IN AN AFFAIR OF STATE, his 1999 analysis of the Monica Lewinsky scandal and Bill Clinton’s resulting impeachment, Richard A. Posner, a judge on the Seventh U.S. Circuit Court of Appeals, set out to prove that, almost without exception, the leading characters in that drama were “fools, knaves, cowards, and blunderers.” The president himself, a man with only “splinters of a fractured personality,” had committed serial felonies, of course, and arguments to the contrary—whether from White House lawyers or petition-signing scholars—were impossible to credit. On the other hand, Clinton’s “frenzied and irrational” critics were motivated hardly at all by concerns over such questions of law and constitutional order as might have been raised by his crimes. These “moralistic conservatives” were interested instead, Posner says, in pursuing an irredentist Kulturkampf on behalf of “sexual puritanism.” The puritans were all along bound to fail, Posner concluded in An Affair of State, since ordinary Americans have “attained a level of political maturity at which widespread disillusionment with the moral and intellectual qualities of our political leaders will not cause the sky to fall.” Clinton had “defiled” the presidency, Posner allowed. But most of us “do not and should not care about preserving the dignity of [that] office.” There was something here to offend nearly everyone, you would think, but the book was nevertheless favorably received across the board. Reviewers on the right chose to ignore the spitballs Posner lobbed their way, so grateful were they to have Clinton declared guilty as charged by a brilliant federal jurist. For reviewers everywhere else, it was enough that An Affair of State endorsed the president’s acquittal in the Senate as the worthy product of coolly “sophisticated” modern politics. No one seemed troubled by the obvious contradictions of such a politics—or by its barely concealed implications. Perhaps they will be troubled now. What the Clinton impeachment and last year’s presidential election share, Posner suggests in the preface to Breaking the Deadlock, his new book about the Florida recount, is that both crises demonstrate “the indispensability of pragmatism to the resolution of tumultuous, law-saturated public issues.” This is an attention-grabbing notion, to be sure. The failure of the Clinton impeachment and the failure of the Democrats’ election lawsuits in Florida have one practical thing in common: Al Gore didn’t get to be president, either as a post-impeachment stand-in or on his electoral strength. And the number of political thinkers who are happy about both these failures must be small enough to fit in the backseat of a taxicab. But riding with them, Posner insists, is the large, coherent, governing philosophy of American democracy. The essential meaning of which he begins to outline in Deadlock’s opening chapter, a thirty-five-page cadenza of novelty theoretics. “Pragmatism” turns out to have rather a lot to do with the “particularly delicate” question whether “voting should be made easier for people of limited literacy.” The popular franchise, you see, is a “very crude” method for teasing out wisdom in public policy. Voting eligibility is generally restricted to registered adult citizens residing—but not incarcerated—in a geographically specified jurisdiction. But those are “coarse sieves,” Posner explains, “if the objective is to confine voting to intelligent, knowledgeable, civic-minded, politically mature, responsible people with a tangible stake in the outcome of the election.” And how few of those there are! A great many Americans “would lack the intelligence or education” necessary to locate their own political interests “no matter how much time they spent studying the issues and candidates.” What’s more, even the smartest and most diligent of them casts but a single ballot among millions and so cannot reasonably hope to profit from his homework. The wonder, then, is “why anyone who is eligible bothers to vote” in the first place. The answer, Posner proposes, is that a democratic citizen’s voting behavior is best understood, in economic terms, simply “as a form of consumption, like rooting for one’s alma mater at a college football game”—an effort to “signal taste, values, or affluence,” nothing more elevated than that. We would do well to abandon our “starry-eyed” predisposition to “prate about self-government.” Better that we operate on the assumption that our political questions are not “resolvable by deliberation or debate,” that the beliefs we hold as individuals are “likely to be distorted by self-interest or ignorance,” and that We the People consequently “cannot be trusted to exercise power.” The good news, Posner offers, is that the ingenious republican structure of American government works to ensure that power is exercised by a better breed. Representative democracy—”practical,” “realistic,” and consistent with “commercial values”—all but forces ballot-box hoi polloi to “pick the best candidate for each office.” The best candidate, which is to say “the glib, the clever, the shrewd, the handsome, and the charismatic” one. Which is also to say: “a superior person, not at all typical of the voters”—who, in their starry-eyed delusion, no doubt imagine that honor and ability are really what they’re after. It is around this time in his book, before Posner has even begun to address the Florida recount, that nervous readers may start wondering what happened to those “sophisticated” average Americans whose “political maturity” he celebrated two short years ago in An Affair of State. And what has all this to do with the Florida recount, in any case? Surely