The Merry Revolutionary
Clint Bolick is cheerful.
Not cheerful in the toys-all-over-your-desk, high-five-your-co-workers-at-the-copy-machine way. He's truly happy.
Bolick attributes his permanent good mood to a great home life, but those who know him best -- friends, colleagues and even his wife -- say it's job satisfaction that really makes him smile.
A decade ago, Bolick studied the success of the left's civil rights movement, gave it a libertarian twist and co-founded the Institute for Justice, a conservative public interest law firm based in Washington, D.C. Today, it's a humming operation with a $5 million annual budget.
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"I sue bureaucrats for a living," he's fond of saying. And that is exactly what he does.
IJ'ers call themselves progressive libertarians -- they focus on issues involving economic liberty and tend to avoid social issues. The organization represents parents fighting for school vouchers and entrepreneurs fighting against government regulation.
Bolick is anti-affirmative action, pro-private property rights and downright religious when it comes to school choice. Last month, the U.S. Supreme Court heard arguments in one of his cases, a school voucher lawsuit out of Cleveland, Ohio, that could lead to a landmark decision on the issue of the separation of church and state.
Bolick and his IJ cohorts are accomplished litigators, but they truly shine in the court of public opinion. Bolick is perhaps best known for an op-ed piece he penned for the Wall Street Journal in the early 1990s, in which he attacked a law professor named Lani Guinier, the Clinton administration's choice for assistant attorney general for civil rights. Bolick dubbed Guinier a "quota queen." The label stuck and Clinton dumped Guinier -- earning his own label as a wimp.
Given that, it's probably not surprising that Bolick and U.S. Supreme Court Justice Clarence Thomas are close; Thomas is godfather to Bolick's younger son. But Bolick was also friendly with the late John F. Kennedy Jr.
His client list includes African-American hair braiders who don't like the white-dictated rules of the cosmetology industry; in some states they are required to take expensive, time-consuming courses in the use of hair dye and straighteners they don't use. Bolick, who is in his mid-40s, white and balding, gets a big kick out of representing black "corn rowers."
Even Nina Totenberg -- the legal correspondent for National Public Radio, a news organization not generally considered to have a cozy relationship with the right -- calls Bolick a "professional friend."
Totenberg and many others call Bolick a Happy Warrior, a reference to a nickname given to Hubert Humphrey, a politician who advanced the agenda of the left as President Lyndon Johnson's vice president.
That drives Bolick's detractors nuts.
"C'mon," says Michael Pons, a policy analyst for the National Education Association, IJ's biggest opponent in the school choice battle. "He looks like one of the Seven Dwarfs, for God's sake. Who is it? Happy? Dopey?"
Pons concedes he's never met Bolick, only seen him on TV. But those who've watched Bolick work say having him represent you is like having Wayne Gretzky coach your hockey team. His good friend Lisa Graham Keegan -- former Arizona schools chief, now a professional school choice advocate -- calls him the legal Obi-Wan Kenobi.
Love him or hate him, it's time for Arizona to meet Clint Bolick.
A few months ago, Bolick packed his D.C. bags, hired an assistant and another attorney, and the Institute for Justice quietly opened its first state chapter, right here in Phoenix. A third attorney -- Tom Liddy, son of G. Gordon, Bolick calls him "a Liddy with a heart" -- joined IJ earlier this year. Bolick already knew Keegan, and he'd done a fellowship at the Goldwater Institute, a conservative think tank here. He and his IJ colleagues figured Arizona was a good place for progressive libertarians. The creation of state chapters is another concept stolen from left-leaning groups like the National Association for the Advancement of Colored People.
Bolick's opponents in the lawsuits he's already filed in Arizona don't know much about him. They snipe that he's carpetbagging, here to start a political career and run for office. Bolick denies that emphatically, insisting he can accomplish far more as a lawyer. And he may be correct.
Just consider a proven model: attorney Tim Hogan and his Arizona Center for Law in the Public Interest. For years, Hogan -- as liberal as Bolick is libertarian -- has had the courts to himself. He's had almost no serious opposition.
In Arizona, conservatives have tended to control the governor's office, the Legislature and the congressional delegation. They have the Goldwater Institute, and a colorful cast of outspoken characters.
