I’m probably not supposed to say this, but I thought that your last letter was really terrific. This is why it’s so much fun doing this with someone I like and respect, as opposed to the usual food fight. Halfway through reading it, I said to myself, hot damn, Stuart is really cooking. Which doesn’t mean you win.
You believe in principle. I believe in politics.
Here is what I learned in law school. I learned that if you push any legal question hard enough and far enough, principle turns into politics. No avoiding it. We live on the slippery slope. You and I were the best in our class at arguing both sides of every issue–but you could type faster, so you got the Fay Diploma, and I worked harder, so I got to be president of the Law Review. But we both got the game. “The Legal Process” cloaked the painful truth of legal realism in the strictures of process: stare decisis and reasoned elaboration took the place of those much-feared value choices. But Duncan Kennedy and his critical legal-scholar followers (known to us as the crits) made mincemeat of that. They took it apart piece by piece, proving that stare decisis only means that you follow the precedent except when you don’t; grant deference only when you do. Whose freedom of contract? What’s freedom?
I can do a better or worse job of making the argument. I can marshal points more or less effectively. Depending on the issue, you have more or less to work with. How I do it will almost surely help me persuade some people, although as presidential debate responses make clear, we tend to be convinced by the person/idea that we agree with. But when I’m fighting myself on something I know something about, no one ever wins. Like cases should be treated alike, but what makes two cases alike? What differences matter? I fight it to a standoff. And then I pick. Don’t you?
Remember Duncan’s plan. Since there is no such thing as objective merit, since it’s all politics, the janitor should make as much as the professor; admission should be by lottery, the little red book. He took everything apart and then left it there.
The fact that it ends up at politics means that how we do our politics matters. That’s where Duncan and I really parted company, and where I part company with Michael Kelly and many of our friends whose principles lead them to tear everything down and take no responsibility for rebuilding it.
But first, the rule of law. I believe the rule of law is essential to our being able to live together. It’s not a set of answers, but a way of getting them, or at least explaining them, that provides legitimacy to our decisions and affirms our faith in each other. Because I believe in the rule of law, I give Paula Jones her day in court, although I very much disagree with her. Everybody gets a day in court. If I’m pretending to be the judge (as I never would be, being happily unconfirmable), I would try to apply the same rules to her that I would if it was Anita Hill’s turn. I would try to think about the case not simply as a choice of whom I like most, but a question of what the rules should be for everybody, because I very much believe that the only way we can all live together is if we all strive to live by the same set of rules, and then trust each other to enforce them (you can tell where I live). But that’s still politics. Sexual harassment is defined according to the reasonable person, or, in the 9th Circuit, the reasonable woman. Who is she? What is the line between reasonable and unreasonable, and who gets to draw it?
Fifteen years ago, women would tell me stories of sexual harassment that would make your hair stand on end. You didn’t worry too much about drawing the line on the other side: That was the argument of the conservative judges against recognizing even the worst forms of abuse as illegal. Now I hear a mix of stories, a real mix, and sometimes I find myself explaining to young women that if they don’t like something a man is doing, they have a responsibility to say no, and to cool their jets a little bit about Playboy, and that if they’re flirting with a guy and he comes on to them, it’s not entirely his fault.
Which takes me to sexual autonomy, the only semifirm ground I can find, my best political compromise for a diverse and heterogeneous crowd. I don’t think you can prohibit sex (see the Army), and I don’t think there’s a consensus–or at least not one I share–about what’s OK and what isn’t. So I get to autonomy, my principle, a political compromise. As you report her story, when Paula Jones made clear, with words, that the advances were unwelcome, her autonomy was respected. He told her that he didn’t want her to do anything she didn’t want to do, and that if she got in trouble for being late, he would take care of it. It’s hard for me to think of another case of alleged sexual harassment where a rejected man reassures the woman that it is her choice, and that no adverse consequence will follow from saying no. In my book, that is the opposite of sexual harassment.
By my principle, the key issue in comparing the Jones and Hill situations is not how many square inches of body parts were allegedly revealed, but whether the men charged knew that the woman found the advances unwelcome and pursued them anyway. The number of corroborating witnesses doesn’t much matter if the charges, assuming they’re true, don’t amount to a lawful wrong. I’m not in the consensual sex business. What always troubled me about Anita Hill’s account was that I thought he was having fun tormenting her, that he seemed to take advantage of those beneath him. So my rule of law is to protect autonomy–which I will no doubt stick to until something so offends all of us that we say, the hell with the slippery slope, this is bad and we know it when we see it. And whether there are five votes on the Supreme Court to hold it up will depend on what it is and who has been president for the preceding four or eight years.
But as I said, I try to be honest. And I wouldn’t be honest if I said that I sat down and looked at these two cases simply as occasion to apply Susan Estrich’s rule of sexual autonomy. I’m not a judge, and, fortunately, not inclined to be one. I am person who is blessed with whatever skills and talents I have, with a strict but unknown limit on how long I’ll get to use them. I do my best. Not perfect, by a long shot. Everybody needs a lawyer, but they don’t need me. More column ideas in most weeks–more things to be outraged or happy or sad about–than there’s room for. How to pick? I know I can tear things, people, institutions down. I can find girls in almost every politicians’ past; I can find money with dubious sources in every campaign coffer; and I can find buckets full of broken campaign promises wherever I look.
Build or destroy? Fix or wallow? What is important, and what isn’t?
The week before I spoke to my daughter’s first-grade class, I was on a panel at the Reagan Library, and they gave me all kinds of paraphernalia for the kids–which was lucky, because the Dole campaign had none to give, and the Clinton campaign was only selling theirs. I told the students that President Reagan was a decent man doing what he thought best for his country, even though I disagreed with many of his decisions. Am I wrong?
I believe in the possibility of people finding common ground, and I believe that no one understands politics as compromise and common ground better than Bill Clinton. In a diverse country in which the resort to name-calling (we don’t disagree, or say that someone is wrong, we say that they’re racist or sexist or insensitive, which is sometimes true and sometimes a cop-out, but never moves an argument forward) is automatic, and the pursuit of wedge issues passes for the doing of politics, I think the pursuit of common ground is itself a value, in addition to being the only way for anyone left of the right to win.
I don’t blame Clinton for signing that disgusting gay-marriage bill–although I thought it a needless bunch of hateful demagoguery by Paula Jones’ friends. Turning gay marriage into an issue in this campaign would’ve been as smart as launching your administration with gays in the military. Was Thurgood Marshall a hypocrite for realizing that you begin the attack on legal segregation with law schools, not elementary schools? A political judgment. A strategic call. A first step. A compromise. (As for vetoing the partial-birth abortion bill, don’t get me started. … Well, you have. Do you trust women so little to think that they would abort their babies at six or seven months because they changed their minds? I talked to a woman last weekend–it would’ve been her due date–who had what some would call a “partial-birth abortion” because the doctors found, at six months, that her baby had no brain, among other defects “inconsistent with life.” How dare anyone tell her what she can and can’t do? How dare they not allow an exception for the health of the mother? This woman was a Catholic and a Republican, and she voted for Clinton.)
We took our kids to vote with us on Election Day. I told my children that Bill Clinton was a good man, not a perfect one but a good one, doing his best in a difficult job, and that most of the time, I agreed with him, and hoped he would succeed, and that I believe the country will be better off if he does. I teach my children to respect the president. I do. Do you?
All the best,