Where I Stand -- Mike O'Callaghan: Making a bad law worse

MAY I SUGGEST that President Clinton and his supporters in Congress give a friendly ear to the people who promote a strict interpretation of the U.S. Constitution? This suggestion may gall some of the so-called liberals but that's the way the impeachment hearing ball bounces.

Some of the most outrageous suggestions of how to get the president have been put forth by members of Congress who call themselves conservatives. For example, the nonsense to vote on "findings of fact" would call the president guilty but wouldn't demand his removal. This bit of foolishness was brought forward by some Senate Republicans after they realized the votes to remove the president from office weren't there. Still they coughed it up to spare any further embarrassment to party clowns, like Henry Hyde and Bob Barr, in the House of Representatives.

Every effort is being made to give the GOP leaders in the House a string to hang their election on when trying to stay in office next year.

U.S. Court of Appeals Judge Robert H. Bork was denied a seat on the U.S. Supreme Court by the Democrat-controlled Senate after being nominated by President Ronald Reagan. A year before this rejection Judge Antonin Scalia had been approved to serve on our nation's highest court. Scalia and Bork had served together on the Court of Appeals for four years and had voted the same way 98 percent of time. Yet Bork was tagged as an extremist.

After being rejected he resigned from the Court of Appeals and in his letter to President Reagan again restated his belief in ruling according to law and not to use judicial power to set a social agenda. A few years later in his book "The Tempting of America: The Political Seduction of the Law," his treatment of the law is best expressed by a story from American history.

"There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, 'Do justice, sir, do justice.' Holmes stopped the carriage and reproved Hand: 'That is not my job. It is my job to apply the law.' I meant something like that when I dissented from a decision that seemed to proceed from sympathy rather than law: '[W]e administer justice according to law. Justice in a larger sense, justice according to morality, is for Congress and the President to administer, if they see fit, through the creation of new law.' "

This week the former judge, now a fellow at the American Enterprise Institute, wrote an article in the extremely conservative and anti-Clinton Wall Street Journal. I read the WSJ every workday just to get my dose of political rhetoric that shrieks with frustration and even hate for the man in the White House.

In his latest writing, Bork calls the "findings of fact" plan of some Republican senators the result of "frustration and rage" that has led them into "preposterous readings of the Constitution as well as being utterly impractical." He believes that such an action would only further disgrace the presidency and would create an unconstitutional weapon to be used by the legislative branch with future chief executives. He believes that if such a weapon had been available in the 1980s the Democrats would have used it on Reagan in the Iran-Contra affair. Bork concludes the Constitution provides for removal from office or nothing.

This brings us back to Bork's former Appeals Court colleague, now Supreme Court Justice Antonin Scalia. If the Democrats producing an office for the likes of Kenneth Starr had listened to Scalia there wouldn't be an independent counsel or special prosecutor. Scalia's papers on conservatism can't be challenged nor can his personal integrity.

Twelve years ago, in Morrison vs. Olson, Scalia gave the nation a warning about the dangers of a special prosecutor, who is governed by politically partisan judges and has unlimited funds. Although he wrote it in 1987 it could have been written to describe Starr today. "It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result -- the judges hostile to the administration, the independent counsel an old foe of the president, the staff refugees from the recently defeated administration -- there would be no one accountable to the public to whom the blame could be assigned."

Although Scalia doesn't believe the Congress has the guts or desire to kill the special prosecutor law it should be done away with before it does more harm. When writing his dissent in Morrison vs. Olson he concluded, "If Congress is controlled by the party other than the one to which the president belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the republic with an institution that will do it great harm."

I would suggest that Senate Republicans pay a little more attention to their own conservative legal writers than they do to Hyde and Barr. Also, the Senate Democrats should take a fresh look at the Constitution through the conservative eyes of Bork and Scalia and not try to please their GOP colleagues by going along with some watered down and unconstitutional ideas to punish the president. Vote on the impeachment articles up or down and not left or right.

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