WHEN GEORGE BUSH BEGAN POUNDING Michael Dukakis this summer for his 1977 veto of legislation requiring Massachusetts teachers to lead students in the Pledge of Allegiance, the conservative hardliners at The Walt Street Journal’s editorial page watched with satisfaction. When Dukakis issued a belated and legalistic response, they pounced.
The honors were done by L. Gordon Crovitz, a mildspoken law graduate of both Oxford (on a Rhodes Scholarship) and Yale of alternately brooding and cherubic appearance, who has become at the age of 30 the voice of the editorial page on legal issues ranging from the Irancontra affair to the parol evidence rule. He has also become the most conspicuous polemicist for the hardedged neoconservative approach to law that has fueled the growth of the Federalist Society in law schools and Washington power circles; President Ronald Reagan quoted him by name on December 13. He is an articulate and vitriolic scourge of liberals, "judicial activists," Congress, "vigilante" special prosecutors, plaintiffs lawyers, the American Civil Liberties Union, the Securities and Exchange Commission, and others. His causes include a quasimonarchical vision of presidential power, getting the judiciary out of the constables’ hair and into the deregulation of business, and turning back the clock of the common Jaw about 30 years.
Dukakis presented Crovitz with an easy target. Not that the governor didn’t have a good justification for the veto: He had advisory opinions from the Massachusetts Supreme Judicial Court and the state attorney general that the law was unconstitutional, under the logic of the Supreme Court’s land mark 1943 decision in West Virginia Board of Education v. Barnette. But in his August 23 counterattack Dukakis added a breathtakingly foolish assertion: "It was so held by the Supreme Court of the United States," he said. "Any firstyear law student knows that." He also included a slippery suggestion that he was not politically responsible for vetoing the bill because the advisory opinion put him under a constitutional obligation to do so.
Crovitz plunged gleefully into the fray. He shredded the Dukakis pretense that the Supreme Court had "so held" in an August 26 editorial and in lengthy, bylined editorial page commentaries on September 1 and 14. The Barnette decision involved not teachers but students who had been expelled from school for refusing on religious grounds to recite the pledge and then prosecuted for truancy, Crovitz pointed out; teachers are differently situated, with the option of resigning and with some responsibility to follow the prescribed curriculum. Crovitz heaped obloquy on Dukakis for soliciting the advisory opinion and then "hiding behind judicial robes" to "protect the career paths of teachers who do not believe that the United States is one nation, under God, indivisible, with liberty and justice for all." Launching into a detailed analysis of two subsequent lower court precedents, he said liberal commentators who had accepted the Dukakis legalisms at face value "ought to take the time to read the cases."
The pieces were vintage Crovitz – smooth, ably written, supremely selfassured, deft in puncturing liberal slogans, smugly contemptuous of those who could not see the truth as he saw it.
But the three Crovitz pieces were also riddled with inaccuracies. They grossly distorted the state of the law. They would have led a credulous reader – a businessman, say, who trusts the Journal’s levelheaded news coverage and has not been warned that when he turns to the editorial page he enters a garden of ideological zeal – to believe that the legal precedents firmly supported requiring teachers to recite the pledge. The opposite was true. Crovitz played faster and looser with the facts and law in defending the statute than Dukakis had done in attacking it.
Specifically, Crovitz said the two dissenters from the Massachusetts court’s advisory opinion had argued that teachers could be required to recite the pledge. In fact, they had asserted the opposite. Crovitz suggested that all the lower courts "to consider the issue" in real cases "have upheld the requirement that Governor Dukakis vetoed." Again, neither of the cases he cited squarely upheld a requirement that teachers recite the pledge; it appears that no court has ever done so, at least since Barnette. And Crovitz ignored rulings by the Second Circuit and two other courts that teachers have a First Amendment right to refuse to recite the pledge.
He misstated the facts of the Barnette case. He ignored the broad libertarian spirit of Justice Robert Jackson’s stirring majority opinion, which said that no "citizen" could be forced to recite the pledge. He disregarded subsequent Supreme Court decisions protecting teachers’ rights to freedom to express dissenting views in a nondisruptive fashion in schools. And he lambasted Dukakis for "flatly refusing to enforce the new law" (which the legislature had enacted over his veto) without mentioning that there was little Dukakis could have done to enforce it (see sidebar, below).
This, too, was vintage Crovitz. He seems determined not just to make his point, but fired with a frenzied zeal to score a knockout, to show that no person of sense or decency could disagree with him. Facts or legal precedents that stand in his way do so at their peril.
A tone of strident certitude, combined with such cavalier treatment of facts, may explain why the prolific young assistant editorial page editor’s work is so infuriating to so many readers not already converted to neoconservative dogma.
"I suppose that if one were to respond to every idiotic point of view expressed on your editorial page, one would have time for little else," Robert Pearlman, a Charleston, South Carolina, lawyer, wrote in a letter to the editor published September 14, "but Mr. Crovitz’s article on Governor Dukakis and the Pledge of Allegiance is so inane as to cry out for someone to plead with you to refocus your attention."
Selfrighteous stridency and fact mangling are not traits unique to Crovitz, of course, nor are they unknown among the legal commentators of the left. But they seem especially salient in the work of Crovitz and other purveyors of the resurgent jurisprudence of the right. In this regard Crovitz’s work seems very much in tune with the rest of the Journal’s editorial page. Under the guiding spirit of editor Robert Bartley, vituperative and sometimes extreme arguments for freemarket conservatism and militantly aggressive antiCommunism flow fast and furious, pushing the outside of the envelope of fair advocacy. That is why some Journal reporters are weary of explaining to sources that they are separated by a Chinese wall from – and regularly astonished by – Crovitz, Bartley, and the whole editorial page crowd.
