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Philosophy & Monica Lewinsky

1.

Richard Posner is the wonder of the legal world. He is Chief Judge of the Seventh Circuit Court of Appeals—Ronald Reagan appointed him to that court in 1981—and he is therefore one of the busiest and most important federal judges of the nation. He is an authority on antitrust law, and was recently appointed an arbitrator in the huge Microsoft antitrust suit. He was a professor at the University of Chicago Law School for many years before he became a judge, and he continues to teach there as a senior lecturer. He has produced books on a variety of legal subjects in numbers that would be amazing even if he had no other responsibilities.1 To judge from the copious footnotes in all his books, he is a voracious speed-reader as well.

Posner gained his academic reputation—and his appeal to conservative politicians—by popularizing the “economic analysis” thesis that has had surprising influence in American law schools for decades: that law should be designed to ensure that assets and opportunities are in the hands of those who can and would pay most to have them. He has argued, for example, that mothers should be permitted to auction off their newborn babies,2 and that criminal laws prohibiting rape are justified because “even if the rapist cannot find a consensual substitute… it does not follow that he values the rape more than the victim disvalues it.”3 In recent years he has qualified his enthusiasm for wealth maximization, however4 : though his arguments on almost every subject are still dominated by economic speculation, he now believes that law is to be tested not against the single goal of increasing collective wealth but against the much more general goal of “pragmatism.” He means that law should aim at achieving the best consequences overall, taking into account not only the community’s overall wealth but other desirable consequences as well.

His two most recent books, both published last year, are very different, and in some ways contradictory. The Problematics of Moral and Legal Theory is an academic work based on various lectures given in recent years. It endorses moral relativism, declares that if someone sincerely claimed that it is right to kill infants, “I would hesitate to call him immoral,” advises that we should not call slavery, Nazism, and Stalinism immoral (“that is just an epithet”) but rather “not adaptive,” and insists that moralizing is useless except as a rhetorical tool for charlatans and charismatic leaders.5 An Affair of State is an account of President Clinton’s affair with Monica Lewinsky and his impeachment and trial; it is, on the contrary, drenched in moral indignation and chastises academics and intellectuals who opposed impeachment for not denouncing Clinton’s moral flaws often or ferociously enough. Nevertheless Posner regards the two books as pursuing the same central theme: he invites his readers to treat the impeachment book as “an empirical test” of the academic one’s claim “for the superiority of pragmatic to formalistic, philosophical, and historical approaches to issues of law and public policy.”

His own ethics, in publishing a book about Clinton’s impeachment so soon after the event, are open to question, because judges are not meant to enter political controversies. He insists that his book is not political because “criticism of the President’s conduct, and that of other political actors in the drama, crosses party lines, indeed is nearly universal.” But he backs the position of the Republican leadership on several key issues that continue to be matters of intense and bitter partisan disagreement—the character and gravity of the President’s sins, the extent to which they constituted crimes, the moral and legal propriety of various actions of Kenneth Starr and his staff, and the moral defects of the officials and private citizens who defended Clinton, for example. The votes on impeachment in the House of Representatives were almost strict party-line votes, and many commentators believe that the impeachment will be a key political issue in many House and Senate races later this year.

It is true that almost everyone has strongly criticized Clinton’s conduct, including Clinton himself, but Posner’s attack on the President goes well beyond anything that could be regarded as neutral scholarship or a matter of bipartisan consensus. Here is a sample passage, which illustrates the book’s tone as well as its political character:

[Clinton] committed repeated and varied felonious obstructions of justice over a period of almost a year, which he garnished with gaudy public and private lies, vicious slanders, tactical blunders, gross errors of judgment, hypocritical displays of contrition, affronts to conventional morality and parental authority, and desecration of revered national symbols.6 And all this occurred against a background of persistent and troubling questions concerning the ethical tone of the Clinton Administration and Clinton’s personal and political ethics.

In fact Posner’s attack on Clinton is extreme even by partisan political standards. He flirts with the appalling accusation, which even the Republican zealots shied away from, that the President bombed Iraq in December 1998 to divert attention from his impeachment problems: he says that it is “impossible to determine” whether the charge is true, ignoring the compelling evidence that it is not true. 7 Nor does he limit his political opinions to the impeachment story: he has much to say, all of it ungenerous, about “liberals”—including, for example, the silly statement that “liberals rather like treating adults as children; that is what paternalism means, and liberal policies tend to be paternalistic”—and he calls Clinton’s 1993 health care plan, as well as various proposals in his 1999 State of the Union Address, “socialistic.” It is injudicious (to put it mildly) for a judge to make such a public parade of his own politics.

