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I
am the law in this County" said legendary Texas
hanging Judge Roy Bean. Sorry, Mr. Bean. Time for you
to move over because there is another
hombre in town. His name is Jerry Kilgore and he is
the law not just in one county, but in the whole
state of Virginia.
The
boy from Scott County has become The Man in
Richmond, where he rules the legal roost as the
state's top legal officer. If there has ever been a
more powerful first-year Attorney General in
Virginia history, my research couldn't find one. In
this past year, he has overruled at least three
formal opinions of previous Attorneys General. This
is highly unusual if not unprecedented. Now, in
defiance of tradition, he has taken the Virginia
Supreme Court to court, challenging one of its most controversial decisions before the United
States Supreme Court. Moreover, this constitutional
lawyer says Mr. Kilgore should win, and will win, his
appeal of the Virginia high court's misguided 4-3
decision in the KKK cross-burning case. If he does,
it will be a huge victory, with national
repercussions.
This leads to the question: Why is Mr. Kilgore
becoming so powerful?
Look at the 2001 election returns.
Kilgore is the first Attorney General candidate
since 1969 to win election while his Party's
standard-bearer
was losing the race for governor.
His victory margin was the best-ever for a GOP
candidate for the state's top elected legal job.
So yes, he won big, and this no doubt is something
he has used very successfully. But it fails to
explain the reluctance of Democrats to challenge his
more questionable legal rulings. Except for the law
suit brought by Hillsville lawyer Jonathan McGrady
in the case of Marye vs State Board of Elections,
the Attorney General has been given a virtual free
pass in terms of legal matters initiated during his
first few months in office.
Right now, his legal boys, as indicated above, are
in the United States Supreme Court, challenging the
legal ruling of the Virginia Supreme Court voiding convictions of several KKK members for violating
the Old Dominion's statute outlawing cross burnings in
certain circumstances. The Virginia high court had declared the criminal statute unconstitutional in an emotionally charged 4-3 decision. Kilgore
decided, on his own, to appeal the decision to the
Supremes in Washington.
Earlier this week, the AG's office made a very
impressive legal argument before the nine
black-robed sages sitting in the house Virginian
John Marshall built. The Klan says the First
Amendment, written by Virginian James Madison,
protects their right to burn crosses even if in so
doing, their actions and words evidence a clear
intent to intimidate others; indeed, in the case at
issue, a witness to their "ritual" and hateful, kill-the-"n------"
declarations, said she was scared for the safety of
herself and her children.
Kilgore disagrees with the Klan, as does Supreme
Court Justice Clarence Thomas who, awaking from his 11-year slumber, called the Virginia Supreme Court
majority wrongheaded and declared the anti-Klan law
constitutional. The final outcome awaits
the formal ruling of all 9 Justices.
To this constitutional lawyer, Kilgore and
Thomas are right, although we may differ on the
precise reasoning [this is for another article].
Virginia's anti-cross burning law does not infringe
on the First Amendment rights of the Klan, or any
other bigoted and hateful group.
Thus, in my view, Attorney General Kilgore is soon
to win a huge victory in the United States Supreme
Court, one where he stood up not only to the Klan,
but also to the cavemen of the Virginia high court who must think they live in the same
world as Mississippi Senator Trent Lott.
Kilgore's "I am the law" persona,
whereby he has now stared down the Governor, the
Virginia Supreme Court and the General Assembly on
major legal issues, hardly seems to square with his
mild-mannered personality.
This political observer cannot determine if he is
merely the one-eyed lawyer in the land of the
jurisprudentially blind, or one of those individuals
whose grit is easily underestimated by others.
In that regard, the next few years will tell the
tale of the tape, as they say in boxing. Lieutenant
Governor Kaine is a very gritty politician despite
his friendly and laid-back manner. So he, too, is
easily underestimated by those who associate steely
resolve with the macho-man image.
In recent years, sitting attorneys general and
incumbent lieutenant governors have faced each other
5 different times on the path to the Governorship.
LG Robb defeated AG Coleman in the 1981
gubernatorial race. In 1985, AG Jerry Baliles upset
LG Dick Davis for the Democratic gubernatorial
nomination, and then went on to a landslide win in
the General election. Sitting AG Mary Sue Terry,
encouraged by Robb and Baliles to challenge
incumbent LG Doug Wilder for
the 1989 Democratic gubernatorial nomination,
decided against committing political suicide for the
cause. She let Wilder run for Governor, and went
along for a re-election ride as the LG won the
biggest upset in American gubernatorial history.
In 1997, sitting Republican AG Jim Gilmore went
fender-to-fender against LG Don Beyer in a
gubernatorial race decided by the GOP candidate's
successful advocacy for the repeal of the local car
tax. In 2001, Republican AG Mark Earley easily
bested GOP LG John Hager in an intra-party fight for
the right to run against Democratic candidate and
future Governor Mark Warner.
So, in the last six gubernatorial election cycles, the
sitting AG has bested the sitting LG 3 out of 5
times in head-to-head races either in a general
election or an intra-party contest. Thus, history
provides no guide as to the likely winner in any
Kaine vs. Kilgore match-up in 2005.
In the fullness of time, hindsight will be 20-20 in
that regard. But no hindsight, or even foresight, is
currently needed to assess Mr. Kilgore's image
as attorney general. He is, without question, the
most powerful attorney general in modern times.
If this isn't clear to Virginia political observers
by now, it will be when he slam dunks the KKK, the
Virginia Supreme Court, and all those in the
government who urged him not to appeal the
cross-burning case.
--
December 16, 2002
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