THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Sunday, January 19, 1997 TAG: 9701190014
SECTION: COMMENTARY PAGE: J5 EDITION: FINAL
TYPE: Opinion
SOURCE: Perry Morgan
LENGTH: 68 lines
The so-called doctrine of ``original intent'' says that the Constitution itself holds the answer to most questions arising as to its meaning. Therefore, judges should look to the text: If the answer's not there, leave the question to legislators.
That's good advice occasionally and seems the best advice for the Supreme Court on the question of physician-assisted suicide. But now comes Paula Jones posing a different riddle - whether sitting presidents should be immune to civil suits - which the text doesn't solve and legislators can't. The judges, as is often the case, must fashion an answer from their own minds and hearts.
The case seems simple enough at first glance. The Washington Post, The New York Times and other journals say the court should rule against immunity and leave the president answerable in court like any other citizen.
Why not? As The Post says, Jones' allegation that Clinton, while Arkansas' governor, harassed her sexually is not all that complicated. Delaying trial until Clinton leaves office would tend to diminish memory and erode evidence. Finally, there's the unarguable point that delay could cause injury to parties involved in some divorce or child-custody case that the future might bring.
The argument against the Clinton plea for immunity while he's in office is convincing in all but this major aspect: If the case must go to trial, courts must decide who has first claim on the president's time and energies. This would require judicial activism of a high order and the court's chief conservative, Justice Antonin Scalia, wants no part of it.
The justice said he was likely to oppose any decision that ``allows any judge, federal or state, to sit in judgment of the president's assertion of whether his executive duties are too important or not'' (for him to be involved in a trial at any particular time).
Another Reagan appointee, Justice Anthony Kennedy, stressed that even an uncomplicated case would ``absorb substantial energies'' from the president.
And then Jones' lead lawyer, Gilbert K. Davis, conceded that a civil case against a president could be delayed at any stage if the president showed proceedings would be a drag on his time or mental processes. That concession left Davis, a Republican candidate for attorney general of Virginia, in a pickle. Any charge as lurid as that of his client - that Governor Clinton dropped his pants and sought sexual favors - would place a heavy burden on any president. Why must he go to court and demonstrate the obvious? The question hangs.
It's hard not to wish that Jones could have her day in court. She faces a delay of up to seven years during which her reputation also is at stake. Key presidential aides have used their high station to picture her as ``trailer-park trash,'' and this sort of abuse can continue. Moreover, if the president is innocent, he and a presidency mired in so many charges would benefit enormously by a jury finding in his favor.
Even so, this is a Constitution the court is interpreting without benefit of advice from the framers or any precedent of its own making. The issue before it makes incidental the figures of Bill Clinton and Paula Jones. What is the right answer for the next president and the one after that?
One consideration, as Justice Scalia suggested, is that an executive personally subject to the dictates of the judiciary would lose some of its co-equal status. The prestige of the office already is at a low ebb, due to dwarfing events, merciless media glare and personal failures of its occupants.
If the court does ultimately favor a temporary immunity for sitting presidents, can it also attach a cost? Wondering out loud, Justice Scalia suggested that a president wanting delay take the political heat for it by declaring that he was too busy to attend to a court and would not do so.
If that is not the right answer, Scalia is searching in the right place - trying to sharpen the president's accountability to the public that elected him without diminishing his office. MEMO: Mr. Morgan is a former publisher of The Virginian-Pilot.