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The Justice Department’s sprawling antitrust suit against a leading computer company was making headlines. Filed in the final days of a Democratic administration, the litigation had dragged on and on. Now, as the Republicans took power, talk centered on whether the new president would keep the case alive. Soon, the answer came. The new president and his attorney general dismissed the suit. Killed it outright. That was in early 1982, before the Microsoft Corp.’s Internet browser ever existed. The antitrust suit was against the IBM Corp. the 800-pound computer gorilla of its day. The president was Ronald Reagan. His attorney general was William French Smith. Not all the changes a new administration makes are as dramatic. But with the presidential race in the home stretch, the possibility of a George W. Bush administration raises questions about a Cabinet-level department that has proved more controversial than any other during President Bill Clinton’s tenure. Bush has already signaled his displeasure at the Justice Department’s antitrust case against Microsoft, now parked in the U.S. Court of Appeals for the D.C. Circuit until after the election. And he has sounded off on his lack of enthusiasm for the government’s RICO suit against the tobacco industry. But other than that, the Texas governor hasn’t said much about his plans for the Justice Department or about criminal justice issues in general. He hasn’t had to. Polls show that crime isn’t a major concern of the electorate in this campaign. At last week’s presidential debate, the subject wasn’t raised. The public may not be paying attention, but for many Republicans and social conservatives these are front-line issues. Jay Sekulow, who heads the conservative American Center for Law and Justice, says the Justice Department is a dividing line between Bush and Vice President Al Gore. “It’s a 180-degree differential,” he says. “The DOJ issue for the governor is a big deal.” STORMING THE COURT To Sekulow, whose group litigates cases involving issues like school prayer and posting the Ten Commandments in public buildings, a Bush regime would make its biggest impact not in the office of attorney general but the post of solicitor general, the government’s advocate before the Supreme Court. “The graphic difference between Bush and Gore will be in the solicitor general position,” says Sekulow, who calls himself “pretty involved” in Bush’s campaign. Solicitors general like Kenneth Starr and Seth Waxman have been major players in their respective Justice Departments. But Bush has been noncommittal about whether he would aggressively push a conservative agenda, fighting to overturn Roe v. Wade as one example. But Sekulow holds that hope. “The Supreme Court could be subject to significant change,” he says. “And DOJ will help shape that change.” A President Bush, of course, might also have the opportunity to select several new Supreme Court justices. He has also pledged to make the nominations of “strict constructionists” to the federal bench a priority. Former Attorney General Richard Thornburgh, who served in both the Reagan and Bush administrations, says a Bush DOJ would play a major “fact gathering” role in any nominations, seeking to recruit judges in the “[Antonin] Scalia and [Clarence] Thomas mold.” Bush has expressed doubts about the Microsoft case, but he hasn’t promised an IBM-style rub-out of the matter if he takes office. And those familiar with his campaign have different thoughts as to whether he would take such a drastic step. “He could do it,” says Theodore Olson, a partner in the D.C. office of Gibson, Dunn & Crutcher who served in the Justice Department when the IBM case was dismissed. “You have to be careful that you have a good legal justification.” As an alternative, Thornburgh said he would expect a Bush administration to “engage in significant settlement discussions” with the software giant, something he says Janet Reno refused to do. And Cooper Carvin & Rosenthal’s Charles Cooper, who served in Reagan’s Justice Department, says “just abandoning Microsoft would be sufficiently startling. The president and the AG would have to be damn sure of their premises.” Even if a Bush attorney general doesn’t disembowel the Microsoft case, there would undoubtedly be changes in the Antitrust Division’s approach. When law firms in the 1980s said they had to dismantle their antitrust departments during the Reagan era, they were only half-joking. “They are not going to be activist regulators,” says Wilmer, Cutler & Pickering’s C. Boyden Gray, who served as White House counsel to President Bush. Gray, who says he advises the younger Bush’s campaign on an informal basis, says a Bush DOJ would “move away from lawsuits.” Instead, he says, the department would take a more detached, regulatory approach. “They would assure the markets are observed,” Gray says. In August, during a campaign stop in Michigan, Bush criticized another of the Justice Department’s largest