Deadlock’s final two hundred pages, about the nuts and bolts of an actual event in contemporary public affairs, promise some relief from the battery-acid abstractions of Posner’s introductory discourse on democracy? Surely he means to make his “pragmatism” attractive, after all? No, sorry. Especially to folks already distressed by the conclusion of last year’s presidential election, Deadlock will seem the literary equivalent of those screaming-rabbit recordings that the FBI played outside the Branch Davidian compound in Waco. “Anyone who could read at a high school, or maybe even an elementary school, level,” Posner blandly observes, should have been able to figure out how to cast a successful ballot in those of Florida’s counties that employed “punchcard” vote-recording machines. The machines performed well. The people did not. In particular, some thousands of people who intended to vote for Al Gore wound up spoiling their ballots instead. It is “an elementary statistical proposition that the standard deviation from the mean of a sample is inverse to the square root of the sample size,” Posner reminds us. And from such calculations, he continues, it becomes plain as day that the punchcard-ballot incompetence of certain Democratic-trending Florida voter demographics—the “confused, clumsy, illiterate or semiliterate,” for example, a “disproportionate percentage of blacks” among them—cost Gore the White House. Tough luck, Posner says, and more or less in so many words. The rules were the rules, as previously established, and that should have been the end of it, the moment a mandatory machine recount confirmed that George W. Bush had won a majority of Florida’s validly cast Election Day ballots. That state’s supreme court had no authority under either local statute or the federal Constitution even to permit, let alone require, selected Florida counties to pursue the matter any further. By twice ruling otherwise, and thus launching the Democratic party’s ad hoc mission to fashion a White House from dented specks of cardboard, the Tallahassee judges did “what a banana republic might do.” Had Gore become president by virtue of those now famous hand recounts, Posner argues, “he would have owed his victory to legal error.” And legal error is a very bad thing, never more so than in a circumstance as gra
ve as this. Needless to say, many of us long ago reached similar conclusions about what happened in Florida on November 7. The surprise is that Richard A. Posner should now be agreeing with us. Or, more precisely, the surprise is what basis Richard A. Posner should now be choosing to disagree with our opponents. For he wishes to be thought an avatar of “pragmatism,” remember. And it would seem an odd sort of “pragmatism,” indeed, that makes fealty to legal and procedural formality its overriding concern. Or perhaps Posner is simply exercising the purest pragmatism, properly understood: any old debating point in a storm. And sure enough, so soon as he has excoriated the Florida Supreme Court for abjuring strict reliance on legal text and precedent, he turns around—never bothering to acknowledge the switcheroo—and praises the U.S. Supreme Court for doing much the same thing. The Fourteenth Amendment equal-protection argument with which the federal justices reversed their state-court counterparts in Bush v. Gore, Posner admits, was “not a persuasive one,” technically speaking. Nor was the argument adopted in the three-vote Bush v. Gore concurrence, which relied on Article II of the Constitution, particularly effective; Chief Justice Rehnquist, who wrote that concurrence, “did not defend it very cogently.” Nevertheless—nevertheless—the High Court is to be applauded for its “pragmatic” intervention against looming “chaos.” The best jurists, pragmatic jurists, do not restrict themselves to “canonical materials of judicial decision-making, such as statutory or constitutional text and previous judicial opinions,” in a mystical and unavailing search for the “One Correct Decision.” Recognizing that there is no such thing, the pragmatist instead “regards adjudication, especially constitutional adjudication, as a practical tool of social ordering and believes therefore that the decision that has the better consequences for society is the one to be preferred.” But how—by reference to what immutable principle, and against what commonly accepted standard—are those “better consequences” to be identified? Posner stays largely mum on the matter. Returning at last to Deadlock’s original question whether “voting should be made easier for people of limited literacy,” he generously answers “yes.” The United States should now effect those modest constitutional and administrative reforms necessary to ensure that devices like the punchcard ballot never again trip up the dullest witted voters among us, Posner argues. Their interests, too, should be reflected in our elections, he proclaims. Yes, they should, and devotees of “starry-eyed” democratic idealism would have little trouble explaining why. But the best Posner can do is note that the popular franchise in America has become a “symbol of equality” of notable “psychological” force. This may well be “hokum or sentimentality,” he thinks. But it remains “a brute fact” of our political culture. It would seem Richard A. Posner is prepared to indulge the illogical passions that fire the democratic imagination of his brutish fellow citizens. Which is very nice of him, really. But given that those passions are embodied in American law, might he not find some better place to work than the Seventh U.S. Circuit Court of Appeals? David Tell is opinion editor of The Weekly Standard.
