Dworkin, polemics, and the clinton impeachment controversy

Northwestern University Law Review

Volumn 94, Issue 3, 2000, Pages 1023-1047

  Posner, Richard A ^a  

^a NONE

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EID: 0041408782     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (148)

1. See. e.g., RONALD DWORKIN, LAW'S EMPIRE (1986); Ronald Dworkin, In Praise of Theory, 29 ARlZ. ST. L.J. 353 (1997) [hereinafter Dworkin, Praise].
2. See. e.g., RONALD DWORKIN, LAW'S EMPIRE (1986); Ronald Dworkin, In Praise of Theory, 29 ARlZ. ST. L.J. 353 (1997) [hereinafter Dworkin, Praise].
3. See RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999) [hereinafter POSNER, PROBLEMATICS]. This book is based in part on the 1997 Oliver Wendell Holmes Lectures, which were published in the Harvard Law Review. See Richard A. Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637 (1998) [hereinafter Posner, Holmes Lectures].
4. See RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999) [hereinafter POSNER, PROBLEMATICS]. This book is based in part on the 1997 Oliver Wendell Holmes Lectures, which were published in the Harvard Law Review. See Richard A. Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637 (1998) [hereinafter Posner, Holmes Lectures].
5. See RICHARD A. POSNER, AN AFFAIR OF STATE: THE INVESTIGATION, IMPEACHMENT, AND TRIAL OF PRESIDENT CLINTON (1999) [hereinafter POSNER, AFFAIR OF STATE].
6. Ronald Dworkin, Philosophy & Monica Lewinsky, N.Y. REV. OF BOOKS, March 9, 2000, at 48 [hereinafter Dworkin, Philosophy].
7. See Ronald Dworkin, The Mistakes Were Posner's. Not the Scholars' (visited February 26, 2000) 〈http://www.nybooks.com/nyrev〉 [hereinafter Dworkin, Mistakes]. The date of my visit is important to note, because the contents of an Internet posting can be changed at any time without indication that a change has been made.
8. See Ronald Dworkin, Posner's Charges: What I Actually Said 〈http://www.nyu.edu/gsas/dept/ philo/faculty/dworkin〉 [hereinafter Dworkin, Posner's Charges]. I have not visited this website; Professor Dworkin faxed me a copy of this posting on February 22, 2000, and if he has made any subsequent changes in the posting, I am not aware of them.
9. See "An Affair of State": An Exchange, N.Y. REV. OF BOOKS, April 27, 2000, at 60. Dworkin's response, published in the same issue, will be referred to hereinafter as Dworkin Replies. A revised version of my half of this exchange has been incorporated into this Article.
10. Maimon Schwarzchild, Book Review, 108 ETHICS 597, 599 (1998) (reviewing RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE CONSTITUTION (1996)).
11. Maimon Schwarzchild, Book Review, 108 ETHICS 597, 599 (1998) (reviewing RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE CONSTITUTION (1996)).
12. See POSNER, AFFAIR OF STATE, supra note 3, at 233-41.
13. See Floyd Abrams, et al., An Appeal to the U.S. Congress and the Public, N.Y. TIMES, Oct. 7, 1998, at A21 [hereinafter An Appeal].
14. Id.
15. Id.
16. Id.
17. Ronald Dworkin, A Kind of Coup, N.Y. REV. OF BOOKS, Jan. 14, 1999, at 61 [hereinafter Dworkin, A Kind of Coup].
18. Id.
19. Id.
20. Id.
21. Id.
22. See Dworkin, A Kind of Coup, supra note 14, at 61. Dworkin's anxiety about the markets was needless, for on the day on which the effort to finesse the trial collapsed (January 6, 1999), the stock market reached its all-time high. It remained at or near that level throughout the trial.
23. Id.
24. Id.
25. See POSNER, AFFAIR OF STATE, supra note 3, at 238.
26. Dworkin, A Kind of Coup, supra note 14, at 61.
27. There is further hyperbole in the expression "elected by all the people." President Clinton was elected by a minority of the minority of American adults who bothered to vote in the two elections in which he ran for President Of course one knows what Dworkin means. But one might have expected more precision and less polemic from a legal academic.
