* in the New York Review of Books, Dworkin even accused Posner of possibly violating the Code of Conduct for United States Judges by commenting publicly on "pending or impending" cases.
"Philosophy and Monica Lewinsky," Dworkin's review of An Affair of State, was published in the March 9, 2000 issue of The New York Review of Books.
In the April 27, 2000 issue of the New York Review, Posner and Dworkin trade another round of blows. Posner, in an extended letter to the editors, describes Dworkin's review as "so unmistakably a personal attack that I would be poor-spirited not to respond." According to Posner, Dworkin may reasonably feel that the decision to write An Affair of State was injudicious, but to call it unethical, as he does, for declaring the President guilty of perjury, "exceeds the bounds of fair criticism." Why? A prosecution of President Clinton will almost certainly never happen, Posner argues, and is anyway not imminent or impending -- so Posner has not prejudiced any actual trial. Further, even if there were a prosecution of the President, his guilt or innocence would be determined by the evidence presented at his trial, not the evidence compiled by the Independent Counsel -- which is the only evidence on which Posner commented.
Turning the tables on his critic, Posner then claims that it is Dworkin, not he, who has committed an ethical violation. By attacking Affair in the guise of an impartial book review, and without clearly indicating that he himself is criticized in Affair, Dworkin, Posner charges, has misled his readers in the course of waging partisan "academic warfare."
In his own defense, Dworkin notes that The New York Review of Books is known for using book reviews as launching pads for longer, essay-like discussions of the broader issues raised by a particular book. He adds that the Review's editors "have often encouraged scholars to continue academic controversies before its intellectually sophisticated readership" and typically allow authors to respond at great length to criticism of their work. (Indeed, he points out, the Review "has now given Posner all the space he asked for" to make his concerns clear.)
As for the issue of the ethical impropriety of An Affair of State, Dworkin reminds that Posner himself raised the ethical question in Affair and then dismissed it by incorrectly citing the Code of Conduct for United States Judges as barring comment on "pending" cases only. "Was it unfair," Dworkin wonders, "to point out that [Posner] had misquoted the canon, which actually forbids comment on impending as well as pending cases...?" Posner's subsequent attempt to backtrack by insisting that a prosecution of the President is not in any sense "impending," Dworkin argues, is dubious wordplay. "Prosecution was certainly widely discussed and under active consideration when Posner wrote and published, as it is now," Dworkin concludes, "and [Posner] should not have prejudged guilt... in the way he did."
Return to the article