The New York Review of Books

To the Editors:

I don’t make a habit of complaining about negative reviews of my books, but Ronald Dworkin’s review [“Philosophy & Monica Lewinsky,” NYR, March 9] of two recent books of mine, An Affair of State and The Problematics of Moral and Legal Theory (both published by Harvard University Press in 1999), is so unmistakably a personal attack that I would be poor-spirited not to respond.

He accuses me of a breach of judicial ethics in having commented publicly in An Affair of State on an “impending” case, namely a possible prosecution of President Clinton for perjury and related offenses growing out of his affair with Monica Lewinsky and the ensuing investigation; and let me begin with that charge. Dworkin is correct that a judge is not supposed to comment publicly on an “impending” case as well as a “pending” one. But the dictionary defines “impending” as “about to happen” or “imminent,” and a prosecution of President Clinton, while conceivable as a theoretical possibility, is not imminent and in fact will almost certainly never happen. Furthermore, I emphasized in the Introduction to my book (p. 7, n. 13), alluding to that remote possibility, that should the President ever be prosecuted for crimes growing out of the Lewinsky imbroglio, his guilt or innocence will be decided on the basis of the evidence presented at his trial, not the evidence compiled by the Independent Counsel and discussed in my book, and therefore “nothing in the book should be taken to prejudge any future criminal or civil proceeding arising out of the matters discussed in it” (id.). If Dworkin wishes to call me “injudicious” in writing about a controversial episode so soon after its conclusion, that is a matter of opinion, to which my only reply is that I had hoped that my treatment of the controversy was sufficiently judicious to deflect such a criticism. But to suggest that I am unethical exceeds the bounds of fair comment. Dworkin himself asserts that my motive in writing the book was not political, but academic. The book was published by an academic press and is continuous with my academic writings. Judges, I need hardly add, are permitted by the very code he quotes against me to write academic books and articles. The list of academic writings by judges is long and honorable and includes a book by Chief Justice Rehnquist—on impeachment.

It is ironic that Dworkin should invoke a speech-restrictive rule of judicial conduct (the no-public-comment rule) against a critic of his. Dworkin plumes himself on his devotion to the free-speech clause of the First Amendment, which he interprets so broadly as to have incurred the wrath of feminist critics of pornography. He does not say whether he thinks the no-public-comment rule a good one (as do I) or a bad one; but it is surprising that he of all people should interpret it so broadly as to make it virtually impossible for a judge to write on public affairs. Almost no issue of policy has a smaller probability of someday becoming a legal case than that President Clinton will someday be prosecuted for the offenses of which the Senate acquitted him. Dworkin must know, moreover, that violations of the Code of Conduct for United States Judges are punishable by official reprimand and worse, and therefore that accusing a judge of violating the ethical limits on public comment is likely to discourage judicial free speech.

A further irony is that Dworkin criticizes me at the beginning of his review for speaking out about the impeachment controversy, and at the end for failing to make up my mind whether I think Clinton should have been impeached and convicted. I should at least get a few points for my lapse into discretion.

Another ethical issue lurks about the review, though not one that involves a threat of formal sanctions—whether a journal should commission a book review by a person who is a target of criticism in the book (in this case both books) that he or she is asked to review. I make acerbic, though I hope accurate, criticisms of Dworkin’s strident public pronouncements on the impeachment controversy (see pp. 233-234 and 237-241 of An Affair of State) and of his legal and philosophical stance.¹ I have for many years now in books and articles been challenging his pretensions as a constitutional scholar and public intellectual. Although I respect a number of his contributions to jurisprudence, he cannot help regarding me as an intellectual enemy and treating me accordingly; the tone of the review is a giveaway. Most journals avoid giving books to the authors’ enemies to review,² especially if the “enemy” is a principal target of criticism in the very book he is being asked to review; and, if scrupulous, a person asked to review an enemy’s book turns down the invitation. Dworkin acknowledges that Problematics criticizes him (p. 51, n. 20), but he does so in a flippant way that conceals the twenty years of mutual intellectual enmity, punctuated by increasingly acrimonious exchanges, that has defined our relationship. He does not acknowledge that he is pointedly criticized in An Affair of State as well, the book of mine at which he aims his sharpest barbs. By acknowledging criticism of him only in the other book, he implies that An Affair of State does not criticize him, and this enables him to pose as a disinterested critic of that book, the one he savages.

I am not trying to silence a critic, and thus merely turning the tables on Dworkin. He has every right to criticize me, as vehemently as he wants. The question is whether he should do so in the guise of a book review. Readers bring different expectations to a book review than to a critical essay. They assume that the reviewer is neither the close friend nor the archenemy of the author. Readers thus are deceived when the review form is used to disguise academic warfare.

