Uncle Sam's Attorney

Solicitor General Wade McCree speaks up for the Government

Arguing before the U.S. Supreme Court may be the stuff of lawyers' dreams, a once-in-a-lifetime experience. But for a gentle-looking black lawyer named Wade H. McCree Jr. once a month is more like it. Dressed in striped trousers and traditional morning coat, McCree, 58, appears before the black-robed Justices as the lawyer for the U.S. Government. As Solicitor General, he is responsible for arguing and briefing the Government's position before the Supreme Court. He also decides what cases lost by the Government in lower court will be appealed.

Little understood outside legal circles, this role is crucial to shaping the law. By rejecting two-thirds of all the cases the Government could appeal, McCree acts as a gatekeeper for the overburdened courts. In effect, he decides which issues involving the Federal Government--from the meaning of an agency regulation to the meaning of the Constitution--need to be finally resolved and which issues can be left to simmer. Last week, for example, McCree okayed a Government appeal on behalf of the Food and Drug Administration, which is trying to establish that it has the right to investigate makers of poorly performing surgical and medical devices. He vetoed an appeal sought by the Defense Department to oppose a lower court's award of back pay and promotion in a racial discrimination case that he judged raised no new legal issues. For the most part, the final choice of cases is his alone; although the Solicitor General can be overruled by the Attorney General, he rarely is in practice.

McCree is supported by a staff of 18 lawyers that has been called by former D.C. Bar Association President John Douglas the "most prestigious blue-ribbon law office in the United States." All staff members were in the top 2% of their law school classes. Most are young and could be earning considerably more. Instead, they accept salaries ranging from $22,000 to $47,000 to "play in the big leagues," as McCree puts it. Says the Solicitor General: "We have the excitement of being in the eye of the hurricane."

That does not mean that they go un-buffeted, especially when caught in a political whirlwind like the Bakke case, brought by Allan Bakke, applicant to a California medical school who successfully argued he had been excluded in favor of less qualified blacks. In an early draft of a brief stating the Government's position on that "reverse discrimination" case, McCree came down in favor of affirmative action, but explicitly against quotas. After loud protests from black leaders and some Cabinet officers, including HEW Secretary Joseph Califano, McCree and Assistant U.S. Attorney General Drew Days, who is also black, changed the emphasis considerably. Avoiding the question of quotas, the final draft strongly argued that race can be "a factor" in professional-school admissions.

For McCree, Bakke posed a particularly hard dilemma. Sympathetic to the civil rights movement--as a federal judge, he ruled frequently in favor of busing to desegregate schools--he is also known for lawyerly caution and balance. Comments one legal scholar: "He thinks like a lawyer, not a civil rights activist." Bakke's fallout will create further dilemmas. The Supreme Court has agreed to review a federal district court order forcing the Los

Angeles County Fire Department to hire blacks and Hispanics in proportion to the general population. If the U.S. takes a position on the case, McCree will have a large hand in shaping it. He has already asked the Supreme Court to reverse a Fifth Circuit Court of Appeals decision striking down a job-training quota for minorities and women. McCree wants the case sent back for rehearing--a position consistent with his desire to see affirmative action questions threshed out more thoroughly in the lower courts.

McCree made it professionally, long before affirmative action programs were there to help him. Coming to Detroit with a Bronze Star from World War II and a law degree from Harvard, he was snubbed by a top white law firm. But after practicing with a black firm for several years, he became in 1954 the first black elected a judge in Detroit. Elevated to the federal district court by President John F. Kennedy in 1961 and to the U.S. Court of Appeals by President Lyndon Johnson in 1966, McCree spent 23 years on the bench. Then, two years ago, Attorney General Griffin Bell asked McCree to come to the Justice Department as Solicitor General. Some lawyers claim that Bell was hoping to deflect criticism from himself for his membership in "whites only" clubs in Georgia. Not so, counters Bell, and the fact is that he had known McCree for several years when both were federal circuit court judges. "There is rarely a point of law that he is not familiar with," says Bell. "He is articulate, has a good legal mind and a wide knowledge of the law." He is also an indomitable composer of limericks. When Benjamin Civiletti's nomination as Deputy Attorney General came under fire from Wyoming Senator Malcolm Wallop and New York Times Columnist William Safire, McCree amused Bell with this limerick: "Dyspeptic William Safire/ Has a penchant for kindling Bell's ire/ He excelled in distortion/ Of the grossest proportion/ And walloped and rolled in the mire."

A dapper dresser who walks two miles to work six days--and sometimes seven --a week, McCree is married and the father of three grown children, one of them already practicing law in Detroit. According to McCree, his only reservation about leaving the bench to take the $52,500-a-year Solicitor General's job was a $5,000 pay cut. But, he shrugs: "If I wanted to be rich, I would not have gone into public service in the first place." He could find himself back on the bench before too long, however, following in the footsteps of Thurgood Marshall, who became the first black Solicitor General before being named the first black Supreme Court Justice. If any opening occurs on the high court during the Carter presidency, say Administration sources, the No. 1 choice to fill it is Wade McCree.

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