While the national fixation on President Clinton’s impeachment has given way to ennui, Richard A. Posner sees that year-long struggle as "the most riveting chapter of recent American history."
     
And now Posner — who is chief judge of the U.S. Court of Appeals for the 7th Circuit, in Chicago, and one of the nation’s most accomplished and prolific legal scholars — has written the most thoughtful and evenhanded analysis to date of the legal and political crisis. His book — An Affair of State: The Investigation, Impeachment, and Trial of President Clinton — is to be published in September by Harvard University Press.

With a candor and a biting wit that may jar those who like their federal judges dull and decorous, Posner cuts through the sometimes priggish moralizing of conservative Republicans as well as the partisan cant of liberal Democrats to expose "the failure of the judiciary, the political establishment, the Congress, the legal profession, and the academic community to cope with a novel challenge."

The 266-page narrative offers no revelations. But Posner’s only "source" — the public record — provides what he calls "an enormous challenge to one’s powers of judicious reflection." And while most readers will disagree (as I do) with some of his conclusions, his analyses of the major points in controversy will be edifying to anyone with an open mind.

Posner is often misleadingly branded "conservative" because he was put on the bench by President Reagan (in 1981) and has been the leader of the "law and economics" movement, which holds that law should be shaped by free-market economic theory and cost-benefit analysis. But, in fact, the 60-year-old former University of Chicago law professor is basically a pragmatist with wide-ranging interests and erudition.

To the New Jersey Supreme Court and The New York Times editorial page, the refusal of the Boy Scouts of America to accept avowed homosexuals as Scouts or Scout leaders is a simple matter of "bigotry" — and illegal bigotry at that.
     
To other judges and legal scholars (as well as to the Boy Scouts), it is a matter of First Amendment freedom of association: In their view, states and judges may not force a private, quasi-religious group (like the Scouts) that considers homosexual conduct immoral to admit gays. By designating openly gay adults as Scout leaders, say the Boy Scouts, they would muddy the message they send to youngsters.

To anyone who (like me) supports gay rights, and would like the Boy Scouts to admit gays voluntarily — but who also believes in what Justice Oliver Wendell Holmes Jr. called "freedom for the thought that we hate" — the New Jersey lawsuit that may be headed for the U.S. Supreme Court is a hard case.

Do the Scouts have a constitutional right to expel a (hypothetical) 14-year-old boy merely because, on being asked, he admits to having homosexual desires? I would say no, because expulsion would be not only hard on the kid but hardly necessary; to keep the boy would not amount to a symbolic endorsement of homosexuality. Should the Scouts be able to expel a (hypothetical) scoutmaster who has urged his young charges to try engaging in homosexual conduct with one another? I would say yes.

How about an assistant scoutmaster who has proudly become a gay activist in college but has not sought to discuss matters sexual with the Scouts? That’s the New Jersey case, brought by former Eagle Scout James Dale.

It’s easy for conservatives to view with delight all seven of the major Supreme Court decisions since 1992 that have breathed new life into states’ rights. It’s also easy for liberals to view them with dismay.
     
The Court’s own alignments invite ideological polarization: Every one of these states’ rights rulings has been decided by the same 5-4 vote, with the more conservative Justices in the majority and the more liberal ones in dissent.

Still, there is persuasive support among scholars for the view that neither the stock liberal nor the stock conservative approach to issues of federalism has a monopoly on wisdom.

Harvard Law School professor Laurence H. Tribe, a leading liberal, and his conservative colleague Charles Fried, the former Reagan Administration solicitor general, disagree on many things, including some aspects of the Court’s seven-year march down the states’ rights road.

But Tribe and Fried agree on this much: The Court has been on the right track in some of its rulings advancing states’ rights and curbing congressional powers, but has gone too far in others. The Court’s mistakes (in their view, and mine) include the three big June 23 decisions barring most private lawsuits that seek money damages for state violations of acts of Congress — even in cases in which the states have chosen to become competitors in the commercial marketplace, and in which their immunity amounts to an unfair advantage over private competitors, if not an invitation to lawless conduct.