IJ has come in with a bang. In the firm's signature Arizona case, IJ is representing brake shop owner Randy Bailey against the city of Mesa, which is trying to condemn his property so a hardware store can be built on it. The case could go to trial next week. Bolick is involved in ongoing litigation regarding school tax credits (IJ supports them) and a lawsuit challenging the state's Clean Elections law. He's toe-to-toe with Hogan in the latter, which is now before the Arizona Supreme Court.
This week, Bolick actually took Hogan's side on a case -- in a manner of speaking. IJ filed a motion with the court asking to be named as a plaintiff in a lawsuit where Hogan is suing the state of Arizona on behalf of school districts that serve poor kids. Hogan wants the state to give the districts more money. Bolick wants the state to give money directly to parents, so they can send their kids to private schools.
"Certainly this is the sort of case we would have contemplated bringing on our own," Bolick says. "But it is essential to our success not to allow Hogan to define the terms of the education debate anymore."
Hogan won't talk about Bolick, but Bolick is delighted to talk about Hogan.
"I have never been in a state where I have seen as effective a left-wing public interest law firm and I have to admire the heck out of him because he sets the standard for public interest advocacy in the state of Arizona," Bolick says.
But he can't resist aiming one across the bow: "I think that leftist groups have grown flaccid."
A little competition may be good for Hogan, but will the courts be good to Bolick? No, says Jay Heiler, former chief of staff to Governor Fife Symington and longtime observer of and player in conservative politics in Arizona. Arizona might have a libertarian-leaning electorate, but the courts are a different matter, Heiler maintains.
"Hogan's effectiveness comes in good part from his own skills and diligence . . . but equally from the tender ministrations of friendly judges determined to accomplish through judicial power what lefties cannot accomplish through the political process," Heiler says.
"Clint Bolick is not going to find the same reception."
Bolick says he's here for the sunshine.
On a December morning, it's standing room only in Maricopa County Superior Court for what passes in Arizona politics as a big-ticket event: oral arguments in a case about the state's Clean Elections law. The law, the nation's most sweeping effort to publicly finance political campaigns, is being challenged because of the way it's funded, through lobbyist registration fees and a surcharge on parking tickets and other court fees.
Becky Fenger is lucky enough to have found a seat in the courtroom. Fenger is a self-appointed local spokeswoman for the far right -- over the years she's fought for Freon and against public transit. She raises pot-bellied pigs and writes a column for a local daily newspaper, featuring a "Separated at Birth" item in which she compares local politicians to, among other things, zoo animals.
At the moment, she is eavesdropping on the conversation behind her.
Two young pants-suited women are talking about the joys of living in Washington, D.C.
Fenger whips around, aghast. Why would anyone want to live there, she asks the women, who just look at her.
So Fenger keeps going. "If you live there and you're not black, the dating pool is down to about 10 percent," she says.
One of the girls sucks wind. And looks around, giggling. "These are things people think, but don't say," the girl comments.
Arizona conservatives are constantly saying things people shouldn't say. But Clint Bolick doesn't make such mistakes. (And he has no complaints about the D.C. dating pool, since that's where he and his wife, Shawnna, met.)
All eyes are on Bolick this morning -- all except Fenger's. The hearing starts at 9. By 9:15, her eyes are closed, head resting on the wall next to her.
Today, Bolick is up against two Arizona institutions: the state attorney general's office and, far more impressive, the Arizona Center for Law in the Public Interest. Although another lawyer is actually arguing the case today, the center is synonymous with Hogan, its director.
Everyone in the room knows Tim Hogan. Few know Bolick -- he has yet to even take the Arizona Bar exam, although he has a grace period that allows him to appear today. But Bolick almost immediately makes it a point to humiliate the opposition by noting that they have already ceded their case on some level, by announcing on the Clean Elections Web site that they expect to lose half the case, the part dealing with lobbyist fees. Now that has nothing to do with the facts of the law, per se, but it's vintage Bolick -- remember, he plays hardball in the court of public opinion. "I think this is an indication of something less than total confidence in their case," he says.
There are titters in the audience.
Bolick calls Clean Elections a tax on the First Amendment.
Elizabeth Daniel, Hogan's colleague, counters that there's no legal reason to oppose it. "Plaintiffs object to the program basically because they don't like it," she says. One defense is that there are all sorts of endeavors in our society funded by public money -- public television, the National Endowment for the Arts, public schools.
