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THE LEGAL EXPERT
Writ Large: Frivolous Litigants Beware

By Suzanna Sherry
Sunday, April 5, 1998; Page C04

MINNEAPOLIS — MINNEAPOLIS—In May of last year, the Supreme Court seemed to open the floodgates by permitting Paula Corbin Jones's sexual harassment lawsuit against the president to go forward. That decision was greeted with extensive commentary by constitutional law experts, much of it critical. Now that U.S. District Judge Susan Webber Wright has dismissed the suit and it's all over but the shouting, what can we say about the Supreme Court's initial ruling?

We can say that the Supreme Court did not get the question entirely wrong, but it did not get it entirely right, either. Clinton had asked for the suit to be delayed until he was out of office, arguing that an ongoing legal proceeding would burden his performance in office and open the presidency to a deluge of frivolous litigation. The court rejected both arguments.

The course of the lawsuit itself -- and of the three-ring circus that grew up around it -- cast doubt on the court's prediction that the litigation would impose no serious burden on the president. From leaked deposition testimony to the expansion of independent counsel Kenneth W. Starr's investigation to include the possibility of presidential perjury, from the media to the Congress to the courts, the Jones suit took a great deal of the president's time and attention.

It also -- and this is a point often overlooked -- took the media's and the public's attention away from Clinton's performance in office, taking some of the bite out of democracy's best watchdogs. And it undermined the president's effectiveness at home and abroad: Who could focus on domestic or foreign-policy discussions with a man who was the subject of thousands of jokes on the Internet? It would be hard for any disinterested observer to say that the presidency itself remained unaffected by the Jones lawsuit. On this issue, the court was just plain wrong.

On the other hand, the court has been vindicated in its prediction that its decision would not engulf this or any future president in a flood of lawsuits. Not because would-be litigants will restrain themselves, but because our judicial system is well designed to dispose of unwarranted lawsuits before they get to trial.

The most significant aspect of Wright's decision is that, despite all the politics and publicity, despite the fact that she was appointed by the man Clinton defeated and displaced, she applied settled legal doctrines to reach exactly the result we want our legal system to reach: If there's no point in having a trial, don't waste everybody's time. So, if any future litigant decides that it would be fun or politically expedient (or perhaps even personally lucrative) to file unwarranted or harassing suits against a president, he or she will be on notice that our judicial system is not so easily manipulated. Indeed, although probably not appropriate in this case, we have rules that allow judges to impose fines on litigants and their attorneys for filing truly frivolous suits. So the court was right: The system is set up to minimize the risk of a flood of unwarranted suits against the president -- and the system worked.

But there is still one last interesting question: What allowed the system to work as well as it did? A Republican president appointed Wright. A Republican-controlled Congress is presumably displeased that Clinton has gotten off so easily. The American public, always hard to read, may or may not take umbrage at Wright's decision. (Will Clinton's approval rating plummet as the perception that he is being persecuted fades?)

Wright was able to withstand political pressure and reach the legally correct result for one reason: The Constitution of the United States provides for an independent judiciary. With all the recent talk in Washington about curbing judicial power, we should remember that if Wright had been subject to recall or re-election, or if impeachment mechanisms had been less cumbersome, she might not have had the courage to rule on the law instead of the politics. And for those who would have preferred a cowardly judge, remember: Next time the target might be a Republican president.

Suzanna Sherry, who specializes in constitutional law, is the Earl R. Larson Professor of Civil Rights and Civil Liberties Law at the University of Minnesota.

© Copyright 1998 The Washington Post Company

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