There is a troublesome ethical issue in the Ed Meese nomination as U.S. attorney general. But it is not exactly the issue Common Cause, Sen. Joe Biden and other critics have been discussing.
Speaking for the "citizens' lobby," Common Cause, Archibald Cox bears down on an old and obvious distinction between legality and ethics. A public servant may obviously do within the law many things that would be ethically dubious, including (Ed Meese's problem in a nutshell) entangling his private financial life with the public's business.
For the benefit of any journalists who may be listening, Cox rubbed in the point with deft allusion to the Janet Cooke affair: "For a young writer to fabricate a fascinating story about drug abuse is not criminal. Is the fabrication henceforth to be acceptable?"
Such a question answers itself. But some questions about the kind and degree of Meese's ethical misjudgment are not self-answering. Even one of his severest critics, Sen. Biden of Delaware, has said he doesn't think Meese acted unethically in allowing friends, or friends of friends, to bail him out of cash-flow problems while, later, helping them get minor public jobs. But Biden, and presumably others, are outraged that Meese hasn't pounded his breast, crying, "Mea minima culpa!"
Here, we approach the heart of the problem. As Cox has powerfully argued (Outlook, Jan. 27), organized society depends upon a vast web of private ethical obligations, standards and compunctions, all voluntary, for which the mechanical barriers of law are no fit substitute.
The trouble is that American society has been acting as if Cox were dead wrong. With some 650,000 lawyers at large and in search of work (far more per capita than any other society), and with brigades of lawyers concentrated in Washington, we seem to be bent on the substitution of law, at every point of ethical friction, for the restraints of conscience, friendship, tradition, civility, custom, religion and all the other voluntary glues that bind communities.
A telltale symptom of this soul-destroying mania for legalism is precisely the Ethics in Government Act, which mandates the use of "independent counsel" any time an executive official is so much as brushed by the breath of accusation, however implausible. And this is but one of a proliferating host of laws, agencies and regulations of this sort.
Washington, in short, has been frantically ditching its reliance on private ethical compunction in favor of a pinched, self-serving legalism -- striving to objectify every imaginable ethical contingency.
What has resulted, however, is not a millennium of righteousness, but a predictable inversion. From the dubious idea that what is not illegal may not be preventable (since private standards may no longer be trusted), it is a short and tantalizing leap, easily taken, to the still more dubious idea that what is not illegal is acceptable, even ethical.
So, rather than strengthen the muscular tone of "the public trust," we have turned that trust into a cat-and-mouse game. And the passion for legal circumscription of every ethical choice has bred more and more ingenious (and when devised by lawyers, expensive) evasions and rationalizations.
It is fantasy to suppose that the Senate's rejection of one nomination, even in the special case of the nation's highest law officer, will reverse the trend.
If, honored here, the Cox standard should eddy outward, what change would ensue. U.S. senators would move en masse to return (or hand over to the Treasury) all leftover campaign funds, which it is now legal to turn to quasi-private, self-serving and (so long as the income is reported for tax purposes) even personal uses.
Retired military officers by scores would burst, chanting penitential psalms, from the gates of all sorts of defense contractors with whom a friendly (and legal) professional relationship blossomed into a friendly (and legal, and profitable) post- professional relationship.
Meanwhile, the famous "revolving door" between federal regulatory agencies and Washington law firms would be bolted and sealed.
The unlikelihood -- and in some instances impracticality -- of all this, and many other recastings of now accepted governmental practices, illuminates the real ethical question about the Ed Meese nomination.
Shall Meese be condemned under an ancient and honorable distinction -- between the lawful and the ethical -- which Washington and American society have been frantically discarding for years?