Sounds like the Institute for Justice's "to do" list, although Clint Bolick is far too savvy to go after Big Bird.
The Clean Elections supporters were correct: The lobbyist provision was struck down and the court fees stand. The Arizona Supreme Court will decide this month whether to consider the case.
Clint Bolick was born and raised in New Jersey; Dad was a welder, Mom a secretary.
There was no talk of politics in the Bolick household when he was growing up, so Clint's not sure why he was always fascinated by the subject. His earliest political memory is a keen admiration for Richard Nixon, he admits, embarrassed.
When he was 11, Bolick's father died, and the family moved to California. He volunteered on then-governor Ronald Reagan's reelection campaign to get extra credit in social studies and on Reagan's opponent's campaign -- to get even more extra credit.
"But even then my heart was with Reagan," Bolick says.
He returned quickly to New Jersey, eventually graduating from Drew University. Bolick put himself through school working at a grocery store and was actually a member of a union -- forced to sign on.
Bolick hoped the union would strike, only so he could cross the picket line.
From early on (age 4, he insists) Bolick planned to teach school and go into politics. But he was disillusioned after an internship on Capitol Hill and time spent observing public schools. He didn't like the way the political game was played, and he was even less impressed by the quality of inner-city education. He didn't have an alternative plan, until he took a course in constitutional law. Suddenly, the law -- which had always sounded boring and mercenary -- was fascinating. He read Brown v. Board of Education, the landmark U.S. Supreme Court ruling that led to school desegregation, and immediately decided Thurgood Marshall was his role model. (To the horror, he admits, of his opponents on the left.)
Today, Marshall remains Bolick's ideal when it comes to strategy, if not philosophy.
"He understood the strategic approach to law, the one-case-at-a-time, baby-step approach to changing the world through legal precedent. He also understood the importance of choosing the right case and arguing cases in the court of public opinion. He understood how valuable a teaching tool the law can be. And conversely, how law can be impacted through public opinion and through seizing the moral high ground. And he was an impassioned and principled advocate."
And so Clint Bolick moved across the country again, this time to attend the University of California's law school in Davis -- which at the time, the late '70s, was a hotbed of liberal activism, particularly with regard to racial preference issues.
Bolick was an instant pariah. By now he understood he was a libertarian, not a conservative, he says, sounding a lot like a young man at Jerry Falwell's Liberty University just discovering his homosexuality.
Looking for an outlet, Bolick found his own personal bath house. He ran for the California Legislature on the Libertarian Party ticket. He got 7.1 percent of the vote -- not bad at all -- and was intoxicated by the experience.
So perhaps he is here in Arizona to run for office.
Absolutely not, he counters quickly, the biography briefly interrupted. Over the years, Bolick says, he's learned that he's "not dispositionally suited to compromise."
But he was well-suited to the Mountain States Legal Foundation in Denver, a conservative public interest law firm founded by controversial Reagan Interior Secretary James Watt and funded by the Coors family in reaction to groups like the Sierra Club.
In Denver, Bolick focused on racial preference and school choice cases. His work drew the attention of the Reagan Administration, and he accepted a job at the federal Equal Employment Opportunities Commission, where he met Clarence Thomas, then the head of the EEOC. (Thomas did not respond to an interview request.)
From there Bolick moved to the civil rights division of the U.S. Department of Justice, where one of his duties was supervising summer law clerks, which is how he came to meet John F. Kennedy Jr.
Kennedy called it his "conservative summer," recalls Bolick, who found JFK Jr. charming and later provided story ideas for his George magazine.
Over the years, Bolick continued to hammer on his favorite issues -- vouchers, affirmative action, entrepreneurial freedom. He wrote the first of five books based on his philosophy and started talking with Chip Mellor, who had hired him at the Mountain States Legal Foundation, about creating their own public interest law firm. They found seed money from Koch Industries, a family business based in Wichita, Kansas. (David Koch was the Libertarian Party candidate for vice president in 1980. The Koches have funded other libertarian causes over the years, and early efforts in several states to impose term limits.)
Since its creation, IJ has fought against bureaucracy large and small, arguing that retail vintners should be allowed to sell their wine by mail and that high school students should not be forced to perform community service as a requirement for graduation. It convinced a court that Donald Trump should not be allowed to have an old woman's home condemned to make way for a parking lot in New Jersey. It lost its first hair-braiding case in the courtroom, but created such a storm of negative sentiment that the District of Columbia eased the restrictions the IJ had been fighting in the first place.
