The Age of Mixed Results
June 28, 1999
One Case at a Time: Judicial Minimalism on the Supreme Court by Cass R. Sunstein (Harvard University Press, 290 pp., $29.95) I. America now is a society addicted to legalism that has lost its faith in legal argument. The impeachment of Bill Clinton was only the most visible manifestation of this paradox.
February 08, 1999
The witnesses are coming! In their opening arguments during the impeachment trial of Bill Clinton, the House managers seemed to convince a majority of senators to call witnesses to resolve disputed factual questions. The president's lawyers responded that witnesses are unnecessary because "you have before you all that you need" to conclude that there was no basis for the House to impeach the president or the Senate to convict him.
December 14, 1998
"You have no right or authority under the law, as independent counsel, to advocate for a particular position on the evidence before the Judiciary Committee," Sam Dash wrote to Kenneth Starr last week, announcing his decision to resign as Starr's $400-an-hour ethics adviser. But Dash's frantic attempt to save his tattered reputation after Starr's appearance before the House was several months too late.
November 30, 1998
"It is either impeachment or nothing," Gary McDowell, the conservative legal scholar, told the House Judiciary Committee on November 9. "Thus, the current suggestion that Congress might censure the president is to assume a power not given by our Constitution." Many of the scholars who testified during the opening hearing of the House impeachment inquiry agreed with McDowell, but they were overstating the case against censure.
Call the whole thing off
October 18, 1998
Last weekend was the hundredth anniversary of George Gershwin's birth, and, to commemorate the event, while seeking refuge from the obscene cd-rom containing the appendices of the Starr report, I put on the Brooklyn Academy of Music's terrific recording of Gershwin's greatest political operetta, Of Thee I Sing.
A Constitutional Crisis
October 05, 1998
"There is Substantial and Credible Information that President Clinton Committed Acts that May Constitute Grounds for an Impeachment," Kenneth Starr declares in his report to Congress. But the independent counsel does not explain how, precisely, he has decided to define "acts that may constitute grounds for an impeachment." Starr clearly believes that impeachable offenses are not limited to violations of criminal law, since he includes acts, ranging from bathroom trysts to more formal exercises of executive privilege, that not even he suggests are illegal.
Take the Fourth
September 07, 1998
After his appearance before Kenneth Starr's grand jury, President Clinton said that he had answered "questions about my private life, questions no American citizen would ever want to answer." But, "as to a very few highly intrusive questions," his lawyer, David Kendall, declared, "in order to preserve personal privacy and institutional dignity," the president "gave candid but not detailed answers." Clinton appears to have followed a version of the strategy proposed by Nathan Lewin, who urged him in The New York Times last week to decline to discuss the lurid details of his affair with Monica L
In Defense of Gender-Blindness
June 29, 1998
In Harm's Way: The Pornography Civil Rights Hearings edited by Catharine A. MacKinnon and Andrea Dworkin (Harvard, 496 pp., $24.95) Heterophobia: Sexual Harassment and the Future of Feminism by Daphne Patai (Rowman & Littlefield, 288 pp., $22.95) I. In February, Yale Law School sponsored a conference to celebrate the twentieth anniversary of the publication of Catharine MacKinnon's Sexual Harassment of Working Women.
April 13, 1998
President Clinton inspired dark comparisons to Watergate last week when he invoked executive privilege to prevent his aides from testifying before Kenneth Starr's grand jury. His critics are treating the president's claim as proof that he has something to hide. "Not since Richard Nixon tried to withhold incriminating taped evidence--and was forced by the unanimous Supreme Court to respond to the subpoena of a grand jury--has a president presumed to wrap personal wrongdoing in the cloak of official business," William Safire thundered.
In Defense of Preference
April 06, 1998
The battle over affirmative action today is a contest between a clear principle on the one hand and a clear reality on the other. The principle is that ability, qualifications, and merit, independent of race, national origin, or sex should prevail when one applies for a job or promotion, or for entry into selective institutions for higher education, or when one bids for contracts. The reality is that strict adherence to this principle would result in few African Americans getting jobs, admissions, and contracts. What makes the debate so confused is that the facts that make a compelling case