If you’re the New York Times and the story is the alleged gang rape of a black woman by three white Duke lacrosse players–a claim shown by mounting evidence to be almost certainly fraudulent–you tone down your rhetoric while doing your utmost to prop up a case that’s been almost wholly driven by prosecutorial and police misconduct.

And by bad journalism. Worse, perhaps, than the other recent Times embarrassments. The Times still seems bent on advancing its race-sex-class ideological agenda, even at the cost of ruining the lives of three young men who it has reason to know are very probably innocent. This at a time when many other true believers in the rape charge, such as feminist law professor Susan Estrich, have at last seen through the prosecution’s fog of lies and distortions.

The Times took its stand in a 5,600-word, Page One reassessment of the case on Aug. 25, written by Duff Wilson, a sportswriter responsible for much of the paper’s previous one-sided coverage, and Jonathan Glater. The headline was “Files From Duke Rape Case Give Details But No Answers.”

Like the headline, the piece cultivates a meretricious appearance of balance. But its flaws are so glaring that it was shredded by bloggers within hours after it hit my doorstep. They were led by a Durham group called Liestoppers and by KC Johnson, an obscure but brilliant New York City history professor of centrist political views. Johnson alone has produced more insightful (if sometimes one-sided) analysis and commentary on the Duke case–about 60,000 words–than all the nation’s newspapers combined.

The Wilson-Glater piece highlights every superficially incriminating piece of evidence in the case, selectively omits important exculpatory evidence, and reports hotly disputed statements by not-very-credible police officers and the mentally unstable accuser as if they were established facts. With comical credulity, it features as its centerpiece a leaked, transparently contrived, 33-page police sergeant’s memo that seeks to paper over some of the most obvious holes in the prosecution’s evidence.

This memo was concocted from memory, nearly four months after the underlying witness interviews, by Durham police Sgt. Mark Gottlieb, the lead investigator. Gottlieb says he took no contemporaneous notes, an inexplicable and indefensible police practice. Gottlieb had drawn fire before the alleged Duke rape–perhaps unbeknownst to the Times–as a Dukie-basher who reveled in throwing kids into jail for petty drinking infractions, noise violations, and the like, sometimes with violent criminals as cellmates.

Gottlieb’s memo is contradicted on critical points by the contemporaneous notes of other police officers, as well as by hospital records seeming to show that the accuser did not have the injuries Gottlieb claims to have observed. The Times blandly mentions these contradictions while avoiding the obvious inference that the Gottlieb memo is thus unworthy of belief.

It is almost entirely on this Gottlieb memo that the Times rests its summing-up fifth paragraph:

[A]n examination of the entire 1,850 pages of evidence gathered by the prosecution … shows that while there are big weaknesses in [District Attorney Mike] Nifong’s case, there is a body of evidence to support his decision to take the matter to a jury.

A sly formulation. Whoever thought it up chose to focus on the legalistic question of whether Nifong can avoid having his case being thrown out before trial, while glossing over the more important question as to whether any reasonable prosecutor could believe the three defendants to be guilty and force them through the risk, expense, and trauma of a trial.

With all or almost all of the key prosecution evidence now public, the answer to that latter question is no. What we have here is an alleged 30-minute gang rape, plus brutal beating, taking place in a small bathroom by three men without condoms, at least two of whom supposedly ejaculated; a rape in which police found none of the defendants’ DNA on the supposed victim and none of hers in the bathroom. While the Times asserts that “experts say it is possible for a rapist to leave no DNA evidence,” it’s hard to imagine the crime alleged to have happened here leaving none.

The accuser first claimed rape while in the process of being involuntarily committed to a mental-health/drug facility as a danger to herself or others. Soon after her release to the hospital for a rape exam, she recanted the charge. Then she re-recanted and offered a succession of wildly inconsistent stories.

The other exotic dancer at the lacrosse party initially told police that they had been apart no more than five minutes and the rape claim was a “crock.” (She later hedged after Nifong gave her favorable treatment for a probation violation.)

The 23 pages of hospital reports by two doctors and four nurses show no vaginal or anal tearing, no significant bruises or signs of beating, and no visible injuries other than minor scratches on her knee and heel and a mild swelling of the vaginal walls that could have come from consensual sexual activities, including performing with a vibrator.

She identified none of her alleged attackers in two photo viewings. Then, on April 4, Nifong arranged an outrageously suggestive, pick-any-lacrosse-player session that grossly violated local and state rules and (in my view) the U.S. Constitution. She picked three, of whom at least one since-indicted defendant, Reade Seligmann, has an airtight alibi, including a video showing him at an ATM a mile away at the time of the supposed rape.

The Times piece mentioned most of this exculpatory evidence but understated its cumulative weight and gave unwarranted credence to contrary evidence of dubious credibility, such as the Gottlieb memo.

This fits the Times’s long-standing treatment of the case as a fable of evil, rich white men running amok and abusing poor black women. Sports columnist Selena Roberts helped set the tone in a March 31 commentary seething with hatred for “a group of privileged players of fine pedigree entangled in a night that threatens to belie their social standing as human beings.” All but presuming guilt, Roberts parroted false prosecution claims that all team members had observed a “code of silence.” (A correction ran six days later). She likened them to “drug dealers and gang members engaged in an anti-snitch campaign.”

The Aug. 25 Wilson-Glater piece is more measured in tone, but ultimately it’s equally off-base. A few of many possible examples:

Accuser’s inconsistent stories: The accuser told police and hospital personnel at least five inconsistent stories of being raped by five, three, two, and zero men (depending on the version). But the Times asserts that “aside from two brief early conversations with police, she gave largely consistent accounts of being raped by three men in a bathroom.”

Consistent? Just about the only consistent theme was her eventual settling on three attackers, while variously denying and then alleging that she was hit or kicked.

On March 14 the accuser told a sexual-assault nurse that the other dancer, Kim Roberts, had helped a lacrosse player drag her back into the party house to be raped and “took all my money and everything.” But on April 6, in her only written police statement, she claimed that “three guys grabbed” Roberts and “separated us … while we tried to hold on to each other.”

Identifying assailants: When Sgt. Gottlieb and Det. Benjamin Himan visited the accuser on March 16, Himan’s handwritten notes had her describing her rapists as (respectively) “chubby,” having a “chubby face,” and weighing “260-270.” These descriptions match none of the three subsequently indicted defendants and could not possibly refer to one, Collin Finnerty, who is 6-foot-4, thin, and baby-faced.

Enter Sgt. Gottlieb: In his only account of the same interview–prepared four months later, remember–the accuser’s descriptions contradict those recorded by Himan but miraculously match the three now-defendants almost perfectly.

Again, the Times notes the contradiction but avoids the obvious inference: Gottlieb’s version was made up to fit the defendants. That’s the only way to explain another fact omitted by the Times: Gottlieb’s police team did not include a photo of Finnerty–the only team member who fits Gottlieb’s account of a “baby-faced, tall, lean” rapist–in the 36 photos shown to the accuser later on March 16 and on March 21. Nor did she pick Seligmann and Evans until the rigged April 4 session, when she said she would be 90 percent sure that Evans had raped her if he had a mustache–which he has never had.

Medical evidence: The 23 pages of hospital reports described above, which offer little or no evidence of rape, are a crippling weakness in Nifong’s case.

Enter Sgt. Gottlieb again. The Times treats as established fact his memo’s less-than-credible claim that the sexual-assault nurse told him on March 21 that the accuser had been subjected to “blunt force trauma” consistent with a sexual assault. The piece also glosses over the contradiction between her supposed statement to Gottlieb and her own report. Under “Describe all signs of physical trauma,” she listed only nonbleeding scratches on the accuser’s right knee and heel.

DNA and innocence: The article quotes half a sentence from Nifong’s March 23 application for an order to obtain DNA samples from the 46 white lacrosse players–”Mr. Nifong’s office had written that the tests would ‘show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.’ “–while omitting the first half: “The DNA evidence requested will immediately rule out any innocent persons.” Nor did the article explain how blatantly Nifong was to contradict this assurance after learning the DNA results.

Condoms, date rape: The Times cites Nifong’s suggestion in early April that the reason no semen had been found might be the use of condoms. It fails to explain how deceptive this was: Nifong’s own files showed the accuser saying her rapists had not used condoms and that she had spat semen onto the floor.

The article also mentions police speculation that the lacrosse players might have slipped the accuser a date-rape drug to incapacitate her. And Joseph Cheshire, Evans’ lawyer, noted in a recent e-mail exchange with me that the prosecution “has suggested to the media numerous times in the past that the accuser had been given such a drug.” Another deception? “A toxicology report that the defense was informed of last week was negative for any date rape drug in the accuser’s system,” Cheshire tells me.

Cheshire adds that the Times’ strong implication that defense lawyers have deceived the public is not only false but “especially ironic in an article about a prosecutor who has and continues to deceive the public about his case.”

Nifong must be praying for jurors as easily deceived–or as willing to see past the evidence to what they want to believe–as Wilson and Glater of the Times.

The post Witness for the Prosecution? appeared first on Stuart Taylor, Jr..

Election 2000–with the Republican-controlled Florida Legislature in open revolt against the Florida Supreme Court, with top Republicans in Washington trashing the Florida court as a bunch of political hacks, with top Democrats intimating the same of the 5-4 U.S. Supreme Court majority that stopped the Florida court’s manual recounts in an interim order Saturday, with some of the justices themselves lobbing thinly veiled charges of hypocrisy back and forth–has been a disaster for the judiciary’s image (at least in some circles) as politically impartial. The election aftermath may also have started a cycle that could destabilize the rule of law for years to come by launching a new era of warfare between imperial judges and other branches of government. The backlash against the Florida judges–and against others across the nation who are deemed to have usurped legislative and executive powers–will reverberate for a long time, in ways both foreseeable and unforeseeable.

Perhaps I should disclose my point of view: Speaking as one who opposes the death penalty, supports fairly liberal access to abortion and legislative recognition of gay partnerships, has never voted for a Republican presidential nominee, and whose views on many issues are closer to those of President Clinton than of George W. Bush, I am not agnostic about who is right and who is wrong in this.

In my view, the Florida Supreme Court’s majority–not the U.S. Supreme Court–has betrayed its trust and done grave damage to the rule of law. The Florida court’s stunning 4-3 decision on Friday looks like (even if it is not) a near-indefensible act of partisanship designed to flip a presidential election by commanding a rushed, chaotic, patently unfair manual recount process under circumstances virtually guaranteed to detract from–not to perfect–the accuracy and credibility of the final outcome. I say this as someone who would have supported a timely Gore request (say, a month ago) for a statewide manual recount, assuming the Florida courts could devise strict rules to minimize subjectivity, guesswork, and partisan bias in vote-counting.

But at this late date, the dissent by Florida Justice Major B. Harding, joined by Justice J. Leander Shaw, seems irrefutable: “Even if such [a statewide] recount were possible, speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote total achieved under such chaotic conditions.” Harding seemed to hint that the majority had slyly loaded the dice: “In effect, the majority is allowing the results of the statewide election to be determined by the manual recount in [majority-Democratic] Miami-Dade County because a statewide recount will be impossible to accomplish.”

By the way, the dissenters, including Chief Justice Charles T. Wells–who said the decision “has no foundation in the law of Florida as it existed on Nov. 7”–were all appointed by Democratic governors, as were the other four Florida justices. Those inclined to disagree with the dissenters might ask: Would the Florida court’s majority have shredded so many legal norms and plunged the nation into so unnecessary a crisis had it been George W. Bush asking for more last-minute manual recounts to put him over the top? Would the three dissenters have been so eloquently passionate had this been an even-handed effort to count all valid votes? Would the liberal aristocracy whose views predominate on the New York Times editorial page (not to mention its front page) be complaining so indignantly that the U.S. Supreme Court should stay out and mind its own business if this were an all-Republican supreme court in a Southern state working furiously to push Bush over the top?

But I digress. Back to the backlash forecast: It will be spearheaded by conservatives, who have long been outraged at liberal judicial legislation on issues including abortion, religion, and race, and who have noticed that the current Supreme Court–long labeled “conservative” in the media–is considerably more liberal than public opinion on issues including partial-birth abortion, religion, and gay rights. The backlash will also win qualified support from centrists who (like me) consider judicial legislation an unhealthy way to make policy even when we like the results. This in turn could provoke a tit-for-tat response from some liberals, who have already begun attacking the U.S. Supreme Court for sweeping aside liberal legislation and who now seek to delegitimize its apparent determination to check the Florida court’s reckless adventurism.

In Florida and elsewhere, conservatives will push to make state judges at all levels more responsive to public opinion by subjecting them more and more to contested elections, complete with the sleazy fund raising and demagogic campaign ads that already pollute some judicial elections. The bubbling movement to circumvent or even defy such U.S. Supreme Court rulings as the one barring student-led prayer at high-school football games could come to a boil. In Washington, it may become virtually impossible for judicial nominees who are not ciphers to win Senate confirmation. And we may see a new era of congressional–and perhaps presidential–efforts to strip the federal courts of power to decide issues such as school prayer and partial-birth abortion.

Judicial supremacy in all things has long been taken as a given by many liberals and others who think the law is whatever the judges say it is (just as they used to see the independent-counsel statute as a great idea, until it started chewing up Democrats). Hence the knee-jerk denunciations by editorial writers and others of the Florida Legislature’s moves to reclaim its exclusive mandate under the U.S. Constitution to determine the manner of choosing presidential electors. But others (including me) ask: What are we supposed to do when courts entrusted with insuring the rule of law betray that trust? When willful judges make up laws to suit their politics in the guise of interpretation?

When carried to extremes, this is the very definition of a constitutional crisis, for there is no way for other branches of government to respond that is free from danger. If they are cowed into acquiescence by court-worship, we drift toward illegitimate judicial tyranny. But if they defy the judiciary, chaos could ensue. That’s why judicial self-restraint is far more than a conservative cliché. It is a tattered but vital tradition in which we all have an enormous stake.

This is hardly the first usurpation of legislative and executive power by state and federal courts in recent decades. The California Supreme Court strained the limits of sophistry to strike down every death sentence it could during the reign of Chief Justice Rose Bird. The Vermont Supreme Court last year invented a state constitutional right to gay quasi-marriage. Such usurpations have become so common as to seem almost unremarkable.

While judicial legislation has come mostly from the left in recent decades, and the backlash from the right, it has not always been thus. “The Constitution … is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please,” Thomas Jefferson said in 1819, in one of many complaints about Chief Justice John Marshall’s muscular assertions of judicial power. Marshall won that argument: He has gone down in history as the greatest chief justice.

Another president, Abraham Lincoln, won a historic argument with another chief justice, Roger Taney, when Lincoln made sustained attacks on the court’s infamous 1857 Dred Scott decision, which held that black slaves were not citizens and had no rights under the Constitution. “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made,” Lincoln said in 1861, “the people will have ceased to be their own rulers.” The Civil War and postwar constitutional amendments threw Dred Scott on the ash heap of history–at fearsome cost.

Later came Franklin Delano Roosevelt’s legendary battle with the then-conservative court. By striking down major New Deal laws, the “nine old men” sent Democrats into a rage about judicial imperialism. “The Court,” FDR said in 1937, “has improperly set itself up as … a superlegislature … reading into the Constitution words and implications which are not there, and which were never intended to be there.” Although FDR’s court-packing plan failed, the justices beat a strategic retreat. And FDR was able to remake the court by appointing seven new justices between 1937 and 1941.

It is sometimes debatable where heroic judicial statesmanship leaves off and judicial imperialism begins, especially in the wake of the Warren Court’s bold 1954 decision striking down state-sponsored school segregation. Court-ordered desegregation infuriated many Southerners and troubled leading scholars who felt the Constitution gave no mandate for a court to take so a momentous a step. But the justices, fortified by unanimity, found their mandate in the emerging consensus that American apartheid was a great evil. By taking the lead on racial justice, the court–and other courts around the country–amassed a vast stock of moral capital. This has helped sustain their prestige through many less justifiable (or at least more debatable) exercises in activism in the ensuing 46 years. The Warren Court’s example has also inspired many state Supreme Courts to get into the judicial legislation game themselves.

But the current spectacle–a state court trying to reverse the outcome of a presidential election by rewriting the vote-counting rules–is unprecedented. And the Florida court has reached a new zenith of judicial arrogance, seeming even to thumb its nose at the U.S. Supreme Court. It issued Friday’s shocker without even bothering to respond to the unanimous U.S. Supreme Court decision four days previous vacating its earlier (Nov. 21) pro-Gore decision in a closely related case. The nine justices had remanded that case to the Florida court with instructions to think again before changing the rules after the election–and, this time, to pay attention to the U.S. Constitution and laws. The Florida court also all but ordered a statewide manual recount by some 60 counties that were not even parties to the case. Such a naked assumption of judicial power is almost unheard of.

The three dissenters’ criticisms went largely unanswered, probably because no good answers exist. The decision “has no foundation in the law of Florida as it existed on Nov. 7,” wrote Chief Justice Wells. “I have a deep and abiding concern that the prolonging of the judicial process in this counting contest propels this country and state into an unprecedented and unnecessary constitutional crisis. … Judicial restraint in respect to elections is absolutely necessary because the health of our democracy depends on elections being decided by voters–not by judges.” Quoting a professor’s observation that “the margin of error in this election is far greater than the margin of victory, no matter who wins,” Wells concluded: “Further judicial process will not change this self-evident fact and will only result in confusion and disorder.”

In other words, this is not a case of judges boldly sweeping away legal technicalities in pursuit of fairness. The Florida court’s decision is not only lawless but also patently unfair. The recounts so far have involved shifting and unreliable standards for interpreting dimpled chad, inconsistencies from county to county and even within Miami-Dade County, and flagrantly biased chad-interpretation by Broward County’s Democratic vote-counters. The Florida court has done nothing to cure these violations of due process in the new counts it has ordered.

The purported goal has been to vindicate “the will of the people,” but this process measures mainly the will of the vote-counters. And the Florida court’s purported devotion to the will of the people seems strangely selective. On Sept. 7, for example, it struck down an amendment to the state constitution, adopted by 73 percent of the voters, that was designed to curb the court’s own power to prevent executions. The less-than-plausible rationale: The voters had been confused by the ballot language.

Unless reversed by the U.S. Supreme Court, the Florida court risks getting such respect as it deserves from the state legislature and from Republicans in Congress. Our tradition of acquiescing even in highly controversial judicial decisions is vital to the stability of our society, and the backlash against the Florida court is dangerous. But the alternative may be to let unelected politicians on the bench pick our president by a margin of a single vote. In this matter, at least, the Florida Legislature and Congress owe no deference to a lawless state court.