Bolick and Mellor borrowed unabashedly from the left. Early in the last century, liberals were unhappy with laws regarding civil rights, particularly those involving segregation. So they used the courts to change public policy. The American Civil Liberties Union and National Association for the Advancement of Colored People are two of IJ's models.
Like the ACLU, which can't be pinned as siding with Democrats or Republicans, IJ tries to form non-traditional alliances. Clint Bolick was called a racist when he deep-sixed Lani Guinier's nomination. Then he turned around and represented African-American hair braiders. He also worked closely with affirmative action supporters to try to make race-matching unconstitutional in adoption cases.
IJ looked to liberals, not conservatives or libertarians, when figuring out a public relations strategy.
"Conservatives have really over time allowed themselves to be cast as a movement without a heart," Bolick says, and "libertarians love to argue fine points of philosophy into the wee hours of the morning and to prove their purity even at the expense of achievement. We have really bucked that trend."
The IJ folks call themselves populist libertarians -- they are constantly trying to humanize their cases.
One way to do that is by employing another method borrowed from the left: the David v. Goliath approach. The idea is to find a case that makes the particular philosophical point you want to make -- and will change the law you want to change -- using the most outrageous facts you can find.
That is how Randy Bailey came to be IJ's first Arizona state chapter client.
Bailey's Brake Service has sat on the northwest corner of Main Street and Country Club Drive in Mesa since 1952. Since 1970, the business has been controlled by a Bailey.
Randy Bailey's father ran the place for 21 years, then sold it to his son and retired. Randy figured he'd run it until he retired, too, maybe even sell it to his son, now 11, if he wanted it.
Three years ago, Bailey began to hear rumors that the City of Mesa wanted to condemn his building as part of a downtown redevelopment project. It turned out the rumors were true, and plans are to gut the brake shop to make way for, among other things, a huge hardware store owned by a powerful Mesa family, the Lenharts. The Bailey family isn't powerful at all; the best thing they have going for them is the location of their business, on the corner of a busy downtown intersection.
"I never thought I could fight City Hall," Randy Bailey says. He figured he'd have to sell the city his building and property. Then he got a call from Tim Keller, an IJ staff attorney who had read about Bailey's case in the newspaper.
"It was like a godsend for me," Bailey says.
And hell for the City of Mesa. The city's attorneys aren't used to a client who refuses to settle. The only way an eminent domain (fancy language for what the city wants to do to Bailey) lawyer makes any real money is to negotiate a high sales price for his client. In this case, IJ just wants Mesa to leave Bailey alone. And in so doing, Bolick and Keller hope to change Arizona law with regard to private property rights as they dovetail with cities' redevelopment rights.
Joe Padilla, the Mesa deputy city attorney handling the case, seems befuddled -- although his initial answer indicates that without realizing it, he understands completely what IJ is doing.
"I think in the end the Institute has its own agenda, which is to garner publicity for themselves," he says.
Then Padilla suggests that IJ's case is really a ploy to jack up the price of Bailey's land, that the lawyers don't really care about setting precedent.
"If [Padilla] knew the lengths that we go to try to keep people from settling. The whole point of this exercise is to establish that there are some instances where the government cannot take property at all. And it's very difficult where government keeps upping the ante for the property. And that's exactly what's happening."
This past Monday (March 4), the entire legal staff from the IJ Arizona chapter files into Maricopa County Superior Court Judge Robert Myers' courtroom for oral arguments in Mesa v. Bailey. Clint Bolick and Tim Keller sit at counsels' table, with Tom Liddy holding up the rear. The courtroom is filled with onlookers -- Randy Bailey and his supporters, a few reporters.
Bolick has primed the press. IJ's Washington, D.C., office sent out a media alert today touting a new national coalition designed to fight eminent domain cases like this one. Bolick has a "My Turn" column in this morning's Arizona Republic.
The IJ lawyers make quite a powerhouse, although as usual, Bolick looks just a little disheveled. His shoes are shiny, but there's a stain on his suit jacket, and he obviously cut his chin this morning, shaving.
