Not-So-Grand Inquests

Keith E. Whittington from the January 2000 issue

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Posner never really provides a detailed analysis of the impeachment power or a firm conclusion on whether Clinton should have been impeached or removed. Given Posner's scholarly credentials, this in particular seems like a missed opportunity. Posner's conclusions about various constitutional problems raised by recent events, from the scope of the impeachment power to whether a president can pardon himself, are provocative. But the arguments are thin and the scholarship limited. Readers will learn a great deal about the impeachment and trial of President Clinton, but those interested in the history or proper scope of the impeachment power will have to look elsewhere.

Beyond a desire to explore the inter-section of sex, morality, politics, and law in the Clinton impeachment, Posner has a couple of axes to grind, and these do not provide the book's better moments. There is a prominent utilitarian streak in Posner's approach to law and economics. He has edited a volume of writings by the great judicial pragmatist, Oliver Wendell Holmes, and written a number of essays urging a more pragmatic approach to the law. As part of this offensive, Posner has been an aggressive critic of the influence of moral philosophy in contemporary jurisprudence and legal theory. The scope of Posner's indictment of constitutional theory is broad: He is as dismissive of the historical orientation of a Robert Bork or Antonin Scalia or the formalist concern with text and precedent of a William Rehnquist as the moral philosophizing of a Ronald Dworkin. In his analysis of the impeachment power or the constitutionality of the independent counsel statute, Posner is quick to dismiss original intent and legal precedent as indeterminate and irrelevant and to embark on his own political and social analysis of what really "works" and the "practical effect" of different governing arrangements. The results are rather less enlightening than his deft application of the case law regarding perjury and obstruction of justice to the president's actions.

Posner is quite skeptical of the ability of "academic practitioners of `soft' subjects in the humanities and social sciences--subjects such as moral and political philosophy, history, and law" to help resolve issues of public policy. In his view, those academics and public intellectuals who did speak out on the Clinton affair had "rather little to say that was worthwhile." Here Posner seems more than a little unfair in his selection of targets. He gives inordinate attention to NYU law professor Ronald Dworkin's claim that the impeachment was a "kind of coup" and Princeton historian Sean Wilentz's passionate testimony at the impeachment hearings. Admittedly, Dworkin and Wilentz were prominent figures in the impeachment debates, and they have invited the type of scorn that Posner heaps on them. But does their partisan hand wringing constitute "theory's debacle" and demonstrate the poverty of "academic practitioners of `soft' subjects"? Neither Dworkin nor Wilentz have any expertise in the constitutional theory or history of impeachments. Dworkin has spent his career on matters of interpretive theory and civil liberties. Wilentz made his name examining the social effects of early-19th-century industrialization.

One might reasonably question recent academic trends that have emphasized civil liberties and social history to the near exclusion of work on constitutional structure and political institutions, but that is not Posner's point. He does not challenge the public contributions of those scholars who actually had relevant expertise in the politics, history, and law of impeachments and the separation of powers, and his footnotes demonstrate his frequent reliance on their academic work. A possible exception is Yale law professor Bruce Ackerman, whom Posner criticizes precisely for backing away from his primary constitutional theory and advancing a novel argument about the illegitimacy of "lame-duck impeachments." At most, Posner shows the intellectual whiplash that can result when liberal academics rush to defend a Democratic president from all criticism. But he falls short when he switches from a social and political analysis of the culture war to a political criticism of constitutional theory.

Posner concludes his book on a somewhat pessimistic note. He does not think the Clinton scandals have damaged the moral fabric of the nation, but he does think the Clinton crisis exposed fundamental weaknesses in many aspects of the American establishment, from the government to the bar to academia. In hindsight, this assessment seems too harsh. The Clinton administration may have been seriously damaged by the impeachment (and probably appropriately so), but the rest of the nation seems to have survived all right. Posner himself demonstrates that the case against the president could have been handled better with only some modest adjustments of personnel and emphasis. In the end, Congress seems to have stumbled to the right conclusion, and the American people appear to be making an appropriate assessment of last year's events. The publication of Posner's astute analysis of the case against the president should speed that assessment along.