A Vast Conspiracy (34 page)

At the start of what turned out to be a fifty-six-minute telephone call between the president and his former girlfriend, Clinton lashed out. “In my life no one has ever treated me as poorly as I have been treated by you,” Lewinsky recalled him saying. “Outside of my family and my friends and my staff, I have spent more time with you than anyone else in the world. How dare you make such a scene? It’s none of your business who I see.” (For the record, he also denied any romance with Mondale. “In fact,” Lewinsky recalls him protesting, “I set her up with her current boyfriend.”)

Eventually both Clinton and Lewinsky recovered their equilibrium, and the president actually invited her back to visit him that afternoon. So, in her second trip to the White House of the day, Monica gave him his Christmas presents, and in return he promised that he would have some gifts for her later in the month. The president sat in his rocking chair, stroking Monica’s hair as she sat on the floor at his feet. They chatted, as they often did, about their childhoods. Though she was now more or less committed to moving to New York, Monica left the meeting once more thinking that their relationship might resume. Their sexual encounters had begun twenty-five months earlier; they had broken up several times, but they’d last had phone sex only a few weeks earlier, and now here Clinton was still hinting that they might get back together. To be sure, Lewinsky should have realized much earlier that their relationship was doomed; but at the same
time, Clinton kept tantalizing her with the possibility of reconciliation.

In sum, then, Clinton and Lewinsky probably spent close to two hours together, on the phone and in person, before five o’clock on December 6, 1997. About ninety minutes after Monica slipped out of the Oval Office, her place was taken by Bob Bennett and his colleagues, who arrived bearing the plaintiff’s witness list in the Paula Jones case. When they reached the name Monica Lewinsky, the president dismissed—ridiculed!—the idea that he had had an affair with her.

How could Clinton have been so brazen—and in the middle of the most publicized sexual harassment lawsuit in history? Of course, one can only speculate about the president’s thought processes, but several conclusions seem apparent. First, like anyone having an extramarital affair, he was embarrassed to admit it. Second, he regarded the entire Jones case as a political vendetta against him, and he didn’t feel obligated to be candid in a lawsuit brought by adversaries he so despised. Third, Clinton had often, perhaps always, lied about his sex life.

But there was another potential reason for his lies to his lawyers—indeed, a possible answer to the larger question of why he would have conducted the affair with Lewinsky when a sexual harassment case against him was pending. Clinton drew a clear distinction between sexual harassment and consensual sex. In his grand jury testimony, Clinton returned to this theme more than half a dozen times. Describing his relationship with Lewinsky, Clinton said, “There was no employment, no benefit in exchange, there was nothing having anything to do with sexual harassment.” In Clinton’s view, his consensual sexual activity had nothing to do with sexual harassment. (Lewinsky, likewise, never suggested that her relationship with Clinton involved any kind of harassment on his part.)

As it happened, Judge Susan Webber Wright was then wrestling with just this issue—the relevance of Clinton’s consensual sexual relations to the issue of whether he sexually harassed Paula Jones. Over the many years the Jones case was pending, Wright became known to the public mostly through newspaper photographs, in which she appeared to be something of a schoolmarm—all pinched and nervous severity. She held her hair back with barrettes; her hooded eyes peered out from small, metal-rimmed spectacles. The details were the same in person, but the impression she left could not be more different. Susan Webber Wright was confident, funny,
unbuttoned, even a little zany. This was a judge who, after a long and frustrating trial day, once announced to a jury, “I’m going to go home and abuse alcohol.” Everyone knew it was a joke, but it was not one that most federal judges would make.

Susan Webber was the first of two daughters born to an up-and-coming young lawyer and his wife in Texarkana. Tom Webber, whose firm was known for producing civic leaders and judges, died when Susan was sixteen. His widow, forced to provide for Susan and her sister, Missy, went to work at a local bank. Fortunately, Susan excelled at school, and she won a scholarship to Randolph-Macon Woman’s College, in Lynchburg, Virginia, and afterward she won another, to continue her studies for a master’s in public administration at the University of Arkansas. She then enrolled in the university’s law school and split the costs with her mother, paying her portion with earnings from summer jobs and part-time work. In her final year, Susan became the first woman to edit the
Law Review
and was in the running to be the class valedictorian.

It was at that moment that she played a role in an early legend about Bill Clinton. In 1973, following his graduation from Yale Law School, Clinton returned home to teach at the University of Arkansas School of Law. The next year, Susan Webber took Professor Clinton’s course in admiralty law—a subject that was apparently of little interest in the landlocked state. Toward the end of the semester, Clinton turned his attention to what became his first political campaign, against the incumbent Republican congressman John Paul Hammerschmidt. Clinton was so distracted by his campaign that he lost some of the final exams, including that of Susan Webber.

The law school demanded that Clinton turn in grades for the course, so the young professor had a problem. He turned for help to his twenty-six-year-old girlfriend, Hillary Rodham, who came up with the idea of a deal for Susan Webber. Clinton would give her a B-plus in the class, and Webber wouldn’t have to take the final again. But as a candidate for valedictorian, Webber needed a better grade. She rejected Hillary’s deal and forced Professor Clinton to give her a new test—and got an A. Webber, who nevertheless missed out on the top position, immediately went to work as a volunteer on the reelection campaign of Representative Hammerschmidt, who beat the young professor handily. Clinton’s first political success came two years later, in 1976, when he was elected the state’s attorney general.