It may be, as Crovitz suggests, that distaste for his politics predisposes this writer and others to fault his methods. Certainly Crovitz is not without admirers. Far from it. One is Terry Eastland, who was the Justice Department’s public affairs director until he exited last May in a blaze of glory, fired by Attorney General Edwin Meese III for insufficient vigor in defending his personal rectitude against charges of ethical insensitivity. "I think Gordon is the most outstanding conservative legal affairs writer of his generation," says Eastland, a onetime editorial writer who is now a resident scholar with the conservative National Legal Center for the Public Interest in Washington; Crovitz is a member of the editorial advisory board of the center’s Public Interest Law Review. "Gordon does something most editorial writers don’t do," Eastland adds. "He uses his legs, he picks up the phone, he goes to the library."
Conservatives value Crovitz for challenging what Richard Willard of Washington’s Steptoe & Johnson, one of the Meese Justice Department’s brainier alumni, calls "the conventional, fairly liberal legal wisdom" that appears on the editorial pages of The New York Times and The Washington Post. With well over 100 editorials and signed commentaries a year published in (he nation’s most widely circulated (more than 2 million copies a day) serious editorial pages, he has acquired a following among the young Federalist Society types who flocked to the Meese Justice Department and other neoconservative intellectuals. Many are energized by the same ideological zeal that animates Bartley’s editorial page – and the same mystical capacity for divining from the original intent of the framers of the Constitution whatever principles suit their objectives of the moment. Crovitz is becoming a regular on their lecture circuit.
He has also raised his profile in neoconservative intellectual circles by publishing longer pieces in Commentary and National Review and acting as coeditor of a new American Enterprise Institute book of essays by some of the nation’s most promi¨nent conservative thinkers, entitled The Fettered Presidency. On December 13 President Reagan quoted with approval the most recent Commentary article by "legal commentator L. Gordon Crovitz," to the effect that the Budget Act of 1974 "was drafted by Congress to rob the president of his abil¨ity to limit spending, while making it possible for a fragmented collection of congressmen to spend and, at the same time, to evade responsibility for doing so." Crovitz appreciated both the plug and the irony: His Commentary article was headlined "How Ronald Reagan Weakened the Presidency."
Perhaps the greatest affront to the CrovitzBartley vision of untrammeled presidential power is the federal special prosecutor law, which they denounce tirelessly, almost to the point of fixation. Crovitz wrote at least 27 editorials and signed com mentaries in 1988 alone attacking the law and bit¨terly traducing each of the four special prosecutors who were in business during the course of the year. His rage at the Irancontra investigation conducted by Lawrence E. Walsh is especially palpable. In a November 30, 1987, editorial calling for presidential pardons of Oliver North and the other "Irancontra scapegoats," Crovitz said "the Washington elite set out to use ëethics’ claims, distortions, special prosecutors, and allegations of scandal to destroy [the Reagan administration] body by body – like the Viet Cong assassinating village chiefs."
Asserting that "these are political cases brought by prosecutors appointed by Congress to harass executive branch officials," he kept up a steady drumbeat of demands that the Supreme Court strike the law down. The Court did not oblige, upholding the law by a vote of 7 to 1 in a June 29 opinion by Chief Justice William Rehnquist. Without missing a beat, Crovitz followed with an editorial the next day asserting that "the executive branch can end the institution of special prosecutor by simply refusing ever to appoint one," and suggesting that Alexia Morrison, the special prosecu¨tor who had just won the case, should be dismissed for "prosecutorial abuse" (see sidebar, below).
ASK A LIBERAL READER of the Journal about Crovitz’s scalding rightwing prose and the answer is likely to be either "I can’t stand to read that stuff" or "I have to read it to see what he’s going to say next." Then comes the question: "Who is this guy, anyway?"
He is a very bright, facile young man who laughs easily and speaks softly, barely audible over the hum of his word processor as he tells an interviewer that the special prosecutor law is an "outrage," that Congress is an "extraordinarily hypocritical institution," and that an "astonishingly malicious and deceitful campaign" felled Bork.
His pacific personal demeanor contrasts strikingly with his warlike prose. "He doesn’t rant and rave and scream and shout," one liberal Washington lawyer remarked with some surprise after a meeting with Crovitz. After being told some of the criticisms this article would contain, Crovitz continued to respond courteously and helpfully to requests for information on such matters as whether he had been the author of some unsigned editorials with which this writer found fault.
Sitting in his neat, book-lined office high above the Hudson River, Crovitz recalls that "I grew up in a liberal academic community and I was quite liberal" as a teenage newscaster at a progressive FM radio station. His parents were and are psychology professors at Duke University and political liberals. Crovitz says that "we’ve often agreed to disagree" about his political views, adding that "my parents like to blame it all on the University of Chicago."
It was in the potent conservative intellectual brew at the University of Chicago that Crovitz’s current views were hero Bork a generation before. Crovitz majored in politics, economics, rhetoric, and law, studying as an undergraduate under such law professors as Richard Posner, the brilliant law-and-economics than who now sits on the Seventh Circuit; former attorney general Edward Levi ("the best classroom teacher 1 ever had"); conservative constitutional scholar Philip Kurland (who apparently fell from grace with Crovitz when he opposed the Bork nomination, if not before); and Richard Epstein, guru of the libertarian-conservative movement to resurrect Lochner v. New York – style protection of property and contract rights.
Professors aside, Crovitz recalls, "the editorial page of The Wall Street Journal was a major influence" on his political development at the university. Meanwhile, he found time to be co-founder in 1977 and editor of the Chicago Journal, a weekly newspaper for Chicago’s South Side, and to work as a research assistant for then-professor Posner and his consulting firm, Lexecon Inc. Judge Posner recalls Crovitz in a recent interview as an "outstanding" student, thoughtful and intelligent, and "a person of sobriety and deliberateness and caution."
By the time he was finishing at Chicago in 1980, Phi Beta Kappa, Crovitz had become such an outspoken conservative that the members of the committee that recommended him at the state level for the Rhodes Scholarship took pains to tell him: "We just want you to know one thing – none of us agreed with a single thing you’ve said."
