Uneasy Days In Court

When Bill Clinton began looking for a new Supreme Court justice last April, the obvious candidate was sitting barely six blocks away, already on the federal payroll and possessed of a resume even Strobe Talbott could envy. He was the solicitor general of the United States, the administration's chief advocate before the high court. He was a Yale hw professor on leave. He was a black man with a distinguished career arguing civil-rights cases. And at midcareer, he was young enough to have an impact on the law well into the next century. But Drew Days III didn't get the nomination, according to authoritative sources, because of an obscure, technical decision he made last fall in a case involving child pornography.

So this week when the court begins its October 1994 term, the newest justice will be Stephen Breyer of Boston. And Days, dressed in his morning-coat finery, will once again appear before the Supreme Court to argue the meaning of yet another aspect of child-pornography law. This time he's explicitly defending the federal antiporn law, attempting to restore the conviction of X-Citement Video, a smut shop in Los Angeles.

The 100 or so cases that the court will hear this term will, as always, reflect many of the tensions rumbling through America. Affirmative action, desegregation of schools, gun possession, crime-and-punishment issues, will again get their days in court. Most of the early docket, though, will be low-profile cases that are likely to go largely unnoticed under the shadow east by O.J.'s autumn in court. If the past is a guide, Days and his 23-member staff will participate in about two thirds of the cases. Officially, their task is to represent the federal government's position. But unofficially, the solicitor general also serves as the so-called Tenth Justice--advising the real nine on the life and logic of the law. That is a difficult balance to strike, particularly when the cases have political impact. For Days, the impact was also personal.

As reputations go, perhaps only Elvis Presley's was harmed as much by tales of young girls cavorting in their underwear. At issue last year was the conviction of Stephen Knox. His crimes: possessing and receiving child pornography through the mail. When Knox appealed to the U.S. Supreme Court, the Bush Justice Department argued to uphold the ruling. Three months into his new job, Days reversed that position and recommended that the ease be sent back to a lower court. Days says he simply, and in a lawyerly manner, interpreted differently the statute that makes it a crime to get materials showing a minor in "sexually explicit conduct."

The issue: what does "sexually explicit" mean? Days argued that the appeals court, and the Bush administration, had read the law too broadly to include videos of girls in underwear. He recommended that the Supreme Court ask the lower court to look at the case again using a narrower standard: to be sexually explicit, the girls had to be naked. In law-speak, the flicks had to include "visible depiction" of the girls unclothed, behaving "lasciviously." The Supreme Court followed Days's advice. Knox's ease was re-examined; his conviction was reaffirmed.

Normally, that would' have been the end of the story that was, in truth, little more than a legal footnote. But in these neopuritanical times the combination of politics, child porn and girls in panties proved incendiary. Former antipornography prosecutors argued that the Knox case was an early sign that the Clinton administration was "soft" on crime and held "radical" legal views. By a vote of 100 to nothing, the Senate passed a resolution condemning the solicitor general's interpretation of the law. To put out the political fire, the president sent an icy rebuke to Attorney General Janet Reno, asking that her department work with Congress to clarify the law. And, says a senior official of the Clinton administration, the Knox case "cost Days a seat on the Supreme Court, at least for now."

At 58, Days is an astute, soft-spoken, deliberate man. Born in Georgia, raised in Florida and New York, he describes himself as a member of the generation that "didn't go boom." While a student at Yale Law School, instead of following the herd to an apprenticeship at a big law firm, he worked for a solo civil-rights lawyer in Georgia. He had started down his career path.

With Martin Luther King, he worked on a fair-housing lawsuit in Chicago when he was 215. At 27, in the Peace Corps in Honduras, he set up an agricultural cooperative that's still in operation. At 30, he won a lawsuit: for the NAACP Legal Defense Fund, Inc., to desegregate the Tampa schools he attended as a boy. In his Florida work, Days dealt with Judge Griffin Bell. When Jimmy Garter picked Bell for attorney general, the judge asked Days what he wanted to do in the Justice Department. Days, then 35, replied, "civil rights." He became the first black to lead that or any division.

