http://www.hotwired.com/netizen/96/25/campaign_dispatch4a.html

HotWired: The Netizen
The Tenth Justice

by Brock N. Meeks (brock@well.com) and Declan McCullagh (declan@well.com)
Washington, DC, 20 June 1996

   Little known and unheralded outside judicial circles, U.S. Solicitor
   General Drew Days will soon play a key role in the continuing saga of
   the Communications Decency Act: it's now up to Days to vote thumbs up
   or down on sending the case to the Supreme Court.

   Days's decision carries enormous weight with the Supreme Court
   justices. "The solicitor general is known as the tenth justice," says
   Llew Gibbons, Temple University law fellow. "He has that much power
   before the court. It's a level of credibility nobody else has."

   Although the solicitor general - the No. 3 spot in the Department of
   Justice - is a political appointee, the job has historically been
   above politics; as Gibbons says, the solicitor general's real client
   is the Constitution. At the same time, it's a coveted position widely
   seen as a steppingstone to a seat on the Supreme Court, as it was for
   Thurgood Marshall.
   
   In addition, the job's independence allows the solicitor general to
   rule according to his understanding of constitutional law, not party
   allegiance - which is why Days's decision on the CDA will carry so
   much weight with the high court.
   
   Nonetheless, as independent and influential as Days may be, should he
   decide not to send the case on, he could still be overruled by
   Attorney General Janet Reno.
   
   Days has traveled this road before. Shortly after he took office in
   1993, he wrote a decision arguing that the Bush administration had
   screwed up in sending a controversial child pornography case to the
   Supreme Court. The court, having already decided to take the case,
   reversed itself and, on the strength of Days's argument, sent it back
   to the appeals court.
   
   That sequence of events created a political dust-up that ended with
   Days being chewed out by President Clinton and chastised by the
   Senate, which voted 100-0 for a resolution condemning his actions.
   Legal analysts said at the time that Days's principled but politically
   explosive move killed his chances for a Supreme Court appointment.
   
   If Days nixes the CDA appeal and Reno overrules him, the Supreme Court
   would then hear the case over the judicial misgivings of its tenth
   justice. However, Days's approval of a Supreme Court review could
   focus high-wattage scrutiny on the remarks of Judge Ronald Buckwalter.
   
   Buckwalter, a member of the three-judge panel that struck down the CDA
   as unconstitutional, wrote in his comments on the case: "I
   specifically do not find that any and all statutory regulation of
   protected speech on the Internet could not survive constitutional
   scrutiny."
   
   Another factor in this judicial calculus is that Days's term ends
   before the Justice Department's 2 July deadline to appeal the CDA case
   to the Supreme Court. If Days decides to punt, the crucial decision
   lands in the lap of the incoming acting solicitor general, Walter
   Dellinger, who is currently an assistant attorney general.
   
   But Days is still the person most likely to make the decision,
   according to Bruce Taylor, a pro-CDA lobbyist and former federal
   prosecutor on obscenity issues. "They'll include [Dellinger] in what
   they're thinking. If he has strong objections, they'll listen."
   
   Dellinger has his own long history of supporting civil liberties. For
   example, while testifying before the Senate Judiciary Committee on the
   flag-burning amendment last year, he said the move "and any other
   proposal to amend the Constitution in order to punish a few isolated
   acts of flag burning" should be rejected. He's also staunchly
   pro-choice and an opponent of the death penalty.
   
   "Dellinger is one of the preeminent scholars and lawyers in the
   country on constitutional law," said Chris Hansen, head of the ACLU
   legal team that challenged the CDA in court. Pro-CDA lawyer Taylor has
   no disputes with Dellinger's legal pedigree, but calls him an
   "ACLUer."
   
   After the long march to overturn the CDA, there remain some final
   steps to be taken. The fate of the CDA is likely to rest in the hands
   of the Supreme Court - but it has to get there first. That largely
   depends on what Days, or perhaps Dellinger, decides. Should either
   exercise the will to "just say no" and end this judicial charade right
   here, it then falls to President Clinton's top cop, Janet "Rambo"
   Reno, to overturn that decision. Anyone taking bets?
   
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