The rule of law is not the rule of judges and lawyers. Judicial imperialism threatens the very stability that we habitually seek to preserve when we acquiesce in court decisions that we find wrong or even outrageous. The Florida court has sown the wind. Wiser heads at the U.S. Supreme Court may yet save us from reaping the whirlwind. Here’s hoping (if a bit forlornly) that they can find a way to do it unanimously.

The post The Dangers of Judicial Hubris appeared first on Stuart Taylor, Jr..

Dear Stuart:

What timing.

Here we are, back at Slate, just in time for the President to settle the Paula Jones lawsuit. The unthinkable becomes a footnote. What a difference a year can make. If he’d settled it before his January deposition, none of this would have happened. All he had to do was say he was sorry for whatever it was that he couldn’t remember, and then explain the next day that he said it to protect his friends, family, etc. from the intrusion on their privacy….

Which leads me to my favorite question. Why didn’t he settle before testifying? How could his lawyers have ever let him go into that deposition, if they’d known how vulnerable he was? Here he is being sued for allegedly demanding a blowjob from a 24-year-old employee, and you know your client had a secret relationship involving blowjobs with another 24-year-old employee would you let him go into a deposition? Not to mention the independent counsel down the block, the media, your political enemies, etc.

The only explanation that makes sense to me is that the lawyers didn’t know the truth–that they thought Monica Lewinsky was a stalker with a crush, that it was handled, under control. The lawyer who represents himself has a fool for a client; he loses the objective judgment that the lawyer is supposed to provide. Bill Clinton didn’t want to tell his lawyer (and/or his wife) the truth about his relationship with Monica Lewinsky, and because of that, he’s had to tell the world….

But does the world care?

The President received a three-minute standing ovation last night at a fundraiser at the home of Power Rangers producer Chaim Saban, who now works for Rupert Murdoch. All told, he raised $4 million in the last 3 days. He is the best fundraiser Democrats have, still. It is not the picture of a man on the verge of impeachment. What is going on in Washington hardly seems real when you leave it….

I know. We have permission to talk of other things this week. I’m clipping, I really am. But I keep coming back to this. This is what the country and the world are doing right now. It is the international soap opera.

I know you respect Ken Starr. But tell me. Are you at all troubled by the kind of investigation his office conducted? By the precedent it sets? By the atmosphere of sexual “gotcha” that it’s created?

I don’t want to know about Henry Hyde’s past, or anyone else’s. But I think for now, it’s all fair game, and my guess is that there are some pretty nervous folks on Capitol Hill, and maybe even in the news media. All I can say is that I’m happy to be an old married lady at the breakfast table with you….

Best, Susan

PS Someone said last night that if Edward Bennett Williams had still been alive, he’d have asked Betty Currie if she thought the President ought to settle that lawsuit….

From: Stuart Taylor Jr.
Subject: Testosterone Charged Males
Posted Monday, Sept. 28, 1998, at 4:52 PM ET

Dear Susan:

Ah, the Big He again.

I had rather hoped that, in keeping with the scrambling of gender roles that keeps life interesting these days, you would have started off with a learned disquisition (a la George Will) on the solemn rhythms of the great game of baseball that have brought us to the historic home-run hysteria now consuming the country. I could then have confessed that, being a busy soccer mom, and having had my fan’s heart broken by the Phillies’ swan-dive in the 1964 pennant race (when you were too young to care), I haven’t the time or interest to follow the fatuous feats of testosterone-charged male maulers of little spheroids.

All true. And yet, I must confess that when I saw the New York Times headline about Mark Whatshisname hitting the magic 70, my sentimental regret for the eclipsing of the great Ruth-who looks rather like a sad-faced Baby Huey to Whatshisname’s muscle-bound Batman-was tinged by a momentary desire to be in awe of Whatshisname. Then I read the first paragraph, in which Mark McGwire (I’ve got that down for now) said: “I’m in awe of myself right now.” That spoiled it for me. Guess I’m old-fashioned.

Then I picked up The Washington Post and found, on page A6, the photo of the day: the Rev. Jesse Jackson standing hand-in-hand (above heads) with two other grinning males, one of whom was identified as “the Rev. Jerry Falwell.” Quickly I raced through the article-which said that Jackson was weighing yet another campaign for the presidency–to find out whether this was some other Rev. Jerry Falwell. But no, it was the one we have all known and loved since long before he helped put out the scurrilous “Clinton Chronicles.” Falwell and Jackson had united in the interest of helping Appalachian mineworkers in some unspecified way (which presumably would not include considering any applications that they might send to prestigious colleges on a colorblind basis).

I’m all for that, but in the politics-makes-strange-bedfellows department, I ask you to guess: Which of these reverends was quoted saying of Bill Clinton in 1992: “I know who he is, what he is. There’s nothing he won’t do. He’s immune to shame. Move past all the nice posturing and get really down in there with him, you find absolutely nothing…nothing but an appetite”?

If you guessed: The same one who was dispatched by the White House this January to volunteer his ministering to presidential secretary Betty Currie, perhaps to rescue her from any temptation to tell Kenneth Starr’s prosecutors the unvarnished facts, while instructing her on Larger Truths; the same one who subsequently accompanied the President and Currie and Bruce Lindsey on a tour through Africa; and who more recently has been seen shuttling between the private-healing-process in the White House family quarters and every TV talk show on which he could publicize his role in that process-you win.

Which brings us back to Big He. A hard subject to avoid, these days. To respond to some of your points: He could, of course, have settled the Paula Jones lawsuit the day before it was filed in May 1994 with some kind of non-apology apology and zero dollars. Instead, he dispatched his taxpayer-paid propagandists to smear her as trailer-trash and to utter such now-proven whoppers as “he was never alone in a hotel with her.” He could have settled it for $750,000 or so and some kind of apology before his deposition. He could have gone into his Jan. 17 deposition and refused on principle (and perhaps on the basis of a Fourth-Amendment privacy right claim) to answer any questions about alleged consensual affairs, and could then have appealed Judge Susan Webber Wright’s order that he answer such questions.

Instead, he did the same thing that he did when Gennifer Flowers showed up in 1992, and when his draft-evasion history started leaking, and when people asked him about pot-smoking, and when he promised a politically popular middle class tax cut, and when he pledged four months ago that he would not allow Serbian strongman Slobodan Milosevic to commit in Kosovo the kind of atrocities that had been perpetrated in Bosnia: He lied.

He not only lied to the judge, lied to his Cabinet, lied to his aides, lied to the nation, lied to the grand jury, and is lying still. He also lied to his lawyers, it now seems clear. At least, if he didn’t lie to them, they should be disbarred for knowingly sponsoring perjured testimony. And when you say (as is commonly said). “How could his lawyers have ever let him go into that deposition?” I am tempted to remind you that the President was not working for Bob Bennett; Bennett was working for him. Clinton, not Bennett, knew the true facts. Clinton, not Bennett, decided not to offer a settlement that Paula Jones would accept. I know that it is a common conceit to speak in terms of what lawyers “let” their clients do, but I think it an odd one, especially when then client is the most powerful man in the world and a former law professor with a steel-trap mind to boot.

Does the world care? Some of it does. Time will tell whether there are enough of us until-now-Democratic voters who will never vote for any Democrat who rallied to the defense of President Clinton to make a difference. Perhaps the Democratic Party will do fine; perhaps it will follow Clinton to its own destruction. In the meantime, multi-millionaire Hollywood types and legal shakedown-artists like Clinton’s trial-lawyer friends still love him, perhaps because lying is first-nature to many of them too, perhaps because they benefit financially from their association with him. My guess is that the fact that lots of liberal Democratic journalists (and others) in Washington find Clinton’s conduct far more serious than the not-very-trustworthy polls suggest is true of many other Americans and reflects the fact that Washington journalists have paid closer attention to the details, as it is their job to do.

Liberal Democrats did not advocate government by poll and plebiscite when the issues were (say) what the Supreme Court or Congress should do about school segregation, or civil rights legislation, or racial preferences, or abortion, or Miranda rights; why do they advocate it now? Why not wait, at least, until the public has had a chance to absorb the detailed facts and their legal and moral implications through the impeachment process before assuming that transient poll samples represent the popular will?

As to my view of Starr: As I’ve said before, I think his partisan Republican ties made him the wrong person (if only as a matter of appearances) for this job, especially in light of his lack of prosecutorial experience. And I’ve been critical of some serious mistakes that I think he’s made, such as failing to put the pornographic portions of his report into a sealed appendix and failing to quote more conspicuously such exculpatory facts as Monica Lewinsky’s statement that “nobody ever asked me to lie.” I also think House Republicans (and Democrats too) are being too partisan. But on the whole, I think that Starr has been professional in handling a dirty job that-under the Independent Counsel Statute-somebody had to do, in the face of demagogic smears by people like Hillary Rodham Clinton; most of his mistakes warrant criticism not on grounds of any unfairness to the President (I’ve seen little or none of that), but on the ground that Starr has hurt himself, and allowed the Clinton camp to divert attention from the relevant facts, by being blind to appearances.

I really am not very troubled by Starr’s investigative methods. Since I am afraid I’ve gone on too long, why don’t I defer elaborating on why I’m not troubled by Starr’s conduct until you advise me what, exactly, you think should trouble me.

Best, Stuart

From: Susan Estrich
Subject: I Better Switch To Tea
Posted Monday, Sept. 28, 1998, at 5:27 PM ET

Dear Stuart:

You are eloquent as always, and it leaves me so deeply saddened. That you and I should be disagreeing over this and not fighting together for something–that this is what our country is doing, with the relief provided by the drug-induced Mr. McGwire (how do you explain that one to your kids?)–leaves me feeling impoverished by the state of our politics.

The President lied. He is still trying to avoid saying he did so in ways that would imply that he is guilty of any felonies. Cue Ball Carville or whatever he calls himself is back with his act, while Dick Morris holds forth on Drudge. It promises to go on and on. I hate it.

This is not a fight I would choose, not one I want, not one I think will produce any winners. But on the question of impeachment, which this has unbelievably risen to, I think Starr’s report does not support it. You’re right that he lied, and that he has lied before; but it is also the case that many men lie about sexual relationships, and that we have known about this flaw in this man since we elected him. We elected him anyway, and the results of that election should not be overturned by a prosecutor pursuing an investigation that most prosecutors would have deemed at the start to be going nowhere that they would go, in other words, not to be leading to a prosecutable offense. Starr’s report is the case at its worst, and it’s not a case for impeachment. That is a judgment the country should make; it is a poll sensitive judgment precisely because the founders entrusted it to the House, and then the Senate, not the Courts. Even the Chief Justice who sits in the Senate presides, but doesn’t rule. As for the facts, which I’ve had plenty of, they turn out to be, in some respects, better for the President than I thought; which is to say, her behavior is even worse. Young feminists who were the champions of sexual power are now cringing at what it looks like in practice; if this is how you sleep your way to the top, maybe we should go back to trying to earn it. But we’re not going to change anybody’s mind on this, which I think is the significance of the polls.

Jesse Jackson. What can I say? What is the state of black leadership in America today?

Last month, Mayor Willie Brown compared Justice Clarence Thomas to the Ku Klux Klan in calling for black groups to shun him as a speaker. In a speech to an organization of black sociologists, Brown said that the group would never invite a Klan leader, and that Thomas’ views represented “legitimizing of the Ku Klux Klan.” Brown said Justice Thomas “must not be allowed any comfort from any of us…. He should be reduced to talking to only white conservatives.” Brown’s criticism followed the controversy at the National Bar Association, where Judge Higginbotham led the protest arguing that Thomas should not have been invited…I asked my research assistant to see if she could find any black leaders, or liberals, who had criticized Brown? Guess what?

So what next? Does Gore watch the World Series with Jackson?

My kids go to an amazing diverse private school in Los Angeles, which is full of successful blacks. Every day at drop off, I see more successful blacks than many white professionals do in a month. But here’s the thing I always notice. None of them are in politics. They’re in sports, business, law, entertainment, medicine, etc.

But they’re not in politics. Who would want to be? Some of them, I have no doubt, have been guilty of adultery, and would lie about it, even, if asked, which they certainly would be.

What about all the other issues under the sun? Will you never support a Democrat, who stood by Clinton, even if you agree with him on more of those issues than anyone else? Have you become a single-issue voter, then?

I’m asked all the time whether I’d be defending President Gingrich if he did the same thing. Of course, I wouldn’t. Laura Ingraham would. But I wouldn’t be out there calling for his impeachment, and you and I know that if feminists were, they’d be ridiculed for it and accused of turning sex into a capital crime. I think the reason there is so much politics in this one is because there’s so much room for it….

On to the German elections…. How much time do you think cable news will spend on that, and how much on the Big Him?

As they say in Hollywood on Monday, see you at Mortons.

Best,

Susan

From: Stuart Taylor Jr.
Subject: Tea and Sympathy
Posted Monday, Sept. 28, 1998, at 8:28 PM ET

It saddens me to find you saddened. I thought we were just having the kind of short-run dialogue that the framers intended us to have to help figure out what to do about things political in the long run. And in the long run, of course, we’re all dead. Now that’s sad.

I would be delighted to figure out something that you and I could fight together for, or against. I think that we probably agree about many more things than we disagree about. And even when we disagree, it’s not always a typical left-right thing, since you are not that far to the left of center, nor I to the right, in my view. Actually, on a lot of issues I’d put myself left of center. If memory serves, for example, you sided somewhat reluctantly with the Virginia Military Institute against the women’s groups that were suing to force it to accept women; I sided somewhat reluctantly with the women’s groups.

So maybe we should form an organization to promote some stuff we can agree about. The most difficult task in forming any organization is, of course, to find a suitable acronym for its mission. For example, NOW is already taken by the National Organization for Women. THEN, as far as I know, has not been taken. So one possibility would be an organization named Those Hypocrites Excite Nausea. But that doesn’t go to the heart of our mutual unhappiness with the state of our politics. How about: CRALP, for Citizens Repelled by All Lying Politicians? That would cover Bill Clinton, Newt Gingrich, and a lot of others, perhaps clearing the decks for a better class of public official faster than the most stringent term limits law could ever do.

As to impeachment, I really think the case gets stronger the more one focuses on the details of Clinton’s lies, and their context and motives, rather than on the general notion of “lying about sex.” I don’t care much about the president’s penchant for extramarital sexual affairs. I voted for him in 1992 even though I was sure he had had one with Gennifer Flowers and was lying about it. I would have preferred it if he had refused to discuss such matters by taking a principled stand for the right to privacy, but I didn’t deem a lie to the public about consensual sex disqualifying, considering the alternative candidates. It was when he carried the lying into the realm of perjury and obstruction of justice in legal proceedings–rather than settling the Paula Jones case or refusing to answer–that it became impeachable in my mind. The Constitution prescribes impeachment for “treason, bribery, and other high crimes and misdemeanors.” And perjury is a felony crime in the same range of seriousness as bribery.

A test for those who think Clinton should be given a free pass for perjury in the Paula Jones deposition (not to mention in his grand jury testimony): If we really believe that sexual harassment defendants should not have to answer questions about consensual sexual affairs in the workplace with subordinates, then we should change the law to bar plaintiffs from posing such questions. That would, of course, make it much harder for sexual harassment plaintiffs to prove their cases. But since the privacy benefits to us all would make such a tradeoff worthwhile, in my view, I have proposed a new law-Monica’s Law, I call it-to protect future Bill Clintons from having to answer such questions.

Would the feminist groups that are now acting as Clinton apologists support Monica’s Law, and thus explicitly adopt the principle they are implicitly espousing ? Not a chance. Would the Clinton Administration have supported such a law, had it been proposed as an amendment to (say) the Violence Against Women Act? Not a chance. In this respect, the president is hoist on his own petard.

I disagree, by the way, with your view that no ordinary prosecutor would pursue such a case. If Clinton had been, say, the Mayor of New York, and events had unfolded in a similar way, I think that he would have been prosecuted by the U.S. attorney, convicted, and sent to prison. And it’s altogether clear that even if Starr had sent Linda Tripp and her tapes to the Justice Department and said that he was too busy (and had too much baggage) to take this one on–as I wish he had done–Attorney General Reno would have been compelled by the independent counsel statute to seek appointment of another independent counsel to investigate the matter. Hoist on another petard: Clinton signed the statute in 1994, after it had been reenacted by Democrats over the opposition of leading Republicans.

I don’t share your pessimism about black leaders, although I do have an extremely low opinion of Jesse Jackson, Willie Brown, Maxine Waters, and the others whose leadership consists largely of demagogic efforts to whip up black resentment of white people. I wrote in Colin Powell for president in 1996; there’s a black leader one can admire. There are many more, including such thinkers as Glen Loury and some of the black mayors around the country, not to mention the many admirable black leaders in business, academia, sports, entertainment, and elsewhere. But don’t look for admirable black leaders in the groups that are in the big-lie business of complaining that the problems of black people come down to victimization by whites.

You are right to call my bluff on my suggestion that I will henceforth be a single-issue voter against any Democrat who supports President Clinton in these times. I overstated my case. But for the time being, at least, I would write in someone I like, or back a moderate Republican, or simply stay home rather than vote for any Clinton supporter. If it’s Al Gore–who I’d cut some slack given the difficult position he is in as Clinton’s vice president–in a close race against some loon like Ross Perot, I’d vote for Gore. But my general presumption in voting over the next few years will be that if the Democratic Party continues to rally behind Clinton as the process unfolds, then it deserves to be relegated to marginal status. In this scenario–which I hope can still be averted–if enough honest, moderate Democrats quit in disgust, they can start a new party, or at least have a civilizing influence on the Republicans.

As for Gingrich, if he were president, and had been caught lying to a criminal grand jury after seven months of lying to everyone else, I would very definitely be calling for his impeachment.

Let’s talk about something else tomorrow. I’ll send a brief mail in the morning after I’ve read the morning papers.

Best, Stuart

From: Stuart Taylor Jr.
Subject: Coed Cricket and Faculty Fatwas
Posted Tuesday, Sept. 29, 1998, at 11:17 AM ET

Dear Susan:

This morning’s papers bring welcome relief from you-know-what. The Washington Post reports that the Marlyebone Cricket Club finally voted to allow “ladies” to join, shattering 211 years of sexist tradition; enlightened sentiment apparently coalesced with a felt need for a few million pounds in otherwise-unavailable government and corporate grants to make improvements before World Cup championships come to Marlyebone. Once again, the magic of the marketplace comes to the rescue of human rights!