There, and later as a professor, Days pursued liberal positions in school busing, affirmative action and other legal areas. But he did so with a respect for rival views that bugged allies and won over adversaries. GOP Sen. Alan Simpson of Wyoming rarely agrees with Days. But at the solicitor-general confirmation hearing, Simpson observed, "The thing that always attracted me to you is that you have an ability to be terribly forceful and keep your head and keep your steadiness and keep your humor."

As solicitor general, Days has had his humor tested more than once. The appeal of the job used to be that it offered as pure an engagement with the law--above politics-as an advocate could get. No more. During the Reagan and Bush years, the office was turned into a political organ. In case s dealing with abortion, school prayer and other items on the White House social agenda, the SG was expected to follow the administration's politics even if that meant making sharp breaks with the court's past decisions. To Democratic and Republican observers, the high purpose of the office was sharply diminished, and its credibility ebbed. At his confirmation hearing, Days pledged to fortify his office's reputation for "absolute candor and fair dealing."

Enter reality. No one believes anymore that there's a correct legal answer in tough cases. Law and policy are often intertwined. And Days and the White House have been caught in several battles over sensitive, technical legal positions. Days has managed to follow the administration's lead--he is, after all, Uncle Sam's lawyer-without submitting "political broadsides." His job now amounts to finding a savvy accommodation between the lofty claims of tradition and the dictates of political reality. "I think,"says Days, "that, in most instances, it's not in the interest of the president or the attorney general to dip in and out of the process."

Unfortunately for Days, that's not exactly the view of former University of Arkansas law teacher William Jefferson Clinton. The president likes to dabble in legal issues and sometimes seems bent on being his own SG. The latest example came last month in a dispute over the meaning of the new Religious Freedom Restoration Act. In that case, a federal appeals court asked for the Justice Department's advice. In response, Justice filed a brief approved by Days. It argued that money a couple in bankruptcy had tithed to their church must be treated like any other asset under federal law.

Months after this friend of the court brief was filed, it was debated in the Justice Department, the White House Counsel's Office and the Oval Office. As these things go, there was considerable behind-the-scenes drama. Attorney General Reno presided over a full-dress debate between Days and Associate General John Schmidt. Clinton himself met with a visiting delegation of evangelical lawyers to discuss the issue. Ultimately Clinton ordered the brief withdrawn and directed the Justice Department lawyer not to appear in the case--the night before the court was to hear arguments. In the legal community, pulling a brief at the last minute is the moral equivalent of ordering the 82d Air-borne to turn around and head hack to base, Days was disappointed but says he can live with the outcome: "I did what I had to do, to the best of my ability and to my conviction, and the president exercised his authority."

Political officials at Justice blame the bumps in Days's tenure on his office's obtuseness about the political impact of some legal choices. Perhaps. But in fact the conception of the office has changed, probably irrevocably. To illustrate, Days invokes the words of Harvard law professor Charles Fried, one of President Reagan's solicitors: "The issue is not whether you change your mind, or have a different point of view," Fried wrote, "but how well you do it." The SG used to be a wise man. Now, if we're lucky, he's a craftsman.

The U.S. Supreme Court has cut back on its workload, but the 100 or so cases the justices will hear this term will touch some tender nerves. Among them:

Can Congress make it a crime to carry a firearm within 1,000 feet of a school? A 12th grader nabbed in San Antonio, Texas, with a .38 thinks not.

A case out of Arkansas asks whether 'state voters can put limits on the number of terms their congressmen can serve. Five-term Rep. Ray Thornton of Little Rock hopes not.

Is the federal anti-porn law fatally flawed because it does not explicitly require proof that dealers knew they were hawking sexually explicit videos?

As part of a desegregation case, Missouri has spent millions trying to fix the Kansas City schools. Can a judge demand evidence of real improvement?

Does a law banning the distribution of anonymous campaign literature violate the First Amendment? Appeal comes out of a local Ohio campaign against a school tax.

Is it constitutional for a federal contracting program to give preference to businesses run by blacks and other minorities? This Colorado case invites the court to re-examine its precedents.