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Jewish World Review March 2, 2000 /25 Adar I, 5760

Paul Greenberg

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Starr Trek -- MEMPHIS, Tenn. -- The featured speaker at this year's annual Institute on the Profession of Law here at Rhodes College is the most vilified lawyer in America, Kenneth Starr. The all-too-independent counsel fell into the White House's spin cycle and is still being whirled about. You'd think he was the one who testified falsely in order to obstruct the judicial process.

How did a jurist, professor and advocate of such distinction and nigh-universal approbation -- everybody's choice for the Supreme Court one day -- become our all-purpose scapegoat?

There are lots of explanations for Judge Starr's current low estate, but a single story is enough to explain why he proved so vulnerable: Being driven into town from the airport, his escort points out Overton Park, the great green asset that saves Memphis from being all urban sprawl. "Oh, yes,'' says Judge Starr. "Citizens for the Preservation of Overton Park v. Volpe.''

Impressive. And revealing. The distinguished visitor knows the legal citation of the case that saved the park; the actual park is beyond his ken. Much like the world beyond the law.

Investigating the Clinton Scandals, distinguished counsel won a long string of convictions and constitutional rulings in court. But once outside, he was ill equipped to deal with the politics, the PR, the pandemonium that would unfurl in the wake of The U.S. vs. Clinton.

As has been famously noted, the law sharpens the mind by narrowing it. Kenneth Starr was soon lost in a world that not only he hadn't made, but whose existence he may scarcely have suspected. He was soon reduced, every morning on television, to carrying out the garbage. And now he's on the campus of Rhodes College to participate in a similar exercise: the reduction of ethics to law.

As part of the Continuing Legal Education program authorized by the extant statutes of the State of Tennessee, a hundred or so lawyers have gathered here to hear Judge Starr and collect their credits for attending. The voluminous materials distributed include legal opinions, congressional testimony, copies of government regulations ... but in the packet you won't find anything from Aristotle's "Ethics'' or Confucius's "Analects'' or any other source outside the narrow ambit of current law. Legal ethics, like bioethics, should not be confused with ethics.

The panel assembled to react to Judge Starr's remarks includes a number of lawyers, lobbyists and even this inky wretch, but no theologian or philosopher. On hand is a government official who can tell us at just what dollar amount a contribution to a politician becomes unethical. Apparently the point of such exercises is to determine how closely one can skirt the law.

In these surroundings, the talmudic concept of ethics as a fence around the law, a safety zone that keeps us from even approaching a violation, would sound only abstract -- interesting but immaterial, as a lawyer might say.

That the American Bar Association honored our president and scofflaw-in-chief by having him address its convention within two weeks after he'd been found in contempt of court for his false testimony may say more about the general state of legal ethics than any number of seminars on the subject.

The earliest definition of ethics I know is from the Talmud -- it defines ethics as "obligations beyond the law.'' Once ethics are incorporated into the law, they're no longer ethics, but law. There is something contradictory about the very notion of a law of ethics. But no one here seems to much notice.

In his low-key way, Kenneth Starr manages to say a number of things that provoke. At least they provoke me. For example, he doesn't think Congress should have released so much of his report to it. His idea of representative democracy turns out to be much more representative than democratic.

Are we really better off not knowing some things? How answer that question unless we know what those things are? That is the central paradox on which Judge Starr's preference for secrecy falters. Have we gone from believing that the truth shall make us free to worrying that it might only embarrass and confuse us? Our weariness with corruption now becomes its greatest advantage.

To an unavoidable extent, Judge Starr's is an argument for public ignorance. We are to delegate not only authority, but knowledge to our elected representatives. But when election time comes, how can we judge the quality of their decisions if we are denied the information on which they based those decisions?

That there are some things we'd rather not know is not the same as saying that we shouldn't know them. An ignorant people will not be well equipped for self-government, or even to decide who will best govern us.

Professor Starr also makes a vigorous case against Independent Counsel Starr, noting that he's always believed that the office of independent counsel should never have been created. In that case, why did he accept the appointment?

Judge Starr's objections to the constitutional basis of the office he accepted are so forceful and principled, it's a mystery why he signed on. It was his duty, he tells me. Others served in the armed forces and risked much more, he modestly explains; the least he could do was to render this public service. Oh.

His explanation has a practiced, almost rhetorical sound, but I still don't understand. How many of us who served in the military thought the Army unconstitutional, its very existence a violation of our considered principles? I am reminded of someone morally against the death penalty who nevertheless volunteers to serve as chief executioner -- as a public service. Maybe you have to be a lawyer to think like that.

Kenneth Starr now has got his way. There are to be no more independent prosecutors. We are all sick of them, or at least of what they make us contemplate. Whether the subject that needs investigating is campaign finance, aka Chinagate, or that massacre outside Waco, we now begin to see just how lax an administration can be when left to investigate itself. How long before the next great scandal spurs an outcry for, yes, more independent prosecutors?

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©2000, Los Angeles Times Syndicate