Judging Clinton
Tell, David
Judging Clinton Richard Posner finds the president guilty—and wonders why we should care. BY DAVID TELL Richard A. Posner, chief judge of the U.S. Seventh Circuit Court of Appeals, is that rarest...
...Flipping through An Affair of State, such a fellow will no doubt be immensely flattered to find his guesswork assumptions about the scandal endorsed—and accorded the status of high philosophical "pragma-tism"—by a whip-smart federal judge who has freshly reviewed the evidence, apportions blame across the board, and claims only to be attempting a work of "distinguished contemporaneous history" without "any hint of partisanship...
...A prudent judge descends from the "rigid formalism" of principle, precedent, and other "abstract rules," Posner advises, to make "closer engagement with the particulars" of a given case...
...But the force of even this "most powerful" argument— the crux of which Posner accepts as true—is not force enough, he declares...
...According to Posner, these conservatives hated Clinton long before anyone had heard of Monica Lewinsky...
...Both his official opinions and his voluminous extracurricular productions are shot through with uncommon erudition...
...Because, first and least, Posner is disappointed that the campaign against Clinton was what he takes to be an overheated Kulturkampf energized primarily by "moralistic conservatives...
...Arguments offered last year in the president's defense...
...We assume that our public men will decline to deprecate themselves as a uniform class of clowns—or worse—in a "comedy" of organized democracy...
...He reports without qualification, for example, that in January 1998, when Kenneth Starr's agents first confronted Monica Lewinsky, they offered her immunity from prosecution if she would "agree to record conversations with Clinton and [Vernon] Jordan...
...The movement reflected a "residuum of sexual puritanism in the United States...
...Phone sex, Posner adds, does "better yet on these dimensions...
...He also knows quite a lot...
...Mere precision—"closer engagement with the particulars" of last year's controversy—turns out not to be Judge Posner's paramount concern...
...An Affair of State is Posner's analytical excursion through the Lewinsky scandal and the political, cultural, and legal responses that scandal inspired...
...Except that Posner has in mind something vastly bolder than ratification of the existing consensus...
...The book is appalling...
...And while it is true that the great, muddled rest of the country did last year "lean against impeachment," there is no evidence that theirs was quite the coruscating pragmatism that Chief Judge Posner extols...
...And then try to recall when last a senior official used such brutal words as Posner's to describe his peers and superiors in public service...
...It is a heady mix, so much obvious talent and learning, and for casual readers of his latest book it may prove impossible to resist...
...Posner admits that the House impeachment articles against William Jefferson Clinton were fully and properly grounded in both fact and law...
...Senators as a group, he says, are "inattentive" and "biased," most all of them "neither able nor willing" to fulfill the impeachment responsibilities entrusted them by the Constitution...
...Clinton demonstrates "a radical deficiency of moral courage...
...What that concern might truly be is implicit in a second striking feature of An Affair of State: the author's spectacular impiety...
...He has no patience with either side...
...And that business with the cigar...
...In fact, some of us witless moralists did make precisely this case, at extended length, and never once in the process suggested that promiscuity was an impeachable offense...
...it simply isn't done...
...And he means to persuade us that it still won't matter...
...They might have said Clinton's behavior was a "powerful affront to fundamental and deeply cherished symbols and usages of American government, an affront perhaps unprecedented in the history of the presidency...
...So when Lewinsky finally did appear, adding adultery to the mix, these conservatives tried to expel the president from Washington purely because he was a libertine...
...House majority whip Tom DeLay, Posner says, is an "impeachment-happy" hothead...
...To which typically Posnerian charms the judge here adds an even more enticing lure: his deceptively friendly bottom line...
...We assume it because we find the suggestion insulting...
...Clinton's defenders have never dared make an argument so extreme...
...You get your law from Posner...
...jected to a sex harassment lawsuit while in office...
...These are the people who still take tourist trips to the White House, even today, and walk through its rooms in a reverent hush, without ever having been asked to keep quiet...
...Chief Justice Rehnquist is mocked in this book, no less than three times, for the clothes that he wears...
...Remind yourself that Richard A. Posner is not a wiseacre journalist or a late-night comic, but the life-tenured chief judge of a federal appellate court—a leading light of the judicial branch...
...They might have made "the most powerful case for impeachment...
...Rather outlandish theory...
...In fact, it very closely resembles the safe, dead center of respectable American opinion at the moment: Clinton is badly flawed, but the effort to remove him from office was ludicrous hysteria—pretty much what any self-respecting, vaguely au courant but politically inert New York Times subscriber already believes...
...That such crimes as the president committed in the course and aftermath of that lawsuit, while "reprehensible," should never have been investigated under the ill-conceived independent counsel statute...
...They might have said Clinton cultivated "a deep disrespect for the presidency...
...The answer is: never...
...And here the judge's contempt for Tom DeLay, William Rehnquist, and all the rest at last rises to the level of coherent theory...
...There isn't even a name for this custom in America...
...Golly...
...And Posner derides the entire Supreme Court for its "ineptitude," for its "backward-looking jurisprudence," for its "naive" and "gratuitous" rulings against presidential authority...
...We may be thankful for that, at least...
...Yet Posner all but explicitly belittles this objection as so much retrograde sentimentality...
...They might have said that Clinton "engaged in a pattern of criminal behavior and obsessive public lying the tendency of which was to disparage, undermine, and even subvert the judicial system of the United States, the American ideology of the rule of law, and the role and office of the president...