A striking bipartisan consensus has emerged in the House of Representatives on the need to fix one aspect of the ”war” against drugs that has ravaged the lives and liberties of millions of Americans over the past 25 years.

This consensus was reflected in the June 24 vote, 375-48, to reform the draconian laws authorizing prosecutors and police to confiscate and forfeit money and property suspected of involvement in drug dealing and certain other crimes–and to keep the seized assets, in many cases, even after the owners have been exonerated of all charges.

But when it comes to an even more noxious product of the drug war–the barbaric federal and state sentencing laws that have helped triple since 1980 the number of incarcerated Americans, to almost 1.9 million–only 25 of Congress’s 535 members have gotten it right so far.

They are Rep. Maxine Waters, D-Calif., and the 24 others (mostly Congressional Black Caucus members) she has lined up to co-sponsor a bill to abolish the federal laws that establish mandatory minimum sentences for drug offenses.

These legally irrational, morally bankrupt statutes, together with their counterparts in the states, have led to the long-term incarceration of small-time, nonviolent offenders by the hundreds of thousands. They have been driven through Congress by a bipartisan stampede in every election year since 1986, as Democrats (including some of those Black Caucus members) have vied with Republicans in a game of phony-tough one-upmanship, with Presidents Reagan, Bush, and Clinton eagerly jumping onto the bandwagon.

Vice President Gore signaled his intention to be part of the problem, not the solution, in a July 12 speech proposing still more mandatory sentences (”tougher penalties”) for all kinds of crimes, along with various (more heavily publicized) gun controls.

The more than 200,000 asbestos lawsuits pending around the nation are proceeding very nicely, in the view of the Association of Trial Lawyers of America–whose members are collecting contingency fees by the billions–and Congress should leave well enough alone.

”The courts are well equipped to handle the pending and future asbestos cases that will require trial,” Richard Middleton of Savannah, the ATLA’s president-elect, assured the House Judiciary Committee at a July 1 hearing on a bill designed to move asbestos compensation claims out of the courts. ”A litigation crisis, as that term is usually understood, does not exist.”

All nine Supreme Court Justices disagree. And the Justices’ three opinions in Ortiz vs. Fibreboard Corp., on June 23, lay down a challenge that Congress should not evade.

”The elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation,” Justice David H. Souter wrote for the Court, while setting aside as multiply flawed a $ 1.5 billion class action settlement of as many as 186,000 potential claims against one company.

The asbestos litigation miasma ”cries out for a legislative solution,” Chief Justice William H. Rehnquist added in a concurrence. Justices Stephen G. Breyer and John Paul Stevens argued in dissent that the class action settlement should have been upheld. But they emphatically agreed that the courts have been overwhelmed by the sheer number of asbestos claims, which raises the specter of ”delay and expense so great as to bring about a massive denial of justice.”

Breyer and Stevens noted in particular a study showing that ”attorney’s fees and other ‘transaction costs’ . . . consume an estimated 61 cents (of each dollar paid by asbestos defendants), with only 39 cents going to victims.”

The "bold conservatism of the Rehnquist majority" (to borrow from a June 27 front-pager in The Washington Post) was once again a dominant theme in news coverage of the Supreme Court’s annual end-of-term June rush.
     
There is some truth in such characterizations. The five more-conservative Justices have boldly moved the law to the right in a few areas — especially in the three 5-4 decisions on June 23 expanding (unduly, in my view) states’ rights.

But the "conservative" label does not really fit such decisions as the three on June 22 limiting the class of people who can sue employers (and others) for alleged violations of the nine-year-old Americans With Disabilities Act. As is indicated by the 7-2 votes in two of those cases (not to mention the 9-0 vote in the third), other concerns — transcending the usual ideological categories — were at work.

The reality is that the Court has only three consistent conservatives — Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas — and that these three prevail in close cases only when they stick together and are joined by both of the moderates at the Court’s center, Justices Sandra Day O’Connor and Anthony M. Kennedy.

