Sex, Economics, and Other Legal Matters

Judge and scholar Richard A. Posner speaks out on the Clinton impeachment, the Microsoft case, and nude dancing.

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Reason: You've complained that academics and judges don't know enough about the outside world.

Posner: The outside world is not the world of philosophical speculation. It's the world of fact. The philosophical pragmatists -- people like Rorty or Stanley Fish or some of the "crits" who considered themselves to be postmodernists -- they don't have much interest in how things actually work. There is a texture of social and economic life. It's that level of factuality that I think is important and that lawyers and judges are deficient in.

Reason: Does this have anything to do with your new book, Public Intellectuals?

Posner: It has a little bit to do with it. I guess the worst form of public intellectual activity is where the intellectual is speculating in a factual void -- maybe because he is dealing with a field that is completely unrelated to his academic work. For example, in the Times last Sunday there was a funny article about Elaine Scarry, the English professor at Harvard, who writes about plane crashes. She has this notion of a kind of electromagnetic Bermuda Triangle in the North Atlantic that keeps knocking planes off. She actually did research, and it wasn't completely ridiculous. The Times pointed out that the experts had read her stuff and didn't consider it completely crazy, but they didn't agree with it. When you write outside your field -- although I should not really throw that particular stone -- there is the temptation to write about things without the kind of factual immersion that would be necessary for responsible engagement with the issue.

In my book I make fun of Lester Thurow, an economist at MIT, who says that in the year 3000 economists will look back to our day and say this was the Age of America. Three years ago, he thought it was the Age of Japan. So he is reckless in predicting the future.

I have added to my book a few pages on the ads of the Emergency Committee of Concerned Citizens about the election. On the op-ed page of The Wall Street Journal today, there is a humorous article about the academics and the celebrities who sign these petitions. I think the ad first appeared three days after the election. It must have been done within 24 hours. It's a goofy document that asks for a revote, and University of Chicago law professor Cass Sunstein, who signed it quickly, later back-pedaled. It's quite amusing. So when academics talk outside their field, or they make predictions, or they try to respond to something current on a journalistic time scale, they can get into trouble.

Reason: In your book on the Clinton impeachment, you criticize almost everyone except for the media.

Posner: The media at first were fiercely criticized for giving currency to unfounded rumors, of which the most dramatic was the dress. But in retrospect, it did not appear that they made serious errors or displayed prejudice. I thought they did pretty well.

Reason: But everyone else messed up. What should have happened? Should the Supreme Court have allowed the case? Should Clinton have admitted the truth?

Posner: I do think the Supreme Court should not have permitted the Jones case to go forward during his term of office. I think that would have been a hard opinion to write, but they should have realized that to allow the president to be hauled into court for a sex case would be very disruptive of the government and would really exacerbate partisan passions. They could easily have told Paula Jones to wait two years. Then the case would have been settled, as it was eventually. It was a serious mistake of the Supreme Court. There were, of course, many political blunders committed by both sides. I thought the intellectuals came off as hysterical and uninformed. It was quite a donnybrook. I don't think it had any bad consequences for the country, but it was a mess.

Reason: Speaking of donnybrooks, you were attacked in The New York Review of Books by New York University law professor Ronald Dworkin, and you responded in kind. I might add that, according to Fred R. Shapiro in The Journal of Legal Studies, you are the most frequently cited legal scholar, and Dworkin is number two. Do you have anything to add to this clash of the heavy hitters? He accused you of acting unethically as a sitting judge by injecting yourself into a partisan political debate with your book on the impeachment and by drawing conclusions about Clinton's guilt when he was open to future prosecution.

Posner: I usually don't respond to criticisms, and I wouldn't have responded to this one, but I didn't like being accused of an ethical violation. You can't really be impeached for something that minor, but you can be reprimanded by your court; that has happened to judges. So I thought I should respond, lest people think that I acknowledged it.

There was a letter later by an old guy who used to be a very prominent lawyer -- maybe he still is, though he must be ancient -- named John Frank, a lawyer in Arizona. In a letter to The New York Review of Books, he said he didn't think I had committed an ethical violation -- he had a learned discussion of the esoteric issue -- but he thought I had acted in bad taste. He may very well be right. I wouldn't take any umbrage at that, but the accusation that I had actually violated the code of judicial conduct....

Reason: You were, of course, attacked on both sides for the book.

Posner: This was funny: A high school classmate of mine is the parliamentarian of the House of Representatives, and he told me that Henry Hyde wanted to meet me. So the next time I was in Washington, I called up this fellow and he brought me over. Henry Hyde regaled me with a detailed critique of my book in which he picked out every criticism that I had made of the Republicans, which turned out to be quite numerous, and he rebutted them point by point. He was very pleasant about it; he's actually a very nice person. He seemed really sharp. I didn't agree with all his criticisms, but it was interesting that he took the time to prepare a rebuttal.

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