Duke University Alumni Magazine

In Defense of the Constitution
Walter Dellinger
by Neil Lewis

From heading the office of legal counsel to his current post as the nation's solicitor general, the Duke law school professor has become a pivotal player in the Clinton administration and in the field of constitutional law.

he Supreme Court may be the whitest and brightest of Washington's buildings. Last December 23, an unusually brilliant winter sun lit up the building's marble exterior so much that one couldn't look at it directly without reeling from the glare.

      Inside the ornate courtroom that morning, the lighting was, as always, muted and indirect. All the seats were occupied and the marshals had added extra rows of chairs on the chamber's north side to accommodate a horde of reporters. Tourists lined up outside the courtroom, through the majestic pillars and onto the street. They had all come to watch lawyers argue in front of the nine justices over the constitutionality of the Brady law. The law requires gun purchasers to wait seven days to allow local law-enforcement officers to check their records for criminal convictions or mental instability. It was, by itself, a minor change to the existing array of gun laws. But it was one fraught with great symbolic import in the nation's continuing debate about gun control.

      Arguing on behalf of the Clinton administration that the law was constitutional was Walter E. Dellinger, the acting solicitor general of the United States, a post that makes him the government lawyer in charge of presenting cases before the Supreme Court and the nation's lesser courts. Dellinger was attired in the traditional garb of the solicitor general--a striking, if archaic outfit of striped pants and dove-gray morning coat.

      The job of solicitor general is like no other in the American scheme of government. While representing the current administration, the solicitor general traditionally has always had a special relationship with the Supreme Court, the apex of a separate branch of government, the judiciary. Lincoln S. Caplan, an author of a book about the office, has called the solicitor general "the tenth justice," in recognition of the notion that the person who holds that office has often held a dual responsibility, both to the administration that employs him and the Supreme Court justices. That responsibility is one of speaking honestly and straightforwardly, in a constitutional sense, even if it means being less than consonant with the president's policies. Drew S. Days III, Dellinger's predecessor, told the Senate Judiciary Committee that the solicitor general must be a "forceful and effective advocate" for the government before the nation's highest court and, at the same time, has a duty toward that court "of absolute candor and fair dealing."

      Solicitor general is Dellinger's third major post in the Clinton administration--beginning with a short stint in the White House counsel's office--since taking a leave as a professor at the Duke law school. Most law professors may secretly if hopelessly yearn to be on the Supreme Court one day. But, actually, there are two other jobs at least as suitable for a professor of constitutional law--as Dellinger has been since 1969 at Duke. And he has held both of those jobs: for most of the first term, head of the Justice Department's office of legal counsel, and now solicitor general.

      That job is so appealing that one of Dellinger's predecessors in the post, Kenneth W. Starr J.D. '73, resigned a coveted judgeship on a federal appeals court to take it. Starr, who was once a student of Dellinger at Duke, is now the special Whitewater prosecutor investigating Dellinger's principal patron, Bill Clinton.

ellinger was born in 1941 in Charlotte, North Carolina. He was mostly reared by his mother; his father had died when he was ten years old. In interviews, he has attributed his strong sense of women's rights to the plight of his mother, who worked as a sales clerk six days a week, one of the few jobs available to her at that time. She died last November. After graduating from the Yale law school, he served as a law clerk to Justice Hugo Black, the former Alabama senator and Ku Klux Klan member whose service on the bench was a rebuke to his past and a redemption of Southern history. It was a perfect inspiration for the young Dellinger, who grew up listening to black gospel stations and who was acutely aware of his region's troubled history.

      After a short stint in private practice and at the University of Mississippi, Dellinger arrived at Duke in 1969. He quickly established himself as someone eager to have a background role in national politics, and trips to Washington were frequent. Among his many advocacy-group clients was the National Abortion Rights Action League, for which he became the principal legal guide.

      When Bill Clinton was elected president, Dellinger was already a regular fixture on the Washington political-legal scene. He had famously testified aganst the confirmation to the Supreme Court of Robert H. Bork in 1987, and had since appeared before many congressional committees on such issues as school prayer and constitutional amendments. On the Friday before the Clinton inauguration, Dellinger was sitting in his law school office at Duke when he received a call from Bernard Nussbaum, the New York lawyer who was to be the first of Clinton's White House counsels (at least five, so far). Nussbaum, with a flourish of self-importance, said that he had just "come from the side of the president-elect," who required Dellinger's services to draft what would become the very first of the young administration's executive orders. They would repeal the executive orders from the previous twelve Republican years making abortions more difficult, especially for women in the military. Could Dellinger drop all and come to Washington?

     The next Saturday morning found Dellinger and his wife, Anne Maxwell Dellinger, a professor of public law and government at the University of North Carolina at Chapel Hill's Institute of Government, tooling up Interstate 85 and then 95 to Washington. It was the beginning of several days of nearly nonstop work.