About that time Bob Bartley was looking for someone "who would be real hot for a summer intern"; a fellow who had started his own newspaper and won a Rhod…
WHEN GEORGE BUSH BEGAN POUNDING Michael Dukakis this summer for his 1977 veto of legislation requiring Massachusetts teachers to lead students in the Pledge of Allegiance, the conservative hardliners at The Walt Street Journal’s editorial page watched with satisfaction. When Dukakis issued a belated and legalistic response, they pounced.
The honors were done by L. Gordon Crovitz, a mildspoken law graduate of both Oxford (on a Rhodes Scholarship) and Yale of alternately brooding and cherubic appearance, who has become at the age of 30 the voice of the editorial page on legal issues ranging from the Irancontra affair to the parol evidence rule. He has also become the most conspicuous polemicist for the hardedged neoconservative approach to law that has fueled the growth of the Federalist Society in law schools and Washington power circles; President Ronald Reagan quoted him by name on December 13. He is an articulate and vitriolic scourge of liberals, "judicial activists," Congress, "vigilante" special prosecutors, plaintiffs lawyers, the American Civil Liberties Union, the Securities and Exchange Commission, and others. His causes include a quasimonarchical vision of presidential power, getting the judiciary out of the constables’ hair and into the deregulation of business, and turning back the clock of the common Jaw about 30 years.
Dukakis presented Crovitz with an easy target. Not that the governor didn’t have a good justification for the veto: He had advisory opinions from the Massachusetts Supreme Judicial Court and the state attorney general that the law was unconstitutional, under the logic of the Supreme Court’s land mark 1943 decision in West Virginia Board of Education v. Barnette. But in his August 23 counterattack Dukakis added a breathtakingly foolish assertion: "It was so held by the Supreme Court of the United States," he said. "Any firstyear law student knows that." He also included a slippery suggestion that he was not politically responsible for vetoing the bill because the advisory opinion put him under a constitutional obligation to do so.
Crovitz plunged gleefully into the fray. He shredded the Dukakis pretense that the Supreme Court had "so held" in an August 26 editorial and in lengthy, bylined editorial page commentaries on September 1 and 14. The Barnette decision involved not teachers but students who had been expelled from school for refusing on religious grounds to recite the pledge and then prosecuted for truancy, Crovitz pointed out; teachers are differently situated, with the option of resigning and with some responsibility to follow the prescribed curriculum. Crovitz heaped obloquy on Dukakis for soliciting the advisory opinion and then "hiding behind judicial robes" to "protect the career paths of teachers who do not believe that the United States is one nation, under God, indivisible, with liberty and justice for all." Launching into a detailed analysis of two subsequent lower court precedents, he said liberal commentators who had accepted the Dukakis legalisms at face value "ought to take the time to read the cases."
The pieces were vintage Crovitz – smooth, ably written, supremely selfassured, deft in puncturing liberal slogans, smugly contemptuous of those who could not see the truth as he saw it.
But the three Crovitz pieces were also riddled with inaccuracies. They grossly distorted the state of the law. They would have led a credulous reader – a businessman, say, who trusts the Journal’s levelheaded news coverage and has not been warned that when he turns to the editorial page he enters a garden of ideological zeal – to believe that the legal precedents firmly supported requiring teachers to recite the pledge. The opposite was true. Crovitz played faster and looser with the facts and law in defending the statute than Dukakis had done in attacking it.
Specifically, Crovitz said the two dissenters from the Massachusetts court’s advisory opinion had argued that teachers could be required to recite the pledge. In fact, they had asserted the opposite. Crovitz suggested that all the lower courts "to consider the issue" in real cases "have upheld the requirement that Governor Dukakis vetoed." Again, neither of the cases he cited squarely upheld a requirement that teachers recite the pledge; it appears that no court has ever done so, at least since Barnette. And Crovitz ignored rulings by the Second Circuit and two other courts that teachers have a First Amendment right to refuse to recite the pledge.
He misstated the facts of the Barnette case. He ignored the broad libertarian spirit of Justice Robert Jackson’s stirring majority opinion, which said that no "citizen" could be forced to recite the pledge. He disregarded subsequent Supreme Court decisions protecting teachers’ rights to freedom to express dissenting views in a nondisruptive fashion in schools. And he lambasted Dukakis for "flatly refusing to enforce the new law" (which the legislature had enacted over his veto) without mentioning that there was little Dukakis could have done to enforce it (see sidebar, below).
This, too, was vintage Crovitz. He seems determined not just to make his point, but fired with a frenzied zeal to score a knockout, to show that no person of sense or decency could disagree with him. Facts or legal precedents that stand in his way do so at their peril.
A tone of strident certitude, combined with such cavalier treatment of facts, may explain why the prolific young assistant editorial page editor’s work is so infuriating to so many readers not already converted to neoconservative dogma.
"I suppose that if one were to respond to every idiotic point of view expressed on your editorial page, one would have time for little else," Robert Pearlman, a Charleston, South Carolina, lawyer, wrote in a letter to the editor published September 14, "but Mr. Crovitz’s article on Governor Dukakis and the Pledge of Allegiance is so inane as to cry out for someone to plead with you to refocus your attention."
Selfrighteous stridency and fact mangling are not traits unique to Crovitz, of course, nor are they unknown among the legal commentators of the left. But they seem especially salient in the work of Crovitz and other purveyors of the resurgent jurisprudence of the right. In this regard Crovitz’s work seems very much in tune with the rest of the Journal’s editorial page. Under the guiding spirit of editor Robert Bartley, vituperative and sometimes extreme arguments for freemarket conservatism and militantly aggressive antiCommunism flow fast and furious, pushing the outside of the envelope of fair advocacy. That is why some Journal reporters are weary of explaining to sources that they are separated by a Chinese wall from – and regularly astonished by – Crovitz, Bartley, and the whole editorial page crowd.
