Simpson case are already in town. Alan Dershowitz, the Harvard law professor who is America's top civil liberties lawyer and attracted to a microphone as a wasp to a sweet drink, is in Palm Beach helping with the civil suits filed over the country's infamous "butterfly ballot." Laurence Tribe, constitutional scholar at Harvard Law School, was in Tallahassee, helping the Democrats in their fight against yesterday's 5 pm certification deadline. By coincidence, O. J. himself lives in Florida.

"If it does not fit, you must acquit," was the Cochran mantra about the bloody glove in the Los Angeles courtroom five years ago. Odds are being taken on which constitutional lawyer will be first this week to say, "if there's a doubt, you must recount."

Judges may have been running for cover yesterday - no less than three backed out from involvement in the row over the suspended recount in Palm Beach County, prompting one bewildered TV reporter to memorably observe that "we're running through judges pretty quickly in these parts." But of lawyers there is no shortage.

Small wonder therefore that both parties have set up committees to raise funds to pay for a potentially hugely expensive legal battle, whose length no one can predict. Democrats and Republicans are each said to have sent 100 lawyers to Florida. Assuming for argument's sake, an average billing rate of $US300 ($725) an hour and a 12-hour day, and the legal meter would run at over $350,000 a day for each party - plus of course expenses.

Some of the legal superstars in attendance of course can command far higher rates. Helping the Democrats in Tallahassee, for example, is David Boies, who led the Justice Department's anti-trust case against Microsoft and has been voted Lawyer of the Year by his peers, the bar's equivalent of baseball's MVP (Most Valuable Player) annual awards.

The Democrats reacted quicker to the need to find extra money, with Gore appealing to his major backers at a breakfast meeting in Nashville on the very morning after the election.

The Gore campaign says it is "well on its way" to reaching its provisional target of another $US3 million to underwrite its litigation.

Bush reacted more slowly. But the Republican Party website now opens with an appeal for cheques of no more than $US5000 to be posted urgently to party headquarters.

The Republicans do not expect to have any problem meeting their outgoings in the days ahead, although they do ask that the cheques be sent by express mail.

For anyone with a sense of postwar American history, the extraordinary confluence of politics and the law should be no surprise. Liberals used the courts to consolidate the great civil rights legislative achievements of the 1950s.

More recently conservatives have used the law to fight their battles against President Bill Clinton. Tobacco, abortion and gun control are just some of the issues that an increasingly deadlocked political system has tacitly permitted to be dealt with by the courts.

In that sense, a presidential election decided in the courts is but the natural climax of a long existing process.

And, some would argue like Churchill apropos of democracy, while lawyers may be regrettable, the alternatives are worse.

"Political problems need to be resolved in the political arena," says Abner Mikva, a White House counsel under Clinton. "But we have to consider the alternatives. The only other place this could wind up is on streets. That's what courts are for."

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