Less welcome news comes from Iran, where two senior Iranian clerics were quoted saying that “the fatwa against the apostate Rushdie . . . is irrevocable and cannot be changed at any time.” For some reason this reminded me of Hampshire College, where (as related in The Shadow University, a new book by Alan Charles Kors and Harvey A. Silverglate) an assistant professor of leftist bent named Jeffrey Wallen almost lost his job in 1989 amid grousing by still-more-leftist colleagues that his teaching was weak on “the Third World Expectation,” and where a 1993 proposal to endorse “the freedom of expression” was voted down by the faculty (26 to 21) after after one professor objected to freedom for “objectionable” views and another (who is now a dean) reminded colleagues that “the First Amendment was written by a rich, white, male slaveowner.” I wonder if Hampshire, or one of our more prestigious politically-correct unversities, has thought of having a course on the multicultural wisdom of the fatwa tradition.

A Post editorial applauds a local government’s prudent decision to drop a proposal to outlaw free-ranging cats by requiring that they be leashed whenever wandering off the owner’s premises. The Post quotes the late, great Adlai Stevenson for the proposition that “it is in the nature of cats to do a certain amount of unescorted roaming.” Not just cats.

More serious stuff–starting on the front page and consuming two full inside pages–comes from New York Times reporter Jill Abramson, who is not exactly shocked, shocked to find that rich lobbyists are thriving in Washington, raking in big bucks for killing tobacco legislation, slicing up the tax code, funneling money to Democrats and Republicans with power, and other stuff that sounds a lot like old news. There are some worthwhile tidbits if you work your way to the end: Washington is now less the pure power town it used to be and more a money town like New York, experts say. Lobbyists are cluttering the once-peaceful Eastern Shore of Maryland with gaudy estates like the ones that have the old-timer nouveau riche in the Hamptons in a snit at the nouveau nouveau riche; political analyst Kevin Phillips contributes the thought that Washington has become what the Founding Fathers feared, “a capital so privileged and incestuous in its dealings that average citizens believe it is no longer accessible to the general public”; American University now has a course in lobbying; leading Democrats like Al Gore are at least as up-to-their-necks in lobbyist buddies as are the traditional tribunes of the rich, the Republicans (who recently signed up our sponsor, Microsoft Corporation, through one of its executives as a member of Team 100, the party’s $100,000-donor club). Former Congressman Tom Downey, a New York Democrat who came to Washington in 1974 as an idealistic “Watergate Baby,” heads a lobbying firm that brought in more than $2 million last year from the likes of Microsoft, Boeing, and Time Warner (my former sponsor). Rejecting the old you-sold-out guilt trip, Downey is quoted saying, “I do more interesting things now than I did as a member of Congress,” and joking that his large home with the hand-painted dining room mural “looks like one of my fund-raisers should be living in it.” Sort-of-sexually-harassing former Senator Bob Packwood is raking in decent bucks lobbying on tax and trade issue. One point that irate populists like Ralph Nader might ponder is that this phenomenon is fed in part by what the reporter calls the “lean salaries of congressional aides,” which (I would add) are lean in part due to the efforts of populists like Ralph Nader. While pure greed is no doubt the main motivator for some lobbyists, others–who might otherwise stay in the public sector to serve the public interest as they see it–are driven into the arms of the lobbying firms by the understandable desire to make enough money to send their kids to college.

The papers are full of sad stories, as always–Kosovo refugees facing the coming of winter; flood victims losing their homes on the Gulf Coast; a family wrestling on whether to pull the plug on a comatose father; partners at Goldman Sachs giving up the planned public offering that had been expected (back when the markets were hot) to bring them $50 to $125 million apiece–but I skimmed over them quickly to skirt the precipice of depression, and took refuge in my favorite newspaper item of the day: a magazine review by Peter Carlson of the Washington Post.

Carlson reports that Toni Morrison, the Nobel Prize-winning novelist, had unveiled in the New Yorker the true reason for the persecution of our President: Bill Clinton is black. Explains Morrison: “African-American men seemed to understand it right away. Years ago, in the middle of the Whitewater investigation, one heard the first murmurs: this is our first black president. Blacker than any black person who could ever be elected in our children’s lifetime. [Colin Powell, I would infer, is white.] After all, Clinton displayed almost every trope of blackness: single-parent household, born poor, working-class, saxophone-playing, McDonald’s-and-junk-food loving boy from Arkansas.” Carlson wonders: “What would happen if a white writer published a piece suggesting that poverty, single parenthood and junk-food eating were uniquely black characteristics?” Back to you, Susan.

Best, Stuart

From: Susan Estrich
Subject: Lunch
Posted Tuesday, Sept. 29, 1998, at 5:32 PM ET

Dear Stuart:

Now we have found something we can fight against together: The silliness of the academic left, the stupidity of political correctness, and the number of unbelievably sad stories that will get no one’s attention at all today. I am lucky to be teaching in a “conservative” institution, so I miss it all; at Harvard, I was considered practically a right-winger, but at USC, I’m a liberal again. The irony, of course, is that USC educates more black kids from Los Angeles than UCLA, and more graduates of the public schools. We just do it without the politics. I have always believed that you should do your politics outside the classroom; inside, I cross-examine my own thinking. But maybe I should stop teaching the cases I do, since most of them were also written by old white men….

Speaking of which, the list in the New York Times was as stunning as it is familiar. Where is the outrage? I’ve been working with Fred Wertheimer and Common Cause on the campaign finance issue for a decade; it’s back before the Court this year; the Brennan Center has done terrific work trying to lay the groundwork for a change in Buckley. But my confidence in the ability of any law or constitutional construction to change the way things are done, the role of money, the clout of lobbyists, is decreasing. Do we have to get radical? Is the only solution political? How do you stop a nuclear war that has already broken out?

Or one that is about to. The big story here today is that Governor Pete Wilson signed a bill moving the state’s primary up to March 7th. Conventional wisdom is that no one but a well-entrenched establishment candidate–how do you spell Al Gore–will ever be able to afford to compete. Unconventional wisdom: the state is too expensive for even a rich candidate to compete in, and quirky enough to send a message. By the way, what do you think of your fellow Princeton man, Bill Bradley? I think he could do really well out here…Poor Al.

But don’t worry too much. He has a new best friend in Mayor Dick Riordan, according to another front page LA Times story….

I just got home from a funeral for a man who lived a wonderful life. His wife of 51 years was there, along with his three daughters and grandchildren. Their grief was so stunning, so real, that it almost made me jealous. I wanted to have been part of that family, loved by such a wonderful man. I think there is in this country a sort of yearning for all that is good and true, and what we get is a testosterone-boosted home run king and a corrupt Capitol. So I’m ready to sign up and do something good, but when it comes to the state of the world, what it is that one can do seems increasingly hard to figure out.

I’m off to teach. Until cocktails, Susan

PS. I’m glad to hear about the cricket club. In a survey Peter Hart did last year for NBC, women think that sports is the area where the most change been made to equalize things between boys and girls and men and women. The workplace lags far behind. Sort of tells you we’re still a bit short of the equality mark.

From: Stuart Taylor Jr.
Subject: Consensus Breaking Out?
Posted Wednesday, Sept. 30, 1998, at 10:43 AM ET

Dear Susan:

I fear that we may be approaching a dangerous place, if we want anyone to read this stuff: consensus. In grammar school, I was a bit puzzled when teacher told us that the sine qua non (or whatever) of all literature was conflict. At the time, I thought: Why can’t it just be nice? But teacher was mainly right. My agreement with your disdain for the silliness of the academic left and the stupidity of political correctness is so complete that I am left speechless.

But speak I must, if only to earn my keep. Since I have reached an age at which my mind tends to float free through time, space, and subject matters, rumination on the antisocial aspects of consensus brings to mind a fine op-ed in today’s Wall Street Journal by Nicholas Von Hoffman, which begins, “Washington played host on Sunday to a throng of indeterminate size demanding all-out war on cancer.” Noting that the crowd was peaceful and orderly, Von Hoffman speculates: “Perhaps the special-interest groups favoring death by painful and humiliating disease were intimidated into staying home by the fame of the featured speakers: Vice President Al Gore, the Rev. Jesse Jackson, Cindy Crawford, Sam Donaldson, Michael Milken, Scott Hamilton and Cokie Roberts.” (Perhaps Linda Tripp was too busy fending off prosecutors to show up.) I was especially gratified to note that Sidney Kimmel, the head of Jones Apparel Group Inc., shouted into the microphones that “the people here have come to demand of their government: No more cancer!” Yes, and while we’re at it, let’s outlaw the common cold, hurricanes, tornadoes, volcanic eruptions, and hot, humid summer days. Reminds me a bit of the Chinese potentate who the other day proclaimed a glorious victory over this year’s disastrous floods, once again demonstrating the all-seeing wisdom of the Communist kleptocracy.

Vice is nice, but consensus is cloying. Still, I also find myself in sympatico (is that correct English usage?) with your observation that USC educates more black kids from LA than does self-satisfied UCLA. Free-associating again, I am prompted to pose the following question, which may be of some relevance to current debates on the costs and benefits of racial preferences in elite university admissions: If you had a cherished child whose many talents did not include the kind of academic prowess that yields high grades in high school and high SAT scores; and if your child could nonetheless get into Harvard through some combination of alumni preference and personal pull (or, say, racial preference); would you rather see your child enter Harvard as one of the least academically gifted kids in her class, with some prospect of being overwhelmed by the academic competition? Or would she be better off at, say, the University of California at Riverside, where she could realistically hope to vie for a place at the top of her class? Would you really want to pull out all the stops to get her accepted at Harvard, so that she could make the choice herself? Or would she be better off, in the long run of life, with alumni-blind, pull-blind, preference-blind admissions?

As you have probably sensed by now, I am having trouble containing the urge to start some kind of an argument. I could argue with the somewhat pessimistic tone of your latest email by counting some of our blessings: While we mourn the death of Tom Bradley, former Mayor of Los Angeles, his life reminds us that all of the exaggerated complaints about what a racist society we are did not prevent him from winning election several times in a city in which blacks were a distinct minority; the reports of massacres in Kosovo and the like remind us that nothing like that has happened in this country in a very long time, and that most of us (with the unfortunate exception of the millions in the inner cities and Appalachia) live in the most free and prosperous society in the history of the world; the fact that the most interesting case on the Supreme Court’s rather boring docket for the coming term (which the Court agreed to review yesterday, perhaps to alleviate the really extreme tedium of their other cases) involves alleged sexual harassment of one fifth grader by another–very nasty harassment, I should note–suggests that we are in a pretty placid era compared to the days of Brown v. Board of Education. I must say, though, that I did cringe at an article this morning about Iraq coming closer to having a nuclear bomb. The one thing that makes me consider moving out of Washington is the fear of having the whole place–including my family–blown up by a nuclear terrorist paying market rates for the nuclear materials that are now flowing loosely through the chaos in Russia, with a Ryder Truck or a fishing boat as a delivery vehicle. The same could happen to New York, Los Angeles, and other big cities. Vermont is looking pretty good.

You mention campaign finance. Alas, more consensus, insofar as you note your decreasing confidence in the ability of any law or constitutional construction to change the way things are done. It is far easier to say, “The system’s rotten! We must reform it!” than to draft a reform that could work, let alone one that could get passed by the same people who got elected under the current rotten system. I personally think that all of the proposals for radical reform are bunk, and that modest steps like outlawing soft money have the most promise. But here’s an iconoclastic thought: The American people were far more satisfied with the basically unregulated (except for bans on use of corporate and labor money) campaign finance system that we had before the reforms of the 1970’s. That may suggest that scrapping all of those reforms and returning to the old system would be better, and even less plutocratic, than what we have now.

Now, can we argue? You mention Bill Bradley as a possible presidential candidate. I must say, the first question that comes to my mind about him is: Has he called for President Clinton to resign? Until he does, I’m not much interested. This does not stem from fascination with Clinton’s sex life; it stems from frustration at the unwillingness or inability of our leaders (including big shot Democrats and journalists) to speak truth to power–power being with the people–about the seriousness of perjury and witness tampering, which can bring you five and ten years in prison, respectively, if you’re not the president. Maureen Dowd has an entertaining column in the New York Times once again demonstrating her lack of interest (which is more the rule than the exception in the chattering classes) in seeing past the sex and into the perjury. It is not Ken Starr who is obsessed with sex, sex, sex; it is Starr critics like Maureen, who portrays Monica as “the red-blooded predator” and the president as “more like a teen-age girl trying to protect her virginity.” Perjury? It would get more attention if it were an exotic practice catalogued in the Kama Sutra.

To put this in perspective: I note a small item in today’s New York Times reporting that denial by the Republican Governor of South Carolina of two-year-old allegations by Democrats that he had an affair with his former press secretary. I will not name her since she and her husband happen to be old and close friends of mine. The governor, his wife, and my friends all deny the affair. The Times reports that–in apparent pursuit of evidence of intimacies–“the Democratic Party had requested the Governor’s official schedules, email, computer records and recorded phone messages under the Freedom of Information Act.”

I submit that those pursuing this alleged affair are lowlifes, and that any passing resemblance to President Clinton’s troubles ends with the state of the record in the Gennifer Flowers episode at the end of 1992. (Actually, even that is a poor parallel, given Flowers’ public claims that she had an affair with Clinton and that he got her a state job while coaching her to keep quiet.) I am entirely convinced by my friends’ denials of any affair. But even if I did not believe them, this would seem to me no business of either the press or the public. If some other woman had sued the governor for sexual harassment, and had alleged (as did Paula Jones) that the governor had mistreated her for refusing his overtures while rewarding other women for succumbing; and if he had been ordered by a judge to answer questions about the alleged affair, and had denied it under oath and to the world for seven months, and then been proven a perjurer; and if in the face of that proof he had lied to a federal grand jury to avoid admitting his earlier lies; and if he had coached others to lie all along, and used the powers o his office to conceal the truth, attack those who speak the truth, and lie about his antagonists; why, then I would feel differently.

Consensus?

Best, Stuart

From: Susan Estrich
Subject: Consensus? Well, Close
Posted Thursday, Oct. 1, 1998, at 10:49 AM ET

Dear Stuart,

Consensus? Close. Actually, I think I’m probably tougher on affirmative action than you are, at least the kind that has been practiced in public institutions and is defended by the administration. I think granting absolute numerical preferences based on race is not only unconstitutional but unnecessary and counterproductive. One of my colleagues, a tax guy who has chaired our admissions committee for years, says he absolutely resisted the argument for numerical preferences when “liberals” were claiming it almost as a point of pride, and of course, we still admit blacks and they don’t. Graduation rates in the UC system being what they are, more blacks may actually graduate from public colleges now than did pre-Prop 209, which sounds unbelievable until you realize that the black dropout rate at the top campuses was 60 percent. Whose kidding whom? Most New York law firms still don’t have a black partner; no one, it seems, believes in affirmative action when it comes to promoting partners. But they’d all love to have Frank Raines in their midst and will tell you, and I believe them, that they would like nothing better than to find a black lawyer who meets their standards. So why don’t they?

I saw the item about the S.C. governor and his press secretary. I don’t know any of them, and when I read it, I thought: what a nightmare. I also, I am afraid to say, assumed there must be something to it, else why was the paper reporting it. Remember the good old days when a paper reporting a story like this implied that it had substance? I remember, 10 years ago, when I had to deny that Dukakis was mentally ill, and we lost eight points overnight. But it’s like money: The only way to stop it is to stop rewarding bad behavior. But the contrary tends to be true. Six years ago, Barbara Boxer won in part thanks to a last minute smear of Bruce Herschenson. The guy who did the smearing was a Democratic party operative who was suspended on the Friday before the election, rehired the Wednesday afterwards, and still has his job. Matt Fong, watch out.

Speaking of bad behavior, I find the whole lying vs. sex debate to be, in the end, not very helpful. Is lying less bad if the subject is sex, or is it that sex gives you permission to lie? I’m not sure. Having spent the day in synagogue, confessing sins and contemplating the lines between what we know and what we believe, what science says is so and what we believe is true, I’ve come to the conclusion that there is no “right” answer in any scientific sense to the whole Clinton scandal.

We all know what he did. There’s really no doubt about the essence of it. He had a sexual relationship that was wrong and immoral, lied about it, and then lied about it again.

The question is what we believe about it. It is more like abortion than Social Security, more a matter of belief than of fact. That’s why, I think, the polls don’t change, and why you can believe in a position that is equally and diametrically at odds with mine, even as we chat pleasantly about affirmative action and political correctness.

The problem, of course, is that we can’t both be right, and that either of us having our way in this debate is a direct assault on what the other believes. It’s not something we’re used to in this country, certainly not in the Clinton era, where everything has been triangulated, and agreeing has been seen (rightly I think) as a value in itself. It’s conflict for sure, and I fear it will be conducted at the worst level.

Cue Ball Carville against Dick Morris. I turned my television on at 4:00 p.m. today and who is the first person I see but Dick Morris, appearing for a 15-minute interview on Fox about the so-called Secret Police. By the end of it, he had managed to suggest that Terry Lenzner (who happened to be coming to my break fast, since he was visiting our friends) might have been responsible for kidnapping Kathleen Willey’s cat and warning her that her family might be next. No one stopped him and said, What the hell are you talking about? What possible basis do you have to believe that a distinguished lawyer with a 30-year record of integrity would be kidnapping a cat? No, they just listened, treated it all with respect, allowed him to make accusations, just like your friend the governor and the press secretary. It has become an industry, particularly on television, and the only way I know to avoid it is not to watch.

One final thought. If the Democrats had the guts, they’d turn this election into a referendum on impeachment. Get the Democrats out to support Clinton, since the Republicans are coming anyway. Promise the country that if they vote Democrat, at least Congress could go back to talking about education, if not doing something about it. Let the country decide, a position that is a whole lot safer when the country is on your side. Not a chance.

Happy New Year. As we say, may God inscribe us all in the Book of Life, even if it means another year of Monica.

Best, Susan

From: Stuart Taylor Jr.
Subject: Mentally Ill Candidates, Scummy Journalists, etc.
Posted Thursday, Oct. 1, 1998, at 11:36 AM ET

Dear Susan:

Now, really. If Dukakis was not mentally ill, why in the world did he climb into that silly looking tank, put on that stupid looking helmet, and allow himself to be photographed, looking like a 10-year-old playing soldier?