An Affair of State is ethically questionable in yet another respect, moreover: it pronounces Clinton guilty of various felonies for which he might still be prosecuted. The possibility of a criminal prosecution after the end of Clinton’s term—or, indeed, while he is still president—has been widely discussed by prominent politicians and by the Office of Independent Counsel itself, both throughout the impeachment proceedings and after the Senate acquittal.8 Posner acknowledges that “the ethical rules of the federal judiciary forbid public comment on pending cases,” but, he says, “I do not discuss any pending cases.” He has misstated the rule: Canon 3(A)6 of the Code of Conduct for United States Judges prohibits federal judges from commenting publicly on “pending or impending” cases, and though it is unclear what “impending” means, it should be understood, given the rule’s evident purpose, to include not only imminent and certain prosecutions, but any possible future prosecution that has been publicly debated among politicians and officials and often mentioned in the press, particularly when the judge is prominent and his statements are likely to receive wide circulation.9

The reception of Posner’s book underscores the danger. It was lavishly praised in the influential New York Times Book Review under the title “A View From the Bench,” with a subtitle that read “A Federal Appeals Court Judge Analyzes the Impeachment of President Clinton and the Indiscretions that Led to It,” by a journalist who apparently felt entitled to take a distinguished judge’s legal claims at face value.10 The Times Book Review named it one of the ten best books of the year. It would be hard to imagine greater publicity for a judge’s opinions about a widely discussed possible criminal trial.

Of course the ethical question is one for Posner himself to decide: he declares himself “unapologetic,” and we must respect his decision. But he should have bent over backward to make plain when his own judgments about the law were stretched, controversial, or speculative. Instead he is dogmatic when he should be guarded, and many of his most confident and important judgments are highly doubtful or plain wrong. Given the prestige of Posner’s office, it is worth describing some of his mistakes in detail.

He declares, for example, with no trace of qualification, that “it is clear that Clinton perjured himself [in denying a sexual relationship with Lewinsky and saying that they were never alone] in the Paula Jones deposition….” But no one is guilty of perjury unless his false testimony, judged as of the time it was made, was “material” to the proceedings in which it was made—that is, unless a truthful statement could properly have influenced the outcome of those proceedings. Posner himself explains the point of this materiality requirement: “In many legal settings,” he says, “including both depositions and grand jury investigations, the rules of relevance are extremely lax, which enables the questioner to inquire about activities that are at once intensely private and entirely marginal to the purpose of the inquiry”; in these circumstances, he says, the materiality condition grants an “informal ‘privilege’ to lie under oath about immaterial matters in order to protect one’s personal privacy.” Were Clinton’s lies about Lewinsky material, as Posner claims? Or were they only an exercise of this “privilege” to lie in order to avoid the “intensely personal” disclosures that the right-wing lawyers who took over Jones’s case hoped to elicit, in order to embarrass Clinton politically, but that were “entirely marginal” to the case?11

The fact that Judge Wright required Clinton to answer questions about Lewinsky does not mean that they were material: as Posner says, judges are often lax about the questions they allow in depositions. When Wright later ruled evidence about Lewinsky inadmissible, because it “would frustrate the timely resolution of this case and would undoubtedly cause undue expense and delay,” she did say that such evidence “might” be relevant, but she insisted that it was certainly not “essential” to the “core issues” of the case. In April 1999, after Clinton had been acquitted by the Senate, she fined him for contempt of court because he had lied in answering questions—for example, whether he and Lewinsky had been alone—that she had directed him to answer. But her decision did not suppose or imply that his lies were material to the case: she declared him lacking in proper respect for the “integrity of the court’s proceedings,” not guilty of perjury.12

If you were a juror asked to decide whether Clinton had sexually harassed Jones when he was governor of Arkansas, would it help you to know that, five years later, as president of the United States, he had an affair welcomed and provoked by Lewinsky? The pertinent rules of evidence would allow the later affair to be introduced in the Jones case only for one purpose: to show that Clinton tends to create a workplace environment in which subordinates are rewarded for sexual favors and punished for declining them.13 But nothing in the truth about Lewinsky even marginally supports that suggestion: she lost the White House job that she craved not just in spite of her affair with Clinton, but in order to keep her away from him, and whatever Clinton’s motives were in trying to find her a nongovernmental job, these motives did not include a reward for sex.