     They immediately drafted five executive orders, which Clinton signed Wednesday; his administration was just two days old. One rescinded the rule that prohibited doctors from telling women receiving federal funds for their medical care about the availability of abortion--the so-called "gag rule." Another proclamation, suggested by Anne, who specializes in health law for public hospitals and state and local health departments, was aimed at reducing teenage pregnancy. The documents had been drafted in various law offices in the capital and at the kitchen tables of Washington friends, and on the last day, in a cramped White House office. On Monday, the Dellingers took some time off to watch the inauguration. On Friday, they drove home to Chapel Hill.

     He was quickly recruited by Nussbaum, and soon was off to work in the Justice Department to head the legal counsel's office. Anne was soon back at UNC, and Walter found himself in a commuter marriage. Later he shared a house with Vice President Gore's legal adviser, Charles Burson, the former attorney general of Tennessee. (Burson may forever be remembered as the man who provided the much-ridiculed phrase "no controlling legal authority," used by the vice president to deny any wrongdoing in his fund-raising solicitations from the White House.)

     Even as Dellinger never lost contact with Duke during his Washington adventure, he was able to bring a little bit of campus behavior to the capital. Whenever his legal advice was needed at the White House, about half a mile away from the Justice Department, he would don a safety helmet, leap upon his bike, and pedal through the urban traffic to the meeting.

n that December 23, with the Christmas recess looming, Dellinger's job was to defend a measure won after a hard fight in Congress. The measure was named after James Brady, its spiritual sponsor, who was severely wounded when he was press secretary to President Reagan by would-be presidential assassin John W. Hinckley. Dellinger was confronted with a challenge to the law--prompted by the activities of a local sheriff in Montana--that went something like this: It was unconstitutional because it required local law-enforcement officials to make the background checks. And Congress could not compel state and local officials to enforce a federal law without providing the funds with which to do it.

      This dispute over federalism and local control was not Dellinger's first time with the topic. As head of the legal counsel's office, he already had successfully won the case in a federal appeals court. And on December 3, in a classroom at Duke, he had practiced his argument--lawyers call it a moot court-- before a handful of Duke faculty members: Sara S. Beale, Thomas D. Rowe Jr., Robert P. Mosteller, and Kate Bartlett.

      But when Dellinger began his argument before the justices, his planned rhetoric quickly broke down. (In fact, his first words before the court that day were to present his son and daughter-in-law as candidates for admission to the bar of the Supreme Court, a largely ceremonial status.) Each side usually has thirty minutes for its argument, and the best-prepared speeches are usually discarded as the justices begin pummeling the lawyer with questions. After attempting to launch into an extensive discussion of the federal government's power, Dellinger was quickly interrupted by Justice Anthony M. Kennedy, who demanded: "Well, can the state require the federal government to do something?" Dellinger hardly got out a response, "No, and --" before Kennedy interrupted again. "Why doesn't it work in reverse?"

      "Because of the Supremacy Clause, I think, Justice Kennedy."

      The official transcript shows that as other justices joined in, the complete text of some of Dellinger's next few answers were, "Well," "Well, under the--", "Well--" and "That's correct." Eventually, Dellinger hit his rhetorical stride, telling Justice David H. Souter, for example, that when the state tells the sheriff, "You may not do Brady Act checks or you may not spend a penny doing Brady Act checks," that statute is preempted under the Supremacy Clause.

      Three weeks after the argument over the Brady law, Dellinger was before the Supreme Court again--this time arguing that the sexual harassment suit brought against President Clinton by Paula Corbin Jones should be delayed until the president leaves office. Jones had charged that when Clinton was Arkansas' governor, he had her invited to his hotel room, where he made a coarse sexual advance. The president has denied her charges. The argument that January 13 was not about who was telling the truth but how the lawsuit should proceed. Dellinger said that the duties of the president are so onerous that he should not have to answer civil lawsuits during his tenure. Justice Antonin Scalia suggested it was preposterous to say that even a president doesn't have a spare moment--especially one who plays golf and takes vacations.

photo: M.J. Sharpe

      "Justice Scalia," Dellinger replied. "President Reagan has said quite aptly that presidents don't have vacations, they have a change of scenery." He added, "A president can not be subjected to litigation in the same manner as someone who is not at that time serving as president." (In late May, the justices turned aside temporary-immunity arguments and ruled unanimously that Jones' civil lawsuit could proceed. The same day, Dellinger argued the virtues of the executive line-item veto--which, as a law professor, he had criticized as upsetting the constitutional balance of power.)

      While in his previous post at the legal counsel's office, Dellinger was charged with passing on the legal fitness of the administration's positions on bills, proposals, statements, and just about anything else that needed a legal judgment. In effect, he served as the constitutional expert within the administration. Although the agency is little known to the public, the office of legal counsel has wielded enormous influence during the past few decades as a kind of constitutional hinge for an administration's public policies. When Dellinger took over, he made the office into a kind of mini-Duke faculty. To fill the deputy slot, he chose two Duke law colleagues who would rotate in and out of the job: Christopher H. Schroeder, a veteran Washington figure who had served as chief counsel to the Senate Judiciary Committee; and Jefferson H. Powell. Under the plan, Powell and Schroeder changed places with each other every few months, one serving in Washington, the other back in Durham.