28. Andrew Johnson was a Democrat, running with Republican Abraham Lincoln in 1864 on the "Unionist" ticket.
29. Ronald Dworkin, The Wounded Constitution, N.Y. REV. OF BOOKS, March 18, 1999, at 8 [hereinafter Dworkin, Wounded Constitution].
30. See U.S. CONST., art. 2, § 4 ("The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.")
31. Dworkin, Wounded Constitution, supra note 26, at 8-9.
32. Id. at 9. Whether the President can pardon himself has never been determined, but I argue in An Affair of State that he probably can. See POSNER, AFFAIR OF STATE, supra note 3, at 107-08.
33. Dworkin, Wounded Constitution, supra note 26, at 9. I discuss this point at length; see POSNER, AFFAIR OF STATE, supra note 3, at 59-94.
34. Dworkin, Wounded Constitution, supra note 26, at 9. I discuss this point at length; see POSNER, AFFAIR OF STATE, supra note 3, at 59-94.
35. Dworkin, Wounded Constitution, supra note 26, at 9. See POSNER, AFFAIR OF STATE, supra note 3, at 50-51.
36. Dworkin, Wounded Constitution, supra note 26, at 9. See POSNER, AFFAIR OF STATE, supra note 3, at 50-51.
37. Dworkin, A Kind of Coup, supra note 14, at 61 (quoted in POSNER, AFFAIR OF STATE, supra note 3, at 237).
38. Dworkin, A Kind of Coup, supra note 14, at 61 (quoted in POSNER, AFFAIR OF STATE, supra note 3, at 237).
39. H.R. Rep. No. 105-830, at 135 (1998).
40. See Dworkin, Philosophy, supra note 4, at 49.
41. See supra text following note 16.
42. Dworkin, Mistakes, supra note 5.
43. Id.
44. Id. (citing POSNER, AFFAIR OF STATE, supra note 3, at 191-93).
45. Id.
46. See Dworkin, Dworkin Replies, supra note 7, at 49.
47. See Dworkin, Dworkin Replies, supra note 7, at 62.
48. That is the definition in Webster's Third International Dictionary. The difference between "im-pending" and "imminent," as is apparent from Dworkin's discussion of other dictionaries' definitions of "impending," see Dworkin, Dworkin Replies, supra note 7, at 62 n.1), is not proximity in time, but that the first has an overtone of menace that the second lacks. I am happy to accept the Oxford English Dictionary as "authoritative," though it is, of course, authoritative for English rather than American usage. It defines "impending" as "about to fall or happen; 'hanging over one's head'; imminent; near at hand." When I wrote An Affair of State, the prosecution of President Clinton was not near at hand; it still isn't. Dworkin cites the Merriam-Webster Dictionary as distinguishing "impending" from "imminent"; my edition, the Merriam-Webster's Collegiate Dictionary, does not define "impending" at all. Dworkin says that the American Heritage Dictionary gives as one meaning of "impending" "to menace," and this is correct, but he neglects to add that the first definition it gives is "to be about to take place."
49. Recall that when President Clinton was impeached, Dworkin regarded the prospect that he might be prosecuted in the ordinary way with equanimity, arguing that a regular criminal court was the proper forum for appraising the charges against the President. Now that Clinton has been acquitted by the Senate, Dworkin expresses horror at the prospect that he might be prosecuted in the ordinary way - while at die same time comparing the President to "a suspected gangster" and implicitly denying the existence of any exculpatory evidence that the Starr Report might have overlooked. See Dworkin, Dworkin Replies, supra note 7, at 62 and n.4.
50. POSNER, AFFAIR OF STATE, supra note 3, at 7 n. 13.
51. Dworkin, Dworkin Replies, supra note 7, at 62 n.6. For a contrasting view by a constitutional scholar on the bearing of the First Amendment on judicial speech, see Erwin Chemerinsky, Is It the Siren's Call? Judges and Free Speech While Cases Are Pending, 28 LOY. L.A. L. REV. 831 (1995).
