Politicians Need to Ask
Voters Some Tough Questions
By HADLEY ARKES and WILLIAM J. BENNETT
It may be time for the Republicans to turn talmudic. They have the edge in
next month's election, and yet, in a curious way, they find themselves off
balance. The record already in hand is rich in evidence of wrongdoing by
President Clinton. But at every turn, Republicans run into a massive wall of
bewilderment reflected in the polls: Most people profess to think that
presidents can be removed for committing perjury and otherwise breaking
the law; and most people think Mr. Clinton perjured himself. Nonetheless
some two-thirds of the public in surveys have been unwilling to cashier Mr.
Clinton. They seem reluctant to draw the conclusions that flow from their
own premises and judgments.
Faced with this scattering of the public mind, Republicans might discover
another style of leadership, one that resembles teaching. As Michael Barone
points out, the "opinions" of the public do not necessarily suggest that the
respondents would resist a move toward impeachment if the case were
unfolded in clear, compelling steps. The public has not been asked, in the
surveys, to take account of the principles or the facts that would have to
frame the problem of judgment for members of Congress.
Alexis de Tocqueville and John Stuart Mill
observed that politics is a school. The people drawn
into participation may not be masters of the subject
at hand, but they have the chance to watch the way
in which men and women, practiced in the law,
address serious questions of justice. Sometimes
politicians act out their functions as representatives
by teaching--by conveying to their constituents a
sense of the considerations they will need to take
into account. And here the politicians might do well
to remember some lessons from their own school
days: The gentlest but most effective method of
teaching is the posing of questions.
In the old talmudic style, it was recognized that certain kinds of questions
were best answered through the posing of yet another question. And at
times, the question would awaken the listener to layers of understanding that
had simply gone, for the moment, unrecognized or unremembered. We
would suggest that the Republican candidates invite the opinions of their
constituents, and pose to them a series of simple, clarifying questions. For
example:
"It has been loudly claimed in recent days that we haven't settled an
understanding yet of what is an 'impeachable offense.' But we don't write
here on a clean slate; we have precedents--most notably the grounds of
impeachment that a Democratic Congress approved in 1974 for President
Nixon. Regardless of whether President Clinton is guilty of the same
offenses, should the same rules be applied to him that were applied to
Nixon?
"That is, is it your understanding that we are all to live under the same rules?
Do the earlier rules on impeachment apply only to Republican
presidents--or should the Democrats be expected to live under the laws
they made for everyone else?
"When the House of Representatives voted impeachment for President
Nixon, it accused him of misleading, or lying, to investigative agencies of the
federal government. He was accused of suborning or encouraging the
perjury of others. He was condemned for misleading official agencies with
the purpose of covering up a crime and preventing the wrongdoers from
being punished. And he was charged with condoning the raising of money,
or the offering of support, for the sake of 'obtaining the silence or influencing
the testimony of witnesses.' These acts of misleading and diverting were
summed up under the term 'obstruction of justice.' Would the same rules
apply to President Clinton, who is accused of some similar things?
"It has been pointed out that Nixon was not accused of any wrongdoing
arising out of sexual relations. But since those days, a more liberal outlook
has also brought a new series of laws against 'sexual harassment.' Mr.
Clinton's record of sexual activities became relevant to the public only
because he was sued in a federal court over sexual harassment. That kind of
a wrong, marked in the law, compels us to bring into a public forum, or a
legal setting, acts that used to be in the domain of privacy. Do you think that
we should repeal those laws on sexual harassment? Should we remove
those laws that have made Mr. Clinton's sexual escapades a matter of
public record?
"If we do not repeal these laws on sexual harassment--if we continue to
insist that they are important laws, addressing important wrongs--do you
think that perjury in these trials would be any less serious than in other
trials?
"As things stand now, perjury in these kinds of cases has been considered
serious, and people have in fact been prosecuted for lying in these trials
about their sexual relations. And yet some people have suggested that it is
unreasonable to hold presidents to the same rules that are enforced in
ordinary legal actions. Is it your judgment that in general, the nation's chief
law enforcement officer should be given more leeway from the law--or is it
your sense that the president should be restrained by the same laws that are
enforced against other Americans?
"People in the military have lost their rank--and been sentenced to jail--for
'sexual harassment,' gauged in a strict way. Should these standards imposed
on the military apply in the same measure to the commander-in-chief?
"The president stands at the head of the civil service. Any civil servant who
had a sexual affair with a subordinate and lied to cover it up would be
removed from his job. If he lied before a grand jury, the penalties might be
even more severe yet. The chief executive stands at the peak of this
hierarchy. Do you take that to mean that he stands above the laws that
apply to everyone else under his direction?
"People say that this was 'only' a sexual affair, and it is almost natural that
people wish to cover it up. Does this mean that it is permissible to commit
felonies, to break the law by committing perjury, for the sake of covering up
these embarrassments? Are people generally to be excused from breaking
the law in such circumstances? Or is it only presidents of the United States
who would be excused?
"In short, do you think that the president should be held to the same laws
that are enforced against everyone else?
"Behind all the questions, there is a 'bottom line' problem that cannot be
evaded: If we give this man a 'pass' in the face of what he has done, are we
not in fact licensing everything up to--and including--what he has done, for
all future presidents?
"These questions do not come to you, of course, through a nonpolitical poll.
I do have my leanings--as my opponent does--because we are running as
members of political parties: We are joined with other people, who are
Republicans or Democrats, because we share certain perspectives, or
principles, that bear on the rightful and wrongful uses of the law, and the
ends of our public policy. But whether we are Democrats or Republicans,
the questions I've posed to you are the question that I have to pose to
myself, seriously, as I come to the point of judgment. And if I am to
represent your views at a decisive moment, it would be important to know
what you think when you have faced the question, arranged in these
layers--in the same way that your members of Congress will be compelled
to face them."
Mr. Arkes is a professor of jurisprudence at Amherst College. Mr.
Bennett is author of "The Death of Outrage: Bill Clinton and the
Assault on American Ideals" (Free Press, 1998).
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