It may be, as Crovitz suggests, that distaste for his politics predisposes this writer and others to fault his methods. Certainly Crovitz is not without admirers. Far from it. One is Terry Eastland, who was the Justice Department’s public affairs director until he exited last May in a blaze of glory, fired by Attorney General Edwin Meese III for insufficient vigor in defending his personal rectitude against charges of ethical insensitivity. "I think Gordon is the most outstanding conservative legal affairs writer of his generation," says Eastland, a onetime editorial writer who is now a resident scholar with the conservative National Legal Center for the Public Interest in Washington; Crovitz is a member of the editorial advisory board of the center’s Public Interest Law Review. "Gordon does something most editorial writers don’t do," Eastland adds. "He uses his legs, he picks up the phone, he goes to the library."
Conservatives value Crovitz for challenging what Richard Willard of Washington’s Steptoe & Johnson, one of the Meese Justice Department’s brainier alumni, calls "the conventional, fairly liberal legal wisdom" that appears on the editorial pages of The New York Times and The Washington Post. With well over 100 editorials and signed commentaries a year published in (he nation’s most widely circulated (more than 2 million copies a day) serious editorial pages, he has acquired a following among the young Federalist Society types who flocked to the Meese Justice Department and other neoconservative intellectuals. Many are energized by the same ideological zeal that animates Bartley’s editorial page – and the same mystical capacity for divining from the original intent of the framers of the Constitution whatever principles suit their objectives of the moment. Crovitz is becoming a regular on their lecture circuit.
He has also raised his profile in neoconservative intellectual circles by publishing longer pieces in Commentary and National Review and acting as coeditor of a new American Enterprise Institute book of essays by some of the nation’s most promi¨nent conservative thinkers, entitled The Fettered Presidency. On December 13 President Reagan quoted with approval the most recent Commentary article by "legal commentator L. Gordon Crovitz," to the effect that the Budget Act of 1974 "was drafted by Congress to rob the president of his abil¨ity to limit spending, while making it possible for a fragmented collection of congressmen to spend and, at the same time, to evade responsibility for doing so." Crovitz appreciated both the plug and the irony: His Commentary article was headlined "How Ronald Reagan Weakened the Presidency."
Perhaps the greatest affront to the CrovitzBartley vision of untrammeled presidential power is the federal special prosecutor law, which they denounce tirelessly, almost to the point of fixation. Crovitz wrote at least 27 editorials and signed com mentaries in 1988 alone attacking the law and bit¨terly traducing each of the four special prosecutors who were in business during the course of the year. His rage at the Irancontra investigation conducted by Lawrence E. Walsh is especially palpable. In a November 30, 1987, editorial calling for presidential pardons of Oliver North and the other "Irancontra scapegoats," Crovitz said "the Washington elite set out to use ëethics’ claims, distortions, special prosecutors, and allegations of scandal to destroy [the Reagan administration] body by body – like the Viet Cong assassinating village chiefs."
Asserting that "these are political cases brought by prosecutors appointed by Congress to harass executive branch officials," he kept up a steady drumbeat of demands that the Supreme Court strike the law down. The Court did not oblige, upholding the law by a vote of 7 to 1 in a June 29 opinion by Chief Justice William Rehnquist. Without missing a beat, Crovitz followed with an editorial the next day asserting that "the executive branch can end the institution of special prosecutor by simply refusing ever to appoint one," and suggesting that Alexia Morrison, the special prosecu¨tor who had just won the case, should be dismissed for "prosecutorial abuse" (see sidebar, below).
ASK A LIBERAL READER of the Journal about Crovitz’s scalding rightwing prose and the answer is likely to be either "I can’t stand to read that stuff" or "I have to read it to see what he’s going to say next." Then comes the question: "Who is this guy, anyway?"
He is a very bright, facile young man who laughs easily and speaks softly, barely audible over the hum of his word processor as he tells an interviewer that the special prosecutor law is an "outrage," that Congress is an "extraordinarily hypocritical institution," and that an "astonishingly malicious and deceitful campaign" felled Bork.
His pacific personal demeanor contrasts strikingly with his warlike prose. "He doesn’t rant and rave and scream and shout," one liberal Washington lawyer remarked with some surprise after a meeting with Crovitz. After being told some of the criticisms this article would contain, Crovitz continued to respond courteously and helpfully to requests for information on such matters as whether he had been the author of some unsigned editorials with which this writer found fault.
Sitting in his neat, book-lined office high above the Hudson River, Crovitz recalls that "I grew up in a liberal academic community and I was quite liberal" as a teenage newscaster at a progressive FM radio station. His parents were and are psychology professors at Duke University and political liberals. Crovitz says that "we’ve often agreed to disagree" about his political views, adding that "my parents like to blame it all on the University of Chicago."
It was in the potent conservative intellectual brew at the University of Chicago that Crovitz’s current views were hero Bork a generation before. Crovitz majored in politics, economics, rhetoric, and law, studying as an undergraduate under such law professors as Richard Posner, the brilliant law-and-economics than who now sits on the Seventh Circuit; former attorney general Edward Levi ("the best classroom teacher 1 ever had"); conservative constitutional scholar Philip Kurland (who apparently fell from grace with Crovitz when he opposed the Bork nomination, if not before); and Richard Epstein, guru of the libertarian-conservative movement to resurrect Lochner v. New York – style protection of property and contract rights.
Professors aside, Crovitz recalls, "the editorial page of The Wall Street Journal was a major influence" on his political development at the university. Meanwhile, he found time to be co-founder in 1977 and editor of the Chicago Journal, a weekly newspaper for Chicago’s South Side, and to work as a research assistant for then-professor Posner and his consulting firm, Lexecon Inc. Judge Posner recalls Crovitz in a recent interview as an "outstanding" student, thoughtful and intelligent, and "a person of sobriety and deliberateness and caution."