For that matter, if he was not mentally ill, why did he put himself through the insanity of running for president in the first place? When you examine that insanity, it becomes more and more obvious why no mentally healthy individual has much chance of winning the presidency by slogging through the whole horrible primary process, and that if we want a sane president, we’ll have to draft one. Calling Colin Powell. Or how about a woman? If you had the power to elect the next president all by yourself, picking anybody in the entire U.S. population, whom would you choose? And if that would be a man, whom would you choose if limited to the entire female population?

But seriously, you make a very good point (aagh, more consensus, alas!) about New York law firms–and other big institutions–not having black faces in big jobs. I don’t think this is necessarily racist–although sometimes it is–because the talent pool of people with elite academic credentials from which big law firms get their partners is no mirror of our society. I am struck, though, by the righteous liberals in those firms who view it as “pro bono” activity to litigate in favor of rigid racial quotas for fire departments and the like. I did a long piece in 1989 on such a case, in which what was then the richest law firm in the world (Cravath, Swaine & Moore) was litigating against white firefighters who thought that Birmingham, Alabama had gone too far in seeking to undo its legacy of discrimination by using extreme racial quotas. Cravath was supporting measures like taking the black firefighter who had ranked 96th on the promotional exam (and who had never personally been a victim of discrimination by the fire department, although his father may have been) and elevating him solely on the basis of race, above the white firefighter who had ranked third. When I called the Cravath partner and told him that my piece would also be discussing why his law firm had never had a black partner in its history, he seemed sincerely shocked and amazed that I would stoop to such irrelevancies. It was quite obvious to him that a law partner, whose job would consist mainly of using elaborate word games to make the rich richer, needed to have graduated at the very top of his class from one of the very best schools, whereas a fire lieutenant, with such mundane duties as making instantaneous decisions on what chemicals to use to put out a chemical fire before someone gets killed, need not have any book-learned expertise at all.

Shelby Steele has written something to the effect that racial preferences are motivated more by the desires of their white sponsors to feel virtuous (and by the narrow self-interest of the relatively privileged minority-group members who benefit) than by any good they do for true victims of discrimination or poverty. The evidence is all around us. What stops me from becoming an anti-preference absolutist is the difficulty of achieving much racial integration in the most elite sectors of our society without some (very limited) use of preferences. The only long-run solution is better early education. In the short run, all the policy alternatives are bad.

As to the NYT report about the governor of South Carolina denying (truthfully, I am convinced) the allegations that he had an affair with his former press secretary (my friend, who also denies this), I’ve learned more about what got it started. It’s a typical tale of scummy journalists and sleazy politicians racing hand-in-hand to the bottom. This was a 2-year-old rumor, but Time magazine this week became the first purportedly respectable publication to find a pretext to put it in print. Time’s pretext was its ongoing smear campaign against Kenneth Starr, plus a dollop of South Carolina politics. In a smarmy little piece under the headline “Catching the Starr Bug,” Time proceeded from the undocumented and transparently mendacious premise that what Starr is doing is conducting a fishing expedition through Clinton’s sex life, to the conclusion that “The Starr method, invented and deployed in Washington, has made its way to the states.” Next this: “[A]llies of Jim Hodges, the Democrat running against GOP Governor David Beasley, plan to ask Beasley about–you guessed it–infidelity.” These “allies” were, of course, anonymous. Once Time had opened the floodgates, the South Carolina press followed. Beasley, his wife, his former press secretary, and her husband hatched an unusual strategy to try to spike the underlying lie: The four of them held a joint press conference, and said that the Democrats spreading this rumor should be ashamed of themselves. So should Time Magazine, for more reasons than one.

Barbara Boxer won last time in part by smearing her opponent? Why am I not surprised? Tell me more about her.

As to the Clinton scandal, I note that you rightly fear the debate “will be conducted at the worst level. Cue Ball Carville against Dick Morris.” I also note that BOTH of these disreputable characters were brought to prominence by Bill Clinton, and that BOTH of them have been consulted and used by the president this year in constructing his defense: The toe-sucking Morris has testified that the president consulted him in January about how various responses to the Monica story would play with the public, and that after Morris had reported that his polls suggested perjury would not play in Peoria, Clinton responded: “We’ll just have to win, then.” Poll-tested lying. The increasingly rabid Carville, of course, lies every time he opens his mouth. Nations get the kind of governments they deserve, and if this nation decides that Clinton is good enough to stay in office, then it deserves the Carvilles and the Morrises who are part of the whole lowlife package.

I hope the Democrats don’t adopt your rally-around-the-liar strategy. It would make them the party of lying and coverups. And it would disgust a lot of (so-far-silent) politically active Democrats I know–people from whom I hear just about every day, and who are disgusted not only with their president but with their party. Unfortunately, the partisanship of the Republicans in Congress has enhanced the naturally polarizing nature of this battle, so that Democrats who denounce Clinton will be savaged for disloyalty (and for sexual peccadillos too, if the Clintonites can come up with any such mud to throw at them). That takes courage, which is in short supply in Washington. But I’m hoping to see some soon, from people like Sens. Pat Moynihan, Bob Kerry, and Joseph Lieberman, who made a good start a few weeks ago.

Best, Stuart

From: Susan Estrich
Subject: The Jesse Factor
Posted Thursday, Oct. 1, 1998, at 1:23 PM ET

Dear Stuart:

I love the Cravath story, which I am sure is just as true today, and could be repeated across the country. My great frustration is that so much political capital and energy has been devoted to the fight to save race-based preferences, when it is clear that the fight is certain to fail, and that preferences don’t accomplish what they should. And I believe that there are many in the Clinton administration who understand this as well as you and I, but that it is the worst sort of politics that makes Democrats unwilling to abandon the old-line politically correct position in support of preferences. Your old friend Jesse Jackson is making noises about running for president, which is almost certain to cow Democratic candidates into toeing the line so they don’t give him an issue.

What’s particularly ironic about this is that I’m convinced that one of the lessons Clinton clearly learned from 1984 and 1988 was the futility of trying to appease Jackson, and the huge price you pay for it. But what allowed Clinton to tell him off, as he did in ’92, was the fact that Jesse had no delegates to the Convention, and therefore couldn’t make trouble. This is why he’s making noises again about running, which might be why Gore will continue (although I hope not) to give offensive speeches like the one he did last January in which he compared opponents of affirmative action who hide behind the term “color blind” the way hunters hide in a duck blind, and fell into the trap of impugning the motives of those who disagree with him (which is to say, calling them racists . . . )

But I don’t think you can blame Clinton for Dick Morris, at least not entirely. What galls me about Morris is not just the charges he makes, but the way they’re dealt with by the media. He’s a “consultant” to Fox News and there he is, with the aura of legitimacy, libeling those he disagrees with today, making up a secret police force based on no facts to support it, and going unchallenged, invited back, much sought after as a guest. It’s the television scandal industry, and it depends on people like Morris. In print, you have an editor . . . on television, people say whatever they damn well please, accusing people of things that are unsupported by facts, and now it’s time for a break . . . We’ll be back with more in a moment. Balance? Facts vs. opinions? Give me a break. You and I have always acknowledged a point of view in writing columns. But your head could spin trying to figure out who is reporting, who is opinionating, who has any basis for actually having an opinion, and who just looks pretty.

As for the papers, my favorite story (I promise no Clinton this afternoon) was the so-called friends of Hillary Clinton who told the LA Times page 1, above the fold that the president lied to her back in January, and that she believed him. My queries: Why are her “friends” telling the papers this? Are these friends? She’s out there defending him, they’re out there trashing him . . . or is it that they are trying to make themselves look better? Are we supposed to like her more for hearing this, like him less, think they are both crazy, or that we are?

As for Dukakis, who seems quaint for firing John Sasso over what would now be considered laughable, the point is he lost. We had nobody investigating Bush’s sex life, as far as I know. It wouldn’t have occurred to me. It isn’t why I did politics. I didn’t want to be in that business, and Dukakis wouldn’t allow it. He didn’t even like negative ads. Now he teaches. Clinton won. Carville and the crap I don’t like was part of it. This is the game until someone changes it. So far, all the movement seems to be in the other direction..

But enough of that. I’m going to read my horoscope. In the LA Times, they label it as entertainment. At least they’re honest about one section.

Best, Susan

From: Stuart Taylor Jr.
Subject: Tall Men Always Win
Posted Thursday, Oct. 1, 1998, at 4:36 PM ET

Dear Susan:

We have reached total consensus on racial preferences, Jesse Jackson, Al Gore’s pandering to Jesse Jackson, etc.

Speaking of Al Gore, I just did a column arguing that he was not really in big legal trouble over his campaign finance activities and alleged lying to the Justice Department about same, because the evidence of possible lying does not rise to beyond a reasonable doubt, and because whatever fund-raising sleaziness he got into cannot, in my view, be teased into a plausible criminal indictment.

But can Gore be forgiven for his emotional exhibitionism at the 1996 convention about his sister’s 1984 lung-cancer death? “That is why,” he said, “until I draw my last breath, I will pour my heart and soul into the cause of protecting our children from the dangers of smoking”. Then reporters pointed out that he had taken $16,000 from Big Tobacco during the six years after his sister’s death, while continuing to grow tobacco on his own land and rhapsodizing at a 1988 campaign rally about how he had “shredded it, put it in the barn and stripped it and sold it.” Gore’s explanation of this apparent inconsistency was a classic: “People are becoming more willing to give some respect to the importance of the way people feel and try to balance emotions and logic in a more artful way.” Read that twice, slowly, and ponder it, please. Then tell me: Where is H.L. Mencken when we need him?

You’ll get no argument from me about the TV talk shows failing to disclose the biases of their supposed “analysts.” But I think President Clinton could more plausibly be absolved of blame for Morris if he had stopped consulting him after his firing during the 1996 convention. He didn’t. Every time he was in trouble, it seemed–at least until Morris started publicly savaging the president this year–Clinton was on the phone to his amoral guru.

On the Hillary Rodham Clinton business, I wouldn’t be surprised if the people saying that her husband lied to her in January really were her friends. After all, the First Lady said in January, during her VRWC (“vast right-wing conspiracy”) number, that she didn’t believe the allegations that her husband had had an affair with Lewinsky; that they lies being maliciously spread by the VRWC; and that if a hypothetical president had done such a thing and lied about it, it would be an extremely serious abuse. There are two possibilities: She was cynically lying then; or she was a victim of his lies, and a credulous one at that, given his history. Which do you believe?

Dukakis: I’m not sure the reason he lost was his refusal to play dirty. At least, I hope not. Wasn’t he a lot shorter than the other guy? And wasn’t he fighting a long tradition of electing tall men as president? Especially during the Cold War, it seemed mandatory for our president to tower over everybody else on the podium, or our national prestige would have taken a dive. But the tall-men-always-win rule may not hold outside the presidential context. After all, if memory serves, I lost an election to you (among others) once even though I am, if recollection serves, much taller.

Could you check my horoscope too? I’m a Taurus. And I’m still hoping you’ll tell me who you would choose to be our next president, although I’ll understand if you don’t.

Best, Stuart

From: Stuart Taylor Jr.
Subject: Not Our Finest Hour
Posted Friday, Oct. 2, 1998, at 9:26 AM ET

Dear Susan,

Since I get up three hours earlier than you do, perhaps I could save you some time reading this morning’s papers: Don’t. When they’re not boring (e.g., explaining what a hedge fund is), they’re depressing (e.g., hinting how we will all follow hedge funds down to the pit of a new global Great Depression). When they’re not depressing, they’re about Monicagate, about which we are all required by good taste and peer pressure to feign complete lack of interest rooted in disgust.

What you should read is “Our Finest Hour,” by my National Journal colleague Bill Powers, who is perhaps the best media critic in the country. His piece this week is relatively light fare, collecting some of the most precious gems in the diadem of bad journalism (and bad law, and bad politics, and funny journalism) in the context of you-know-who-gate. Among my favorites are the striking prevalence of Nazi metaphors, which Powers collects under the subhead, “Adolph ‘R Us.” From MSNBC’s Keith Olbermann: “It finally dawned on me that the person Ken Starr has reminded me–reminded me of facially–all this time, was Heinrich Himmler, including the glasses.” (The next day, amid protests, Olbermann added a classically Clintonesque non-apology to people “who thought I was comparing Starr to Himmler and insulting Starr” or “demeaning the terrible importance of the Holocaust”; he explained that “I meant only what I said: facially, the two men look vaguely alike.”) From a news report quoting H. Ross Perot: ” ‘Watch my lips, the president is mentally and emotionally unstable. . . .’ Are there any other world leaders who had these mental defects? ‘Yes,’ he said, citing Hitler, Stalin, [Saddam] Hussein and [Fidel] Castro.”

From William Ginsberg, Monica’s first lawyer: “I’m the most famous person in the world.” From a headline in the Seattle Times: “Seattle Woman Looks Back Proudly on Her Internship–She Met President Clinton Only Once, She Says.” From former Time magazine journalist Nina Burleigh: “I’d be happy to give him [oral sex] just to thank him for keeping abortion legal.” Even Powers’ (and my) editor, Michael Kelly–who I should say is the finest, most judicious, and most sensitive editor I know, and a particular expert in the new field of “healing journalism”–gets dissed, for writing on Aug. 5 that we should disbelieve polls suggesting “that the public would be forgiving.” I’m grateful that Powers apparently overlooked my own storehouse of not-quite-prophetic predictions.

You should read the whole thing. By the way, if you want to subscribe to National Journal, it’s a mere $1,047 a year–less than $25 for each weekly issue! And if you’re too stingy to pay our usual bargain rates, maybe I can get you a deal.

As one who kind of likes the idea of humanely efficient (or efficiently humane) “third way” between mean-old-trickle-down-free-market-economics and failed-utopian-socialist-nostrums, I was deflated to read Charles Krauthammer’s typically trenchant op-ed in this morning’s Washington Post explaining why we Third-Wayers (including President Clinton, Britain’s Tony Blair, Germany’s new chancellor Gerhard Schroeder, etc.) are a bunch of BS: “It is the sound of the Left moving right but stopping 0.2 percent shy.” I hate it when he does that. (For Slate’s Explainer’s take on the Third Way in history, click here .)

So much for Third Way. Back to the Third World Expectation. By the way, a 14-year-old I know named Sarah got the lead part in her school’s production of “Peter Pan.” It’s a singing part, featuring “I won’t grow up–I don’t want to wear a tie,” etc. Now that’s good news.

Best, Stuart

From: Susan Estrich
Subject: Zippity–doo–dah
Posted Friday, Oct. 2, 1998, at 1:31 PM ET

Dear Stuart:

So how come the National Journal costs so much? Because serious journalism can’t survive except as an elite publication? Because the powers that be don’t want the masses as an audience? I’ve long admired the National Journal ; I think Michael Kelly is great (sorry Marty); but unless someone sends me an article, it comes and goes without me.

Keith Olberman, on the other hand, who could miss? Just kidding, of course, but it’s interesting that while a reporter is usually expected to cover something, and most columnists are assumed to know something (I’m not going too far), there is no substantive qualification for being a television pontificator, or a host, and no need to back anything you say up. Facial resemblances? Give me a break. He was a good sports guy. Maybe I should start doing sports.

But here’s a story for you, from my neck of the woods. On Wednesday, 300 people showed up to picket at Paramount against a television show that hasn’t begun airing yet because it supposedly makes light of slavery. “Slavery is not funny,” the signs said. The show is called The Secret Life of Desmond Pfeiffer. It’s about a black Englishman who is supposedly the butler to Abraham Lincoln. According to news accounts, the butler is the smartest guy in the White House; all the white people (except Lincoln, I guess/hope) are portrayed as buffoons. Perhaps you and I could organize a protest of white people who don’t like being portrayed as buffoons. But seriously. Another protest is scheduled for Monday, when the show premieres on UPN. Worse. Not only was the NAACP and the Brotherhood Crusade there yesterday, but also a member of the City Council, who wants the city Human Rights Commission to sponsor a debate, and called on the network to cancel the show before it began. Anybody heard of the First Amendment here? Artistic freedom? How dare someone say “slavery isn’t dead yet” in asking the butler to take his feet off the table?

According to Howard Rosenberg, one of the bright lights at the LA Times, the show isn’t racist, it’s just stupid and not very funny, which would not make it unique. I do believe producers and writers and directors should take responsibility for their work, should understand its power, should question themselves about issues of bias and prejudice that do permeate the media. But I hate these protests, much less government involvement in them; and dare I wonder, at a time when according to one new study five black men go to prison in this state for every one who goes to college, whether civil rights leaders might not have something better and more important to do with their time. The irony of course is that this will get attention for the series; but protests scare sponsors, and that produces the kind of mindless but politically correct garbage we see so much of on television. As for the producers of the show, they say it isn’t about race at all; it was really intended as a parody of the Clinton Administration …

Some years ago, a friend at Disney asked me to look at The Song of the South and tell me whether I thought they should re-release it. You remember zippity doo dah, and Uncle Remus, and the little slave children . . . I watched it with my daughter, who was then about 4 or 5, and began asking me all the questions you would expect about who Uncle Remus was, and who those little children were, and why they lived like that, and were they really so happy? . . . I wrote a memo saying they’d get killed politically, there’d be protests, people would accuse them of insensitivity, and greed, etc. even though it is, of course, also a classic. Someday, I hope, we’ll be able to deal with both sides, and even explain it to our kids. Anyway, after soliciting input (and realizing that black leaders who might privately support the decision would not publicly do so), they decided not to re-release it, though I’m told that Michael Eisner came to the decision reluctantly, precisely because he hated the sense of bowing to political correctness.

I might even watch Desmond Pfeiffer on Monday.

Best, Susan

PS. And not a word about the thousands of pages which you might be reading right now … anything there? Enough spinning to make you dizzy?

From: Stuart Taylor Jr.
Subject: Huckstering
Posted Friday, Oct. 2, 1998, at 4:56 PM ET

Dear Susan:

Your tale of the picketing of Paramount for racial incorrectness is reminiscent of the periodic efforts–which for all I know have been successful by now–to purge The Adventures of Huckleberry Finn from all school reading lists. The complaint seems to be that Jim, Huck’s black friend and traveling companion, who is the most admirable figure in the book, is referred to by various racist whites in an epithet that has taken on such a hateful connotation that I dare not spell it lest I be picketed too. The message of the book, and its quality as literature, don’t matter to the PC censors; That Word is forbidden, so the book has to go. Perhaps it has been replaced in school curricula by the works of people like Toni Morrison, explaining stuff like how President Clinton is being persecuted for being black.

