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Subject: Decorously Seeking the Solicitorship;Dellinger, Tribe Want to Plead Clinton's
Date: Wed, 18 Nov 92 04:53:56 EST
Message-ID: <47.1992Nov18.045356@AmeriCast.com>

Decorously Seeking the Solicitorship;Dellinger, Tribe Want to
Plead Clinton's Cases Before Supreme Court<By Joan
Biskupic=Washington Post Staff Writer= When the U.S. solicitor
general, appears before the Supreme Court, he is the picture of
dignity.

He wears a charcoal gray morning coat, complete with tails, as he
presents the administration's argument. He is accorded more
status than other advocates and has been tagged the "10th jus-
tice."

But can there be dignity in getting there?

Among the many would-be solicitors general in the Clinton ad-
ministration are two leading lights - law professors Walter Del-
linger and Laurence H. Tribe - who despite their track records on
the talk show-lecture circuit, speak awkwardly about their as-
pirations for a post in the first Democratic administration in 12
years.

Dellinger of Duke University and Tribe of Harvard University are
well-known advisers to Democratic lawmakers. They are loquacious
constitutional scholars who can be found in the Rolodexes of most
journalists - under "liberal." Both testified against Robert H.
Bork's nomination to the Supreme Court in 1987.

But conversations with them and others jockeying for top legal
jobs in the Clinton administration bring out a rare diffidence.

When asked about his ambitions, Tribe at first agreed to speak on
the record but reconsidered the next day and asked that it be re-
ported that he declined to comment. Separately, Dellinger said it
was hard, given the hierarchy surrounding President-elect Clin-
ton, to get positive comments about his advocacy "in play."

Both men clearly want the job and are two of the highest profile
players in this corner of the ongoing game of who-will-be-who in
the Clinton administration.

Both names - more often Tribe's - also show up among the dozens
of potential candidates also being mentioned for any vacancy on
the Supreme Court. Four solicitors general have gone on to become
justices: William Howard Taft, Stanley Reed, Robert H. Jackson
and Thurgood Marshall.

It used to be that the solicitor general post - the No. 3 job at
the Justice Department - was fairly obscure.  That was before
Ronald Reagan. The activism of Reagan solicitors general and the
controversial policy questions the Supreme Court has faced in re-
cent years turned the position into a powerful, much publicized
slot.

The solicitor general is party to more cases at the court than
anyone else. The office is engaged in a constant balancing,
between aiding the court in an objective, academic way and trying
to persuade it to accept the government's argument.  The current
solicitor general is Kenneth W. Starr, a former federal appeals
court judge on the District of Columbia Circuit.

When the new administration gets underway, it will fall to the
solicitor general to inform the court on the Clinton
administration's departures from Bush administration positions.
One pending appeal defends the military's exclusion of homosexu-
als. Another case focuses on President Bush's order to summarily
deport Haitians who, fleeing turmoil in their homeland, enter the
country illegally. Clinton has said he intends to change both po-
sitions.

The new solicitor general could well influence the court's
overall philosophy with his arguments, whether it remains largely
conservative or becomes more moderate.

"The advice I would give to anyone who wants the job is not to do
anything yourself," said Erwin N. Griswold, who was solicitor
general in 1967-73 and has argued 127 cases before the Supreme
Court, more than any other living lawyer.

Referring to Clinton's transition director, Griswold said, "Know-
ing Warren Christopher, I think the more political the approach,
the more it would turn him away. Most of the people who have held
the position did not lobby for it."

Bork, who replaced Griswold and was solicitor general in 1973-77,
impressed President Richard M. Nixon with his arguments for judi-
cial restraint, according to "The Tenth Justice: The Solicitor
General and the Rule of Law" by Lincoln Caplan.  Caplan wrote
that Reagan choose Rex Lee as his first solicitor general because
the administration thought Lee, dean of the Brigham Young Univer-
sity law school, could articulate its conservative agenda before
the court. Lee quit in 1985 and was replaced by a more ideologi-
cal standard-bearer for the far right, Charles Fried.

Tribe's and Dellinger's are only two among the many names that
are circulating for the spot, and people close to Clinton are not
tipping their hand. While it could end up that neither is chosen,
they are among the most qualified and most talked-about candi-
dates.

Both are 51. Both received law degrees from Ivy League law
schools (Tribe at Harvard , Dellinger at Yale). Both were law
clerks to Supreme Court justices (Tribe, Potter Stewart; Del-
linger, Hugo L. Black).

Both have advised the Senate Judiciary Committee, which has the
responsibility to confirm or reject judicial nominees. And both
helped the Clinton campaign, although neither is close friends
with Bill or Hillary Clinton.

But there are numerous differences between Tribe of Cambridge,
Mass., and Dellinger, of Durham, N.C.

Tribe, a prolific scholar who has written a widely used constitu-
tional law treatise, also has argued 20 cases before the Supreme
Court. Dellinger, who appeared before the high court in one case,
in 1990, has worked more with members of Congress, on "friend of
the court" briefs and legislation.

Tribe's larger reputation, combined with a bolder style and more
publicized liberal leanings, has earned him more enemies. Del-
linger exudes southern politeness and is known for his political
finesse.

Although both men opposed Bork, whose nomination ultimately was
rejected by the Senate, because of the force of Tribe's testimony
and what many perceived as his potent behind-the-scenes influence
with senators, some conservatives still loathe Tribe.<02:37 11-
18C9999-----

Copyright 1992, The Washington Post.  This story is from the
Washington Post's Capitol Edition On-Line and is not to be ar-
chived or redistributed.

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