By the time he was finishing at Chicago in 1980, Phi Beta Kappa, Crovitz had become such an outspoken conservative that the members of the committee that recommended him at the state level for the Rhodes Scholarship took pains to tell him: "We just want you to know one thing – none of us agreed with a single thing you’ve said."
About that time Bob Bartley was looking for someone "who would be real hot for a summer intern"; a fellow who had started his own newspaper and won a Rhodes Scholarship sounded pretty good, Bartley recalls. So Crovitz started writing editorials for the Journal in the summer of 1980.
The Rhodes took him that autumn to Wadham College, Oxford, and two years of immersion in the study of a legal system "where freedom of contract really still lives" and litigation has not exploded. This "helped me to see where American law has gone wrong," with its unconscionability loopholes, its enterprise liability rules, and all the other things that keep so many lawyers here busy since "the judges appointed themselves as income redistribu-tors," Crovitz says.
He worked the summers of 1981 and 1982 writing editorials for Bartley’s page and in 1982, at the tender age of 23, deferred plans to pursue a law degree in the United States to accept a position as the founding editorial page editor of The Wall Street Journal/Europe, which began publishing in Brussels in early 1983. One of the joys of that 80-hour-a-week job, Crovitz says, was to "help introduce supply-side economics to Europe." He returned to New York in 1984 and entered Yale Law School, using his Oxford degree to bypass the first year and completing the second- and third-year programs while spending half his time in New York writing editorials for the Journal.
At Yale Crovitz came across as "very able, outspoken, with very strong opinions well stated," recalls Guido Calabresi, dean of the law school. The dean notes that he is "very proud to be a liberal" and a member of the American Civil Liberties Union, which Crovitz painted as a "fringe group" in an October 3 editorial.
Crovitz got a taste of law practice in 1985 as a summer associate at Davis Polk & Wardwell. He impressed litigation partner Robert Fiske, Jr., as "extremely bright, with a keen analytical mind." Fiske says Crovitz "was the moving force" behind and a key draftsman of a legal brief arguing successfully that a multimillion-dollar suit by CBS, Inc., against Ziff-Davis Publishing Co., the firm’s client, for alleged fraud in the sale of some magazines, should be dismissed because CBS had closed the deal with knowledge of any misrepresentati"We would have been happy to have him come back" as an associate, Fiske recalls.
Crovitz says he liked the firm but liked writing editorials better, lie signed on with the Journal Full time after finishing law school in 1986. Since then he has been named to the editorial board and made assistant editorial page editor, and has won two awards, including one from the New York State Bar Association for his 1987 editorials on legal issues relating to the Iran-contra affair. That caused some grousing among journalists and lawyers who considered those editorials dangerously wrong-headed in their absolutist embrace of presidential primacy in foreign affairs and their indulgent view of executive branch officials who lie to Congress.
Crovitz is usually thought-provoking and sometimes seems on target – for example, in bashing what he dubbed the Pennzoil-Texaco "Texas common law massacre," sounding the alarm about use of the RICO statute to saddle businesses with liabilities out of proportion to any wrongs they committed, ridiculing Dukakis’s silly legal challenge to the president’s authority to send Massachusetts National Guard units to train in Central America, and countering liberal concerns about "the imperial presidency" by pointing attention to such countervailing congressional power grabs as the erosion of the president’s veto power effected by the recent congressional practice of wrapping dozens of new laws into a single, gigantic veto-proof funding bill for the entire government.
"He seems to take enormous pleasure in what he does," notes Calabresi. "Sometimes he seems almost to be giggling, and that’s kind of a relief." Giggling or not, Crovitz wields his word processor like a weapon in an ideological Armageddon, readily discerning corruption in the motivations and methods of his adversaries. "We don’t pussyfoot around," Crovitz says. And for a man who complains that Robert Bork’s critics "caricatured" his views in a "shrill, mean, and anti-intellectual" campaign of "blatant distortion" that he dubbed "the Frankensteining of Bork," Crovitz is quick to caricature and demonize ideological adversaries with gut-kicking ad hominem attacks.
IN THE BORK BATTLE itself, for example, Crovitz was forceful and sometimes eloquent in touting the nominee’s considerable virtues (if perhaps a bit giddy in anointing Bork "the nation’s leading constitutional scholar"). But he devoted much of his energy to mudslinging as raw as that practiced by the most demagogic of Bork’s opponents. Like many other Bork supporters, including the man himself, Crovitz tarred the opponents indiscriminately as a "lynch mob," "a gang of liberal yahoos," and "intellectual charlatans … peddling mendacity and deceit on a massive scale." That the opponents included some of the most respected lawyers in the United States – former American Bar Association presidents Robert Meserve and Chesterfield Smith; former Republican Transportation secretary William T. Coleman, Jr.; former Ninth Circuit judge Shirley Hufstedler; former attorney general Nicholas Katzenbach – along with a majority of the nation’s law professors, almost all major civil rights leaders, and 58 United States senators appears not to have given him pause.
When Congress tried to tighten conflict-of-interest restraints on former federal employees in the ethics bill that President Reagan vetoed in late November, 1988, Crovitz editorials on November 11 and 21 urging a veto did not stop at detailing (and exaggerating) the burdens the bill would place on former officials. He also asserted, quite seriously, that Congress "is really not so much interested in ethics as it is in weakening the executive branch by depriving it of skilled people," and that Congress was scheming to accomplish this ëdecapitation strategy" by putting "so many barriers in the way of jobs for former executive officials that the best men and women won’t work for the opposing branch." One need not be an admirer of the legislative branch to marvel at the seething contempt that ons. could produce so implausible an assertion.
Alarmist hyperbole and apocalyptic warnings pepper Crovitz’s prose. "We are witnessing the self-destruction of the presidency as an institution," he wrote the day after what he characterized as President Reagan’s "perverse" December 1 statement ruling out pre-trial pardons for Oliver North and other Iran-contra defendants. And Crovitz’s tendency to blame all earthly ills on liberal activists seems at times almost an obsession.