Dworkin’s review is harsh and biting, which is fine, but also pervasively inaccurate and misleading, which is not so fine. Some of its errors, such as the confusion of a mediator with an arbitrator (very different animals in the law), may be a product merely of carelessness and haste. Others bespeak a lack of familiarity with the voluminous record compiled by the Independent Counsel, which Dworkin does not claim to have read and obviously has not, and with the intricacies of federal criminal law and procedure; he has no experience in the administration of criminal justice. Other errors in the review are perhaps best regarded as simply exaggerations, for example his statement that the Whitewater investigation, which led to several convictions, produced “no results” (p. 50). But Dworkin is much too smart to make as many false and misleading statements as he does in this review. One is reminded of his notorious attack on Robert Bork when Bork was nominated for the Supreme Court,³ an attack Dworkin thought well enough of to republish many years after the threat of Bork’s becoming a Supreme Court Justice had passed.⁴ One can only speculate on why has he singled out An Affair of State for similar treatment. Despite appearances, we have no fundamental disagreement over the Clinton scandal/impeachment saga. The picture of Clinton that emerges from Dworkin’s review is not a flattering one, while the picture of Clinton’s tormenters that emerges from my book is not a flattering one either; and while Dworkin is emphatic that Clinton should not have been impeached and convicted, my book registers no disagreement with that conclusion but only with the arguments that Dworkin makes en route to it.

By now the reader will be impatient for my bill of particulars, and here it is:

1. Dworkin attributes to me the view that “mothers should be permitted to auction off their newborn babies” (p. 48). In support of this attribution he cites my textbook discussion of adoption.⁵ I point out the adverse economic consequences of the present system of regulated adoption, under which a pregnant woman is forbidden to accept a fee for giving up her parental rights to adoptive parents. I do not argue that the economic consequences of this prohibition, though they are indeed serious and adverse (just as with other forms of price control), outweigh whatever ethical or other objections might be raised to changing it. Such a judgment would be out of place in a book on the economic analysis of law. The furthest I have gone in the direction indicated by Dworkin’s characterization of my view is to suggest, as an experiment, that an adoption agency be permitted to pay a pregnant woman contemplating abortion to carry the child to term and give it up for adoption rather than aborting it.⁶

2. I have never taken the position that infanticide, Nazism, and the other enormities listed by Dworkin are not “immoral” (id.); that would be as absurd as it would be offensive. The argument of The Problematics of Moral and Legal Theory is that when we call practices “immoral” we do so in reference to our own values. The people who make this argument, people like Richard Rorty and me, are not immoralists; we are pragmatists; we simply believe that there is no reliable external perspective from which to evaluate competing moralities. Societies that practice infanticide do not regard infanticide as immoral, and we civilized Americans cannot say they’re “wrong” to do so unless we add—by our lights. Dworkin and I inhabit the same moral universe and hold the same moral views, except possibly about the ethical limits of polemic. Our disagreement is over the possibility of grounding our moral opinions in objective, universal truths. He believes in natural law; I do not; ours is a philosophical disagreement, the sort of thing that he discusses in the last part of his review.

3. Far from being “drenched in moral indignation” (id.), An Affair of State has struck the Clinton haters as tepid and equivocal. And while as Dworkin says the book “chastises academics and intellectuals who opposed impeachment” (id.) it also chastises the academics and intellectuals (such as William Bennett, Robert Bork, and David Frum) who supported impeachment. The only two negative reviews of my book that I had seen before I read Dworkin’s review were written by right-wingers who consider me too easy on President Clinton and too hard on his tormenters.⁷ Tell those reviewers that I am writing for my “conservative claque” (p. 50) and that I “back…the Republican leadership on several key issues” (p. 48), and watch their jaws drop. Only toward the end of his review does Dworkin acknowledge that nowhere in the book do I suggest that President Clinton should in fact have been impeached or convicted.

4. I stand by the indented quotation on the first page of Dworkin’s review, the litany of the President’s misdeeds. The passage is not a partisan summary.⁸ I consider it the common ground on which all neutral observers of the affair stand—but that’s a matter of opinion. What is not a matter of opinion, but a distortion, is to say, as Dworkin does (p. 48 and n. 7), that my book hints at agreement with the charge that the President ordered the bombing of Iraq to divert attention from his own misconduct (the “Wag the Dog” charge). I said only that in the nature of things such a charge can be neither proved nor disproved. Dworkin omits to mention that I pointed out that the defense establishment thought the bombing justifiable; they had wanted to do it for a long time (see An Affair of State, p. 30). But in the past the President had rejected many recommendations of his military advisers, and the question, which will probably never be answered, is why he was of a different mind in December 1998.