Vol. 2 No. 11 (November, 1992) pp. 176-178

THE ATTORNEY GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE DEPARTMENT by Douglas W. Kmiec. New York: Praeger Publishers, 1992. 234 pp.

Reviewed by Reginald S. Sheehan, Department of Political Science, Michigan State University.

One of the more controversial figures during the Reagan presidency was Attorney General Edwin Meese III. During his tenure in the Justice Department Meese underwent intense criticism from many groups over his jurisprudence which was based on the doctrine of "original intent." In THE ATTORNEY GENERAL'S LAWYER: INSIDE THE MEESE JUSTICE DEPARTMENT, Professor Kmiec provides us with an account of his years of service in the Office of Legal Counsel (OLC) under Attorney General Meese and for a short period later under Richard Thornburgh. The book provides an inside look at the inner workings of the Justice Department during this period of time with an emphasis placed on defending the legal philosophy which governed the decisionmaking in the department. Readers who are supporters of Ronald Reagan, Edwin Meese and the legal philosophy they espouse should find the book intriguing and refreshing. Others may find the book to be highly partisan and somewhat vindictive toward those who did not share the philosophical beliefs of the Reagan administration. The perspective of the reader will determine the extent to which they find this book enjoyable and interesting. In all fairness to Professor Kmiec he admits that one of the primary purposes of the book is to provide a view of the Meese justice department that has not been distorted by the media and other outside groups. Overall, the book is well-written and does provide and insightful narrative of the decisionmaking process in the Meese Justice Department.

Professor Kmiec served as the principal deputy and later as head of the OLC from 1985-89. The OLC is the legal firm within the Justice Department which provides legal advice to the Attorney General, the President, and others in the Executive branch. Therefore, as the title of the book suggest, and as Edwin Meese indicates in the forward, Professor Kmiec was the lawyer to the Attorney General. This provides Professor Kmiec with a unique perspective as to the processes and variables that influenced many of the important and very often controversial decisions that came out of the Justice Department during this period. Even if you do not agree with the philosophical substance of the book you have to appreciate the book's contribution to our understanding of the processes that were at work.

The tone of the book is set in the very first chapter when Kmiec attacks the independent counsel law that was passed by Congress. This is the beginning of a continuing theme throughout the book which seeks to blame the problems of Attorney General Meese on political opposition in Congress. The chapter, although it is short, does a disservice to the book because it hints at a theme of partisanship and vindictiveness. The book would have been better served if it began with the second chapter which lays out the intellectual underpinnings of Meese's judicial philosophy. In this chapter Kmiec provides a good discussion of the concept of original intent and critiques other alternatives such as balancing, noninterpretivism, and neutral principles. Moreover, the chapter ends with a provocative discussion of the concept of natural law and how it has evolved in constitutional law. It is Kmiec's belief that this is a concept that has been overlooked by practitioners and he criticizes Attorney General Meese for not relying more on its principles. Kmiec points out that "the failure to appreciate the natural law background of the Constitution may well be the undoing of original intent" (p.40).

Jurisprudence of original intention suggests that one should interpret a Constitutional provision in a manner that is consistent with what a consensus of the framers intended in its passage. Furthermore, if it is not clear what was intended by the framers then your interpretation should be in a manner that would approach a literal interpretation of the text. Kmiec argues that we

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should go beyond this doctrine and recognize that all individuals have certain "natural rights" that cannot be denied by any form of positive law. The most obvious right is self-preservation or the right to exist.

Utilizing the concepts of original intent and natural law Professor Kmiec devotes the greatest portion of his book to a discussion of a variety of issue areas that were before the Justice Department during his tenure. Drawing on his own recollections and some library and interview research he provides us with a behind the scenes look at how the Justice Department decided controversial questions dealing with abortion, school choice, aids, racial discrimination, and federalism.

In his discussion of abortion, Kmiec argues that the right to an elective abortion was an invention of the liberal forces in society. Couching his argument in natural law language he claims that the unborn fetus is a living human being that has a natural right to survive. According to Kmiec this is a right which judges or society have no power to abridge. Tracing the case law that he found himself enmeshed in during his tenure at OLC, Kmiec describes the evolution of the legal arguments presented in those cases. Moreover, he criticizes Solicitor Generals Lee and Fried for not being aggressive enough in their attacks on ROE v. WADE. The discussion of Fried is particularly interesting in that Kmiec suggest that Fried's actions may have been influenced by Lincoln Caplan's book THE TENTH JUSTICE. Caplan argues that Fried allowed the office of solicitor general to become highly politicized, a role that is generally seen as antagonistic toward the relationship between the solicitor general and the Supreme Court. Fried's concern over this perception could have been a factor in his toning down his assault on the abortion issue. Clearly from his discussion of this issue Professor Kmiec believes that there could have been an even more forceful attack by the legal forces of the Reagan administration in the area of abortion.

