Serving Two Masters

By James Kelly

William French Smith's Justice Department shapes up

Soft of voice and mild in manner, Attorney General William French Smith was chided by White House aides during his early months in office for sleepwalking through his job and being notably sluggish in guiding the Justice Department by the lights of Reagan philosophy. The Reaganites grumbled that the department was veering "out of control" and complained that Smith was failing to make his career bureaucrats toe the conservative line.

They need worry no longer. Smith is wide awake and has given marching orders to his department to execute a right face on a briefcase of issues ranging from civil rights to punishing federal employees for leaking information. "We're going to change policy sharply," promises Deputy Attorney General Edward C. Schmults, Smith's top assistant. "We've said it, and now you can see it happening." Adds a White House official: "The department is beginning to respond to Reagan policy."

Nowhere is the shift more apparent than in the field of civil rights. In briefs before the Supreme Court two weeks ago, Solicitor General Rex E. Lee startled the legal community by arguing that there was no "federal interest" in the questions of whether states can exclude the children of illegal aliens from public schools and whether it is unconstitutional for the states to ban voluntary busing. Both positions mark an abrupt break from previous Administrations-Republican as well as Democratic-and the first retreat on civil rights enforcement since the Truman era. The department is also reviewing federal affirmative-action policies and has pledged not to seek hiring goals or quotas that might discriminate against whites.

The Attorney General insists that he is still committed to enforcing civil rights laws and is only rejecting the traditional remedies of busing and quotas, which have become increasingly unpopular with the public. "Our goal is the same as our predecessors, to eliminate the vestiges of discrimination," says Smith. "We are just going about it in a different way." That way, he says, includes improving the quality of black schools instead of automatically seeking to integrate them, and seeking compensation for people who can prove they have been discriminated against by employers. But critics charge that Smith's way amounts to no way at all. "Improving black schools has the unpleasant aroma of separate-but-equal," says William Taylor, director of the Washington-based Center for National Policy Review. "That kind of rhetoric is gross hypocrisy from an Administration that is cutting school expenditures to the bone." Adds Democratic Senator Howard Metzenbaum of Ohio: "It's pitiful. Suddenly in one fell swoop this Administration turns the clock back on civil rights."

The department is shifting course on other important fronts. William Baxter, chief of the department's antitrust division, will ease the regulations on corporate mergers, and announced that only those couplings that hit the consumer with higher prices will be challenged. Smith is also seeking to trim the Freedom of Information Act and repeal the Ethics in Government Act's requirement that a special prosecutor be named when a high federal official is suspected of a crime. Moreover, the Attorney General last week abolished a set of guidelines adopted by the Carter Administration to limit Government lawsuits against "whistleblowers," federal employees who leak confidential Government information. Though it is still too early to tell how vigorously the Government will pursue leakers, civil libertarians are already up in arms.

Smith has declared that violent crime will be the Justice Department's top priority. Accordingly, the department this fall may push Congress for a federal death penalty; a loosening of the "exclusionary rule" that makes illegally obtained evidence inadmissible at trials; and stricter bail laws, including the right to refuse bail to "dangerous" offenders. Complains Ira Glasser, executive director of the American Civil Liberties Union: "These measures will harm civil liberties without having any impact on crime."

While the Reagan Administration has been winning praise and headlines for nominating Sandra Day O'Connor to be the first female Supreme Court Justice, almost all the federal judges the department has been recruiting are white and male. Of the 47 judges selected so far, only one is black and two are women. Jimmy Carter, by contrast, chose 41 women and 37 blacks among his 281 federal judges. While policies change from President to President, federal judges serve for life, and helping send a large corps of judicial conservatives to the bench may end up as Smith's most lasting contribution to Reaganism.

The Justice Department is, of course, only promulgating what Reagan believes he was elected to do, and the men who now run the department are not raving ideologues.

"There are no James Watts here," says one Justice official. The Attorney General is decidedly not as contentious and highly visible as the Interior Secretary: courtly and cautious, Smith is more accustomed to serving discreetly the large corporations that made up his client list at the Los Angeles law firm of Gibson, Dunn & Crutcher than to making controversial political decisions. He shuns notoriety, and in his first months in Washington his fondness for black-tie dinners and cocktail parties seemed to land him on the society pages more often than his official acts put him on the front pages. After eight months on the job, however, Smith seems more confident, and vehemently denies he ever lost control of his domain. "That's nonsense," he says. "We're doing precisely what we set out to do." Indeed, the department has been slow to embrace Reaganism partly because it is obliged to enforce existing laws as well as carry out Administration policy. Smith is sensitive to these twin duties. "Sometimes we get caught in the crossfire," he admits. Nevertheless, there is little doubt that Smith, who was Reagan's personal attorney for 15 years before joining the Justice Department, will serve his old client well. --By James Kelly. Reported by Evan Thomas/Washington

With reporting by Evan Thomas

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