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Legal Commentary

: Althouse

Warren Christopher has died.

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He was 85. I most remember him from his role in Florida recount in the 2000 election:
Mr. Christopher came under criticism at the time, and later in ?Recount,? the 2008 HBO dramatization of the Florida vote dispute, over a lack of legal and political aggressiveness against Mr. Bush?s legal team, led by a former secretary of state, James A. Baker. The movie, in particular, portrayed Mr. Christopher as overly concerned with the niceties of the law while Mr. Baker was waging a bare-knuckled campaign on all fronts.

Mr. Klain said that was an unfair characterization. ?Like all dramatic portrayals, they sought dramatic tension by exaggerating people?s personalities,? he said on Saturday. ?People often confused Chris?s reserved style and personal sense of propriety with a lack of fierceness on behalf of his client. That would be a mistake.?

He said it was Mr. Christopher?s decision to challenge the Florida result, even as most Republicans and some prominent Democrats were urging Mr. Gore to concede. ?People don?t remember how controversial that effort was. Without Chris?s stature and credibility, I?m not sure we would have gotten as far as we did,? Mr. Klain said.
I remember Christopher solemnly intoning: "We need to count all the votes." It was a mantra. And the other side had its mantra. James Baker would say: "The votes have been counted. They've been counted and recounted." Chez Althouse, we were for Gore, so Baker's "votes  have been counted" line drew hoots of derision. Analyzing the litigation calmly, afterward, I accepted the soundness of Baker's point. These were ballots designed to be read by machines, the ballots had gone through the machines twice, and there was no showing that the machines had malfunctioned. Switching to human readers introduced much more ambiguity and risk of deviousness than accepting the verdict of the machines. The machines, as they processed each card, didn't have political preference and awareness of which side was being helped.

The criticism of Christopher? that he was too nice and too proper ? fails to take into account that he was arguing on the side that would strike many people as scarily chaotic and power-grasping. Baker was arguing for the security of the result delivered by machine.  Baker's attitude of belligerence was used to argue for ending the struggle. Transpose the Baker attitude onto the Christopher side of the argument ? struggle, chaos, litigation, and the unknown. Would it have worked better than Christopher's mild demeanor?

Full post as published by Althouse on March 19, 2011 (boomark / email).

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