Legal Realism
Ben Stein: Horrible impeachment process
USA Today December 15, 1998

Now for a few words from outside the Beltway about the impeachment hearings that became like a screen saver on my TV in recent days. First, when I was at Yale Law School, oh, some 30 years ago or more, we learned that Yale was the cradle of "legal realism.'' That doctrine, created by the likes of Harold Lasswell, Myers McDougal, and Karl Llewellyn (who was not at Yale), said that judges did not use legal precedents or statutory interpretation to make their rulings. Instead, they just decided what side of a case they liked, then found the cases and language to justify a decision they had already made based on their political, class, ethnic or other views - or just on how much they liked one lawyer's necktie.

The law - as the legal realists said - was not abstract, but decided by men with prejudices and biases like any other group of humans, then rationalized with cases and precedents (but there are always precedents on either side of a big case). The power of this proposition has become devastatingly clear in the Clinton impeachment hearings. By and large, and with no exceptions that I have seen, the Democrats, and especially the most militant Democrats, can find "logic,'' "fact,'' and "precedent'' to excuse Clinton, and to trivialize what Clinton did and said. The GOP, with exactly as much precision, can find "logic,'' "fact,'' and "precedent'' to impeach Clinton.

This leaves the consideration of important legal issues, even issues as big as impeaching a president, as highly personal, and therefore political matters. Don't even expect for a minute that it's going to change. Rep. Robert Wexler, D-Fla., is not going to convince Rep. Bob Barr, R-Ga., and Rep. Jerrold Nadler, D-N.Y., is not going to make Rep. Henry Hyde, R-Ill., change to a lover of Clinton. The life of the law is not logic, but experience, as was carved above the door of the Yale Law School, and experience tells us people make laws and legal decisions and that those people are a lot like us.

I happen to think the logic and fact and precedent favor a stinging impeachment of Clinton. But if my wife were his general counsel, I would feel differently. That's human nature. Legal realism just gives it a name as it applies to law. Hear talk not clank of tank treads But there is also something truly magnificent going on in Washington right now, something much bigger than legal realism. Or rather, it's what's not going on. The truly noble sound that came out of Washington in the past few months, and is still coming out of Congress and talk shows, is talk, talk, talk, not the clank, clank, clank of tank treads. Disputes are being handled - if not resolved - by debate, however sharp. No one is calling up troops. No one is machine-gunning opponents. Correspondents are not being shot in the head, as in Moscow or in Dublin.

The House is set to debate whether to send a bill of impeachment over to the Senate. But if the House votes to send the referral to the Senate, not a soul doubts that the troops and tanks will not intervene and that there will be no organized violence. If the president is convicted, he will immediately leave office. No one imagines that he will call up the 101st Airborne to keep him in the White House. No one doubts for a second that if the president is acquitted he will not have his opponents arrested and put in prison. Disputes about law, even at the top level of governance, will not be settled by violence.

Above parsing, Constitution's magnificence

There are masses of human squabbling and some miserable logic-chopping and hair-splitting and some embarrassing evasions, some heroism and some cravenness in the debate about Clinton's past and future. But over it all is truly magnificent self-restraint braced by what one 19th century British Prime Minister termed "the most remarkable work to have been produced by the human intellect" - the U.S. Constitution. Whatever we think of Clinton or Ken Starr or Nadler or Hyde, the GOP majority or the Democrat minority, and whatever lies ahead for Clinton, that is worth celebrating. Ben Stein, a former Nixon administration official, is a writer, actor and host of Comedy Central's 'Win Ben Stein's Money.' He also is a member of USA TODAY's board of contributors.