Rolling over for the right wing

Anthony Lewis

March 06, 1992|By Anthony Lewis

Boston --- JAMES BENKARD is a senior partner in the old-line New York law firm of Davis Polk & Wardwell, where he has mostly represented large corporations and securities firms. He is 54, a Republican, a graduate of Harvard College and Columbia Law School.

Those credentials are not enough, these days, to keep someone from being politically suspect to the Bush administration. So Mr. Benkard has learned. The story is informative.

Last July hed had a telephone call from AnthonyLewisWilliam Barr, then deputy to Attorney General Dick Thornburgh. Mr. Barr asked him to come and talk about becoming assistant attorney general in charge of the Justice Department's Environment and Natural Resources Division.

The idea appealed to Mr. Benkard because he had practiced a good deal of environmental law. For 10 years he defended the International Paper Co. against lawsuits claiming that it had polluted Lake Champlain.

Moreover, Mr. Benkard was an old friend of President Bush's counsel, C. Boyden Gray. That seemed to assure him White House support.

So he went to Washington. Mr. Thornburgh was away. Mr. Barr said he wanted Mr. Benkard. Then, a little later, he asked Mr. Benkard to come back down and meet Mr. Thornburgh.

At the second meeting both Mr. Thornburgh and Mr. Barr, soon to be his successor, were enthusiastic about having Mr. Benkard in the department. Mr. Thornburgh assured him political support.

"The one thing we do not want to have happen to you," Mr. Thornburgh said, "is what happened to Bob Fiske, which was unfair." Robert Fiske Jr., another partner in Davis Polk & Wardwell, was nominated as deputy attorney general in 1989; but there were objections from the extreme right, and the nomination was withdrawn.

At that point the assurance seemed superfluous to Mr. Benkard. As he put it later, "I wasn't concerned about being attacked as a liberal."

But the attack came. The Washington Legal Foundation, a movement conservative organization that had led the charge of the right against Robert Fiske, now opposed Mr. Benkard because of his role as a trustee of the Environmental Defense Fund.

The EDF had filed a brief supporting the federal government's appeal from a judgment ordering the Army Corps of Engineers to pay a development company $2.68 million for forbidding it to fill in wetlands it owned. Mr. Benkard had approved the filing of the brief, though not every detail of its rather broad advocacy.

That bothered the extreme right because one of its main agenda items these days is to get the Supreme Court to hold that any regulation of property is a constitutional "taking" requiring compensation. The government would then have to pay owners subject to environmental, health, safety and flood-control rules and the like.

Mr. Benkard was told to go and see Constance Horner, director of presidential personnel in the White House. At their meeting she seemed concerned that he would be too interested in enforcing environmental laws.

Mr. Barr, who became attorney general last November, never called again. Mr. Benkard just twisted in the wind until he read a story in the Legal Times last month saying that he had lost the job and it would go instead to Vicki Masterman, a young conservative from Chicago.

Even the conservative editors of the Wall Street Journal have called the Environmental Defense Fund a "more moderate" group. But in this election year, with Patrick Buchanan running, President Bush is bowing ever more to the right.

When I telephoned Mr. Benkard, he sounded cheerful enough but troubled. "I support George Bush," he said. "But the constant pressure on him from the right will inevitably alienate moderate Republicans such as myself."

For me the worst aspect of the episode is what it indicates about Mr. Barr. The Justice Department used to have a certain esprit, a resistance to political interference. But that requires an attorney general with fortitude, and it is a long time since we have had one who deserved the form we use in addressing him: general.

Anthony Lewis is a columnist for the New York Times.

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