When Reagan-appointed federal district judge Richard Daronco of the Southern District of New York was shot dead May 21, 1988, at his home in Pelham, New York, by the father of a sexual harassment plaintiff against whom the judge had ruled, Crovitz perceived "more than just another deranged gunman." The culprits, he said in a May 25 editorial, included the Senate Judiciary Committee, the rest of the anti-Bork crowd, and advocates of "judicial activism." Crovitz explained that such "raging resentment among losing litigants should be no surprise" because "an aggressive liberal campaign to free judges from impartial legal principles sends the message that judges base their decisions on their personal preference for who should win cases." (When this reporter expressed astonishment at this process of inference, Crovitz produced a memorial speech for Judge Daronco by Judge Gerard Goettel of the Southern District, quoting his editorial with approval.)
Not long after the Daronco editorial warned against "further undermining the legitimacy of judges," Crovitz accused federal district judge Leonard Sand in an August 5 editorial of having "made the city of Yonkers, New York, his personal playpen." He said Judge Sand – who "obviously is a judicial activist, the kind of federal judge President Reagan refused to appoint" – had fined city council members "for voting wrong on the issue of where apartment buildings shall be built" in a "Carter Justice Department/NAACP suit" that charged Yonkers with segregation of its housing and schools. The real constitutional issue in Yonkers, Crovitz wrote, was not whether the rights of blacks had been violated by deliberate segregation of the city’s public housing and schools – "Yonkers is no different from all other cities in the country that also built subsidized housing in poor neighborhoods" – but whether the neighbors of new public housing projects should be able to sue someone for the resulting depreciation in their own property values, as "an uncompensated taking" of their property rights.
This – the first of four Crovitz editorials trashing Judge Sand in the Yonkers case – prompted a letter to the editor from deputy assistant attorney general Mark Disler of the Reagan Justice Department. He wrote that Judge Sand had imposed the fines "to compel compliance with lawful court orders," including one that the city itself had previously agreed to. He noted that, contrary to the implication of the editorial, the Reagan administration had continued to push the suit after concluding that Yonkers had violated the Constitution and civil rights laws. And he concluded that the editorial "irresponsibly provides aid and comfort" to those in Yonkers bent on "defiance of a court order."
Asked why he had not disclosed in his four editorials that for some reason his conservative soul-mates in the Reagan Justice Department had carried forward this "activist" suit for the past seven years, Crovitz noted that he had written a longer article in National Review in which he criticized the Reagan administration for pursuing the suit.
If Crovitz does nothing else for readers of liberal persuasion and the many conservatives whom he denounces for being insufficiently hardline, he gets their attention.
Floyd Abrams, Cahill Gordon & Reindel’s First Amendment luminary, was in Zurich for a friend’s birthday party when he saw one of the Crovitz pieces on the pledge in the Journal’s European edition. "The piece just got me so angry that I sat down right then and handwrote my letter to the editor," he recalled. The letter, which the Journalduly published, said that it was one thing for a presidential candidate to distort such an issue but that "journalists should know better."
A short time later Crovitz introduced himself to Abrams when they were both at LaGuardia Air port, en route to a Federalist Society meeting at Cornell. "He seemed a pleasant enough fellow," Abrams recalls. "I expected a sort of Old Right-type person, sort of like (retiring National Review publisher William] Rusher, with that deliberately nasty tone. I have a feeling that if you could keep Crovitz away from a typewriter, he’d be a perfectly pleasant fellow to have a drink with."
The mere mention of Crovitz prompted one source close to Attorney General Richard Thorn-burgh to say with a weary laugh, "He seems to have decided to be Thornburgh’s mother – or maybe his mother-in-law." Crovitz has gotten under Thornburgh’s skin with a succession of editorial harangues about the need to protect presidential powers more aggressively, patronizing pats on the back, suggestions that Thornburgh might be too soft on Congress to deserve reappointment by George Bush, and congratulations laden with advice when Bush picked him anyway.
In an October 26 editorial, for example, Crovitz attacked Thornburgh for such deviations from conservative purity as saying in a speech that the Justice Department is "the law firm for the entire federal government" and "the agent of the American people in federal criminal prosecutions and suits," and must seek a "correct," as well as a close, relationship with the president. From this suggestion that the attorney general’s duty might involve something more than simply saluting whenever the president gives an order, Crovitz drew the inference that Thornburgh "thinks defending the presidency no concern of his" and has "a program for carving the Justice Department out of the executive branch." He added that "all kinds of mischief follow when Justice forgets that the president is boss," citing as an example "the absurd indictment by the Manhattan federal prosecutor of Ferdinand Marcos despite the asylum agreement that got him to leave the Philippines" and asserting that "President Reagan was left to complain that he should have been consulted before the indictment." Passing the technical point that the United States never gave Marcos asylum status, which Crovitz has not been alone in garbling, he neglected to make it clear that Reagan was consulted before the indictment.
"Crovitz hits a funny button of mine precisely because his writing is very sharp and clear, and because when he’s wrong he’s often persuasively wrong," says Walter Dellinger, a law professor at Duke. "I’m concerned that a lot of people who read. The Wall Street Journal read very little else, and therefore that their views of constitutional issues are largely shaped by Crovitz’s somewhat extreme views."
But the Journal’sBob Bartley sees nothing extreme about his young lawman. He praises Crovitz as the leading journalistic herald of the "creative period of conservative jurisprudence" that is dawning. "There aren’t really many people in American journalism who are exploring the frontiers of legal thought," Bartley says. "I don’t really think he has much competition."
