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Meese’s Agenda for Ensuring the Reagan Legacy

<i> David M. O'Brien is a professor at the University of Virginia and author of "Storm Center: The Supreme Court in American Politics."</i>

Atty. Gen. Edwin Meese III is now perhaps the single most powerful person in Reagan’s inner circle. In addition to turning the Department of Justice around, his influence extends throughout the government. His ambitious and coherent agenda will define much of the domestic policy during Ronald Reagan’s remaining years in office and attempt to preserve that policy for years to come.

Meese’s enormous power follows largely from his close personal ties to the President, unmatched since Atty. Gen. Robert F. Kennedy served his own brother. A further measure of that power is that soon after his controversial 1984 confirmation (following a 13-month delay for an investigation of his ethical conduct as counselor to the President), Meese became head of the newly created Domestic Policy Council. The council, composed of eight other Cabinet officials, advises the President on everything from civil rights and federalism to welfare, education, health and the environment.

Meese’s power extends to more than domestic politics. Some in the State Department are now wondering about the arrest of Gennady F. Zakharov, which prompted the Soviet arrest of American journalist Nicholas S. Daniloff and touched off an international dispute. The Justice Department attempted to push through an early indictment of Zakharov without consulting the State Department. Is Meese’s clout so great that diplomatic norms and channels may be ignored? As the country’s top law enforcement official, Meese has used the accompanying visibility to push Reagan’s policies. The shift in direction and ideological tone within the Justice Department is marked. Meese has a far more political view of law than his predecessor, William French Smith, a quintessential Establishment lawyer. His conservative instincts are matched with a cadre of young attorneys and speech writers. Together, they have fashioned an ambitious agenda. Whereas Smith strove to make clear what the Reagan Administration is against--for example, the expansion of 14th Amendment protection to women and other minorities--Meese seeks to stake out what it stands for and to secure its achievements institutionally. The change is also reflected in the attitude that Reagan’s first Supreme Court appointee, Sandra Day O’Connor, is a bitter disappointment, and the heavy betting in favor of Chief Justice William H. Rehnquist, Justice Antonin Scalia and others who might follow.

The extent to which Meese has politicized the Justice Department in order to push the President’s agenda is no clearer than in the Office of the Solicitor General. That office decides which cases to appeal to the Supreme Court and defends the government’s positions. While the solicitor general is a political appointee, the office is staffed largely by career attorneys who have enjoyed considerable political independence and a reputation as the court’s 10th member because of the high caliber of their work.

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The credibility of the office is now threatened by the move toward greater partisanship. Rex E. Lee, who held the position during Reagan’s first term, respected the traditional role of the office. But he came to be viewed as insufficiently aggressive in pressing positions on abortion, school prayer and the like. His successor, Charles Fried, is decidely hard-line and less respectful of the court’s precedents.

The solicitor general now apparently shares Meese’s agenda. One former solicitor general who served the Johnson and Nixon administrations, Erwin N. Griswold, notes that in watching the office for 40 to 50 years he has “never seen an Administration get this involved, intervening so much.” Wade H. McCree Jr., who held the post during the Carter Administration, agrees that it “now appears to seize the initiative, whereas traditionally it has been more reactive.”

The agenda is evident in the tone and language of briefs, as well as in the selection of issues and number of cases taken to the court. Last year, Fried filed nearly twice as many “friend of the court” briefs as his predecessors and, staff members claim, did so in cases that the federal government had no business being in. Several career attorneys left and others who remain complain about being asked to “take indefensible positions.” No less significant is that a crucial part of Meese’s agenda--civil rights litigation--is now under the supervision of a political appointee instead of a well-respected career attorney who had difficulties with the new agenda.

As a result, the Justice Department has not been so at odds with the court since Franklin D. Roosevelt’s battle over its striking down early New Deal legislation. And this is the kind of comparison that Meese’s men relish. “No Administration,” observes Terry Eastland, the department’s director of public affairs, “has thought longer and more deeply about law since that of F.D.R., and we have thought more deeply than that Administration.” Meese’s agenda is indeed more sharply focused and more far-reaching than what Roosevelt imagined.

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What’s the agenda? Quite simply, Meese says, “to institutionalize the Reagan revolution so it can’t be set aside no matter what happens in future presidential elections.” That certainly goes beyond Roosevelt’s attempt to bring the court into line so Congress’s lawmaking power would be respected again. The aim is now to accomplish in the courts what the Administration failed to persuade Congress to do--namely, adopt its positions on abortion, apportionment, affirmative action, school prayer and the like.

Winning the courts over is the first battle in a war over the primacy of the presidency and reshaping constitutional norms. The goal is a federal bench that will approve expansion of presidential power at the expense of congressional control, and defend the Reagan legacy against future electoral shifts that might bring a more Democratic Congress or even a Democratic President into office.

Because of Meese’s position and personal influence with the President, his men have gone so far as personal assaults on sitting justices. “Nothing threatens our civil rights and political liberties more,” Assistant Atty. Gen. William Bradford Reynolds recently charged, than Justice William J. Brennan Jr. and his vision of “a radically egalitarian society.” Such an attack on a member of the court is extraordinarily rare and brash, though not surprising from those seeking to publicize their agenda, with support from someone as powerful as their boss.

Nothing symbolizes Meese’s agenda more than his call for “a return to a jurisprudence of original intentions.” By that he does not mean something esoteric (though it sparked rather esoteric debates in legal circles). Instead, judges should base their rulings on the Constitution as informed by views of the Founding Fathers--and nothing more.

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But the idea hardly originated with Meese. About all that is new is the adjective “original.” Indeed, it is reminiscent of F.D.R.'s criticism of the court for “reading into the Constitution words and implications which are not there, and which were never intended to be there.”

Meese’s attack could not be more politically opportune in promoting the President’s agenda. With its bicentennial less than a year away, who’s against the Constitution? Not Brennan or any other conscientious judge worth his or her salt, though this is precisely what Meese and his men contend.

The fact remains that constitutional interpretation is a more demanding craft than Meese grants or imagines. Paul Freund, one of the most respected constitutional scholars in the country, puts it best: “The Constitution should not be read like a last will and testament lest it become one.”

Behind Meese’s call for a judicial turnabout is the meticulous effort by those in the Justice Department to pack the federal bench with like-minded judges. Candidates for judgeships tell of being rigorously questioned about their views by young, ideologically committed staff. No harsher criticism has been leveled than one from conservative University of Chicago Law School Prof. Philip B. Kurland, who observes: “Judges are being appointed in the expectation that they will rewrite laws and the Constitution to the Administration’s liking. Reagan’s judges are activists in support of conservative dogma.”

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The success of the President’s agenda may ultimately depend on those handpicked judges. Meese has emerged as the single most powerful player, shaping that agenda and ensuring its success. Meanwhile, how far will Meese go in trying to rebuild the “imperial presidency,” which his predecessor, Nixon’s Atty. Gen. John N. Mitchell, brought down? Will ambition again turn into arrogance?


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