Question: How many lawyers does it take to pick a President?

You know what they say, you only get from a computer what you put in. In other words, garbage in, garbage out. It is the position of Vice President Gore that machines are fallible, human vote counting is superior, and never moreso than when the machine doesn't give him the result HE wants. Governor Bush puts his faith in the objectivity of machines, their non-partisanship, and never moreso than when it gives him the result HE wants.

What is truly shocking is the partisan vitriol that has been heaped on the courts that have passed opinions in this dispute. This would never be condoned in Australia. Even in the most controversial cases, for instance the Mabo/Wik or Franklin Dams disputes, the criticism was couched in terms that were at least respectful of the courts. In the U.S. we have constitutional lawyers (let alone media commentators) calling the Florida Supreme Court a "kangaroo court", a "bunch of liberal hacks" and worse.

In America this may be characterised as a happy reflection of the First Amendment right to free speech. But can you imagine a senior Australian politician calling the High Court or a State Supreme Court partisan (in other words biased) because the judges were predominantly appointed by one Party as opposed to another? Of course not. Why? Because most Australians believe at the bottom line that judges are impartial, even though we do not always agree with their decision making. If you criticise the motives of senior judges, you will eventually undermine the whole judicial system. Don't forget, it is the nature of the adversarial legal system that there will always be winners and losers - what's important is to accept the decision of the umpire, otherwise the system simply won't work. What we are seeing in America appears to be a media-driven institutional distrust of the judiciary. In Australia the cynicism is directed precisely where it belongs, at the feet of politicians who pass bad or inadequate laws.

What laws mean

And the other eye-opener is the complete lack of sophistication on the part of the media, and presumably the audiences who ensure their exorbitant salaries. The best example of this is the arguments between so-called "strict constructionsists" and those who favour a more liberal interpretation of statutes by the courts. In other words, there are those who say that laws are as written and should be interpreted strictly, and those who believe courts must interpret the intentions of the legislature and try to bring sense to nonsensical statutes.

However, in the U.S. this has descended into a whole new theory of judicial interpretation of laws: courts that interpret laws are "changing" laws, and they have no right to interfere with the decision making of elected representatives. Look at the reaction to the Florida Supreme Court's decision to interpret a Florida statute to mean that the State had to accept manual recounts. To some conservative analysts and commentator it was as though they had invented their own law, rather than the ordinary judicial task of interpreting laws.

This is truly pathetic. Courts in Australia and the U.S. alike are often called upon to interpret the meaning, effect and scope of statutes (generally called "statutory interpretation"), always with an eye to what the legislature actually intended, and using wide-ranging and well-established research tools to discover the intent. For example, they can look at the language of the Statute, the Parliamentary debates in Hansard, and apply generally accepted rules that have evolved over time to discern the meaning of a Statute. Every lawyer who has struggled with an obtuse piece of legislation knows all too well that Parliament does not always express itself well. But to claim that this means courts rewrite laws is ridiculous - it creates a good sound bite, but it denies the truth of what courts do every day.

The solution

We learn from psychotherapists and Buddhists alike that the first step to emotional health is to face your shortcomings, to see yourself for what you are, not what you would like to be. Americans have every reason to be embarrassed, and they would go a long way to national healing if they just admitted it, instead of pointing the finger at each other. They would solve this problem a lot quicker if they appropriately pointed the finger at themselves. Let's face it, in a country with trillion dollar budget surpluses, the world's most advanced computer industry, and more technological research in one square mile of Silicon Valley than all of Australia, it is remarkable that they cannot equip voters with an appropriate voting mechanism.

So what's the point here? For Australians, reared on meat pies instead of apple pie, the whole affair is silly. Here is the way to settle this mess:

1. Everyone, that means Democrats and Republicans alike, should admit that this mess is completely of their own making. Gore and Bush should issue a joint communiqué to this effect.
2. Both sides should marshal the considerable legal resources at their disposal and find a legal solution - based on the rule of law and not the rule of the politician and the spin doctors.
3. Do what diplomatic negotiators have done for centuries - lock up the lawyers in a room together and don't let them out until they emerge with a treaty, legal not political - a consent order that could be endorsed by a superior court. That solution should involve precise, but conservative rules by which all the Florida votes can be recounted.
4. Whatever the counting process, have it overseen by a panel of superior court judges for whom both parties have agreed to forestall any partisan criticism. Bush and Gore should tell the American people that they are prepared to place their faith in the law. This is needed both for the imprimatur of the Court, and because it is an admission that the margin of victory is too close to trust a mechanical process that is probably flawed. But the judges could provide what is missing - an impartial set of rules that would be followed by the counters.
5. Set a date for completion, before the Electoral College meets, and get it done using whatever resources are necessary.

At the end of the day it is the rule of law, and a respect for the law, that should prevail. And for heaven's sake, spend some of that trillion dollar surplus on some new voting machines.

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