52. Dworkin, Dworkin Replies, supra note 7, at 62 n.6. For a contrasting view by a constitutional scholar on the bearing of the First Amendment on judicial speech, see Erwin Chemerinsky, Is It the Siren's Call? Judges and Free Speech While Cases Are Pending, 28 LOY. L.A. L. REV. 831 (1995).
53. Or, for that matter, their friends. The New York Times Book Review, for example, asks prospective reviewers whether they are friends or enemies of the author of the book to be reviewed.
54. See Dworkin, Philosophy, supra note 4, at 51 n.20.
55. See Ronald Dworkin, The Bork Nomination, N.Y. REV. OF BOOKS, Aug. 13,1987, at 3.
56. See Dworkin, Philosophy, supra note 4, at 50.
57. Ronald Dworkin, The Bork Nomination, N.Y. REV. OF BOOKS, Aug. 13, 1987, at 3.
58. See Ronald Dworkin, Bork: The Senate's Responsibility, in FREEDOM'S LAW, supra note 8, 265. Dworkin accused Bork of having "no constitutional philosophy at all," id. at 267, well knowing that Bork had a fully articulated philosophy, but one antipathetic to Dworkin's. Dworkin said that "Bork's views do not lie within the scope of the longstanding debate between liberals and conservatives about the proper role of the Supreme Court. Bork is a constitutional radical who rejects a requirement of the rule of law that all sides in that debate had previously accepted." Id. at 265. Bork wishes to replace the constitutional tradition with "some radical political vision that legal argument can never touch." Id. "His principles adjust themselves to the prejudices of the right." Id. at 275. Dworkin ended the piece with the following rhetorical question: "Will the Senate allow the Supreme Court to become the fortress of a reactionary antilegal ideology with so meager and shabby an intellectual base?" Id.
59. See Dworkin, Philosophy, supra note 4, at 48.
60. Dworkin, Philosophy, supra note 4, at 48, n.2. He cites the third edition, though the fifth was published two years ago. But there are no relevant changes. Compare RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 167-70 (5th ed. 1998), with id. at 139-43 (3d ed. 1986) (he incorrectly cites pp. 139-44).
61. Dworkin, Philosophy, supra note 4, at 48, n.2. He cites the third edition, though the fifth was published two years ago. But there are no relevant changes. Compare RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 167-70 (5th ed. 1998), with id. at 139-43 (3d ed. 1986) (he incorrectly cites pp. 139-44).
62. Elisabeth M. Landes and Richard A. Posner, The Economics of the Baby Shortage, 7 J. LEG. STUD. 323 (1978).
63. See POSNER, supra note 53, at 170.
64. Dworkin, Philosophy, supra note 4, at 48 (quoting POSNER, PROBLEMATICS, supra note 2, at 21).
65. Dworkin, Philosophy, supra note 4, at 48 (quoting POSNER, PROBLEMATICS, supra note 2, at 21).
66. Id. at 48.
67. Id.
68. See POSNER, AFFAIR OF STATE, supra note 3, at 36, 200-07.
69. David Tell, Judging Clinton, WEEKLY STANDARD, Sept. 20, 1999, at 34; Gary L. McDowell, Lacking Conviction, TIMES LIT. SUPP., Nov. 19, 1999, at 28.
70. David Tell, Judging Clinton, WEEKLY STANDARD, Sept. 20, 1999, at 34; Gary L. McDowell, Lacking Conviction, TIMES LIT. SUPP., Nov. 19, 1999, at 28.
71. Dworkin, Philosophy, supra note 4, at 51.
72. POSNER, AFFAIR OF STATE, supra note 3, at 173 (quoted in Dworkin, Philosophy, supra note 4, at 48.
73. POSNER, AFFAIR OF STATE, supra note 3, at 173 (quoted in Dworkin, Philosophy, supra note 4, at 48.
74. To call it "extreme even by partisan standards," as Dworkin does, see Dworkin, Philosophy, supra note 4, at 48 (emphasis added), will strike anyone who followed the controversy as absurdly hyperbolic.