Myers indicates he'd like Bolick to start, but Mesa attorney Joe Padilla looks around anxiously. His co-counsel hasn't arrived. Bolick places his notes on the podium and returns to his seat, telling Myers, "I'll be ready to go!"
"I have no doubt," the judge replies. Keller pours Bolick a cup of water.
Ultimately, Padilla goes it alone. It's hard to tell which way Myers is leaning. He asks few questions. He's known to be a rather liberal Democrat, but coincidentally, Keller clerked for Myers while in law school at Arizona State University, and says he's very fair.
Bolick characterizes the case as "Robin Hood in reverse" -- the city is taking from Bailey and giving to a wealthy developer. Padilla counters that the area is blighted, the redevelopment vital. The fundamental issue is whether this taking is necessary to preserve the public interest.
Based on this morning's arguments, Myers could decide the case. If he doesn't, Mesa v. Bailey goes to trial next week.
As he leaves the courtroom, Myers promises to rule promptly.
When IJ announced it was creating state chapters, beginning with Arizona, news of Clint Bolick's departure from D.C. legal circles made all the right political columns in the Washington Post and National Review. The National Journal even reported that he and his wife would be vacationing in Bermuda before settling in Phoenix.
Aside from a shiny-blue late-model Saab (license plate: 4LBRTY) in the driveway, Bolick's lifestyle is understated. He and Shawnna, who is expecting their first child (his third) next month, live in the kind of neighborhood where you'd expect to find progressive libertarians: funky, hilly, dotted with mobile homes. The Bolicks' house isn't going anywhere; it's large and decidedly untract-like, with a few Southwestern touches and Dave Barry on the bookshelf next to Ayn Rand and Robert Bork. There's a pool out back, which Clint plans to haunt this spring and summer as he studies for the state bar exam.
Shawnna is delighted to be out of D.C. She and Clint met at an event at the Heritage Foundation, a right-wing think tank where she was working on, among other things, education policy.
She wasn't always conservative. "I was very liberal in high school. Very liberal. I was the person that started the recycling program at our school," Shawnna says. (For the record, she still recycles. "It's so easy.")
But once she entered the workforce, Shawnna started wondering where all her taxes were going -- and that led her over to the right.
Along with juggling several legal cases on opposite sides of the country and speaking engagements all over the place, Clint has been hard at work on his first novel. A psychological thriller, the idea came to him from a jetlagged nightmare he had years ago in South Africa, where he'd gone for a political conference.
In the story, a man falls in love with a beautiful woman with borderline personality disorder. They have a daughter together. The woman kills herself and the man raises the daughter, who then begins to act like her mother.
So maybe Clint Bolick does have a dark side.
He's finished 33 of 36 chapters. "It is so close to being done that I can taste it."
Given the fights he picked while he was there, it's amazing Washington didn't leave a bitter taste in Bolick's mouth. He insists not, although he admits it's not really his kind of town.
He says he knew it was time to leave when the Monica Lewinsky scandal hit. Bolick considers Ken Starr a friend -- they just finished working together on the Supreme Court vouchers case -- but lambastes those who tried to bring Clinton down based on a cigar and a stained blue dress.
"I just thought that entire ordeal was one of the ugliest episodes in Washington history. I saw the Lewinsky scandal and an effort to use personal dirt to bring down a career as precisely the type of reason why I wanted to leave Washington," he says.
So all these years later, is he disappointed to be remembered for taking down Lani Guinier? Articles are still written challenging Bolick's assertions about Guinier's credibility to fight for civil rights, accusing him of being a front man for conservatives annoyed with the rejection of Supreme Court nominee Robert Bork and the tough time Clarence Thomas got. People still think of him as a racist.
The racist tag stings, but he rejects it without pause. And no, no regrets about Guinier, who is now a law professor at Harvard University. (She declined an interview request.) In fact, Bolick says, he thinks he did Guinier a favor -- she won more fame as a reject than she would have as an appointee.
"I really thought that that battle exemplified a fight over principle. And, indeed, the way that nomination battles really ought to be fought. No one was scouring people's personal lives or searching through garbage cans," he says. "The fact that she was able to walk away from that experience with her reputation intact was something I consider very important."
That is the kind of comment that wins Clint Bolick fans like Nina Totenberg.
"He is not a petty bureaucrat of the right," she says. "He is a big boy."
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