Lawyers without a cause

August 11, 1994|By Lincoln Caplan

Washington -- THE LAW IS where policy ideals confront political realities.

A basic test of any administration is how it manages this encounter.

Led by a president who was trained at Yale Law School, taught constitutional law and claimed Camelot's attorney general, Robert F. Kennedy, as a spiritual mentor, the Clinton team came into office confident that it would ace this test.

It seemed intent on rebuilding a national consensus about the direction that the law should take.

This summer, however, the sometimes paralyzing, even cynical, pragmatism that many have criticized in the administration has shown up unmistakably in its handling of legal issues.

(What's lost in the contretemps over Kenneth Starr's replacement of Robert Fiske in the Whitewater inquiry, for example, is that the whole affair probably could have been cut short if the administration had come clean at the start.)

In the balancing of policy and politics, there has been no contest. The Yale-trained lawyer has been pushed aside by the officeholder from Arkansas who is intent on limiting his losses.

Insiders say the question often asked by the administration about a possible legal position is not "How will this make things better for the country?" It's "How will this get us in trouble?"

In key instances, the Clinton team has mocked its own instincts and rhetoric. Before selecting his last Supreme Court nominee, the president was said to have wanted a big-hearted justice with real-world experience who could help redefine the center of American law -- someone such as Bruce Babbitt or George Mitchell.

The wish was nixed, apparently out of a dread of the controversy that success in the real world often stirs. Stephen Breyer was the candidate who could win praise from Sen. Orrin Hatch, R-Utah.

In the confirmation hearing, Sen. Howell Heflin, D-Ala., asked Mr. Breyer about the value of consensus on the Supreme Court. His answer highlighted the basic weakness of the Clinton take on the concept.

"Now, how do you achieve that consensus? That's hard," Mr. Breyer said. "It's not a question of bargaining -- 'I'll give you this,' or 'I'll give you that.' Believe me, it's not that kind of question."

But it appears that that is precisely what it is to the Clinton team.

In Mr. Breyer, the administration may have lucked into a justice interested in true consensus-building. But the administration was less committed to naming a justice who could unify the court than to picking someone who would breeze through confirmation hearings.

The administration's performance in Congress shows the same attitude toward making law.

In negotiations over the crime bill, say those who have seen them at close range, the administration has almost always backed the "tough" position, no matter how vulnerable to logic.

The merits of policy have been overwhelmed by the dictates of politics, to allow Democrats to seize the issue.

A memorandum from Stanley Greenberg, the president's pollster, to congressional Democrats seeking re-election counseled that "crime is an opportunity." Nothing is more vital than "passage of 'three strikes and you're out,' " he declared.

The administration's approach to making legal policy may reflect the jagged fault line between old and new Democrats -- between supporters and skeptics of vigorous affirmative action, between believers in a separation of church and state and advocates of prayer in public schools, between those for and against the death penalty.

Both old and new Democrats are among the administration's lawyers.

Lloyd Cutler, the president's special counsel, supported the Supreme Court nomination of Robert Bork, who was defeated in part because of lobbying by People for the American Way.

Three veterans of that effort have pivotal jobs in the administration. And Drew Days, the solicitor general, has a history of advocacy for civil rights.

With no legal principles to knit together its factions, the Clinton administration has defaulted on a primary function of leadership. It seeks political victories without explaining why they matter.

In touting Mr. Breyer, the administration never articulated a vision of the Supreme Court for which his nomination made sense -- of a bench that would not be thrown off course by extremists.

In promoting the crime bill, the administration has never answered charges that the bill amounts to demagoguery -- that it is meant to placate the people who are most afraid yet least at risk.

The logic of the administration's approach is that it cannot display principles unless it survives politically. But to the president's own pollster, the logic isn't working.

Mr. Greenberg acknowledged that Mr. Clinton is a burden to Democratic candidates. He advised them to separate themselves from the president.

The president could start to repair the damage by making forthright statements about where the law and the courts should move in civil rights and environmental law, as well as criminal justice and constitutional issues.

His ideals and his leadership, not his abilities as a horse trader, would move the country toward the goal of consensus about the law.

They would, that is, unless his critics are right -- and he stands for nothing consistent at all.

Lincoln Caplan is a contributing editor of Newsweek and the author, most recently, of "Skadden: Power, Money and the Rise of a Legal Empire."

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