cases�its massive suit against the tobacco industry. “I don’t think you can sue your way to policy,” Bush said. The stocks of leading cigarette makers rose. Even if Bush didn’t want to order the suit dismissed, his Justice Department could settle on favorable terms with the industry. As an alternative, Bush’s AG could underfund the litigation and essentially force the same result. That’s the tactic that Republican appropriators currently are attempting on Capitol Hill. CIVIL WARS Another fault line in a Bush Justice Department would cut through the Civil Rights Division. “That is the place where Clinton has steered a very liberal course,” says Clint Bolick of the Institute for Justice, a libertarian think tank in the District. Bolick notes that two of the division’s chiefs, Deval Patrick and Bill Lann Lee, were members of the NAACP’s Legal Defense Fund. Those credentials would, presumably, not be an asset in a Bush administration. “Patrick and Lee have charted a very aggressive course,” Bolick says, “thumbing their nose at Supreme Court precedents.” Specifically, the division has made challenging state and local governments on discriminatory hiring practices a priority. Those governments typically enter into consent decrees that include diversity requirements�something that conservatives argue is illegal under the Supreme Court’s 1995 decision in Adarand Constructors v. Pena, a decision against which the Justice Department argued. Bush has consistently opposed racial and ethnic preferences. But Bolick doesn’t see a President Bush “appointing a hard-core conservative” as civil rights chief. “Bush has worked very hard to reach out to minorities,” Bolick says. Bush hasn’t spoken much about what he would do with regard to attacking crime�something Reno has made a priority. Of course, there hasn’t been much reason to. Even Bush’s supporters can’t find fault with the dropping crime statistics. In that respect, Bush’s and Gore’s approaches to crime aren’t much different. “You could comfortably fit the difference between their crime packages through the eye of a needle,” says Vincent Schiraldi of the Center for Juvenile and Criminal Justice, a D.C. organization that advocates for youth offenders. One of the hallmarks of the Clinton-Reno Justice Department has been the growth of its involvement in state and local law enforcement, mainly through grants to local police departments and programs like COPS, which gives money to municipalities to hire more officers. The department’s budget has more than doubled since 1992. Despite Republicans’ professed aversion to the encroachment of the federal government into state functions, nothing much is likely to change. “DOJ grows to meet the law enforcement demand,” says Cooper, who is co-chair of Lawyers for Bush in D.C. “It’s less a function of any particularized law enforcement approach.” Moreover, he adds, the 1994 crime bill that established programs like COPS was a bipartisan product. “It added to the DOJ’s specific responsibilities for enforcing the laws.” Robert Moffit of the Heritage Foundation believes that a Bush AG would take a closer look at the DOJ grant-making machine. “We will see a change in the way DOJ programs are looked at,” Moffit says. “Justice is not subject to the kind of review they should be.” But Thornburgh, now with Kirkpatrick & Lockhart, thinks that a Bush AG wouldn’t necessarily shrink the size of the department, but alter its priorities. “You’re likely to see a Bush administration a lot tougher on gun laws, drug laws, gangs,” he says. Along with reaching out to the old-line Washington establishment, Bush is listening to other voices in Texas. One is a former Houston assistant district attorney, Johnny Sutton, who acts as a criminal justice adviser to the campaign. His role has been to defend Bush’s death penalty record in Texas, where Bush has presided over more than 130 executions during his six years in office. Another is a Dallas juvenile court judge Hal Gaithier. Under Bush, the juvenile prison population in Texas has tripled. Schiraldi says Bush has surrounded himself with “ultraconservative criminal justice policy folks. It wouldn’t surprise me if those folks get exported from Texas to D.C. to set policy.” Another Bush adviser is D.C. lawyer R. Ted Cruz, who has relocated to Austin. “Cruz,” says Clint Bolick, “is very well-positioned.” Cruz, just 29, is a former clerk to Chief Justice William Rehnquist and Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals and has helped draft proposals for Bush’s pet project — tort reform. Cruz didn’t respond to requests for comment. Tort reform is one export from Texas that could find its way to Washington in a Bush White House. Congress’ effort at reforming nationwide limits on litigation was opposed by the Justice Department and vetoed by President Clinton. That wouldn’t happen under a Bush administration. “Gov. Bush’s Justice Department,” Thornburgh says, “would take a strong role in the area.”

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