YALE Law School has long been identified with a vision of law not only as a means to settle disputes and maintain order, but also as an instrument of social change. So it won't be surprising if an administration headed by two graduates of that law school has an activist legal as well as political agenda. Many liberals and conservatives alike anticipate (or, in the case of conservatives, dread) that the Clinton Justice Department will be a hotbed of "reformist" lawyering on issues ranging from civil right s to the environment to the criminal-justice system.
Ironically, though, other liberal observers express the hope that, under President Clinton and Attorney General Janet Reno, the department will in fact be less political than it allegedly was during the Reagan and Bush years. In the view of these critics - such as New York Times columnist Anthony Lewis - the Reagan and Bush Justice Departments were improperly "politicized" by conservative zealots who adopted legal theories and fought for policies outside the American mainstream.
Mr. Lewis and others argue that the Justice Department - while its leaders will be sympathetic with the outlook of the president who appoints them - generally should be above politics. Impartiality, professionalism, and lawyerly detachment should be the hallmarks of the department, they say; the department shouldn't have an "agenda" other than the pursuit of evenhanded justice.
"That's a garbage issue," says Harvard Law School Prof. Charles Fried of the accusation that the Reagan and Bush Justice Departments were "politicized." Mr. Fried was solicitor general (the government's top advocate before the Supreme Court) under President Reagan. "It's what you say when the other party is in power."
In Fried's view, the only wrongful politicization of the Justice Department occurs when its lawyers "cut deals for presidential cronies" or otherwise corrupt the legal system for political reasons. As to the positions the department takes on controversial legal issues, he says, "that's what elections are about."
Indeed, no thoughtful observers doubt that the Justice Department will always be a crossroads of law and politics. Lincoln Caplan wrote a 1987 book condemning what he regarded as political abuses in the solicitor general's office under Reagan; yet he says: "There's no such thing as the pure pursuit of law undivorced from politics. Conservatives and liberals agree on this."
OK, so how "political" will the Clinton Justice Department be? Very, many observers expect. They point not only to the president's longtime interest in legal issues, but also to the influence of first lawyer Hillary Rodham Clinton.
Mrs. Clinton "and her people are very interested in [legal] matters," says Terry Eastland, an analyst at the Ethics and Public Policy Center in Washington and a former department spokesman under Reagan. "This will be a very liberal Justice Department, and I think it will push the envelope wherever possible." Though a conservative, Mr. Eastland says he accepts this approach as the Clinton administration's prerogative.
Mrs. Clinton's influence has been evident in the appointments of top Justice Department officials. Nominee Webster Hubbell (for associate attorney general, the No. 3 slot) is a former law partner of Hillary Clinton, while Eleanor Dean Acheson (nominated to head the Office of Legal Policy) was a Wellesley classmate. Other nominees to run Justice Department offices similarly have personal or professional ties with the first lady. (The top two White House lawyers, counsel Bernard Nussbaum and deputy counsel
Vince Foster, also are former colleagues of Mrs. Clinton.)
One of the president's most controversial nominations to date is Lani Guinier (Yale Law '74), tapped to head the Justice Department's civil rights division. A longtime legal activist, Ms. Guinier has focused on affirmative action and strengthening blacks' political clout under the Voting Rights Act. "How can Clinton ever oppose quotas after appointing Guinier?" Eastland asks. Conservatives may try to "Bork" Guinier in her confirmation hearings.
The debate over politicization will go on, but let's accept in principle that the setting of legal policy is one of the spoils of political war. It will be fascinating to watch how Clinton's legal team uses its power. One thing's for sure: These Yale lawyers and their legal soulmates did not come to Washington to be, in the words of Oliver North's Irangate attorney, "potted plants."