Huck himself had a line at the beginning of the book (a first-person narrative), describing his creator Mark Twain, that I have adopted as the highest standard of honesty that a cockeyed optimist in today’s America might ever hope to find in a viable presidential candidate: “There was things which he stretched, but mainly he told the truth.”

How about the old cartoon classic Dumbo? It was one of my favorites as a kid, much as I tired of people comparing my ears to those that enabled the elephant to fly. But it’s got some scenes that seem racially insensitive (remember those singing crows?), scenes that I would be uncomfortable showing to my kids’ friends. Maybe they could do a remake without the crows. Maybe they already have.

As to the high price of National Journal, I suspect it has something to do with the facts that much of our circulation is concentrated within about a one-mile radius of the U.S. Capitol, that few of our subscribers pay out of their own pockets, and that some of them are the same people who appropriated other people’s money to buy those $600 toilet seats and the B-1 Bomber. What was the old Econ 101 concept of inelastic demand? More seriously, National Journal has a long tradition of something increasingly hard to find in any other publication that comes to mind: in-depth analysis of tough national policy issues, like how to save Social Security, that can be trusted to be fact-based, nonpartisan, and not slanted by ideological agendas. (Unfortunately, some of our readers think that new arrivals including me have detracted from that quality by writing columns of opinion with which they disagree.) No mass-circulation publication I can think of comes close to doing that, presumably because there’s not a mass market for what National Journal does. The smaller the market, the higher the price has to be to pay the people who write the stuff.

Sorry I can’t shed any light on today’s Monica document dump. At this stage, it’s easier to let the newspapers filter out the most interesting new stuff–THAT they do pretty well–than to comb through it all myself. In general, I think that 98 percent of the most important evidence Starr had on the whole Monica business–both inculpatory and exculpatory–was probably in the main body of his report, which was made public Sept. 11 and published verbatim by major newspapers next day. The buzzing about each new document dump, and the leaking in advance, reflect some combination of media pretense that what’s new is what’s important and of interested parties spinning. This doesn’t mean that the public already knows the evidence well enough to reach an informed judgment on the impeachment issue. Very few people have read the most important parts of Starr’s report: the evidence of the scope of the lying and witness-tampering and other coverup activity, not the cigar stuff). Even fewer have read it closely enough to understand how it all fits together. In this, as in many things, the most important evidence is hidden in plain view, while the media are off chasing titillating trivia and other matters of marginal relevance. And, of course, we have not heard much yet from the defense, other than diversionary attacks on Starr and on Republican partisanship. But I imagine that if the president had a decent defense on the merits, we’d have heard it by now.

Alas, I can’t seem to entice you into proposing our first female president. Maybe I can goad you. How about Phyllis Schlafly?

Best, Stuart

The post Estrich and Taylor Jr. appeared first on Stuart Taylor, Jr..

Dear Stu:

This is going to be fun. Before too long, I hope, we can talk about what really interests me, which is that sex is back at work–and that might just be fine, if we could just learn to respect each other. My students wear unbelievably short skirts to interviews and assert the right to flirt to equalize things with the guys, who talk about sports. I think they might be right. So, first Anita and Paula, and we can fight about who is consistent, and who has bad motives, and then on to what matters.

Let me begin. I don’t really think of either of these as sexual-harassment cases, if you want to know the truth. What troubled me in the Anita Hill-Clarence Thomas affair was less what he said to her a decade ago (you know me, I would’ve laughed and told him to get lost, but she’s not me, and he was chair of the Equal Employment Opportunity Commission–which makes him pretty “shabby” in my book, but wouldn’t disqualify him from a seat on the Supreme Court) than what those senators did to her, and how Clarence Thomas–a man I thought unqualified to serve on the Supreme Court–responded by playing the race card and turning himself into the victim of a racially motivated attack. I wouldn’t want Johnnie Cochran to be on the Supreme Court either.

The Republican senators didn’t have the guts to stand up there and say, “Look, even if this guy made jokes about tits and pubic hair a decade ago, so did a lot of us, and some still do, and some women like it and some don’t, and if he knew you didn’t, he should’ve stopped. But that’s not enough to disqualify him from serving on the court.” Instead, they paraded around piously saying how awful it would be if it were true, and then proceeded to attack her as a nut and a slut. That’s what made me angry. Then, in came Clarence Thomas the next day, the victim of the high-tech lynching of an uppity black. This from a guy who would not have been sitting there, had he not been George Bush’s “up yours” to the civil-rights community and African-Americans. Yuckeroo.

And Paula Jones? The woman who took a first-name reference in a conservative publication (the only institution involved, by the way, that she hasn’t sued) and turned it into a federal case and a career. She doesn’t need my help, Stu, and she doesn’t deserve it. She’ll get her day in court, but she shouldn’t get to hold the presidency hostage. I read your careful piece, and one and only one thing became clear to me: This is just one more political assault on the president, politically motivated and politically pursued. You can’t tell me this woman didn’t know whom she was hiring as a lawyer, whom she was allying herself with, whom she was using, and who being used by. Do you truly think her that stupid? I have more respect than that, at least. Everyone in Arkansas knows who Cliff Jackson is, for goodness sake. These are the people who have fought against civil-rights laws that protect women.

And the president? You convict him for hiring a good lawyer and pursuing a strategy of delay. Of course. He has to hire a good lawyer. Do you really think this was going to go away on its own? A woman charging that the president asked for a blow job in a hotel room is not a story that would disappear if he didn’t hire a good lawyer. And even if every word of it is untrue, it’s the last thing you want to have to deal with; depositions in which you’re asked about distinguishing marks. In an election year? That’s not evidence of guilt.

But what if she’s telling the truth? What about those witnesses?

Here’s my law professor’s answer:

First, I don’t believe that the “facts” she has alleged are sufficient to state a cause of action under Title VII (whose statute of limitations she missed), much less the old civil-rights statutes that she’s trying to invoke. (Do you think Congress was thinking of such incidents when it passed the Ku Klux Klan Act after the Civil War?) There is no quid pro quo alleged, and hostile-environment cases require a pervasive pattern of severe harassment. Moreover, there is a substantial factual dispute in the accounts you report as to whether any advances were “welcome,” and under the Supreme Court’s decisions (which I don’t happen to like very much), all the “big hair-big flirt” stuff will come in under welcomeness.

Second, even if the facts alleged were sufficient, civil suits against the president should be stayed during the course of his presidency, at least in the absence of extraordinary factors (somebody dying, irreparable injury, etc.)–not present here. I can give you Kathleen Sullivan and my brief on this for the circuit court. She wrote it, and it was very persuasive, but we’ll lose everybody else. The brief relates to the issue pending in the United States Supreme Court–whether Jones’ cause of action should be stayed until after Clinton’s term. I think it should be. I think this position is not only good for the country, but also respects the importance of the electoral process. Jones’ claim–if you call it that–arose before the 1992 election. A rule that says that if you want to sue the president, do it before he gets elected or wait till his term is done is one that encourages valid claims to be brought before the election, when they can be considered by the electorate, not afterward. This doesn’t mean the president is above the law, just that if you want to take him to court, you do it before he becomes president.

Here’s the other piece:

So what.

It’s “shabby,” as you put it. I don’t disagree.

But sexual encounters among people who work with each other are not against the law, and the fact that you and I may not be having them anymore doesn’t mean everyone else is ready to give them up.

If a colleague said to me, “Should I come on to a student in my class?” you know what I’d say: “Don’t do it. True love can wait a semester.” I’d tell him to be careful, and not do it, not just because of the dangers of misunderstanding, legal action, etc., but because I really do believe that such relationships are fraught with all kinds of dangers of abuse of power.

And if my daughter someday says to me, “If a man you barely know invites you to a hotel room alone in the middle of the afternoon or the night or any other time of day, what should you do?” it won’t take me long to explain “no” in a hundred languages.

But there’s no law saying he can’t ask, and there’s no law saying she can’t go, and in my surveys of the world, no one but old fogies like us seems interested in someone else enforcing such rules, even if they are the best ones to live by. After all, where else do you meet people?

So what if Jones is telling the truth? She flirted and caught his eye, and the trooper asked her if she wanted to come upstairs, and she did, and they had some kind of encounter (this is he said-she said land, I’m not touching it), and she said no, and he said (this is according to her) that he didn’t want to make her do anything she didn’t want to do, and to have her boss call him if there was any problem with her being late, and that was that, and she never heard from him again. He asked. She said no. He said OK. She left. He got elected, and appointed Ruth Bader Ginsburg and Steve Breyer to the Supreme Court, signed the Family Leave Act, vetoed the partial-birth abortion ban. …

All the best,
Susan
From: Stuart Taylor Jr.
To: Susan Estrich
Posted Saturday, Nov. 9, 1996, at 3:30 AM ET

Dear Susan,

I only wish that the ethical advice our president gets from his cronies was as good as the advocacy he’s getting from you–and for free. He might not have so many scandals.

Nonetheless, I’m not crying “uncle” just yet, if only because I never entirely grew out of my infantile male horror at the prospect of losing to a girl (especially one I’ve lost to before). So here’s a point-by-point (sort of) response, drawing from the version of my article published in the American Lawyer, which (brevity not being my strong suit) is almost 10 times as long as SLATE’s abridged version and now needs registration.

1. I’m all for short skirts, I don’t talk about sports, and I’d be glad to approve of respectful flirtation, etc., at work, but I’m not sure my wife Sally would want me saying that (let alone thinking it), so let’s keep it between ourselves.

2. Anita Hill: I’m delighted to hear that you don’t think of her complaints about Clarence Thomas as a sexual harassment case, if only because I love finding myself to your left on a women’s issue–as I did earlier this year in the VMI case in the Supreme Court. It’s almost as good as being called a “liberal journalist” by the Wall Street Journal editorial page.
But I digress. I think that if Anita Hill told the truth, the whole truth, and nothing but the truth about Clarence Thomas–which I don’t believe for a minute, for reasons I’d be glad to detail–it would amount to a rather clear case of sexual harassment by a boss. Not as bad as many, perhaps, but bad enough.

3. Clarence Thomas: I agree that Thomas was not qualified for the Supreme Court, and I share your distaste for the way he played the race card. But I don’t judge him as harshly as you, because I think that he believed sincerely (and with some reason) that his ideological adversaries were trying not only to block his confirmation, but destroy his good name with vicious lies. That includes Anita Hill. None of us knows for sure what happened between them, but we all have our hunches. Here’s mine, based on all of the evidence I’ve seen: At worst, Thomas asked Hill for a date or two, and perhaps made some off-color remarks about pornography or whatever, doing so repeatedly (if he did) only because (as even some Hill partisans admit) she never made it clear to him that such talk was unwelcome.

Then, 10 years later, while he is under attack from all sides, Hill–a woman who had sought and received favors from him for years–shows up on national television, depicting him as an overbearing, porn-crazed sexual harasser. If he had responded by saying, “Gee, I only asked her for a couple of dates, and I thought she liked joking about pornography,” it would have been seized upon by liberal feminist groups as a virtual admission that he was a sexual harasser, and he might well have gone down in disgrace.

This view of the facts qualifies somewhat my distaste for the response that Thomas did choose–and even for his possible (but still unproven) decision to commit perjury–telling some little white lies (by denying everything) in an effort to save himself from Hill’s big, evil lie.

4. The Republican senators: Sure, some of them went way overboard. But were they worse than Clinton crony James Carville, who said of Paula Jones: “You drag $100 bills through trailer parks, there’s no telling what you’ll find”?
Would you have wanted all the senators to take on faith Hill’s weakly corroborated claims against a man with no reputation for such conduct–as did Ted Kennedy, the one who had the bag over his head during the Hill-Thomas hearing? I prefer the course chosen by Sen. Specter; while his pompousness is hard to take, he did a pretty good cross-examination of Hill, and thus succeeded in exposing at least one instance of what I consider to be attempted perjury by her. (You want details? Coming right up.)

5. Paula Jones: As the American Lawyer’s version of my article shows, she had good cause for concern that the mention of “Paula” by the American Spectator (which she didn’t sue because her lawyers plausibly advised her she had no case against it)–quoting a Clinton bodyguard’s depiction of her as one of Clinton’s compliant conquests–would get back to her friends, family, and others in Little Rock, and might even endanger her marriage.

“She’ll get her day in court”? Not until 2001–seven years after she filed suit–if the president and his amici (including you) have their way.
“Hold the presidency hostage”? This is the only civil damage suit in U.S. history filed against a sitting president for personal conduct. So the floodgates of litigation aren’t exactly swinging open. While the president’s time is a precious national resource, how much of his time would it take for the courts to allow Jones to compel discovery from other witnesses? Or for Clinton himself to confirm or deny under oath–either in a carefully limited deposition, or in written answers, which his lawyer could prepare for his signature–Jones’ allegations of what he did to her in the space of a few minutes on May 8, 1991?
“Politically motivated”? By all accounts, Paula Jones is a political ignoramus, and her first lawyer–a badly overmatched solo practitioner in Little Rock named Daniel Traylor–is a self-described “yellow dog Democrat.” And contrary to your suggestion, Cliff Jackson has never been Jones’ lawyer and barely knows her. Rather, Traylor approached Jackson after flubbing pathetically an attempt to reach the White House to settle the case; Jackson suggested that one way for Traylor to get publicity that might put pressure on Clinton to settle her claim would be to go public at a right-wing conference in Washington; and Traylor foolishly took that advice, causing Jones a credibility problem that has dogged her ever since.

Is Jones stupid? I don’t know, but I don’t think it was a disgrace for an unsophisticated woman with a legal complaint to follow her hapless yellow-dog-Democrat lawyer Traylor’s bad advice.

(By the way, I called Cliff Jackson and read him your characterization of him as one of “the people who have fought against civil-rights laws to protect women.” He laughed, and responded that he was a longtime supporter of civil rights and women’s rights, and that he had won a $20 million jury verdict for a woman in 1991 in a sex-discrimination suit against Texaco–which Jackson called a “white boys’ club” that treats women and minorities disgracefully. This was the largest such verdict in history, he says, until the trial judge overturned it. I think you might like Cliff, if you ever meet him.)

6. President Clinton: I don’t fault him for hiring a good lawyer. I do fault him for choosing a defense strategy of smearing Paula Jones–who was willing to settle for a no-cash public apology–as a lying, money-grubbing slut; and of using nondenial denials to convey the impression (without ever specifying under oath, or at all) that she is lying even about those of her allegations that Clinton knows to be true; and of claiming an immunity so breathtaking in its sweep as to provoke a federal-appeals court to proclaim, with evident distaste, that “the Constitution . . . did not create a monarchy.”

7. Law professor’s answer: Whether or not Jones’ claims (if true) state a legally sufficient claim for monetary damages is debatable. My law professor source says they do. But I think this point is a diversion. Indeed, if things like Title VII’s 180-day statute of limitations are dispositive, why did anybody listen to Anita Hill’s 10-year-old allegations of far less serious conduct?
The reason people listened–and should have listened — is that Hill’s allegations, if true, bore on Clarence Thomas’ character, and thus on his fitness to be on the Supreme Court (in my view, if not yours). People should also listen to Paula Jones–and, of course, to any evidence the president may advance to refute or discredit her, of which he has offered virtually none so far.

(By the way, the reason Jones did not sue sooner, she plausibly says, was fear of losing her job working for a Clinton appointee, and fear that nobody would believe her; she says she would never have sued had she not been depicted in print as a supposed Clinton conquest, and then blown off by all the president’s men as a liar. Wouldn’t that have pissed you off too?)
(And no, I don’t think Congress was thinking about such incidents when they passed the KKK Act. So what? Do you think they were thinking about abortion when they passed it? Or women’s rights to equal treatment by states? And aren’t all major Supreme Court decisions on both of these issues based on the same KKK Act, along with the same 14th Amendment on which Jones relies?)

8. “So what if she’s telling the truth”? I might agree if I bought your summary of the facts: “He asked. She said no. He said OK. She left.”
Here’s my summary, based on Jones’ complaint, which tracks the accounts she gave to her friends and sisters (respectively) 10 minutes, 90 minutes, a few hours, and a day after the event:

Then-Gov. Clinton sent his state-trooper bodyguard to interrupt Jones, then a 24-year-old, low-level employee, at her work station in a Little Rock hotel and fetch her to his suite upstairs; she agreed to go, hoping perhaps to get a better job, and hardly expecting to see the governor expose himself; once he had her alone, Clinton first reminded her that he was the boss of her boss; then he “took Jones’ hand and pulled her toward him,” prompting her to remove her hand and retreat several feet; then he approached again, put his hand on her leg and started sliding it toward the hem of her culottes, while trying to kiss her on the neck; then, after being rebuffed a second time, he “lowered his trousers and underwear, exposing his erect penis, and asked Jones to ‘kiss it’ “; and finally, when she expressed horror, he pulled up his pants, he looked at her sternly and said, “You are smart. Let’s keep this between ourselves.”
As Jones said when she filed her lawsuit, “This case is about the powerful taking advantage of the weak.”

One last thing: As I detailed in another recent article, Clinton’s alleged conduct, as outlined above, would be a federal crime under the interpretation of another post-Civil War civil-rights statute that is propounded in briefs filed in another pending Supreme Court case (U.S. vs. Lanier) by all the usual feminist groups–and by the Clinton Justice Department too.
That’s not my view of the criminal law. But it’s the president’s. And he’s stuck with it.

With best wishes,
Stuart
From: Susan Estrich
To: Stuart Taylor Jr.
Posted Tuesday, Nov. 12, 1996, at 3:30 AM ET

Dear Stuart:

Are you really to my left on this one? I’m not sure it’s a straight line any more, from left to right. I am very proud to call myself a feminist, but it doesn’t mean that the woman is always right and the man is always wrong. I have a son, too. Someday, he might even want to go to a same-sex school.

But give me this: I think enough of women in general, and of Paula Jones, in particular, to assume that she is not a blithering idiot. I’m not talking about the hotel-room business, just the last two years, when she went from being a first-name reference deep in an article in a conservative publication (that she didn’t sue, as I’ve mentioned before) to a household name in every publication, entirely of her own doing. If the reference so humiliated her, as she told you, why did she embark on a path whose only end could be to ensure that every human being in America would know who she was? If she didn’t want to be the next Gennifer Flowers, why did she follow in her footsteps? If she wasn’t interested in a career out of this, why have a book deal in your lawyer’s contract? Was she really the victim of every single man she has dealt with–all the lawyers and consultants, the Rev. Falwell, even?

