HotWired -- The Tenth Justice (6/20/96)
Declan McCullagh
declan at well.com
Fri Jun 21 14:03:39 PDT 1996
Check out today's HotWired at http://www.hotwired.com/ for the full article.
-Declan
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http://www.hotwired.com/netizen/96/25/campaign_dispatch4a.html
HotWired: The Netizen
The Tenth Justice
by Brock N. Meeks (brock at well.com) and Declan McCullagh (declan at 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.
[...]
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