  1. 1

    Some of these books have had considerable influence on legal scholarship—according to a recent study, one of them, The Economics of Justice, is the fifth most frequently cited book about law written after 1977. See Legal Information Alert, Volume 18, No. 8 (September 1999).

  2. 2

    Posner, Economic Analysis of Law (Little, Brown, third edition, 1986), pp. 139-144.

  3. 3

    Posner, “An Economic Theory of the Criminal Law,” 85 Columbia Law Review 1193, p. 1199. He adds that there are other reasons for banning rape, and would presumably accept that rape should be banned, quite apart from economic theory, because it is a terrible violation of the victim. But the other reasons he lists are also economic: the fact that there are often consensual substitutes for some rapes, and that prohibiting rape would encourage some would-be rapists to engage in economically more productive activities.

  4. 4

    For a statement of this important modification in his views, see Posner, “Problematics of Moral and Legal Theory,” 111 Harvard Law Review 1637 (1998), p. 1670 and note 62.

  5. 5

    The important chapters of Problematics are an edited version of the Oliver Wendell Holmes Lectures that Posner gave at the Harvard Law School in 1997. The lectures were printed in the Harvard Law Review (see preceding footnote) together with comments by a number of scholars (including my own comment, “Darwin’s New Bulldog,” at p. 1718 and a response by Posner at p. 1796) in the same issue.

  6. 6

    The “revered national symbols” that Posner has in mind are the anterooms of the Oval Office.

  7. 7

    The accusation was denied by Secretary of Defense Cohen, a former Republican senator, who said that the raid had been planned for the day it took place for several months. “I am prepared to place 30 years of public service on the line,” he declared, “to say the only factor that was important in this decision is what is in the American people’s best interest.” The Chairman of the Joint Chiefs of Staff, Gen. Henry H. Shelton, declared that, “Militarily it was the right decision, the right date, and that decision was made back in November.” It is not credible that these officials would lie to protect Clinton. Later in the book, Posner edges closer to hinting that he believes the charge true: “I cannot find any significant intersection [of the Lewinsky affair] with the President’s executive actions until the attack on Iraq in December 1998.” Still later he writes: “The general view of Clinton is that after a rocky start he became and remained (at least until impeachment week when he bombed Iraq) a good president in the sense of effectively discharging the executive duties of his office.”

  8. 8

    Starr discussed and refused to rule out a later criminal prosecution during his impeachment testimony, and his office then declared itself considering three courses: indicting and trying Clinton while he is president, doing both after the end of his term, or secretly indicting him while president and trying him afterward. See Don Van Natta Jr., “Starr Is Weighing Whether to Indict Sitting President,” The New York Times, January 31, 1999, p. A1. For a discussion of whether a president may be prosecuted while in office, see Linda Greenhouse, “Indicting a President,” The New York Times, February 1, 1999, p. A1. Politicians who have called for a criminal prosecution include Arlen Specter, a moderate Republican senator from Pennsylvania. See Specter, “Instead of Impeachment,” The New York Times, November 11, 1998, p. A27.

  9. 9

    This canon was adapted from Rule 2(B)9 of the ABA Model Code of Judicial Conduct. That code adds the qualification, however, that comment on a pending or impending case is prohibited only when the statement “might reasonably be expected to affect [the trial’s] outcome or impair its fairness.” The US Code pointedly omits that qualification.

  10. 10

    Andrew Sullivan, “A View From the Bench,” The New York Times Book Review, September 26, 1999, p. 13.

  11. 11

    For an extended discussion of the activities of these lawyers (who included, as Posner scrupulously points out, Richard Porter, one of his former law clerks), see Jeffrey Toobin, A Vast Conspiracy (Random House, 1999).

  12. 12

    See Jones v. Clinton, 36 F. Supp. 2d. 1118.

  13. 13

    Evidence of the Lewinsky affair would not have been admissible (though Posner suggests that it would have been) simply to show that the President was willing to be fellated by subordinates. See Robert W. Gordon, “Imprudence and Partisanship: Starr’s OIC and the Clinton-Lewinsky Affair,” 68 Fordham Law Review 639 (1999). Professor Gordon concludes that Clinton’s statements in the Lewinsky deposition were not material. See also Charles W. Collier and Christopher Slobogin, “Terms of Endearment and Articles of Impeachment,” 51 Florida Law Review 615 (1999).

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