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Rosalea Barker: Radio With Pictures

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Chaos. Bifurcation. CNN. Wizard of Oz. Red velvet curtains. I swear my cellular neural networks are all in a pother over this United States Supreme Court thang. Hoorah for audio transcripts, court reporters and those folks who do the lovely drawings in courtrooms. The Newshour with Jim Lehrer on Friday night edited those pictures to the audio in such a lively manner it was like watching a storyboard set to sound. Now that the justices have chased the two main characters up a tree and thrown their stones at them we await a solution to their problem. Will it be an algorithm or a bushithm?

Neither probably. The outermost Russian doll in Florida voters' hands - Katherine Harris - has played her part in this process and been discarded, so now the argument is about whether Florida's laws are the next most outermost doll (Bush's contention) or the Florida Supreme Court's rulings (Gore's). Many commentators on Friday night felt that the last thing the US Supreme Court wants to do is put itself on the outside. Its role is as the kernel of distilled wisdom about what is and isn't Constitutional, a conductor of the muzak that permeates all the dolls.

On NPR radio Prof. Rosen of the George Washington University School of Law said he felt the justices might decide that the conflicting interpretation of statutes at the heart of the case is "a question about which reasonable people can disagree." The case would clearly then fail the first basic question asked in deciding whether to adjudicate these sorts of issues: Is the issue one that the courts properly can decide? The decision of the US Supreme Court to get involved took many by surprise for that very reason, and Rosen points out that even a decision to dismiss the case for lack of jurisdiction will have far-reaching effects.

Should this case have been televised? After all, the courtroom setting is a staple of programming every day in America. In Thursday night's programme Jim Lehrer's Newshour team had a panel of four discussing that very issue. On the side of the media, an attorney for CNN and the Chair/CEO of C-SPAN argued the case for allowing cameras into the courtroom. They felt that the best way for it to be reported would be for people to see it. Otherwise the audience was left with just the interpretation of journalists or the spin of partisans.

Chief Judge Becker of the US Third Circuit Court of Appeals, however, argued that a 3-year pilot study of televising appellate courts had shown that the content and emphasis of oral arguments was affected by the presence of TV. The oral argument process, he said, was rough and you might deride counsel then find just that one part lifted out of context to prove via the media that you were biased. He contended that the act of televising proceedings would change the dynamic of the oral argument process to its detriment.

Prof. John Yoo of UC Berkeley's Boalt School of Law used to clerk for Justice Clarence Thomas of the US Supreme Court and in a television interview he explained that the justices don't meet before they hear the case. In effect they use the counsel as a tool to discuss the case among themselves, which is why oral argument is so rough and why neither side comes away from the court with any idea of how they went. He also felt that now the election is being contested rather than protested, the focus of the process has changed and moved beyond what is being decided in the Supreme Court.

Well, I guess it's one of those things where "you had to be there". Britain has royal weddings and funerals and the US has the Supreme Court - the "holy of holies" as one commentator put it. Rosen, in his radio commentary, painted a wonderful verbal picture of the scene inside the courtroom, likening the process to the Wizard of Oz where all the machinations and action take place behind a curtain and the hands operating those mechanisms are visible only briefly while the case is being argued. There is literally a red velvet curtain that the justices disappear behind when they've done hearing the oral arguments.

Poor old Mexico! Dull old Canada! They lack all this excitement! South of the border, in the first peaceful transition of power in Mexico's history, Coca Cola-nisation was made flesh in the form of President Vicente Fox with nary a telecopterised truckload of fugitive ballots in sight. Voters in Canada went to the polls and elected a new government by hand-counting their votes and had the result in a couple of hours.

It's been a tough week, PR-wise, for Al Gore. Right from after his speech on Monday he's faced an uphill battle not to look like "Sore Loserman". He has basically got to renew enthusiasm for a battle that took place right at the beginning of the writing of the Constitution, a battle that's been forgotten because America has so thoroughly convinced itself that it's a democracy of the "one person one vote" kind.

In fact, the electoral college method of electing the President is a republican form of government - Roman rather than Greek - wherein a group whose judgment can be trusted make the choice instead of the people directly. Article IV, section 4 of the Constitution specifically guarantees "to every state in this union a republican form of government". Over a period of two centuries the country has moved more towards Greece than to Rome and the guarantee clause has not been enforced by the courts, so America is more than a little embarrassed to find itself getting tripped up on the toga it had forgotten it was wearing.

The irony is, of course, that if the decision about who's the President goes to a vote in the House of Representatives all the people who voted for Al Gore in what some people call his real home territory - Washington D.C. - have no say in the decision whatsoever. Not being a state, the District of Columbia has no vote at all.

Lea Barker
Saturday 7pm PT

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