Danny and Zoe

by Jeffrey Rosen | February 1, 1993

The drama that culminated in Zoe Baird's selection as attorney general was demeaning to all the players. First, Bill Clinton made it clear that only women need apply. Then Judge Patricia Wald, who deserved to be at the top of a coed list, took herself out of the running. Brooksley Born, a Washington lawyer-activist, lost the job by leaving Clinton cold in her interview--after boasting to friends that she had clinched the nomination. By the time Clinton settled on Baird, a 40-year-old corporate lawyer from Connecticut, he had managed to create the impression that her main qualification was her sex.

The impression is unfair to Baird, a formidable lawyer and administrator. And by focusing on Baird's gender while ignoring her ideas, Clinton has inadvertently chosen an attorney general whose strong views often conflict with his own. On questions such as state sovereignty, tort reform, civil justice reform and the environment, Baird's opinions look a lot like those of Vice President Dan Quayle. Although she is no conservative, she is not an orthodox Democrat either; and she shows refreshing signs of confounding the interest groups who demanded that a woman be appointed at all costs.

Baird has worked hard to redefine federal-state relations. In her only academic article, "State Empowerment After Garcia," published in The Urban Lawyer in the summer of 1986, she questioned liberal and conservative shibboleths about federalism. She sets out to define a "lasting constitutional basis for protecting state sovereignty" in the wake of a 1985 Supreme Court decision, Garcia v. San Antonio Metropolitan Transit Authority. (As partners at O'Melveny and Myers, Baird and William Coleman had represented the transit authority, and lost.) A notorious setback for federalism, Garcia suggested that Congress's power over the states was essentially unlimited.

Baird proposes three ways of fortifying the states. First, she says courts should not assume that Congress intends to override the states unless it expresses its intentions clearly. Although not original, Baird's proposal was prescient: in 1991 Justice Sandra Day O'Connor wrote the suggestion into law. Second, Baird argues that the political procedures, rather than the substantive policy decisions, of state governments should be immune from congressional regulation, to keep the channels of democracy open. Again, O'Connor endorsed the suggestion last June. Finally, at her most radical, Baird flirts with the (plausible) possibility that some administrative agencies may be unconstitutional: "I have thought for some time that Congress is ripe for a challenge that it has exceeded its authority to delegate by giving the executive branch legislative functions." The dry language conceals an appealing willingness to rethink from scratch the boundaries of the administrative state.

Reviving the states and restraining the administrative agencies were keystones of the Reagan-Bush legal agenda, and it may seem bizarre for a Democratic attorney general to be toying with Republican heresy. But unlike the Republicans, who used "states' rights" to allow the states to enforce "traditional values" such as discriminating against blacks and gays, Baird proposes "to preserve the dispersal of political power so as to provide greater assurance that tyranny will be avoided and our liberties preserved."

Baird insists that state sovereignty take a back seat, accordingly, when Congress passes legislation under the Fourteenth Amendment to protect individual rights. (Unlike Senate Majority Leader George Mitchell, Baird is confident that Congress has the constitutional authority to pass the Freedom of Choice Act.) Baird's innovative approach to federalism is similar to that of Alice Rivlin, slated to be deputy director of the Office of Management and Budget, and other contributors to the Progressive Policy Institute's "Mandate for Change," who have called on Clinton to appoint a "federalism czar."

Baird's nomination is being attacked by trial lawyers and public interest groups because of positions she took as a corporate counsel for General Electric, where she lobbied to weaken the federal whistle-blowers law, and at the Aetna Insurance Company, where she championed tort reform. "The nomination is so bad," said Ralph Nader, "that it either bespeaks a Clinton surrender to her powerful patrons, or reveals Clinton's intention to go soft on corporate crime and abuse." As general counsel of Aetna, Baird argued in a speech last March that "the tort system is having a very debilitating effect on America's competitiveness." She then praised Quayle for moving "tort reform to a level of visibility and credibility that it really hasn't had for years." (It is not clear how Baird and Quayle reconcile their support for federally mandated tort reform with their concern for state sovereignty.)

 

There are differences, however, between the tort reforms endorsed by Baird and Quayle. Under Baird's stewardship, Aetna opposed the most controversial Quayle proposal: the "English Rule," in which the loser of a lawsuit pays the winner's costs. Nevertheless, Baird and Quayle both supported the narrowly defeated reform bill, sponsored by Senators Jay Rockefeller and John Danforth, that would have required trial judges, rather than juries, to determine the size of punitive damage awards. Baird's support for tort reform puts her at odds with Clinton, who attacked Quayle's proposals as "dramatically tilted toward big polluters, manufacturers and insurance companies and against consumers and victims." But there is a bipartisan middle ground on tort reform that was obscured in the election rhetoric, and tort reformers hope that she will resist pressure in her hearings to backpedal from her principles.

Baird's positions on environmental issues are equally controversial with environmentalists, including, potentially, the vice president-elect. In a meeting with the Quayle Council working group on February 28, 1991, Baird proposed "the creation of a study group to assess the Superfund liability system." (Superfund is the federal law that establishes a dean-up program for toxic waste sites, like Love Canal.) Baird cited a study Aetna had commissioned from the Rand Corporation that blamed the slow pace and high cost of the clean-up on the fact that a single company can be held retroactively liable for environmental damage caused by many companies. "The bottom line on the Superfund law is that it's very long on litigation and very short on clean-up," Baird said in a speech last March.

Not all of Baird's views are at odds with Clinton's. She led a valiant crusade to base attorney's fees at Aetna on performance rather than billable hours, recognizing the perverse incentives that hourly billing creates. And she made a concerted effort to recruit "the best" women and minorities, although her vague speeches on the subject provide no details of her views on the contentious questions of affirmative action policy.

What kind of attorney general would Baird make? Administering bureaucracies is one of her passions: she points repeatedly in her speeches to her experience supervising 120 lawyers at Aetna. More importantly, she seems likely to heal the Justice Department after twelve years of virulent partisanship. In a 1981 article in Legal Times, she and co-author Terry Adamson urged the new attorney general, William French Smith, to embrace "the doctrines of independence and neutrality fur the department conceived by President Ford's attorney general, Edward Levi." They advised Smith to continue a practice that the Carter appointees bad found to be a nuisance: logging all telephone calls and visits and making the records public the next day. And they called on Smith to "resist pressure to replace the Carter appointees with Republican choices." (Smith ignored the advice.)

Baird's high-minded vision of the department clashes with the more ideological attitude of some of the advisers she inherited from the transition team, who spent the past two months trooping through the Justice Department, making lists of suspect career appointees. Baird is also likely to ignore much of the policy advice she is receiving. The transition adviser for the attorney general's office, for example, is Emma Jordan of Georgetown Law School. As Stuart Taylor reported in Legal Times, Jordan suggested recently that because blacks score lower than whites on standardized tests, law schools should consider abandoning the tests to avoid "the stigmatizing effect of equating merit and high test scores."

Baird's scholarly qualifications should not be exaggerated. Although an egghead in comparison to William French Smith or Ed Meese, she is no Edward Levi. But her administrative competence and her heretical views could push the Democrats reward worthwhile reforms that they are inclined to resist. In demanding the appointment of a woman, any woman, the interest groups appear to have gotten more than they bargained for.

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