But here I am, getting dangerously close to doing what I hate most. What angers me is that sex has become just one more weapon in the anti-Clinton business, which is what Clarence Thomas, no doubt, thinks about how it was used against him. It doesn’t do the case of victims of serious abuse, of whom there are many, any good to see both sides alternate between overlooking allegations of “shabbiness” or wrongdoing on the one hand, and overstating them on the other.

Remember Gary Hart, who “lied” about adultery, and then everybody piously pretended that it was a character flaw and not sex that did him in? The truth is suicide, even if it really isn’t so terrible. If Bill Clinton had looked into the television camera, the way you and Paula wanted him to, and said he was sorry, the tape would’ve been in every Republican ad this fall. The best defense of Clarence Thomas is that given the environment, he had little choice but to play the race card, because to admit that he asked the woman out a few times, and maybe told some jokes, but she was an adult and never complained–if he’d said that, he wouldn’t be on the Supreme Court.

The worst of it is, women pay the price coming and going. If allegations can kill you, and if even a piece of the truth is unutterable, then the only alternative is to destroy the woman. Anita Hill may not be a hero, but she didn’t deserve to be victimized. What Justice Thomas’ defenders did to Anita Hill is what many of the president’s defenders have done to Paula Jones (although I admit to having been blissfully unaware of her nude shots for an ex-boyfriend in Penthouse till I read it in your fabulously researched and written, but ultimately unpersuasive, piece). Men are spared the burdens of our hypocrisy by destroying women. Who made these rules?

When it comes to issues of morality and sexuality, there is an unholy alliance between the most radical feminists and the most conservative traditionalists, in opposition to the rest of us, who’d like to make sexual judgments for ourselves, looking to the government to enforce our right to make choices rather than make them for us.

Some women use sex to get ahead, and some women don’t. Men, too. Some women play these games better than others. Some hate them. Some want to learn to play them better. If I had any entrepreneurial instinct, I’d be writing the workplace equivalent of The Rules about how you get to the top by not sleeping with the boss, but making him want to sleep with you, or some such thing. So be it. The only solution is autonomy. You can try, but you can’t take advantage.

Have you ever wondered why women don’t hate Bill Clinton? Here he has this wife we all admire, and first there’s Gennifer Flowers, then Paula Jones. Yet, this election saw the biggest gender gap in history, fueled by the “soccer moms”–the middle-class women whom you’d expect to have very little patience for “other women,” much less ones with the extra time it takes to even have big hair.

Here’s my theory. I believe our president genuinely likes women. He liked his mother. He may or may not be attracted to big hair. But he doesn’t abuse people. He doesn’t harass people. He doesn’t have to, and it’s not his style.

I’m not so sure about Clarence Thomas.

Here’s my hypo.

Imagine you’re 25 again, an associate on a business trip, at a hotel with a senior partner, a great-looking, smart woman in her 40s, who chats with you early in the evening, and later sends word that she’d love to have you come up to her room for a drink. You check around. She’s married, but there’s talk. You go up to her room. Once inside, she sits next to you on the couch, unbuttons her blouse, revealing her breasts, and tells you she would like you to kiss her. You decline. She accepts your answer, tells you if you’re late with tomorrow’s assignment, to tell the senior associate to get in touch with her. As you leave, she says she trusts you’ll keep this to yourself. You do. She does. You move to another city, and live happily ever after.

Oh yes, and here’s hypo No. 2. Angry woman boss. There’s a religious young guy in the office, very, very square. The boss loves to make him uncomfortable by telling him what nice buns he has, making sex jokes, and talking about her period in front of him. And she’s a feminist lawyer, no less.

Whom do you like less?

All the best,
Susan
From: Stuart Taylor Jr.
To: Susan Estrich
Posted Friday, Nov. 15, 1996, at 3:30 AM ET

Dear Susan:

Your Nov. 11 letter reminds me of an old lawyers’ saying, which I adapt as follows: “If the law is against you, pound on the facts. If the facts are against you, pound on the law. If both law and facts are against you, pound on the table–or change the subject.”
It seems to me that you are doing what a good lawyer does when the law and facts are against her.

Specifically, unless I’ve missed something, you have not challenged any of the factual assertions or logical deductions made in my article.
Instead, you have taken potshots at Paula Jones’ credibility–while lamenting that women who make such accusations are “victimized” because people take potshots at their credibility. You have also said that you like the president and his wife and his attitude toward women and his policies and his appointments; have characterized some of my points erroneously; and have made some general points about the sexes–e.g., that same-sex schools are OK, and that feminism shouldn’t mean “that the woman is always right and the man is always wrong”–which I heartily agree with, but which have very little to do with the specific claims made in my article.

You have also taken a position on the Anita Hill claims that seems to me to be inconsistent with what you said about Hill’s claims in 1991, when, for example, you told Ted Koppel that “Anita Hill’s charges were very serious”; wrote in the L.A. Times that “Anita F. Hill’s story of sexual harassment” involved “abuse of power” by Clarence Thomas, that the challenges to Hill’s credibility illustrated “the endurance of sexism in the law,” and showed that the senators “still do not get it”; and wrote in the Houston Chronicle that “many women tolerate harassment [because] they need their jobs,” and that “if she is telling the truth, he does not deserve a seat on the Supreme Court.” You also expressed outrage at the senators’ initial decision not to have a public hearing on Hill’s complaints.
Now, on the other hand, you say that “I don’t really think of either of these [Hill’s or Jones’] as sexual-harassment cases, if you want to know the truth,” and that what Thomas allegedly said to Hill “wouldn’t [by itself] disqualify him from a seat on the Supreme Court.” And you put your name on an amicus brief urging the Supreme Court to rule that Paula Jones should not get a hearing until the year 2001 (if ever).

What you have not done is confront or rebut specifically the evidence that I cited in support of the conclusions and opinions stated in my article.

I respond to your specific points below, but first, some questions:

1) My main conclusions (as stated on the cover of the American Lawyer) are that “Paula Jones’ claims against President Clinton are far stronger than the media has let on–and far stronger than Anita Hill’s against Clarence Thomas.” Do you disagree, and, if so, why?

2) Do you mean to suggest–when you impeach Paula Jones’ credibility and assert that the president “doesn’t abuse people” and “doesn’t harass people”–that Paula Jones is a liar and a false accuser?

3) If so, do you also mean to suggest that Pamela Blackard (who is, by the way, a real “soccer mom,” very proud of her 5-year-old son’s first goal), and Debra Ballentine, and sisters Lydia Cathey and Charlotte Brown, are all liars too? All four have said that Jones told them contemporaneously, and in considerable detail, that Clinton had exposed himself and asked for oral sex after she had rebuffed his earlier advances. Is this a diabolical conspiracy by five mendacious women to get the president?

4) Do you disagree with the following analysis (from my article): “[T]here are only three logically possible scenarios: that Jones lied in a most convincing manner, and in stunning, Technicolor detail, to both Blackard and Ballentine, on May 8, 1991, and to her sisters soon thereafter; that Blackard, Ballentine, and both sisters later conspired with Jones to concoct a monstrous lie about the president; or that Jones’ allegations are substantially true”? Which scenario seems the most plausible to you?

5) If the evidence suggests at least a strong possibility that Jones’ allegations are substantially true, how does that square with your assertion that the president “doesn’t abuse people” and “doesn’t harass people”?

6) You wrote: “The truth is suicide, even if it really isn’t so terrible. If Bill Clinton had looked into the television camera, the way you and Paula wanted him to, and said he was sorry, the tape would’ve been in every Republican ad this fall.” Does this mean that it’s OK with you if the president has instructed his lawyers and other representatives to make false statements about what happened and what he recalls, and thus to smear Paula Jones as a liar?

7) Are you confident that the president was telling the truth when he said (through his lawyer Bob Bennett) that he “has no recollection of ever meeting this woman”?

8) Do you think that Anita Hill told the truth, the whole truth, and nothing but the truth?

9) Does your current view that Anita Hill’s complaints do not make a real sexual-harassment case mean that every major feminist group in the country was wrong to make such a big fuss about her claims–along with Pat Schroeder, Barbara Boxer, Barbara Mikulski, Carol Moseley Braun, Ted Kennedy, Charles Ogletree Jr., Susan Deller Ross, Judith Resnick, Judith Lichtman, Catharine MacKinnon, Gloria Steinem, Carol Gilligan, Toni Morrison, Barbra Streisand, Donna Shalala, Eleanor Smeal, Patricia Ireland, Anna Quindlen, and many others (including Susan Estrich)?

10) What about Hillary Rodham Clinton’s celebration of Hill at a 1992 ABA award luncheon for having “transformed consciousness and changed history with her courageous testimony” against Thomas?

11) Don’t you see even a teeny-weeny inconsistency between the vociferous advocacy of Anita Hill’s cause–and especially her right to a hearing–by all of the groups and people mentioned above, and the fact that not one of them has lifted a finger for Paula Jones, or objected to the president’s effort to prevent her from getting any kind of a hearing until the next millennium?
I’ll make you a deal: If you will answer all my questions, without (or before) changing the subject, I will agree to answer any questions you may wish to ask me.

In response to specific points in your most recent letter:

I disagree with the seeming implication in your second paragraph that Jones’ courting of publicity is devastating to the credibility of her allegations about Clinton’s conduct. It has some bearing only on whether she has been entirely candid about her motives for going public. And it is far from clear that she has lied on that score, if you look closely at the vagueness of what she has said about her motives, and at exactly what she did–and when and why she did it.
The first thing she did was hire a lawyer who tried to contact the White House to seek a settlement–perhaps an apology. He got nowhere. She then followed the lawyer’s (and Cliff Jackson’s) bad advice to hold a press conference at a right-wing political conference, in the hope of generating publicity that might put pressure on the White House to settle. That flopped–and various Clinton aides publicly dismissed her story as a pack of lies and her, as a liar and a trailer-park tramp. This made her understandably angry. It was at this point that she accepted invitations to appear with the only people interested in listening to her–right-wingers like Jerry Falwell and Pat Robertson. And it was a bit later that she filed suit–after Clinton had spurned her offer to settle for a no-cash apology.

Some of the assertions in your fifth paragraph–that “women pay the price coming and going,” and that “Anita Hill [was] victimized [as] many of the president’s defenders have done to Paula Jones,” and that “[m]en are spared the burdens of our hypocrisy by destroying women”–fail, in my view, to distinguish between legitimate probing for weaknesses in an accuser’s credibility, on the one hand, and deliberately mendacious smear campaigns, on the other.

In any sexual-harassment (or acquaintance-rape) case involving two people alone in a room, we must either take the accuser on faith (thereby employing a conclusive presumption of guilt) or probe the accuser’s credibility, by qualifying our sympathy for the victim she claims to be with skepticism for the liar she might possibly prove to be. Many feminists took the position in the Hill-Thomas case (but not in the Jones-Clinton case) that “women don’t make up this sort of thing,” and that “you just don’t get it” if you adhere to the presumption of innocence. I can’t believe that this is your view, even though your fifth paragraph might lend itself to that interpretation.

Finally, your two hypos: Taking the facts as you posit them, I might give you the answer you’re looking for; I like the woman in No. 2 the least–but only because your first hypo diverges radically from the Jones-Clinton allegations.
A law-firm associate on a business trip with a partner has a pre-existing relationship that might lead the partner to hope that a sexual overture would be welcome, and would lead to more than a purely physical encounter between two complete strangers; in contrast, it is undisputed that Clinton and Jones had never met before his alleged overtures to her. Moreover, the partner-associate relationship, while unequal, is less unequal in terms of power than the relationship between the governor of a state and a low-level clerical employee of the governor’s subordinate. And the partner in your hypo did not send a cop to fetch the associate; did not interrupt the associate’s performance of his job during working hours; did not make any further advances after being rebuffed; did not expose the portion of her anatomy most analogous to an erect penis; did not tell the associate that this was the portion of her anatomy she wanted kissed; and did not say that “she trusts you’ll keep this to yourself” with the same menacing tone that Jones claims Clinton used.

As for your hypo No. 2, it’s closer to the mark, as an analogy to the Hill-Thomas allegations. But the evidence taken as a whole, in my view, suggests that Hill very probably embellished, and may have lied wholesale. I think it improbable that Thomas repeatedly made offensive comments to her knowing that she would be offended.

So with reference to the facts, rather than your two hypos, I adhere to my view that “the evidence supporting Paula Jones’ allegations of predatory, if not depraved, behavior by Bill Clinton is far stronger than the evidence supporting Anita Hill’s allegations of far less serious conduct by Clarence Thomas.”
Of course, you may disagree with my view of the evidence, in either or both cases. Do you? Which brings me back to the questions posed above.

With best wishes,
Stuart
From: Susan Estrich
To: Stuart Taylor Jr.
Posted Saturday, Nov. 16, 1996, at 3:30 AM ET

Dear Stuart:

The more I read your typically carefully argued response, the more I’m left with this question (I will answer yours, I promise): Who is the villain here? Paula Jones claims she was harassed. She’s allied herself with the Clinton attack dogs and the conservative movement in America–she did, I assume, know who Jerry Falwell was–and she’s got more help than she needs and more press than she deserves, and she’s likely to make more money off this than she ever would have in life. She is very unlikely to win in a court of law, since I do believe, and you’d at least concede it’s arguable, that the facts she alleged are insufficient to state a claim. Besides, when it comes right down to it, this is one of those cases where truth is inevitably elusive: It is ultimately what he said and what she said, and the way such credibility issues inevitably get resolved (by attacking the woman as a nut or slut) is both likely to succeed, just based on what I read in your article, and as ugly as anything that happened 10 years ago.

So, what are we fighting about?

Are you after feminists for not embracing Paula Jones?
She doesn’t need me, and I refuse to take the bait. She has allied herself with people who preach hatred against decent people because of their sexual orientation, for starters. She is trying to bring down a president who will do more about the things I care about than anyone else I know who could get elected. I like Bill Clinton. I think that she’s exaggerating about what happened to her, at best. I think that treating all incidents of shabbiness in the same category as serious sexual harassment risks pushing it all under the rug, and I’d invoke the Army as proof on that one. I want the system to be fair to women, not to victimize them, but I also want it to be fair to men. I want it to be there for legitimate and serious claims of abuse, not pushed over in the backlash against criminalizing shabby behavior.

Are you after the press for not publicizing Paula Jones?
For not, say, putting her on the cover of a national legal publication with a full-color photograph and a 15,000-word piece written by America’s premier legal journalist?

For not sponsoring a dialogue about her in SLATE magazine?
Is there anyone in America who doesn’t know who Paula Jones is? My God, you can’t tell me that the press hasn’t covered her charges in greater detail than, say, Republicans blocking progressive judicial appointees–a subject which outrages me much more, and doesn’t earn anybody the cover of anybody’s magazine. Do you remember the woman from San Diego, the most widely respected judge of the superior court there, by everybody, whose nomination to the federal district court had to be withdrawn because of Republican opposition based on the fact that some years before, she had awarded custody to the same sex partner of a child’s parent, after the parent died. Remember her? What was her name? I don’t remember. Nobody forgets Paula Jones.

There are two kinds of media in this country: the conservative media, and the nonconservative media. The conservative media–i.e., the Wall Street Journal editorial page–has a side and plays it; they only attack my friends. The nonconservative media attacks everybody. There are lots of liberals in the media, but there is no liberal media. Besides, all those liberals work for conservative bosses–or at least politically sensitive ones, which is certainly lucky for Clarence Thomas this week (the plug having been pulled on Strange Justice, the Clarence Thomas story as a movie).

Me for being inconsistent?

I don’t even pretend to value consistency, if you want to know the truth. It’s honesty I strive for. I teach the same subjects year in and year out–criminal law, sex discrimination, and undergraduate law and politics. I try to think of them fresh each year, pushing myself always to challenge whatever solutions I came to the year before, to see if they hold, to use whatever wisdom and experience comes from life and age and thought to see if I understand things better. Otherwise, I’d be a lousy teacher. I’ve been teaching the gender course for 10 years (I didn’t start till I had tenure, since the course isn’t considered serious by some); my thinking has surely changed in many areas, particularly since I began looking to the future through the eyes of my son, three-and-a-half years ago, as well as my daughter.

Having said that, I’ve probably been more consistent in my views on Anita Hill than some other things you could find. Here’s the story, and what those quotes mean.

I happened to be home riding my exercise bike when Anita Hill had her first news conference at the University of Oklahoma, so I watched it. I had two reactions.
First, what a jerk Clarence Thomas is, a conclusion I’d already reached. Here’s a guy who wouldn’t be where he is but for affirmative action, and opposes it; who’s seen his own family forced to depend on welfare, and denounces welfare recipients; the only man in America who claims never to have had a discussion about Roe vs. Wade (such an obvious lie); a guy with a randy reputation (the porno stories were all around) who has made common cause to become the black poster boy of the conservative right wing, that stands opposed to civil liberties. What Anita Hill said about him fit right in. Here was an obviously naive and traditional woman, a black woman, the low person on the totem pole, and he chooses her as his foil, tells jokes he knows will shock her at her expense. Step on the only one beneath you. Hypocrisy. Again. What a guy.
Second, they’re going to eat her alive. Lunch. This woman has no idea what is about to happen to her. But I do. This is where my two lives collide. I’m probably one of the few people who is equally expert at both how you get victimized by the system as a victim of sex abuse, and by the Bush campaign team as a political opponent. She is going to get killed.

So I sat down and wrote a piece whose basic audience was the Senate Judiciary Committee, for the New York Times I think (you don’t have to look it up, it’s just part of the story), that argued that whatever they did, they shouldn’t let the hearings that were about to begin amount to a victimization of the alleged victim. Don’t attack her, I said. Understand that women don’t always react to sex abuse the way men might expect them to, and that doesn’t mean they’re lying. Tom Donilon, an old friend of mine from politics and a trusted Biden adviser, had been brought in by Biden to help put together the hearings, and he called me and asked if I would talk to Sen. Biden about the argument I was making in the piece. Sure. So the day before the hearings opened, I had a very long conversation with Joe Biden about not putting this woman on trial, and not letting the hearing degenerate into a pious attack on her. We seemed in such complete agreement that I remember him asking me if I’d write his opening statement, and me saying no because I had decided that I was only going to write what I believed, under my own name. Momentous moment. Donilon reassured concerned women, as did I, that I was among those who’d had a lengthy conversation with Biden, and that he got it.