75. POSNER, AFFAIR OF STATE, supra note 3, at 174.
76. See Dworkin, Philosophy, supra note 4, at 48 n.7.
77. See POSNER, AFFAIR OF STATE, supra note 3, at 30.
78. See supra text accompanying note 62.
79. See Dworkin, Philosophy, supra note 4, at 48 n.6.
80. See POSNER, AFFAIR OF STATE, supra note 3, at 157.
81. See id. at 167-69.
82. POSNER, AFFAIR OF STATE, supra note 3, at 91-92 (emphasis added, footnote omitted).
83. Dworkin, Philosophy, supra note 4, at 48 (quoting POSNER, AFFAIR OF STATE, supra note 3, at 202).
84. Dworkin, Philosophy, supra note 4, at 48 (quoting POSNER, AFFAIR OF STATE, supra note 3, at 202).
85. See, for example, United States v. Kross, 14 F.3d 751, 755 (2d Cir. 1994), one of the cases cited by Dworkin. See Dworkin, Philosophy, supra note 4, at n.14. Although the cases formulate the test for materiality in slightly different ways, even the formulation in the only case he cites that found against the government on the issue of materiality is broad enough to encompass the President's false denial of sexual relations with Lewinsky. It is "whether a truthful statement might have assisted or influenced the tribunal in its inquiry." United States v. Adams, 870 F.2d 1140, 1147 (6th Cir. 1989).
86. Dworkin, Philosophy, supra note 4, at 49.
87. Up until the scandal broke, Clinton had refused to settle. Settling would have made it unnecessary to lie, but Clinton wanted the case dismissed and no doubt thought that telling the truth would reduce the likelihood of a dismissal.
88. See Ronald Dworkin, Anita Hill and Clarence Thomas, in FREEDOM'S LAW, supra note 8, 321, 327-28.
89. Dworkin, Dworkin Replies, supra note 7, at 64.
90. Dworkin continues to ignore this point See id. at 64n, 13.
91. See Dworkin, Philosophy, supra note 4, at 50.
92. See POSNER, AFFAIR OF STATE, supra note 3, at 33-34.
93. See id. at 39-40.
94. Dworkin, Philosophy, supra note 4, at 50.
95. See POSNER, AFFAIR OF STATE, supra note 3, at 46-47.
96. See id. at 36-55.
97. 18 U.S.C. § 1622 (cited in POSNER, AFFAIR OF STATE, supra note 3, at 43 n.46). Dworkin's review argues that another statute, 18 U.S.C. § 1512, does not forbid subornation of perjury. That is irrelevant, given the express subornation statute, § 1622. It is also wrong, because § 1512, too, forbids suborning perjury. See 18 U.S.C. § 1512(b); United States v. Morrison, 98 F.3d 619, 629-630 (D.C. Cir. 1996); United States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996). Some earlier cases hold the contrary, but they predate a 1988 amendment that dispelled any doubt on this score. 86 Dworkin, Dworkin Replies, supra note 7, at 64.
98. Dworkin, Philosophy, supra note 4, at 50.
99. He must be referring to the November 6, 1998 letter that I discuss; see POSNER, AFFAIR OF STATE, supra note 3, at 241. He doesn't mention that he was one of the signers.
100. Dworkin, Philosophy, supra note 4, at 51.
101. POSNER, AFFAIR OF STATE, supra note 3, at 241 (quoting letter) (emphasis in original).
102. See Dworkin, Philosophy, supra note 4, at 52.
103. Id.
104. He has taken me to task for not replying to the Internet posting in my letter to the New York Review of Books, and has expressed the "hope [that I] will find another occasion to do so." Dworkin, Dworkin Replies, supra note 7, at 65).