...As it happens, of course, this much is not a novel judgment...
...Which brings us to the president himself...
...Radical feminists" should welcome the president's initiative, here, as an "implicit endorsement of the dildo...
...They hated him for his positions on sex-related policy questions: abortion, feminism, homosexuality...
...There was a less philistine argument available to conservatives, Posner offers, one they could have used instead of ranting about sex, sex, sex...
...And Clinton's adultery was of the best variety...
...It is Posner's view, advanced with an air of detached bemusement, that nearly all the principals in last year's uproar— pro- and contra-Clinton—were "fools, knaves, cowards, and blunderers...
...He's only the president...
...And, no, it's not worth troubling ourselves to do anything about it...
...There is plenty of fluid prose, along with a good deal of allusive renaissancery about "the availability heuristic" and Immanuel Kant and "signaling and social-norm theory...
...Posner shreds each, in turn, with gusto...
...Really...
...But this allegation has been hotly disputed by the independent counsel's office, and its truth has yet to be established...
...Bill Clinton reminds Posner "of how tyrants exhibit their power by forcing their subjects to express agreement with lies that no one believes...
...conversation with Cur-rie occurred "before or after" the president knew Starr was investigating his relationship with Lewinsky...
...Adultery is "normative," he comforts us...
...But they didn't, Posner complains...
...They seem not yet to be as "sophisticated" as Posner imagines...
...Clinton has "character flaws weird enough to have incited a search for psychiatric explanations...
...But it is proven beyond a reasonable doubt...
...Fellatio on the side, Posner notes, is "securely contraceptive, relatively unlikely to transmit a sexually transmitted disease, and (for most men and women) less emotionally intimate than vaginal intercourse" and therefore "less threatening to a marriage...
...Clinton has only "splinters of a fractured personality...
...We still, even after 1998, do not believe that the project of American self-governance has become a vulgar and unimportant joke...
...Or a "comedy...
...Posner finds preposterous any suggestion that Clinton might be technically innocent of his alleged crimes, and he calls the claim that such charges are only rarely prosecuted an outright fantasy...
...Which Posner considers "dysfunctional...
...Lots of people make this mistake, but that's no excuse: The conversation in question took place Wednesday, January 21, 1998, many hours after Clinton had been alerted to a detailed Washington Post story disclosing Starr's new designs...
...Morality is "not central to our politics and attitudes" any longer...
...Clinton's critics, it's safe to say, will never accept such an argument...
...And why not then convict him...
...We have "attained a level of political maturity at which widespread disillusionment with the moral and intellectual qualities of our political leaders will not cause the sky to fall...
...The attacks on Ken Starr were all "slanders with no credible basis...
...Unsuspecting readers beware...
...Likewise, Posner thinks it remains "unclear" whether Clinton's second "We were never alone, right...
...One wonders how the judge can know such things for sure...
...The nation is "running nicely on autopilot just now...
...That in Clinton's subsequent House and Senate ordeal, "the pragmatist would lean against impeachment...
...And one wonders why he seems not to know certain other things...
...A cheerfully cynical realism about national politics is his preferred approach, and it thoroughly colors his review of the debate over Clinton's impeachment...
...Which would be a pity...
...That the commentary provided us along the way by pundits, lawyers, and intellectuals, in particular, was "frenzied and irrational," ignorant or dishonest...
...Connoisseurs of Lewinskyiana will thus be surprised by the extent to which, in this given case, Posner feels free to offer conclusions of fact that the public record either cannot sustain or actually refutes...
...Yes, Clinton has "defiled" the presidency...
...Clinton "flaunts his religiosity, but gives religion a bad name...
...And you get your cognitive psychology and classical sociology and history of ethics in the bargain...
...most of us "do not and should not care about preserving the dignity of his office...
...That the president should never have been subDavid Tell is opinion editor of THE WEEKLY STANDARD...
...No scholar "who had bothered to examine the history of impeachment in the United States could have written or signed" such stuff...
...Those hundreds of academics who delivered testimony and published petitions contending that tradition and the Constitution would be ripped asunder were this president removed from office—they get a swift whack of the judge's gavel...
...We are "sophisticated...
...Why would our "pragmatist" judge still "lean against impeachment...
...He is a real writer: vivid, witty, conscious of language's weave and rhythm...
...Or, more precisely, what he thinks he should believe...
...Posner says Clinton "testified falsely" when he "denied discussing with [Betty] Currie the recovery of gifts" from Lewinsky, and that he "clearly and materially lied when he said that he had never had an erotic encounter with Kathleen Willey...
...Posner calls it "plausible, though not proven" that Sidney Blumenthal was the source of slanderous gossip about Lewinsky being a deluded stalker...
...And so on...
...Seventh Circuit Court of Appeals, is that rarest thing in government employ, as in life generally...
...How could we have overlooked such virtue...
...And imagines he would believe had he paid genuine attention during the Lewinsky imbroglio and bothered to sort out the issues for himself...
...Resistance is warranted...
...And that the entire episode, which so recently appeared "a political crisis of the first magnitude," now, in retrospect, seems just a measly passing "drama...
...For in Pos-ner's eyes, our public men, the president included, might be every bit as bad as the worst you can say about them...
Vol. 5 • September 1999 • No. 1
