On Privacy

On Privacy

What has struck many observers by now is the failure of the ordinary system of legal checks to assist the country in a time of constitutional crisis. The failure has several dimensions: the arrogance of the courts, which stripped a president of the security of office and the trust of friendship; the bureaucratic timidity of the Justice Department, which allowed the independent counsel to pursue his revisions of the Constitution without challenge; above all, the silence of the legal profession, from which some stirrings of indignation might have been expected in a society where respect for the law and the perpetuation of liberty are not accidentally related. But perhaps the mistake was ours, too. We have relied on lawyers too much for our liberty—forgetting that they are all in some degree legalists, and the best of them necessarily pieceworkers. The Supreme Court looked on Paula Jones’s civil suit as a thing to itself, a piece they were not obliged to set in any larger picture. In the language of the Constitution, there is nothing about a suit against a standing president by an inflamed citizen with a personal grievance. The argument for postponing the trial—that it would become a national distraction—was a matter about which the justices felt compelled to have no professional opinion. They had only to ask themselves, like lawyers: why should it be a distraction?

Justice Antonin Scalia’s tone when he asked this question—you can hear it on the Internet—was jaunty, sarcastic, dismissive. So, what any citizen could have told the Supreme Court justices about distraction, and about the tenor of American public life, they could not legalistically consent to see for themselves. As for the formal respect for Kenneth Starr among lawyers of moderate or liberal views, the reason again lies in the professional metaphysics of piecework. They judge him by the part of his career that is familiar to them, and what they see is a fellow member of the legal elite, who, as solicitor general and as judge, bore all the markings of a reasonable man. They do not see the man of whom less professional observers have formed a vivid image: the fundamentalist zealot who corrected himself for ambition’s sake, hoping for a seat on the Supreme Court, but who, disappointed of that prize and on the verge of academic obscurity, found in some taped conversations about the president a stimulus impossible to resist, and hired a team spearheaded by small-town prosecutors—bullies, religious enthusiasts, and of course sex-mad, but invigorating helps for a desk lawyer who had never presented evidence to a grand jury, and did not so much as interview a witness in all his exertions to bring down a president of the United States.

This experiment on the happiness of the American people has also been the work of the mass media. But we need another name for the culture of mock-scandalized horror and euphoria, which, with the publication of the Starr Report...


Lima