THE FRONTIERS OF conservative legal thought, as expounded by Gordon Crovitz on The Wall Street Journal’s editorial page, look something like this:
EXECUTIVE POWER: The president has "the ultimate authority" in foreign and military affairs. He has "broad foreign policy powers that are inherently granted to the executive because they are not granted to Congress," and "Congress is powerless to limit through statute the president’s constitutional powers." Thus Ö
•"Congress’s legal restraints on the president in the field of foreign policy – from the War Powers Resolution of 1973 to the Boland Amendments – violate the separation of powers." The arms sales to Iran and diversion of profits to the contras were "fully within the constitutional authority of the executive branch," and if he chose the president could "unilaterally order a transfer of funds to the contras" without Congress’s consent. The executive branch has "the right to send TOW missiles to Iran and funding to the contras," not with standing any statutes to the contrary. And . . .
•"Executive branch aides withholding information from Congress on sensitive foreign policy matters deserve a medal, not handcuffs." The administration’s concealment from Congress (including outright lies to Congress, which Crovitz avoids describing as such) of its secret military aid to the contras in Nicaragua, and of its arms sales to Iran, was an understandable reaction to "the unconstitutional usurpation by Congress of the executive’s foreign policy powers."
•Independent agencies like the SEC and the Federal Trade Commission have no power to enforce the law, because their insulation from presidential control flouts "the founders’ creation of a unitary executive branch." (MÈese said in a 1985speech that independent agencies were of doubtful constitutionality; Solicitor General Charles Fried, desirous of being taken seriously by the Supreme Court in the 1986 oral argument in Bdwsher v. Synar, beat a hasty retreat from a vaguely similar suggestion in his brief.)
•The next president should simply assert the line-item veto as a constitutional right and start using it, rather than asking Congress to give it to him as Reagan has done. Such a right may be found in a constitutional provision that somehow escaped everyone’s attention for 200 years, until it was unearthed in a 1987 letter to the Journal from Stephen Glazier, a New York securities lawyer. The Meese Justice Department’s "timid" advice that no such constitutional right to item-veto exists should be disregarded.
CRIME AND PUNISHMENT: It should be easier than it is now to lock up those suspected of crimes like burglary, robbery, murder, and drug use and to impose the death penalty, but harder to prosecute businessmen, government officials, and others suspected of white-collar crimes like fraud, making false statements to the government, and insider trading. Specifically Ö
•Police and prosecutors should be freed to use unconstitutionally seized evidence in criminal prosecutions, and Congress should pass legislation "driving the exclusionary rule off the cliff," because "as with the Miranda rule, there is something truly sick about putting criminals back on the street after denying juries evidence of their guilt based on how the evidence was collected." On the otherhand Ö
•The broadly worded antifraud statutes most often used in white-collar crime cases – including those prohibiting securities fraud and insider trading, false statements to the government, and conspiracy to defraud it – are being abused to subject investment bankers, defense contractors, former White House aides, and others to "murky" and "Kafkaesque" charges. The doctrine of metis rea should be employed to narrow those laws.
•The SEC’s regulation and prosecution of insider traders and others accused of fraud "often conflict with market efficiency." Insider trading should be clearly defined to reach only those who"steal information."
•Perjury is not necessarily a crime unless the defendant is also charged with some other crime that he allegedly concealed by lying under oath: "Mr. Deaver wasn’t indicted for the crime he supposedly perjured himself about. But if there is no criminal charge, mens rea is doubtful for perjury."
JUDICIAL ACTIVISM: "The federal courts too often make policy, not law," through "judicial activist" inventions like "the exclusionary rule and bans on school prayer," efforts to use the Ninth Amendment to invent new rights, and broad desegregation decrees like Judge Sand’s in Yonkers. Bork was right in saying that "courts should respect the policy choices of the elected legislatures and executive," and in expressing disdain for the Supreme Court’s activist recognition of a broad constitutional right to privacy in Griswold v. Connecticut and Roe v. Wade. ButÖ
•Judicial restraint does not require respect for" earlier judicial precedent" because "if liberal judges decide cases from their point of view and conservative judges must restrain themselves from overturning them, then over time the law would grow inexorably more liberal."
ECONOMIC RIGHTS: The Supreme Court should aggressively strike down economic regulations by taking constitutional law "back to the pre-New Deal era, when economic rights got the same protection as other civil liberties." It should use the takings clause and the contract clause to strike down rent control laws, and should go to work on "such constitutionally dubious government practices as minimum wage rules, price controls, progressive taxation, and the bulk of regulatory work done by the two dozen independent federal agencies."
•The 1905 decision in Lochner v. New York, invoking the "right of free contract" to strike downa state limit on the hours of bakery workers, "was entirely consistent with the founders’ views." Aside from its specific references to property and contract rights, the Constitution was "inspired by Adam Smith and John Locke," and by the latter’ stheory "that people have a ënatural right’ to their liberty and property that government cannot usurp."
FEDERALISM, BUT: Federal judges and regulators should be sensitive to "federalism" concerns, leaving to state and local governments such matters as whether to require that toilets be available to farm workers, and upholding decisions by white-dominated local governments to protect middle-class neighborhoods by putting all public housing in poor, black neighborhoods. ButÖ
•No presumption of constitutionality necessarily attaches to local governments’ voluntarily adopted affirmative action programs because" many of the communities with affirmative action programs actually have a political majority of the’ minorities.’ "And Ö
•The Supreme Court was right to carve a hole in the tort laws of all 50 states by creating a common law rule that military contractors ordinarily cannot be sued in state or federal courts, either by military personnel or by civilian bystanders, for injuries due to design defects in their products. And Ö
•The Court should carve an even bigger hole instate tort laws by ruling for the first time in 200years that the "original intent" of the Eighth Amendment’s "excessive fines" clause bars state courts from awarding large punitive damages in tort cases. And Ö
•Congress should finish the job by "moving tort law back to about 1960" through legislation dictating a negligence standard to state courts and barring imposition of strict product liability. And Ö
•On another front, the Supreme Court should strike down state anti-takeover laws on the ground that the Constitution’s assignment to Congress of the power to regulate commerce among states guarantees of its own force an unfettered national market in corporate control. The Court thus erred in upholding an Indiana statute curbing takeovers, in CTS Corp. v. Dynamics Corp.
