COLUMN RIGHT : Duty-bound to Mount the Bully Pulpit : By sparking debate, an attorney general gives judges ‘education in the obvious.’

The enduring legacy of any attorney general of the United States stems from the use of the office as a bully pulpit to shape the course of the law and legal policy. Thoughtful speeches, court advocacy and creation of study commissions are all central to long-term success.

During the second term of the Reagan Administration, for instance, the attorney general sparked nationwide debate over whether judicial interpretation of the Constitution and laws should be confined by their texts and purposes. The debate challenged a widespread view that judges should bring a personal sense of morality or equity to their interpretive tasks. Recent Supreme Court decisions adhering to constitutional text in upholding the death penalty for minors, requiring personal confrontation of child witnesses in child-abuse prosecutions and permitting states to withhold any encouragement of abortions testifies to the influence of the attorney general’s expositions. By June of this year, the high court is likely to sanction parental notice or consent requirements for minors seeking abortions.

In the area of civil rights, the attorney general was outspoken in the defense of a color-blind legal system so eloquently trumpeted by Dr. Martin Luther King Jr. Last year, the Supreme Court gave constitutional expression to those views by overturning racial quotas or spoils systems in the award of government contracts.

Regarding police interrogations, the attorney general questioned the correctness of constitutional rules blocking the use of reliable and voluntary confessions if the suspect had not received the full battery of so-called Miranda warnings. Now the Supreme Court has carved exceptions to Miranda and has voiced an openness to re-examine the precedent.

The attorney general violates no legal ethical obligation when he raises doubts about Supreme Court doctrines or rulings, or purposely seeks thorough advocacy to direct the path of the law. The progress of judicial science, as in other sciences, comes by trial and error. The Supreme Court has overruled hundreds of cases and has disavowed claims to infallibility.

An attorney general who declines forceful debate over the Constitution and legal reasoning is derelict in his duty to assist judges in spotting past errors and building new wisdom. The duty cannot be abandoned even when the media casts skepticism on the attorney general’s motives.

In 1984, for instance, the attorney general appointed a commission to examine systematically the scope and harm of pornography and the constitutional limits in seeking to diminish the evil through either law or public opinion. The final report assembled the best reflections on the problem and compiled worrisome facts regarding the commercialization of pornography that were familiar only to a handful of experts. The latter function is critical to enlightened judicial decisions because, as Justice Oliver Wendall Holmes instructed, most judges need “education in the obvious.”

In addition to its judicial use, the final report midwifed a score of state laws tightening restrictions on child pornography.

Last month in Osborne vs. Ohio, the Supreme Court sustained the constitutionality of child pornography laws that punish more than obscenity. Both the majority and dissenting opinions relied on the Pornography Commission, which the media had maligned as a sterile political stunt to appease the right wing of the Republican Party.

Justice Byron R. White, writing for the Osborne majority, invoked the final report’s finding that “a child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having ‘fun’ participating in the activity.” In dissent, Justice William J. Brennan brandished the commission’s report in arguing that pedophiles used both adult and child pornography to lower child inhibitions against sexual performances, and that possession laws are not central to a successful enforcement strategy against child pornography.

The honorable respect paid to the pornography commission by the full spectrum of Supreme Court opinion in Osborne confirms the long-headed bully pulpit responsibilities of the attorney general. He shortchanges both his office and the progress of law by inflexible enforcement of the legal status quo.