HotWired -- The Tenth Justice (6/20/96)

[Declan McCullagh <declan@well.com>]

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@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.

[...]