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It’s easy for jurists to makes enemies deciding cases. Intellectual troublemaker Richard Posner starts out-of-court brawls, about both law and philosophy. The 7th U.S. Circuit Court of Appeals chief judge is best known as a founder of the law and economics movement, a defender of free markets and a prolific legal theorist espousing pragmatic solutions. He’s also an independent social thinker often at odds with cultural scolds of the left and right. He especially enjoys debunking academic fads, a hobby that provides what the military would call a “target rich environment.” Now one of the targets is trying to shut him up. Earlier this year, Posner nemesis and liberal legal philosopher Ronald Dworkin charged the judge with violating the canons of judicial ethics in Posner’s “An Affair of State.” The book chronicles the Clinton impeachment saga and accuses the president of criminal wrongdoing. Over the years, Posner has cultivated a special disdain for “academic moralists” whose “moral principles … coincide with the preferences of their social set.” The judge has described his relationship with Dworkin as “20 years of mutual intellectual enmity, punctuated by increasingly acrimonious exchanges” in which he challenged the professor’s “pretensions as a constitutional scholar and public intellectual.” Publication of “An Affair of State” didn’t calm the feud. The book ridicules Dworkin for “constantly wanting to inject this or that moral principle” into public policy, until suddenly struck dumb and converted to a more pragmatic view by the president’s predicament. Dworkin calls the work “dangerous … bizarre” and driven by “anti-intellectual furies.” Posner concludes that Clinton “obstructed justice in violation of federal criminal law” and that a “prosecutor could easily draw up a 30-count indictment against the president.” Such statements, says Dworkin, violate Canon (3) (A) (6) of the Code of Conduct for United States Judges, which prohibits judges from publicly commenting on “pending or impending” cases. Is the professor right? That depends on what the meaning of “impending” is. Various dictionaries place “impending” between “right now” and “sooner or later, maybe.” Clinton remains in jeopardy until the statute of limitations runs on possible charges or Independent Counsel Robert Ray finally closes his shop. Federal judges are allowed to write scholarly books and articles, and “An Affair of State” was published by an academic press. To Posner, Canon 3 doesn’t apply because a prosecution is not imminent. Dworkin maintains that the rule should pertain not only to “imminent and certain prosecutions” but “any possible future prosecution,” particularly when “the judge is prominent and his statements are likely to receive wide circulation.” The Posner-Dworkin debate of the rule in the New York Review of Books — where Dworkin’s review first appeared and the two later continued their fight on the letters page — is detailed enough to include a discussion of the Latin root of “impending.” Further complicating things is the (dare I say it) “pending” disbarment proceeding against the president that resulted from the contempt citation against him in the Paula Jones cases and an earlier complaint by a conservative legal group. This case wasn’t active when Posner’s book was published last September, but the complaint was already on file. In January, the Arkansas Supreme Court ordered the state’s disciplinary committee to act on the matter (and it may do so as early as Thursday, when the committee meets again). The ABA Model Code of Judicial Conduct upon which the federal rules are based limits the prohibitions to public comments that may “reasonably be expected” to affect a trial’s outcome or impair its fairness. Congress omitted this qualification in the U.S. Code. Judge Posner is an enthusiastic recounter of Clintonian failings, though he does so in a more thoughtful and elegant way than the president’s partisan critics. The judge describes our current political culture as one in which “powerful, intelligent, articulate, well-educated and successful people” who want us to “submit to their leadership” are much of the time “ordinary people with … ordinary vices.” In power they “preen and strut” until some unexpected event exposes them “in their full … inadequacy.” These observations seem aimed at future historians. But in the short term, the audience that matters most is the lawyers in the Independent Counsel office. The possibility of the president being indicted is remote, says the judge, and he never explicitly states that Clinton should have been impeached or convicted. But he makes a powerful argument for Clinton’s guilt. The president should hope that Robert Ray and his attorneys don’t have time for the book. Within our adversarial legal system, ideology and legal theory count for less than understanding how rules can be manipulated to the clients’ best advantage. Judges are encouraged to do their philosophizing off the bench, or not at all. In a prior book, Posner noted that today’s “judges, like other authority figures, are trusted less, respected less, unthinkingly deferred to less.” Some may find this situation an argument for even stricter rules against public comment, but it’s unlikely that silencing judges will make them more respected. In controversies of national consequence like a presidential impeachment, judges should be as free to speak out as any other citizen. The sole penalty for doing so should be disqualification from hearing related matters. Posner’s book provides an important contemporary account of the Clinton proceedings and a shattered “presidential mystique.” The process made evident how “the nation does not depend on the superior virtue of one man.” If such observations also influence a prosecutor, so be it. George M. Kraw is a San Jose, Calif. attorney.

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