D.c. Law

PrintPrintEmailEmail

President Clinton came into office determined to give his cabinet a new look of diversity, and this apparently meant naming a woman as Attorney General. It took him three tries to achieve the goal, but he has done so with Janet Reno, and it is a bold historical stroke. Unlike the junior cabinet posts in the “human services” areas occasionally held by women since 1933, when Frances Perkins became Secretary of Labor, the Department of Justice is long-established and powerful. Giving it a female boss is a major breakthrough. At the same time, in a pattern that seems characteristic of Clinton, he sent a conciliatory message to traditionalists: Reno, a prosecutor in a high-crime Florida county at the time of her appointment, was known as a tough and courtroom-tested law-enforcement official, and not as a feminist—or any other kind of- revolutionary.

Still, I tried to imagine, when I heard the news, the stunned reaction of the very first holder of the job, Edmund Randolph, had he lived to see the day. But perhaps he would not have been terribly shocked; he was a man of strong and not always predictable views. As a Virginia delegate to the Federal Convention, he worked long and hard on the Constitution. Then he refused to sign it in its final form, yet later he reversed himself by agreeing to serve in the new government after all.

I checked Randolph’s record and that of all the seventy-six Attorneys General (yes, that is the correct plural) who followed him to see what kind of role model Reno might adopt, and I found such stunning variety as to convince me that no matter what she does, she will have plenty of precedent to draw on. We have had distinguished legal scholars and party hacks, workaholics and clock punchers, men of integrity and men with principles of taffy. One held a unique pedigree: He was Charles J. Bonaparte, grandnephew of the emperor Napoleon. At least one, Eliot Richardson, quit rather than follow a presidential order (he would not fire Archibald Cox at Nixon’s bidding) while another (Roger B. Taney) took the job specifically to carry out Andrew Jackson’s command (in defiance of Congress) to remove federal deposits from the Bank of the United States. But Taney was no sycophant; he was convinced that Jackson was right. Some Attorneys General have bent the law, especially in the direction of generosity toward friends and benefactors of their party and their President. Only one has gone to jail, and that one not for venality (it was John Mitchell, for Watergate). But there have been some close calls.

The rules of the job had to be made up extempore from the beginning, as the position was not very well defined. Congress, in the Judiciary Act of 1789, merely called for the choice of a “meet” —that is, fitting—”person, learned in the law, to act as attorney general for the United States.” Randolph certainly filled the bill. He had held the same office in Virginia, and he was George Washington’s close friend and attorney. So much for the charge that only recent Presidents (for example, Jimmy Carter and Ronald Reagan) have named their own lawyers to the job. What is more, Washington overcame Randolph’s reluctance to accept the appointment by noting that it would “confer pre-eminence” on him and give him a “decided preference of professional employment.” Randolph took the bait and the post and continued his private practice without embarrassment or reproach.

So did all his successors until 1853, and with good reason. The duties of office were limited and imprecise at best—merely to conduct suits in which the United States was “concerned” and to give advice on questions of law to the President and the department heads. So there was time for earning outside income, and a definite need as well. The pay was small, fifteen hundred dollars a year at first, grudgingly raised by Congress in small increments—five over the first sixty years. No money for office rent or expenses; Randolph had to dig into his own pocket. A clerk wasn’t provided until 1819, perhaps because of the protests of then-Attorney General William Wirt, who had taken office two years earlier and found that literally no records whatever had been kept to guide new appointees.

So did all his successors until 1853, and with good reason. The duties of office were limited and imprecise at best—merely to conduct suits in which the United States was “concerned” and to give advice on questions of law to the President and the department heads. So there was time for earning outside income, and a definite need as well. The pay was small, fifteen hundred dollars a year at first, grudgingly raised by Congress in small increments—five over the first sixty years. No money for office rent or expenses; Randolph had to dig into his own pocket. A clerk wasn’t provided until 1819, perhaps because of the protests of then-Attorney General William Wirt, who had taken office two years earlier and found that literally no records whatever had been kept to guide new appointees.