Similar discussion can be found in the areas of AIDS, pornography and education. The discussion of education focuses on the question of parental choice in matters concerning the location of a child's education. Professor Kmiec lays out the argument for voucher plans which were supported by the Reagan administration and Attorney General Meese. The argument is that vouchers would bring about competition both in the private and public school systems and thus the end result would be a better educational system for all children. Kmiec suggests that the reason we have not seen vouchers is two-fold. The political opposition to vouchers from the National Education Association has resulted in very little movement on this issue at the federal or state level. The National Education Association argues that the "better students" will leave the public schools and thus what will remain will be the problem children. Kmiec suggest that this is an insult to public educators since competition would bring about better public schools and then those schools would become schools of choice for many students. The second reason for the failure of voucher plans to succeed is the constitutional question as to whether it will promote religion. Kmiec argues extensively that vouchers do not promote a particular religion. His argument is based on a literal interpretation (original intent argument) of the first amendment suggesting that the government cannot sponsor a religion but just because a religion benefits indirectly from a state action does not mean that there has been a violation of the establishment clause. Criticizing much of the case law in this area, especially LEMON v. KURTZMAN, Kmiec claims that the Court has been largely confused in this area and has strayed from the original intention of the founders in adopting the freedom of religion provisions.

In his chapter entitled "Peace: The Color-blind society" Professor Kmiec discusses race and how the doctrine of original intent applies to an issue that continues to be at the forefront in our society today. Much of the chapter is devoted to a defense of the head of the civil rights division of the Justice Department during the Meese years.

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William Bradford Reynolds was heavily criticized for his position in the BOB JONES case and for later positions on the issue of voluntariness as opposed to school busing. Kmiec blames the problems of Reynolds on the "McCarthyism" tactics of two Democrats and two liberal Republicans in Congress. Although much of the chapter is spent in defense of Reynolds there is a lively discussion later in the chapter focusing on affirmative action in the employment sector. Relying on original intent Professor Kmiec argues that affirmative action violates the meaning of the fourteenth amendment as well as the purpose of Title VII of the Civil Rights Act of 1964. Central to his argument is that there must be discriminatory intent and not just discriminatory effect. According to Kmiec, the fundamental point is that "No one has explained how Congress or the Court can trump the Constitution. In brief, no one has yet come to grips with the fact that regardless of what Congress says, or what the Court says Congress has said, Congress lacks the power to impose practices that amount to hiring by race" (p.166).

Without summarizing all of the issues covered in this book by Professor Kmiec, one should be able to surmise from the very brief synopses of some of his points that the book is very partisan. In fact the book has a tendency to read like a commercial for the Republican party. It seemed more than a coincidence that there is a chapter devoted entirely to the family and one devoted to ethics. Readers who are not supportive of these policy views will find the book to be antagonistic and somewhat vindictive. Reagan and Meese supporters will most likely heap high praise on the book because its purpose is to "set the record straight." This is where the major problem lies for Professor Kmiec's book. It will most likely only appeal to a select group of readers namely those from the conservative side of the continuum. This may have been Kmiec's goal but I believe that the book would serve a better purpose if it could be utilized by scholars to gain insights into the workings of the Justice Department. Indeed, I found that much of the discussion, when it was not highly partisan and defensive, was provocative and enlightening in terms of the decisionmaking processes that were at work during this period of time. The problem for many readers is that they may not remain interested in the book long enough to benefit from many of Professor Kmiec's insights. It is important that I reiterate that providing a description of a legal philosophy and how it applies to specific issue areas is not where the book has a problem. Rather the problem exists with the presentation of the material in a form that suggests a bias against all those who have opposed your policies. There is a great deal of Congress bashing and press bashing throughout the manuscript, again reminding the reader of the Republican campaign. It is my belief that removal of much of the vindicative language in the book would make it more appealing to a larger audience and allow it to stand as an academic work.