That is what happened in just over half of this year’s 5- 4 decisions. But there was nothing very conservative about many of the others, including those striking down (by 7-2) a California law limiting welfare benefits for newly arrived residents; voiding (by 6-3) a Chicago anti-gang ordinance as giving police too much power to arrest innocent people for failing to disperse when so ordered; subjecting school districts (by 5-4) to federal lawsuits for "deliberate indifference" to "severe and pervasive" student-on-student sexual harassment; and striking down (unanimously) a federal law barring broadcast advertising for casino gambling.

When I read the Washington Post story about trial lawyers ”gearing up to mount a major assault on the former makers of lead paint,” with city and state officials around the country as their clients, an Oliver Cromwell quote came to mind.

”You have (been) too long here for any good you have done,” Cromwell told the Rump Parliament in 1653. ”Depart, I say, and let us have done with you. In the name of God, go!”

The entrepreneurial lawyers who have gotten very, very rich by targeting whole industries–first asbestos, breast implants, contraceptives, tobacco; now guns, computers; next paint, HMOs, liquor, food, chemicals–have done some good in their time. The grave health risks posed by asbestos, for example, and the documentation of the vile and devious tactics employed by the tobacco companies as they addicted and poisoned their customers, were exposed in large part by the efforts of trial lawyers.

But as they have become bolder and richer–and especially as they have teamed up with state and local officials in search of easy revenues–the trial lawyers (with the help of judges and juries) have imposed ever-greater costs on us all in lawsuits that bring ever-fewer benefits.

Take the lawyers’ new plans to seek recovery of government money spent to remove lead paint from housing and other costs associated with lead paint poisoning. Any liabilities will be imposed on companies whose current managements have never sold the stuff. (Lead paint was outlawed nationally in 1978 and widely discontinued long before.) And by the time the liabilities have been spread around–through insurance, higher paint prices, and the like–the costs will have little impact on the profits of any corporate malefactors. Rather, they will ripple through the whole economy.

Contrary to recent publicity, insists Deputy Assistant Secretary Arthur L. Coleman, No. 2 in the Education Department’s Office for Civil Rights, his office is not trying to scare educators out of using standardized tests. Nor, he says, is Education trying to force perpetual use of racial preferences in admissions at America’s elite colleges.

Coleman seems a sincere and idealistic fellow, and I take him at his word. But whatever his office’s intent, the draft policy manual that it circulated to educators last month is, to be blunt about it, a pretty scary document.

The draft — titled "Nondiscrimination in High-Stakes Testing: A Resource Guide" — is to be issued in final form this fall, after comments by interested groups (among them the College Board and the National School Boards Association) are considered. The guide should prompt Congress to hold oversight hearings on whether the Administration’s reading of our civil rights laws is at odds with efforts by school systems and universities around the country to measure and compare individual students’ academic achievement and potential, the better to make informed placement and admissions decisions and to raise academic standards.

The draft guide, cast in politely intimidating language, is a jarring blend of tendentious and confusing legal analysis. Its message to college admissions officers, and to state and local school administrators who use standardized tests in local schools to, say, place students in special-education programs and to determine if a student is qualified for a high school diploma, is essentially this:

Such episodes as a North Carolina grammar school’s much- mocked suspension of a 6-year-old boy for kissing a 6-year-old girl on the cheek, in 1996, may become more commonplace thanks to a well-intentioned but ill-conceived May 24 Supreme Court decision.

Of course, that was not what Justice Sandra Day O’Connor intended when she wrote the 5-4 decision holding that schools (and universities) that receive federal money can be sued for damages for "deliberate indifference" to the need to protect their students from serious harassment.

But sexual harassment lawsuits have proved to be a juggernaut of unforeseen destructive power — helping some victims, but taking a heavy toll on privacy, freedom of expression, and normal human relationships — since the Court authorized them in the workplace 13 years ago.

Justice Anthony M. Kennedy may have exaggerated in writing for the four dissenters that the decision, Davis vs. Monroe County Board of Education, would produce a "flood of liability," potentially "crushing" school districts. But even if the liability does not reach flood stage, the ruling could do far more harm than good.