Book Notes - Posner

by Carolyn Dane

Three works by Richard A. Posner

An Affair of State: The Investigation, Impeachment, and Trial of President Clinton
Harvard University Press, 1999

Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts
Princeton University Press, 2000

Public Intellectuals: A Study in Decline
Harvard University Press, 2002

Richard A. Posner is a lawyer's lawyer. He brings more legal knowledge, facts uncolored by political partisanship, and good sense to the legal issues of our time than anyone else you are likely to read or listen to. He is Chief Judge, U.S. Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

A friend of mine, an appellate lawyer who introduced me to Posner in the course of a debate wherein I was defending Robert Bork and the "original intent" school of Constitutional law, says that if the president and senate were to be sensible, Posner would be installed into the the next Supreme Court vacancy by unanimous acclamation. It will never happen, since Posner has written so prolifically that anyone can find something with which to disagree. He is also much quoted: a search on his name at the amazon website yields 3183 results.

An Affair of State: The Investigation, Impeachment, and Trial of President Clinton untangles the imbroglio we all remember so vividly. Here is the beginning of Posner's summing up:

"The public life of the nation in 1998 and the first six weeks of 1999 was dominated by President Clinton's struggle to retain his office. The struggle was deeply and not merely pruriently or dramatically interesting, though it was high drama - Wagnerian in intensity and protraction, with wonderful actors, the Clintons, in the lead roles, a supporting cast of hundreds, dramatic revelations aplenty (the tapes, the dress, the sex lives of Republican Congressmen), a splendid libretto by Kenneth Starr, a Greek chorus of television commentators; plus hapless walk-ons, clandestine comings and goings, betrayals, suspense, reversals of fortune, hints of violence (supplied by the Clinton haters), a May-December romance as it might be depicted by an Updike or a Cheever, a doubling and redoubling of plot, a Bildungsroman, even allegorical commentary (the movies Primary Colors and Wag the Dog) and a touch of comic opera (Chief Justice Rehnquist's costume out of Iolanthe). It was the ultimate Washington novel, the supreme and never to be equaled expression of the genre and the proof that truth is indeed stranger than fiction.

"But putting its entertainment value to one side, are we better or worse off for the experience? It is too soon to tell; it is especially premature to say that we are worse off."

Along with a chronology and a cast of characters, Posner provides his brilliant analysis of Clinton's character and that of the supporting cast, of the strengths and errors of the prosecution and the defense, and many related issues. He provides his considered opinion without sneering at those who disagree. He points out that most of the commentators rounded up by the news media (Alan Dershowitz being the type specimen) were woefully incorrect as to the interpretation of the law and the likely consequences of events.

Posner covers the second big legal controversy of our recent past in Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. He describes and analyzes the ballot controversies, and the character and actions of the Florida Elections Commission, the Florida Supreme Court, Jeb Bush, the U.S. Supreme Court, and the media commentators. He points out that the number of votes separating the two candidates was smaller than the expected margin of error for counting ballots. While he finds some fault with the U.S. Supreme Court (the reasoning more than the outcome), he points out that it was operating under extraordinary time constraints, and forgives the justices accordingly. He makes recommendations for preventing such crises in the future. If you have been confused by any aspect of the whole brouhaha, this is the place to get the details straight.

Posner's frustration with the commentators in both of these political crises provides the focus of Public Intellectuals: A Study in Decline. He concludes that it's a good thing we read or listen to these folks mostly for entertainment or for solidarity with our political allies, rather than to make decisions that affect our lives, because their record of accuracy is extremely poor. The subset of public intellectuals who are academics, and thus theoretically should know whereof they speak - at least when they are speaking in their area of expertise - is particularly poor. And of the academics, the law professors tend to be the worst (or perhaps they are just the ones Posner is best equipped to dissect). The juicy part of this book is the lists of public intellectuals, ranked by number of net searches for the general commentators, and by number of citations for the academics, so you can see the rankings of the prognosticators you delight in, and the ones you love to hate.

For those of you who would have argued with me in favor of Bork and original intent, I must say that I moderated my position considerably after reading Posner's Overcoming Law. If you'd like to be challenged thereon, it is well worth reading. And for anyone with an intelligent layman's interest in legal issues, I would recommend browsing through amazon's list of the amazon Posner entries. Intriguing titles that I plan to get to in the near future are Sex and Reason, and Law and Literature.

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