105. Dworkin, Posner's Charges, supra note 6 (quoting POSNER, PROBLEMATICS, supra note 2, at 287).
106. Dworkin, Posner's Charges, supra note 6 (quoting POSNER, PROBLEMATICS, supra note 2, at 287).
107. Id.
108. RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 22 (1990).
109. Dworkin, Posner's Charges, supra note 6 (quoting POSNER, PROBLEMATICS, supra note 2, at 116-17).
110. Dworkin, Posner's Charges, supra note 6 (quoting POSNER, PROBLEMATICS, supra note 2, at 116-17).
111. Id.
112. Dworkin, note 6 above, at 263.
113. POSNER, PROBLEMATICS, supra note 2, at 136 (citing Ronald Dworkin, Darwin's New Bulldog,
114. HARV. L. REV. 1718, 1729n.43 (1998).
115. Id.
116. POSNER, PROBLEMATICS, supra note 2, at 24 n.26 (construing Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF. 87, 120 (1996)).
117. POSNER, PROBLEMATICS, supra note 2, at 24 n.26 (construing Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF. 87, 120 (1996)).
118. Dworkin, Posner's Charges, supra note 6 (citing
119. POSNER, PROBLEMATICS, supra note 2, at 76 n. 141).
120. Richard A. Posner, Reply to Critics of "The Problematics of Moral and Legal Theory", 111 HARV. L. REV. 1796, 1797-98 (1998).
121. DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIèCLE) 127-28 (1997) (footnotes, and paragraph break before "Hercules," omitted). That closeness commends Dworkin to Kennedy, who says he would support Dworkin for the Supreme Court.
122. POSNER, PROBLEMATICS, supra note 2, at 113 (citing Dworkin, Praise, supra note 1, at 375).
123. Dworkin, Posner's Charges, supra note 6.
124. The phrase appears in the article version of the Holmes Lectures. See Posner, Holmes Lectures, supra note 2, at 1695.
125. See POSNER, PROBLEMATICS, supra note 2, at 19 (quoting Dworkin, supra note 101, at 121).
126. Dworkin, Posner's Charges, supra note 6.
127. On which see Aristotle, Politics, in The Complete Works of Aristotle, vol. 2, pp. 1986, 1989-1992 (Jonathan Barnes ed. 1984) (B. Jowett trans.) (p. 1253, col. b, 1. 1, to p. 1255, col. b, 1. 39, in the standard Greek translation of Aristotle's works).
128. See Posner, Holmes Lectures, supra note 2, at 1700 (citing Ronald Dworkin, Reply, 29 Ariz. St. L. J. 432, 433 (1977) [hereinafter Dworkin, Reply]).
129. See Posner, Holmes Lectures, supra note 2, at 1700 (citing Ronald Dworkin, Reply, 29 Ariz. St. L. J. 432, 433 (1977) [hereinafter Dworkin, Reply]).
130. See Dworkin, Posner's Charges, supra note 6.
131. Id.
132. POSNER, PROBLEMATICS, supra note 2, at 150 (quoting DWORKIN, FREEDOM'S LAW, supra note 8, at 75).
133. POSNER, PROBLEMATICS, supra note 2, at 150 (quoting DWORKIN, FREEDOM'S LAW, supra note 8, at 75).
134. See Dworkin, Posner's Charges, supra note 6.
135. Dworkin does not give a citation for this attribution. It is PROBLEMATICS, supra note 2,158n.l37.
136. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 198 (1977).
137. Dworkin, Posner's Charges, supra note 6.
138. DWORKIN, supra note 117, at 197-98.
139. Id. at 198.
140. POSNER, PROBLEMATICS, supra note 2, at 253.
141. Dworkin, Posner's Charges, supra note 6 (citing Dworkin, Reply, supra note 111, at 431).
142. Dworkin, Posner's Charges, supra note 6 (citing Dworkin, Reply, supra note 111, at 431).
143. See Dworkin, Reply, supra note 111, at 435-36, 442.
144. Id. at 442 n.33.
145. For a fuller discussion, see RICHARD A. POSNER, AGING AND OLD AGE 322-28 (1995).
146. Seee Posner, Holmes Lectures, supra note 2, at 1643.
147. See POSNER, PROBLEMATICS, supra note 2, at 8 n.7.
148. Id. at 240.