      In their tenure at the office of legal counsel, they and Dellinger were asked to pass judgment on the constitutionality and legality of an eclectic stew of issues, such as:

  • May the administration give Peru and Colombia the radar coordinates of airplanes believed to be smuggling cocaine so they can be shot down by those governments? (No, the federal government would be participating in an activity deemed a crime under U.S. law, Dellinger concluded.);
  • Is the California ballot initiative that denies services to illegal aliens constitutional? (Of course not, he said.);
  • May the president issue an executive order barring federal contractors from replacing strikers with permanent workers? (Yes, by using the same authority that allowed President Richard M. Nixon J.D. '37 to issue an executive order requiring affirmative action in awarding federal contracts.);
  • How about the balanced-budget amendment? (It would be unenforceable, Dellinger told Senator Orrin G. Hatch, the Utah Republican who heads the Judiciary Committee, and unenforceable amendments do not belong in the Constitution.)

      In his role as the administration's chief constitutional scholar, Dellinger testified in December 1995 against a bill that would amend or reinterpret the Constitution to deny citizenship to children born in the United States if their parents are illegal aliens. To accomplish that, he said, Congress would have to repeal part of the 14th Amendment, which was adopted after the Civil War to ensure citizenship for former slaves and their offspring. It was with evident feeling that he told the committee that such a proposal would fundamentally alter the American concept of democracy by creating "a permanent caste of aliens, generation after generation, born in America but never to be among its citizens."

      When Representative Brian T. Bilbray, the California Republican who sponsored the idea, said he could effect the change through legislation, Dellinger became again a constitutional law professor, sternly telling him that "it was beyond dispute" that, with few exceptions, the 14th Amendment conferred citizenship on all who are born here.

      As head of the office of legal counsel, Dellinger also waded into one of the most contentious modern debates about presidential power: May the president wage war without the explicit authorization of Congress? Presidential appointee Dellinger's affirmative answer was one with which Professor Dellinger might have disagreed. Indeed, his answer was greeted with disdain by most of his former colleagues in the academy.

     The Dellinger-as-Clinton-employee answer demonstrated just how the job of advising the president might transform the views of the person who holds it, from law professor to advocate of executive power. The Dellinger defense of Clinton's authority to invade Haiti without explicit congressional approval put him at odds with almost all of the nation's leading constitutional scholars, his former academic colleagues, and most of his friends. To them, this was a clear case in which a president would have to go to Congress for a declaration of war.

      But Dellinger was, by then, representing a client who had already said he was going to invade Haiti without asking for any formal declaration of approval from Congress. When the invasion was called off, after the Haitian military said it would step aside, Dellinger provided an after-the-fact justification for Clinton's planned invasion. Yes, the president had the authority to invade Haiti, he wrote to three Republican senators, but only because of circumstances peculiar to the situation there.

      It was a narrower opinion than a Republican lawyer might have rendered. But it still upheld presidential prerogatives. Asked how his answer came to resemble such a technical argument, Dellinger said, "I don't think this is an office that should swing back and forth with each election." As he put in an article in the University of Miami Law Review: "Unlike an academic lawyer, an executive-branch attorney may have an obligation to work with a tradition of reasoned executive-branch precedent."

      Duke law school's Schroeder, the one-time half-time deputy, says the office of legal counsel is inherently more political than that of solicitor general. "It's entirely client-driven. There's no legal requirement that agencies seek to have the office pass on their policies, and if they don't like it, they don't necessarily have to follow it." But Dellinger had enough stature, he says, that it was difficult to ignore his judgments. "Walter was so well respected all around government, and especially at the White House, because he handled legal problems for the executive branch so deftly."

      How does Dellinger maintain his standing in a city renowned for deflating reputations? "I would say the secret to being able to occasionally give advice that people didn't want to hear is to have tenure at the Duke law school."

      When he began his service in the Clinton administration, Dellinger's friends say, he hoped he would someday be named to the U.S. Court of Appeals for the Fourth Circuit based in Richmond and serving North Carolina. But it quickly became evident that such an appointment was highly unlikely. Dellinger is generally well-liked on Capitol Hill. He is, though, especially disliked by two people responsible for his getting any job that required Senate confirmation: Jesse Helms and Lauch Faircloth, North Carolina's two Republican senators.

      This spring, he thought he'd be leaving Washington to teach law again at Duke. But both Attorney General Janet Reno and President Clinton pressed him to remain. And why not? "I look back on my years here in Washington," he says, "and can't imagine a more thrilling time."                         

Lewis, a Washington correspondent for The New York Times for twelve years, was a DeWitt Wallace Journalism Fellow at Duke in the spring of 1994.

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