A few of these statements, like the one about Deaver’s perjury, are so bizarre that they may most charitably be viewed as exercises in hyperbole. Others are a bit exotic but are shared by serious scholars. Others are well within the mainstream. It is difficult at best, however, to find a consistent thread of legal principle running through them all. At a time of growing philosophical conflict between Borkian conservatives who preach deference to majority rule and libertarian conservatives who want renewed judicial activism to protect property rights against a marauding majority, Crovitz seems to be standing with one foot firmly in each camp, happily choosing whichever principles suit his passions of the moment.
It is even more difficult to take seriously the pretensions of Crovitz, Meese, and similarly inclined conservatives to being consistent advocates of "judicial restraint" and faithful followers of the original intent of theframers of the Constitution.
Crovitz’s disapproval of "judges arrogating power to themselves at the expense of the elected branches" and his invocations of federalism ring especially hollow when juxtaposed with his calls for the judiciary to sweep aside regulatory laws by bringing back the pre-New Deal brand of judicial activism for property rights.
Indeed his October 8, 1986, paean to Lochner-style judicial protection of freedom of contract was labeled "result-oriented judicial activism" in a letter to the editor from Gary McDowell, a conservative scholar who was then associate director of public affairs at the Meese Justice Department and is now with the National Legal Center for the Public Interest (to which Crovitz also has ties). McDowell said conservatives like Crovitz were guilty of the same sin he and they had long ascribed to the "liberal left," that of inventing "contrived extra-constitutional doctrines" to pursue policy agendas in the courts.
Perhaps the most egregious contradiction between the new conservative orthodoxy and the actual evidence of the founders’ intent is exemplified by Crovitz’s claim that the president has "the ultimate authority" in foreign and military affairs, and his implication that this includes inherent authority to conduct a foreign war in the face of a statutory prohibition.
Crovitz should know better. State Department legal adviser Abraham Sofaer, whom Crovitz often quotes approvingly for his relatively broad view of executive powers, wrote in his 1976 book, War, Foreign Affairs and Constitutional Power: The Origins, as follows: "The ratification debates confirm what the Constitution suggests – that Congress was to have the final say in foreign and military affairs. The president was to manage diplomatic intercourse and negotiations, and to conduct all authorized military operations. But Congress, and especially the Senate, would be able to approve or reject foreign policy in exercising their powers over treaties, appointments, and appropriations."
Sofaer takes a similar position in American Enterprise’s new book, The Fettered Presidency, of which the co-editor is one L. Gordon Crovitz. So do other authorities, including W. Taylor Reveley III, the managing partner of Richmond’s Hunton & Williams, in his careful and balanced 1981 book, War Powers of the President and Congress: Who Holds The Arrows and Olive Branch, and Leonard W. Levy in his new book, Original Intent and the Framers’ Constitution.
Levy writes: "The framers intended the Senate to be the principal architect of foreign policy. Ö [They] intended Congress to control the making and conduct of war, the Senate to control foreign policy, and the president to control the ceremonial functions of representing the nation in its foreign relations, personally or through diplomats." He adds that "the concept of inherent executive powers was foreign to the Philadelphia Convention and if known would have been vehemently opposed by those who ratified the Constitution."
Crovitz is fond of quoting John Marshall’s statement in 1800 that the president is the "sole organ of the nation in its external relations, and its sole representative with foreign nations." He also cites the Supreme Court’s broad dicta on "very delicate, plenary, and exclusive power of the president as the sole organ of the federal government in the field of international relations," in the 1936 case of United States v. Curtiss-Wright. But as Levy and Reveley show, Marshall meant only that the president communicates for the government with foreign nations. To the extent that the Curtiss-Wright dicta suggested anything more, they were dubious s a matter of original intent and extraneous to the Court’s decision, which upheld a congressionally authorized presidential ban on arms sales to certain South American countries.
Marshall’s 1801 declaration in Talbot v. Seeman lat "the whole powers of war being vested in Congress, the acts of that body alone be resorted to as ur guide," seems to have escaped Crovitz’s notice. So does President George Washington’s 1793 statement, "The Constitution vests the power of declaring war in Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure." So do James Madison’s various assertions that Congress had the broadest authority to control foreign affairs.
Of course, as Reveley wrote, "the dominant trend in war-power practice has been presidential aggrandizement." For all of Crovitz’s fulminations about congressional "usurpation," the modern executive exercises far greater power in foreign and military affairs, and Congress less power, than the framers intended.
This may be necessary in today’s world, to a point. Presidents must sometimes take the initiative to avoid paralysis when speed is essential or when Congress is silent because of indecision, But as Sofaer writes in the new book, "|The| framers granted Congress powers they knew would enable Congress – or the Senate alone – to control the President and frustrate executive objectives even at the cost of efficiency and effectiveness. The framers had a higher priority – the prevention of tyranny."
Those who purport to follow original intent cannot have it both ways. "Nowadays," Levy writes, "leading supporters of a constitutional jurisprudence of original intent are advocates of inherent presidential powers in the field of foreign relations, a stance that sheds light either on their ignorance or on their hypocrisy."
Crovitz pleads guilty neither to ignorance nor to hypocrisy nor to inaccuracy. After being told that he would be criticized in this article for mangling facts, law, and original intent alike in pursuit of his conservative agenda, and asked to respond in a general way, he thinks for a while. Then he says this:
"I’ll go to the mat with anyone about being as careful as anyone can in this trade. To the extent you question my facts or choose to argue the facts instead of the law, you might ask yourself whether this isn’t camouflaging some more fundamental differences between your political views and mine. Another way of putting that is, will your next profiles be of the legal editorial writers at the liberal New York Times and Washington Post?"
A fair point. But "facts are stubborn things," as President Reagan likes to say. Don’t hold your breath for those profiles. But stay tuned.