The next day I turned on my TV and I was horrified. I watched this woman get attacked by a bunch of pompous, pious Republican hypocrites (led by Arlen Specter, trying to cozy up to the right in his state), and it still makes me mad. Biden seemed, at best, afraid to offend. The lesson I learned in the 1988 campaign–painfully, by the way, and over and over–is that when you’re in the middle of a fight, you fight back, you don’t opine about whether fighting is right.

So, some answers:

1. Do I think Paula Jones’ claim is stronger than the media has let on? No. If anything, it’s probably weaker. The media has already convicted the president on character grounds, as a womanizer, based on the accounts of two women neither of whose credibility has been tested in a court of law. Paula Jones is already famous. The presumption of innocence doesn’t apply to certain crimes–alleged rapist is not good on your résumé–and the president certainly doesn’t get it.

2. Do I mean to suggest that Paula Jones is a liar and false accuser?
She may be. How could anyone know for sure, one way or another? I don’t know her, but I do know the president, and the conduct she describes is totally at odds with the man I know.

In my experience in other instances of sexual abuse, there is often a tendency–particularly in cases about the line between sex and abuse–for everybody to lie, at least a little, to make themselves look better and the other party look worse. You say you screamed; maybe you didn’t. You say she said yes; maybe she didn’t say anything at all. The party who talks the most in advance of trial tends to lose, because they get caught in all the little inconsistencies that emerge in such retellings. Consider William Kennedy Smith and Patricia Bowman: She did all the depos in advance, and got into a mess on her stockings, and their whereabouts, and lost; or Mike Tyson, who tried to talk his way out of charges by talking to the prosecution and testifying at the grand jury, and ended up talking his way into prison.

So maybe she came to the room. Maybe the president came on to her. Maybe she came on to him.

3-6. Is there a diabolical conspiracy to get the president on the part of Paula Jones’ supporting witnesses? No. Probably not. Just an effort to stand up for a friend, remember as best you can what it is she told you five years ago, and defend her against other relatives and acquaintances who are saying that she is a publicity-seeking liar, who offered to be the governor’s girlfriend. Are her friends telling you today exactly what Paula told them five years ago? Who knows? These women need to be cross-examined before they convict the president. Besides, it’s hearsay anyway: They can testify as to what she told them happened, not what happened. They say: Their friend wouldn’t make this up. I say: My friend has more class than that. Whom do you believe?

What do I mean when I say that the president doesn’t sexually abuse people? Just that. This is the only case I know of where any claim of abuse has been made against him. There is a difference between sex and rape, between flirtation and harassment, between sexual autonomy and sexual coercion.

Some psychobabble, which you’re free to ignore. Rapists and harassers are not generally sexy guys who like women and step over the line. They are, in my experience, very angry men with very negative, hostile–even violent–views of women, which is why, when you’re on the receiving end, it feels like violence and not sex. It is.

7-8. Am I troubled that the president has told his lawyers to say that he doesn’t recall, etc.?

What do you want him to say? The president’s lawyer wouldn’t be a very good one if he let his client say any more than that, in advance of trial. Doesn’t the man also have the right to have the case decided in a court of law, not in a debate sponsored by the tabloids? Are you damning him for not trying the case in the press?

9-11. Anita Hill again. How dare we celebrate her? How dare she be honored by the ABA? She was the first woman to step forward on the American stage and complain of sexual harassment, and she was viciously attacked for it by a bunch of hypocritical senators and a band of political operatives who thought no more of the Supreme Court than to use it as a place for sticking it to the civil-rights community by giving them someone who was a dead ringer for Uncle Tom. The most powerful political operation of the time, the Bush attack squad, went after her tooth and nail, and she never wavered. I thought she was telling the truth. So do most Americans today, by the way. And she was hammered for it. In front of her parents. You don’t pick your fights. Hers turned out to be an important one.

12. Are we inconsistent in supporting Anita Hill and not Paula Jones? Consistent with what? With the goal of protecting women from sexual abuse? I think that goal is served by supporting Bill Clinton. I think that it is important for us, feminists in particular, to acknowledge that taking sexual harassment seriously doesn’t mean that every time a woman complains, the man should be damned. How you think about feminism is relevant.
Here’s my bottom line. I don’t want a sex police in this country, and I certainly don’t want to be a member of it. I’ll take care of my life, and let others take care of theirs. There’s plenty of very serious abuse out there, if the press is interested. I’ll give you a dozen people with worse stories to tell than Paula’s, who don’t have ideologues eager to help them. Besides, 2001 isn’t so far away.

All the best,
Susan

P.S. I think my hypos were pretty good, even if you didn’t like them. In particular, I’m surprised that you suggest that a naked breast is somehow not a good substitute for a penis. Really? Does Sally agree on this?

P.P.S. What’s good for the goose may be good for the gander, but is it good for the country? Republicans destroy the president’s reputation. Democrats destroy the speaker’s. Bork is unconfirmable, and so is Peter Edelman and probably Larry Tribe. I think there’s a value to having moderates on the court, but I also think we’ve gone too far in making good people unconfirmable. Should consistency push us down the side of a mountain?
From: Stuart Taylor Jr.
To: Susan Estrich
Posted Wednesday, Nov. 20, 1996, at 3:30 AM ET

Dear Susan:

Your last letter contains some eloquent points, some passionate points, and some points with which I passionately agree. But it also contains some telling inconsistencies, some inaccuracies, and some revealing admissions–including what strikes me as an implicit admission that President Clinton probably lied to the public about Paula Jones.
You say: “I don’t even pretend to value consistency, if you want to know the truth. It’s honesty I strive for.” I’ll address that first, since I think it goes to the heart of our disagreement.
If you mean, when you devalue consistency, merely that we should all be free to change our minds over time as we learn more and test our assumptions against experience, then of course I agree. I would not criticize you for changing your mind between 1991 and 1996 as to whether Clarence Thomas sexually harassed Anita Hill.

(I do reserve the right to criticize you if you change your mind back again, the next time similar allegations are made against a prominent Republican.)
But I think that the overall context of your letter devalues consistency in a far broader sense. I think that you suggest (or at least imply) that there is nothing wrong with using double standards to judge people and cases based on our political preferences and personal likings, without even attempting to engage in a principled analysis of the facts and the law.

I am led to this interpretation by things like the passages in which you state that you won’t help Jones because she “is trying to bring down a president [whom] I like,” and where you ask (and answer): “Are we inconsistent in supporting Anita Hill and not Paula Jones? Consistent with what? With the goal of protecting women against sexual abuse? I think that goal is served by supporting Bill Clinton. …” I also note that you closed your initial letter with this: “He asked. She said no. He said OK. She left. He got elected and appointed Ruth Bader Ginsburg and Steve Breyer to the Supreme Court, signed the Family Leave Act, vetoed the partial-birth abortion ban.”
The implicit point of all this seems to be that feminists are right to support Anita Hill and not Paula Jones–regardless of which of the two women has a stronger claim to being a victim of sexual harassment–because supporting Anita Hill helps the feminist political agenda, and supporting Paula Jones would hurt that agenda.

In other words, it seems to me that you have implicitly conceded that the positions of feminists in these two cases are fundamentally unprincipled–that they are driven by political expediency, and not by a commitment to evaluating individual claims of sexual harassment on the basis of a neutral analysis of the evidence. Please correct me if I’m misinterpreting you.

If I am even close to being right in my interpretation, then we have a very fundamental disagreement. I think that to devalue consistency in this sense is to devalue principle itself, and that it is impossible to reconcile such a devaluation with a commitment to honesty. That’s because a principled consistency (not to be confused with the “foolish consistency” that Ralph Waldo Emerson called the hobgoblin of little minds) is, in my view, the very essence of intellectual honesty, and of the rule of law.
Why was Bob Dole justly criticized for advocating a huge supply-side tax cut after a career as a deficit hawk? (It was impossible to believe that he had had a good-faith change of mind.)
Because it was inconsistent, unprincipled, and intellectually dishonest.
Why was Jack Kemp justly attacked for wanting the vice-presidential nomination so badly that he embraced immigrant-bashing proposals that he had previously assailed–like excluding the children of illegal aliens from schools?
Inconsistent, unprincipled, and intellectually dishonest.

Why is it hypocritical for conservatives–including Clarence Thomas–who preach devotion to judicial restraint and to the original meaning of the Constitution, to turn around and call for sweeping judicial abolition of all affirmative-action preferences despite the absence of support for any such “colorblind” absolutism in the original meaning of the Constitution?
Inconsistent, unprincipled, and intellectually dishonest.

Why do I regard as hypocritical the 20-some feminist groups that are simultaneously palliating what Clinton allegedly did to Paula Jones and arguing–in the pending Supreme Court case of U.S. vs. Lanier–that it is a federal crime for a state official to do the same kind of thing to a woman under analogous circumstances?

Inconsistent, unprincipled, and intellectually dishonest.
(By the way, given your suggestion that you would reserve the term “sexual harassment” for truly egregious conduct, and that you disapprove of “criminalizing [merely] shabby behavior,” may I infer that you condemn the position of the feminist groups–and of the Clinton Justice Department–in the Lanier case?)

In judicial proceedings and analogous fact-finding proceedings (like Supreme Court confirmation hearings), the essence of the rule of law is to judge people on the basis of consistent legal standards and careful balancing of the evidence–not our own likes and dislikes and political preconceptions.
Why, indeed, is discrimination on the basis of sex and race wrong? Because victims are treated inconsistently, and thus unfairly, based on inborn traits that are irrelevant to their moral deserts, abilities, and accomplishments.
I think it was unprincipled of some conservatives to assume, with little attention to the evidence, that Anita Hill was lying, and that Paula Jones is telling the truth. And I think the same is true of the many liberal feminists–including all the prominent ones I can think of–who reflexively championed Anita Hill and now turn their backs on Paula Jones.
As my article details, I don’t see this lack of principle as completely symmetrical, because, in my view, Paula Jones has stronger evidence than Anita Hill, and her allegations were more serious than Hill’s.

While I appreciate the sincerity and the probative significance of your view that the conduct Jones describes “is totally at odds with the man I know,” I could give you a long list of women who would swear that the conduct that Anita Hill described was totally at odds with the Clarence Thomas they knew. On that score, I think it’s a draw; when you look to corroborating witnesses, Jones’ allegations have far more support than Hill’s.

(I assume, by the way, that your personal experience with Bill Clinton did not begin with him sending a state trooper to hustle you with a view to establishing a sexual liaison. But do you doubt the accounts of no fewer than five former Clinton trooper-bodyguards that he routinely used them for such purposes? If so, perhaps you should check with longtime Clinton Chief of Staff Betsey Wright.)
Since you bring up the importance of honesty, I can’t help wondering how you reconcile it with your admiration for President and Mrs. Clinton.

I am especially struck by your answer to my question asking whether you are “confident that the president was telling the truth when he said (through his lawyer Bob Bennett) that he ‘has no recollection of ever meeting this woman.’ ”
You could have responded, “Yes.” Instead, you answered: “What do you want him to say? The president’s lawyer wouldn’t be a very good one if he let his client say any more than that, in advance of trial.”

I found that very telling.

I don’t think you really doubt that Bill Clinton remembers very well having sent his state trooper to interrupt this low-level state employee at her workstation and summon her to his upstairs suite for the undisclosed purpose of giving him a chance to make a sexual advance.

In other words, I think that in your own mind, you probably agree with my view that Clinton is likely to be lying (through his lawyer) about this. Not just avoiding comment, but lying.

If he were to say the same thing under oath, it would probably be perjury. Which may be one reason he is trying so hard (with your help) to avoid having to testify.

What do I want him to say? I want him to tell the truth. And I certainly don’t want him telling lies.

Nor do I think that the president of the United States–especially one who is a very intelligent former law professor–should be taking orders from a white-collar criminal defense lawyer as to what to say publicly in response to a civil lawsuit accusing him of sexual harassment.
I must not have been a lawyer long enough to buy into the notion that people charged with misconduct should say whatever their lawyers tell them to say, whether it is true or not, and should never admit anything they don’t have to admit.

I really do believe in telling the truth. Even if it suggests that Clarence Thomas–whose jurisprudence I dislike, and whose behavior during his confirmation hearing I deplored–may not be as clearly a sexual harasser as almost all feminists would like to believe.

And even if it suggests that Bill Clinton–for whom I voted in 1992–is very far from being the man of integrity and character I once hoped he would be.
Honesty? While we await word on whether Hillary Rodham Clinton will be indicted for bank fraud–and/or perjury or obstruction of justice, based on one or more of the stark contradictions between her sworn testimony and other available evidence–I note what Michael Kelly, the astute (and hardly right-wing) new editor of the New Republic, wrote about the president this week, in his maiden “TRB” column:

He is of course a shocking liar. He will say absolutely anything at all. … He is breathtakingly cynical. This is a man who committed himself to a policy of making abortion ‘safe, legal and rare,’ and then vetoed a ban on the near-infanticide called partial birth abortion–and then accused critics of his action of immorality. A man who signed the Defense of Marriage Act while denouncing it as gay-bashing, then ran campaign commercials on Christian radio bragging that he signed it. A man who signed the Republican bill ending welfare as a federal entitlement, and then asked Democrats to vote him back into office on the grounds that only he could fix the wrong he had done.

By the way, while you charge Paula Jones with having “allied herself with people who preach hatred against decent people because of their sexual orientation”–presumably because she appeared on television with people like Pat Robertson, in a context that had nothing to do with gay-bashing–wasn’t President Clinton allying himself with the same people, in a far more direct and infinitely more consequential way, when he signed that Defense of Marriage Act?
More on inconsistency: It seems to me that your entire position on how we all should evaluate claims of sexual harassment (and, for that matter, rape) has a gaping contradiction right smack in the middle of it:

On the one hand, you say that it’s important “to acknowledge that taking sexual harassment seriously doesn’t mean that every time a woman complains, the man should be damned.” (I agree; I wish more of your feminist allies did.) You also say (and I agree) of Paula Jones that “this is one of those cases where truth is inevitably elusive: It is ultimately what he said and what she said.” You suspect (plausibly enough) that Jones is “exaggerating about what happened to her, at best.” And you add (reasonably enough) that the two friends and two sisters who corroborate Paula Jones “need to be cross-examined before they convict the president.”

(Of course, they won’t be examined at all until 2001 if you and the president succeed in stopping the case cold. “Doesn’t the man also have the right to have the case decided in a court of law?” you ask. Sure he does. But given his assiduous efforts to prevent any hearing in a court of law, he lacks the grounds to complain about efforts by people like me to explore the evidence as best we can.)

The principle underlying the statements quoted two paragraphs above would seem to be that the credibility of women who accuse men of sexual harassment or rape should be tested by careful probing and skeptical cross-examination, lest the men be falsely damned as harassers or rapists.
But elsewhere, and especially when talking about Clarence Thomas, you seem to suggest the opposite, tarring efforts to probe the credibility of women who make such accusations as a form of victimization–“attacking the woman as a nut or a slut.”

While confidently asserting that “I thought [Anita Hill] was telling the truth,” you condemn Sen. Arlen Specter for daring to cross-examine her–during which cross-examination he caught her lying five times on one key point (unless she just had a highly implausible failure of recollection).

And while you criticize other Republican types (as do I) for smearing Anita Hill with unsubstantiated rumors and slurs, you don’t seem to mind when a Clinton surrogate (James Carville) calls Paula Jones a trailer-park whore, or when Clinton’s lawyer (Bob Bennett) calls her sworn account “tabloid trash.”
Is this your principle: It’s OK to cross-examine (or even to smear as “trash”) accusers of men whose politics you hate, but it’s male-chauvinist victimization to cross-examine accusers of men whose politics you like?

Circling back to respond to your other specific points:

You ask, “Who is the villain here?” Bill Clinton is, unless Paula Jones is lying. I don’t disagree with your view that “she may be” lying. But it follows that even as you read the evidence, she may not be lying. My reading of the evidence is that she has made out a pretty strong factual case–and the president has come back with nothing but nondenial denials.

The evidence, I think, is what’s important here, regardless of whom she appeared with–nearly three years ago, in an ill-advised move that has not been repeated since she filed suit–and how much money she might make. (She’s made none so far, I believe, while Anita Hill reportedly has made enormous sums, from fat speech honoraria and a book contract.)

You ask, “Are you after feminists for not embracing Paula Jones?”
Not exactly. I am after them for applying a politically motivated double standard, and for making Anita Hill out to be a heroine and Clarence Thomas a sexual harasser while ignoring Paula Jones and her far more persuasive evidence of far more odious conduct by a far more powerful man.

I am also criticizing them for demanding an immediate evidentiary hearing in Anita Hill’s case, while supporting Clinton’s effort to deny a hearing to Paula Jones for at least seven years.

I note, in this regard, that while I am bashing various “feminists” here, I consider myself to be a feminist, in the old-fashioned sense of being committed to legal equality, and to the aggressive pursuit of equality of opportunity in all walks of life, for women and men alike. I have a personal stake in women’s rights, as a husband, and as the father of two soccer-playing daughters (and no sons) who will have to compete with men for good jobs–and who may be called upon to support me in my old age, given the probable impending bankruptcies of the Social Security and Medicare systems.

But while the organizations that call themselves “feminist” once helped pave the way to equality of opportunity, they now seem to see it as passé. I’m not at all sure that the activities into which they currently pour their energies will be of any use to my daughters–or do enough good to offset the harm they do. NOW and many others seem to be in the business of propagandizing my daughters to see themselves as victims and males as oppressors–including your little son, as soon as he’s old enough to be accused of harassing a girl in kindergarten.
You ask, “Are you after the press for not publicizing Paula Jones?” Yes, in the sense that it’s inconsistent, and unprincipled, for the press to give such enormous coverage to Anita Hill, and to the various accusers of Sen. Robert Packwood, and to Tailhook, and to the current Army sexual-harassment scandal, and to every other woman who comes along with a sexual-harassment allegation against a prominent public figure (at least if he’s a Republican)–all the while giving President Clinton a free pass. And I think it unprincipled of the press to portray these other accusers in the most sympathetic and credulous of terms, while lapping up the Clinton-Bennett-Carville spin by unfairly depicting Paula Jones as a mendacious, politically motivated slut.

