Consensus? Well, Close

Estrich and Taylor Jr.

Consensus? Well, Close

Estrich and Taylor Jr.

Consensus? Well, Close
An email conversation about the news of the day.
Oct. 1 1998 10:49 AM

Estrich and Taylor Jr.

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Dear Stuart,

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Consensus? Close. Actually, I think I'm probably tougher on affirmative action than you are, at least the kind that has been practiced in public institutions and is defended by the administration. I think granting absolute numerical preferences based on race is not only unconstitutional but unnecessary and counterproductive. One of my colleagues, a tax guy who has chaired our admissions committee for years, says he absolutely resisted the argument for numerical preferences when "liberals" were claiming it almost as a point of pride, and of course, we still admit blacks and they don't. Graduation rates in the UC system being what they are, more blacks may actually graduate from public colleges now than did pre-Prop 209, which sounds unbelievable until you realize that the black dropout rate at the top campuses was 60 percent. Whose kidding whom? Most New York law firms still don't have a black partner; no one, it seems, believes in affirmative action when it comes to promoting partners. But they'd all love to have Frank Raines in their midst and will tell you, and I believe them, that they would like nothing better than to find a black lawyer who meets their standards. So why don't they?

I saw the item about the S.C. governor and his press secretary. I don't know any of them, and when I read it, I thought: what a nightmare. I also, I am afraid to say, assumed there must be something to it, else why was the paper reporting it. Remember the good old days when a paper reporting a story like this implied that it had substance? I remember, 10 years ago, when I had to deny that Dukakis was mentally ill, and we lost eight points overnight. But it's like money: The only way to stop it is to stop rewarding bad behavior. But the contrary tends to be true. Six years ago, Barbara Boxer won in part thanks to a last minute smear of Bruce Herschenson. The guy who did the smearing was a Democratic party operative who was suspended on the Friday before the election, rehired the Wednesday afterwards, and still has his job. Matt Fong, watch out.

Speaking of bad behavior, I find the whole lying vs. sex debate to be, in the end, not very helpful. Is lying less bad if the subject is sex, or is it that sex gives you permission to lie? I'm not sure. Having spent the day in synagogue, confessing sins and contemplating the lines between what we know and what we believe, what science says is so and what we believe is true, I've come to the conclusion that there is no "right" answer in any scientific sense to the whole Clinton scandal.

We all know what he did. There's really no doubt about the essence of it. He had a sexual relationship that was wrong and immoral, lied about it, and then lied about it again.

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The question is what we believe about it. It is more like abortion than Social Security, more a matter of belief than of fact. That's why, I think, the polls don't change, and why you can believe in a position that is equally and diametrically at odds with mine, even as we chat pleasantly about affirmative action and political correctness.

The problem, of course, is that we can't both be right, and that either of us having our way in this debate is a direct assault on what the other believes. It's not something we're used to in this country, certainly not in the Clinton era, where everything has been triangulated, and agreeing has been seen (rightly I think) as a value in itself. It's conflict for sure, and I fear it will be conducted at the worst level.

Cue Ball Carville against Dick Morris. I turned my television on at 4:00 p.m. today and who is the first person I see but Dick Morris, appearing for a 15-minute interview on Fox about the so-called Secret Police. By the end of it, he had managed to suggest that Terry Lenzner (who happened to be coming to my break fast, since he was visiting our friends) might have been responsible for kidnapping Kathleen Willey's cat and warning her that her family might be next. No one stopped him and said, What the hell are you talking about? What possible basis do you have to believe that a distinguished lawyer with a 30-year record of integrity would be kidnapping a cat? No, they just listened, treated it all with respect, allowed him to make accusations, just like your friend the governor and the press secretary. It has become an industry, particularly on television, and the only way I know to avoid it is not to watch.

One final thought. If the Democrats had the guts, they'd turn this election into a referendum on impeachment. Get the Democrats out to support Clinton, since the Republicans are coming anyway. Promise the country that if they vote Democrat, at least Congress could go back to talking about education, if not doing something about it. Let the country decide, a position that is a whole lot safer when the country is on your side. Not a chance.

Happy New Year. As we say, may God inscribe us all in the Book of Life, even if it means another year of Monica.

Best, Susan

Susan Estrich is a law professor at the University of Southern California. Stuart Taylor Jr. is senior writer at National Journal and contributing editor at Newsweek.