Danny and Zoe

JEFFREY ROSEN

January 22, 1993|By JEFFREY ROSEN

The drama that culminated in Zoe Baird's selection as attorney general was demeaning to all the players. By the time Mr. Clinton settled on Ms. Baird, a 40-year-old corporate lawyer from Connecticut, he had managed to create the impression that her main qualifications was her sex.

The impression is unfair to Ms. Baird, a formidable lawyer and administrator. And by focusing on her gender while ignoring her ideas, Mr. Clinton has inadvertently chosen an attorney general whose strong views often conflict with his own. On questions such as state sovereignty, tort reform, civil-justice reform and the environment, Ms. Baird's opinions look a lot like those of former Vice President Quayle. Although she is no conservative, she is not an orthodox Democrat either.

Ms. Baird has worked hard to redefine federal-state relations. In her only academic article, ''State Empowerment After Garcia,'' published in The Urban Lawyer, she sets out to define a ''lasting constitutional basis for protecting state sovereignty'' in the wake of a 1985 Supreme Court decision, Garcia v. San Antonio Metropolitan Transit Authority. A notorious setback for federalism, Garcia suggested that Congress' power over the states was essentially unlimited.

Ms. Baird proposes three ways of fortifying the states. First, she says courts shouldn't assume that Congress intends to override the states. Her proposal was prescient: In 1987 Justice Sandra Day O'Connor wrote the suggestion into law. Second, Ms. Baird argues that the political procedures, rather than the substantive policy decisions, of state governments should be immune from congressional regulation. Finally, she flirts with the possibility that all administrative agencies may be unconstitutional.

Reviving the states and annihilating the administrative agencies were keystones of the Reagan-Bush legal agenda, and it may seem bizarre for a Democratic attorney general to be toying with Republican heresy. But unlike the Republicans, who used ''states rights'' to allow the states to enforce ''traditional values'' such as discriminating against blacks and gays, Ms. Baird proposes ''to preserve the dispersal of political power so as to provide greater assurance that tyranny will be avoided and our ++ liberties preserved.''

Her innovative approach to federalism is similar to that of Alice Rivlin, slated to be deputy director of the Office of Management and Budget, and other contributors to the Progressive Policy Institute's ''Mandate for Change,'' who have called on Mr. Clinton to appoint a ''federal czar.''

Ms. Baird's nomination is being attacked by trial lawyers and public-interest groups because of positions she took as a corporate counsel for General Electric, where she lobbied to weaken the federal whistle-blowers law, and at the Aetna Insurance Company, where she championed tort reform. As general counsel of Aetna, Ms. Baird argued in a speech last March that ''the tort system is having a very debilitating effect on America's competitiveness.'' She then praised Mr. Quayle for moving ''tort reform to a level of visibility and credibility that it really hasn't had for years.''

There are differences, however, between the tort reforms endorsed by Ms. Baird and Mr. Quayle. Under Ms. Baird's stewardship, Aetna opposed two of the most controversial Quayle proposals: the ''English Rule,'' in which the loser of a lawsuit pays the winner's costs; and caps on damages for pain and suffering adopted in some states. Nevertheless, both Ms. Baird and Mr. Quayle supported the narrowly defeated reform bill, sponsored by Senators Jay Rockefeller and John Danforth, which would have required trial judges, rather than juries, to determine the size of punitive damage awards.

Ms. Baird's support for tort reform puts her at odds witPresident Clinton, who attacked Mr. Quayle's proposals as ''dramatically tilted toward big polluters, manufacturers and insurance companies and against consumers and victims.''

Ms. Baird's positions on environmental issues are equally controversial with environmentalists, including, potentially, Vice President Gore. In a meeting with the Quayle Council working group last February, Ms. Baird proposed ''the creation of a study group to assess the Superfund liability system.'' (Superfund is the federal law that establishes a clean-up program for toxic-waste sites, like Love Canal.) Ms. Baird cited a study Aetna had commissioned from the Rand Corporation that blamed the slow pace and high cost of the clean-up on the fact that a single company can be held retroactively liable for environmental damage caused by many companies.

Not all of Ms. Baird's views are at odds with President Clinton's. She led a valiant crusade to base attorney's fees at Aetna on performance rather than billable hours, recognizing the perverse incentives that hourly billing creates.

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