At that point, though, Susan Webber largely withdrew from most political
activity. She became a professor at the law school of the University of Arkansas at Little Rock, married a senior colleague, and earned a solid, if unspectacular, reputation as a scholar in oil-and-gas law. In 1988, she dipped back into politics, heading a local organization of lawyers for George Bush, and two years later she was rewarded with a federal judgeship, largely through the sponsorship of the then ranking Republican official in the state—Representative Hammerschmidt. Still, Wright bore Clinton no apparent animus, and she presided over
Jones v. Clinton
with a steady, diligent hand.

In December, however, Judge Wright was confronted with a provocative dilemma. The president’s deposition was scheduled for Saturday, January 17, 1998. The lawyers wanted Wright to rule on the scope of the questioning. Clearly, Clinton could be asked if he had ever engaged in sexual harassment. But could the president be asked about
consensual
sexual activities? The answers to such questions, of course, had the potential for great political embarrassment for the president. But more than that, the issue went to the heart of modern sexual harassment law. Is consensual sex evidence of, or even related to, sexual harassment?

As Susan Webber Wright sat down to study that question, she could not have known that her answer would turn out to be one of the more momentous legal decisions of the twentieth century.

The birthplace of American sexual harassment law can be identified with some precision: Ithaca, New York. The first use of the term seems to have been at a 1975 conference at Cornell when a group of feminists held a “Speak-Out on Sexual Harassment.” A pioneering survey of working women that was published by
Redbook
magazine in 1976 raised the issue before a mass audience, and two years later an activist from Ithaca named Lin Farley wrote a book on the subject, entitled
Sexual Shakedown
. But the most important turning point may have been when a woman named Catharine MacKinnon came to town.

From her base in New Haven, MacKinnon became a feminist prodigy in the 1970s. During that time, she worked toward both a Ph.D. and a law degree at Yale, taught undergraduates, created the first women’s-studies course at the college, worked with unions, and cofounded a progressive collective in which she practiced law with a handful of like-minded young attorneys. In addition, she traveled around the country as a guitar-playing
folksinger. At a gig in Ithaca, MacKinnon heard a story about a Cornell secretary named Carmita Wood, who had been fired for rebuffing her boss’s sexual advances. “My mind just went, This is it,” MacKinnon said years later. “It was an epiphany experience. Everything I had heard about what sex inequality is, is not it. This is it.”

MacKinnon’s epiphany led to the recognition of a new legal form of employment discrimination—sexual harassment. To the extent that courts had dealt with the issue at all, judges had dismissed sexual overtures, like the one directed at the Cornell secretary, as “personal,” and they found that they did not constitute a legally recognizable form of discrimination. When MacKinnon had nearly completed a paper on sexual harassment that she was preparing for an independent-study course at Yale, she heard about a lawsuit at the federal appeals court in Washington that raised precisely the issues she was addressing. In
Barnes v. Costle
, Paulette Barnes, a clerk at the Environmental Protection Agency, had sued her employer because, she said, her supervisor had retaliated against her for her refusal to sleep with him. The district court had dismissed her case on the familiar ground that the harassment was personal. MacKinnon gave a copy of her paper to a law clerk on the case in the federal appeals court, and, she asserted, “it became the basis of the decision.” In 1977, the three-judge panel on the case reversed the district court and produced, as MacKinnon later wrote, “the most explicit treatment of the issues to date and a holding that sexual harassment is sex discrimination in employment.” (The late George MacKinnon, Catharine’s father—and a conservative Republican—was one of the judges on the panel.)

MacKinnon turned the paper into a book,
Sexual Harassment of Working Women
, which was published in 1979. Now in its twelfth paperback printing, it surely ranks as one of the most influential law books of the late twentieth century. Dense, closely argued, and relentlessly polemical, MacKinnon’s book was dedicated to the proposition that “sexual harassment, the experience, is becoming ‘sexual harassment,’ the legal claim.” MacKinnon’s triumph reflected the liberal spirit of the era. Through the sheer force of their intellects—their brief-writing and legal skills—“public interest” lawyers like MacKinnon had transformed the politics of their times. The creation of sexual harassment law represented a paradigmatic example of the legal system’s takeover of the political system—a dramatic change in social policy engineered by lawyers and judges rather than by voters and legislators. Like much work by public interest lawyers in this period,
the new law of sexual harassment made enormous contributions to the cause of fairness in the workplace. And like other such developments, the law also bore the scars of the idiosyncratic circumstances of its birth.

MacKinnon later became better known for her crusades, with the writer Andrea Dworkin, against pornography than for her more important work on sexual harassment. The subjects were different, of course, but they shared certain common philosophical underpinnings. MacKinnon invariably portrayed men and women in a constant state of war—a war that the men were winning. This was especially true when it came to sex itself. MacKinnon long argued that in a patriarchal society, the notion of consent had no real meaning for women. The real question, as she put it in her book, was “whether women have a chance, structurally speaking and as a normal matter, even to consider whether they want to have sex or not.” In the light of the argument of her book, MacKinnon’s question was clearly rhetorical. When men have greater power and status than women—and that is virtually all the time—consent is a myth; in such circumstances, all sex is harassment.