(Yes, Jones has gotten some more sympathetic publicity lately, from me. But one article in a legal trade journal with a circulation below 20,000, nearly three hours after she went public–and even an excerpt in a globe-straddling powerhouse like SLATE–is not much compared with the trumpeting of these other women’s allegations on all the networks and on the front pages of every major newspaper in the nation.)

You note your outrage at Republicans blocking “progressive” judicial nominees (like Judge Judith McConnell of San Diego) and the relative lack of coverage of that by the media. A fair point. But it would carry more weight had you expressed similar outrage when the Democrats did the same thing in 1992, to highly qualified Republican judicial nominees like then-Deputy Solicitor General John Roberts.

You assert that there are conservative media in this country, but no liberal media. I respectfully and emphatically disagree. I will resist the temptation to go farther down that particular tangent at the moment.
In your answer to my first numbered question, you complain that the media have made the president out “as a womanizer, based on the accounts of two women, neither of whose credibility has been tested in a court of law.” I’m not sure what your point is, since I can’t believe that you really doubt he is a womanizer–no other adult I know doubts it–and since, in any event, the allegation here is sexual harassment, not womanizing.

In your answer to questions 3-6, you don’t challenge the truthfulness of Paula Jones’ very powerful corroborating witnesses. You do assert that her “relatives and acquaintances … are saying that she is a publicity-seeking liar, who offered to be the governor’s girlfriend.” This is inaccurate.

Her friends and relatives–meaning her mother, husband, and two sisters, including Charlotte Brown, the one who questioned her motives (but not her allegations about Clinton’s conduct) in 1994–have all said they believe her account of the facts; the rather bizarre brother-in-law (Mark Brown) who said in 1994 that he thought Paula Jones was lying, and who worked with Clinton’s lawyers to discredit her, said this year that he believes Paula.

And the only person (other than Clinton surrogates) who has ever contradicted her on any particular–the one who said that she had offered to be Clinton’s girlfriend on leaving his hotel suite–is Danny Lee Ferguson, the good-ol’-boy state trooper who took her to Clinton’s hotel suite, and who is now Clinton’s co-defendant.

Ferguson, of course, was lobbied personally by various Clinton surrogates–and by Clinton himself, in phone calls in which (Ferguson has said) the president dangled possible federal jobs–when they heard Ferguson was talking to reporters about Clinton’s alleged use of the troopers to hustle women.
I doubt that Paula Jones said anything to this not-very-credible cop on leaving the Clinton suite to which Ferguson had delivered her. Why would she confide in him?

As to your hypos, my wife Sally counsels me to leave to the readers’ imagination any further drawing of analogies between various male and female body parts. I would add, however, that if you really want to talk about a law-firm hypo that closely parallels the Clinton-Jones allegations, the sexual overtures should be coming from the senior partner of the law firm; the sexual harassee should be a secretary; the time of day should be 2:30 p.m.; and the conduct inside the hotel suite should track the allegations of Paula Jones’ complaint.

And oh, yes: The senior partner should be male, and the secretary female.
Every feminist group in sight would be up in arms. And the jury would award damages somewhat above the $7.2 million (including $6.9 million in punitive damages) that a California jury awarded former secretary Rena Weeks of Baker & McKenzie in 1994, as was detailed in another cover story in the American Lawyer.
Weeks had worked for the offending partner for only 25 days; had soon left for another job; had no claim for lost wages; and her most serious allegation was that the partner had once touched her breasts, while stuffing M&M’s into her blouse pocket.

The partner did not expose himself. He did not demand sex (oral or otherwise). And he did not get a free pass from the feminists of America.

With best wishes,
Stuart
From: Susan Estrich
To: Stuart Taylor Jr.
Posted Saturday, Nov. 23, 1996, at 3:30 AM ET

Dear Stuart:

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,
Susan
From: Stuart Taylor Jr.
To: Susan Estrich
Posted Wednesday, Nov. 27, 1996, at 3:30 AM ET

Dear Susan:

Debating with you is fun–because I do like and respect you–but it also gives me a feel for what it must have been like boxing with Muhammad Ali.
You float like a butterfly. You sting like a bee. And, when called upon to defend an indefensible proposition, you do a helluva rope-a-dope.
You fake right and then take off down the left sideline quicker than Gale Sayers. You do a better sting than Paul Newman and Robert Redford. You get more mileage out of a weak hand than Maverick. You put an innocent face on a guilty client as deftly as Johnnie Cochran. You’re tougher than Tonya, calmer than Kerrigan, and shrewder than Houdini. And if Pete Carril could make a bunch of short guys (who couldn’t jump) at Princeton look like a basketball power, you may be able to make the Clintons and their team look like the most ethical administration in history.

But not for long.

The one thing I’ve got going for me in this debate is the facts. So I can understand why you’ve largely stopped talking about them.

Your latest posting does make two points about Paula Jones, Anita Hill, and all that: 1) Even if Jones is telling the truth, then-Gov. Clinton’s conduct was no big deal because–after having this 24-year-old state employee interrupted at her work station in a hotel lobby and brought to his upstairs suite by his cop, and making two sexual advances, and encountering two polite rebuffs, and then exposing himself, and the rest–he desisted (and told her to keep quiet) when she more clearly stated that his advances were unwelcome; 2) What Clarence Thomas did to Anita Hill was worse, because it appeared to you that he was “having fun tormenting her.”

As to 1), I think that you understate the importance of the inequality in the Clinton-Jones power relationship. And you have avoided comment on the contentions by the Clinton Justice Department and some 20 feminist groups (in United States vs. Lanier) that such conduct is a federal crime, when engaged in by a state employer with power over a state employee.

As to 2), I agree that Hill’s allegations–if true–make Thomas look pretty bad (though not as bad as Clinton, in my view). But the evidence suggests to me that Hill greatly embellished what happened and may have made the whole thing up. While I can’t be sure, I don’t believe that Thomas deliberately tormented or harassed Hill.

You raise an interesting point in saying that you “part company with … our friends whose principles lead them to tear everything down and take no responsibility for rebuilding it.” I take this to mean that you think the most constructive course is to support your party’s president, the better to achieve policy goals in which you believe, rather than to dwell on his faults. My friends in the Clinton administration apparently feel the same way–even, it appears, when Clinton sells out what he once claimed to be his principles, as he has done over and over again.

I respect that point of view. But it’s not mine, and would not be mine even if I heartily approved of Clinton’s political agenda (whatever it may be this week). This is in part because I think that this president and his wife have forfeited any claim to the benefit of the doubt as far as ethics and truthfulness are concerned, and in part because I don’t think that journalists should be uncritical cheerleaders for anybody’s team.

It’s true that a relentlessly adversarial journalistic stance toward our elected leaders creates problems of its own–like public cynicism–and that we can’t expect the president to be perfect. But I think that we can expect the president to be truthful. And I think it healthier to engage in measured criticisms of deceptions by the president–whether his name be Nixon, Reagan, Bush, or Clinton–than to stifle our disgust for the greater good.

(Maybe I’m just old-fashioned, but I also think that law professors should not be urging the courts to adopt an unprecedented rule of immunity blocking all proceedings in a sexual-harassment suit against President Clinton, unless they would have taken the same position had the president been Reagan, or Bush. If, as you suggest, judges should be principled, why not law professors? Or–if we cannot expect law professors to be principled–why should we take at face value their purported arguments of principle?)

I can only note my amazement at your view that President Clinton’s decision to sign (and campaign on) what you call “that disgusting gay-marriage bill” can be defended as analogous to Thurgood Marshall’s tactical decision to attack racial segregation in a case involving a law school before he went after segregated elementary schools.

I can certainly understand you teaching your children to respect the president. I try to teach mine to respect the presidency. Since they are only 9 and 12, it’s hard to make that point while telling them exactly what I think of the incumbent president. So I avoid discussing him, unless they bring him up, in which case I answer as honestly as I euphemistically can.

On Election Day, I told my wife Sally that I was writing in Colin Powell for president. She said something to Sarah (our 12-year-old). And when we were all at the polling place, Sarah whispered in my ear, “Vote for Colin Powell.” I told her that that was a great idea, and that I would do it, because I thought he would make a better president than either Clinton or Dole. And I did.
As for Duncan Kennedy and the crits, they always struck me as nihilists with attitude–the attitude being smug self-righteousness, intellectual snobbery, and insufferable complacency. I didn’t really know them as individuals, but as a group, they seemed to me to enjoy the fruits of tenure while playing mind games with students whom they despised–most of whom were headed for law firms they despised–and while spinning safely unrealizable fantasies of redistributing income to janitors and other proletarians whom they despised even more.
You can have the crits (although I gather you may not want them). I’ll take Professor Kingsfield from The Paper Chase. He told his first-year students, “Your minds are full of mush.” The crits have done their best to whip the mush into a Derrida soufflé.

But I think we’ve about exhausted our subject. I have no quarrel with what I take to be the heart of your summation, in which you said: “You believe in principle. I believe in politics.”
On that note, I rest my case.

With best wishes,
Stuart
From: Susan Estrich
To: Stuart Taylor Jr.
Posted Wednesday, Nov. 27, 1996, at 3:30 AM ET

Dear Stuart,

Is there another word I could say that would convince anyone who isn’t already convinced? We’re supposed to leave them wanting more, aren’t we?
So how about if I just include in my thanksgiving the chance to disagree with someone I respect so much, and even try to do it with integrity and humor. Imagine what the world might be like if this were how people had public discourse.

Thanks to everyone else, too, for all the comments (and even some fan mail).

Happy holidays, love to Sally and the girls,
Susan

The post Did Clinton Harass Paula Jones? appeared first on Stuart Taylor, Jr..

This idea surfaced briefly and spectacularly in 1990, when the Philadelphia Inquirer suggested in an editorial that perhaps some welfare mothers should be “offered an increased benefit” if they would agree to practice effective birth control–specifically, to use the then-new Norplant contraceptive, which prevents pregnancy for five years after being implanted under the skin of the upper arm.

An uproar followed. The editorial writers–who had insensitively suggested a desire to reduce births of poor black babies in particular–were savaged by many Inquirer staffers and others as racist advocates of eugenics, even of “genocide.” They also caught it from some abortion-rights zealots, who are suspicious of any government efforts to influence reproductive choices, and from conservatives, who think the only proper way to discourage teen pregnancy is to preach abstinence. The newspaper abjectly apologized for a “misguided and wrongheaded editorial opinion.” And ever since, the whole subject has been taboo.

But it’s still a good idea, for poor girls and women themselves, and for the rest of us. Millions of babies are being born to poor teen-agers so lacking in elementary skills, work habits, and self-discipline that they are unlikely to be either responsible parents or self-supporting providers. Many of these babies grow up in squalor and themselves become dependent denizens of the welfare culture.

The only realistic hope for breaking the bleak cycle of teen pregnancy and welfare dependency is to find ways to persuade poor teen-agers not to have babies–at least, not until they are old enough, and capable enough, and self-supporting enough to provide a decent home life. But nobody–nobody–has any great ideas for realizing this hope, short of reverting to the cruelest, let-’em-starve brand of social Darwinism.
Thoughtful progressives like Sen. Daniel Patrick Moynihan, D-N.Y., have properly stressed the need to push welfare mothers into jobs and job-training programs. This makes sense because some of these women will rise to the occasion, learn the work ethic, and become self-supporting. And others may be dissuaded from having children by the prospect of being required to work. But (as Moynihan acknowledges) many welfare mothers are so crippled by their own early childhood environments as to be essentially unemployable, no matter how well-financed and well-run the jobs programs and related counseling, training, and child-care programs.

And under the harsh new welfare reform, the jobs programs will not be well financed. It appears that millions of welfare mothers and children will simply be cut off–unable to get or hold jobs, and left to beg from relatives and strangers, to steal what they can, even to sleep on the streets, depending on how much Calcutta-style misery the taxpayers are willing to tolerate.

Given the stark ugliness of trying to end the welfare culture by spreading homelessness and hunger, it’s especially striking that one pretty good, pretty humane idea has been virtually ignored in the welfare debate of the past year.
In a small effort to reopen discussion of this option, here’s a specific proposal: States should experiment with programs in which all qualifying teen-agers and women would be offered lump-sum $1,000 cash payments–on top of any other benefits they receive–to have Norplant (or another long-term contraceptive) implanted at government expense. They would be free to have it removed whenever they chose, but would be rewarded with additional payments (of, say, $30) for each month in which they kept it.

The category of qualifying teen-agers and women could include all recipients of welfare or other public assistance (including daughters of recipients) who are competent to give informed consent to the implant procedure. Or the program could be restricted in various ways in order to blunt possible objections. For example, you could require parental consent. Or, eligibility could be restricted to those who have already been pregnant, or at least sexually active; to those over age 13, or under age 21; or some combination thereof.

Why Norplant? Because it requires no ongoing effort or supervision to be effective, and it can be discontinued only after some (rather small) effort. As such, Norplant is the only contraceptive the government could pay people to use with any hope of affecting those who aren’t strongly motivated to either become pregnant or avoid pregnancy.

How much good the Norplant option would do is debatable. But the arguments that it would do harm seem unpersuasive. Here’s a quick review of possible objections, left and right:

Bribing poor women and girls to implant Norplant would coerce them into not having children, thus violating their rights to reproductive choice, like the one-child-per-family policy and coerced abortions in China.

To the contrary, a government offer of money is not coercion–and not even remotely comparable to what goes on in China. Existing benefits would not be reduced for anyone declining Norplant. This means that nobody who really wanted a child would be prevented from having one. To be sure, the government would be trying to influence reproductive choices. But the same is true of existing policies promoting free contraception, and of laws like the Hyde Amendment, which denies Medicaid funding for abortions–not to mention the still extant statutes making it a crime to commit statutory rape (sex with a consenting minor), fornication (premarital sex), and adultery.

In its groveling 1990 editorial apology, the Inquirer said: “Our critics countered that to dangle cash or some other benefit in front of a desperately poor woman is tantamount to coercion. They’re right.” No, they were wrong, and the Inquirer was right in its initial Norplant editorial, when it noted that women would be free to “change their minds at any point and become fertile again.”

“Many people,” David Boldt, then-editor of the Inquirer’s editorial page, noted in a subsequent commentary, “saw the editorial as part of an ongoing white conspiracy to carry out genocide of blacks in America.”

This is pernicious nonsense, no matter how many people say it. The original Inquirer editorial unwittingly invited such smears by linking its Norplant proposal to race–specifically, to a report that nearly half the nation’s black children are living in poverty. But nobody is proposing that race be a factor in any program promoting Norplant to welfare recipients, most of whom are white. Nobody is proposing to sterilize women or forbid them from having children. And while a disproportionate percentage of welfare mothers and children are black, black America, like white America, can only benefit from any program that rewards people for avoiding pregnancy unless and until they are old enough and self-supporting enough to provide decently for children.

Girls and women on Norplant may be at greater risk of contracting and spreading AIDS, because they will be less likely to demand that their sex partners use condoms.

A 1994 study reported in The New England Journal of Medicine found that Norplant had no effect on recipients’ decisions whether to use condoms or visit doctors–and was 19 times as effective as the pill in preventing pregnancy. Any Norplant incentive program should include vigorous counseling about the need to use condoms against disease. But even now, how many women and girls are so much more afraid of pregnancy than of death that they use condoms solely to avoid the former, and would stop once on Norplant? Not many, I suspect.
Norplant itself may be unhealthy.

The possibility of serious long-term health damage from any relatively new contraceptive like Norplant must be taken seriously, and the risks should, of course, be fully disclosed to women considering using it. But no contraceptive is risk-free. And the available evidence indicates that the risks inherent in pregnancy and childbirth–and in abortion–are at least as great as the risks inherent in Norplant.

Plaintiffs’ tort lawyers have nearly killed off Norplant, scaring away many women and doctors, by a torrent of personal-injury suits against its manufacturer. The lawyers include many of the same folks who created a tidal wave of litigation based on the apparently bogus claim about the dangers of silicone breast implants. But the Food and Drug Administration has repeatedly found Norplant to be safe and effective. More than a million women have used it with only minor side effects, such as changing menstrual bleeding patterns, reported.

There have been complaints by a small percentage of Norplant users of severe pain or scarring from having it removed. But the apparent reason was inadequate training of physicians in the (usually quick and painless) removal procedure–an easily remedied problem–and not any inherent defect in the product.

It is sexist to seek to thrust contraception only upon women.

Sexism has nothing to do with it. First, almost all welfare checks are written to women–not to men, who don’t get pregnant. Second, the only forms of contraception now available for men are condoms and vasectomies. It would hardly make sense to hand out $1,000 payments to men for taking home a bunch of condoms, or to try to police their use. And a vasectomy–unlike a Norplant implant– cannot always be reversed.

Giving teen-agers contraceptives encourages promiscuity, and bribing them to use Norplant will encourage it even more.

The weight of the evidence suggests that teen-agers’ decisions whether or not to engage in sexual activity don’t have much to do with whether the government gives them contraceptives. Many have unprotected sex, and almost all can get contraceptives if they want them. As I have suggested, one possible restriction (although not one I would favor) on any Norplant incentive program would be to limit eligibility to teen-agers who have already been pregnant or, at least, sexually active. Norplant counselors could also stress the benefits of abstinence, while presenting the contraceptive as a backup safeguard.

Teen-agers should learn about sex and contraception from their parents, not the government.

A parental-consent requirement would answer this objection. I would not advocate such a requirement, however, because of the overwhelming evidence that many parents have little or no constructive communication with their children about such matters. I hope that my own two daughters (now 12 and nine years old) would consult with me and my wife before getting Norplant or becoming sexually active. But if they end up deciding to go their own ways, I’d rather that they have unrestricted access to Norplant than that they risk pregnancy.

Would a Norplant program be thwarted by the fact that many poor teen-agers actually want to get pregnant and have a child? I don’t think so. First, there are about 3 million unwanted pregnancies in the United States every year, half of which end in abortion. Many of these involve teen-agers and women who are (or will be) on welfare. Norplant could stop almost all these. Second, the allure of pregnancy for many other poor teen-agers may be so slight, or so fleeting, or so fraught with ambivalence, that a $1,000 Norplant incentive would have plenty of takers.

And even if such a program only delayed pregnancies a few years, that would be a very good thing. Most 15-year-olds would be better mothers, and have a better chance of making something of their own lives, if they waited five or seven years before having babies.

Norplant is no panacea for poverty; nothing is. The question is whether a Norplant incentive program might do some good. There’s only one way to find out: Give it a try. If it fails, the cost–in terms of numbers of teen-agers and women taking the $1,000 offer–will be tiny. And it just might help.

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