Rebel With a Cause

Paul Goldman


King Kong Kilgore


Mild-mannered Jerry Kilgore may not roar and beat his chest, but he has become Virginia's most powerful first-year attorney general in modern times.


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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Paul Goldman, the Rebel With a Cause, was chief political strategist for the past two winning Democratic governors in Virginia and was credited with leading a "revolution in American politics" by The New York Times for his role in breaking America's 300-year-old color barrier in national politics.