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Liberals Attack SJC Nominee

Law Professor Fried Faces Oppostion

By Alison D. Overholt

Harvard Law School professor Charles Fried may face a rocky ride in his bid for confirmation to the Massachusetts Supreme Judicial Court (SJC) in the wake of an outpouring of protest following his nomination last week.

A number of liberal organizations around the state have taken issue with Fried's positions and questioned whether he has the right temperament for the job.

Fried, Carter professor of general jurisprudence, was nominated by Gov. William F. Weld '66, a former law student of Fried's.

The nomination has been endorsed by Supreme Court Justice Sandra Day O'Connor and retired Justice William Brennan.

But confirmation of Fried's nomination is by no means assured; several groups hope to block him from joining the highest court in the state.

Groups protesting Fried's nomination include the newly-formed Anti-Fried Coalition: The Committee for a Just Supreme Court, the Massachusetts chapter of the National Organization for Women (NOW) and the Cambridge Tenants Union.

Each of these groups takes issue with positions they say Fried supports. Their spokespeople say they believe that Fried's confirmation would cause irreparable harm to the causes they represent.

But not everyone opposes Fried's confirmation.

His colleagues at the law school dismiss the claims made by the interest groups, saying that Fried is fully qualified and an appropriate choice for the position.

Abortion

Cheryl L. Garrity, spokesperson for the Massachusetts chapter of NOW, says the group has collected thousands of signatures from people across the state in a petition against Fried's confirmation.

Garrity says Fried's positions on reproductive and civil rights indicate that he is an inappropriate candidate for the appointment.

"On the reproductive rights issue, CharlesFried supports the [Planned Parenthood v.]Casey decision which allowed the state toimpose restrictions on access to abortion,"Garrity says.

"We are opposed to that because inMassachusetts we provide greater rights than theU.S. Constitution," she says. "We feel thatreproductive rights would be threatened [byFried's appointment to the court]."

The Casey Supreme Court decision in 1992re-interpreted the ground-breaking Roe v.Wade (1973) decision which legalized abortionfor the first time. In Casey, the courtmandated a 24-hour waiting period between the timea woman approaches her doctor with the request foran abortion and the time when the operation isperformed.

Garrity also says that the group opposes Friedbecause he approves of the 1988 Rust v.Sullivan Supreme Court decision upholding agag order which prevents federally-funded clinicsfrom offering information to women seeking to haveabortions.

NOW argues that this policy effectively denieslow-income women the opportunity to make a fullyinformed decision about reproductive healthoptions since federally-funded clinics arepatronized by women in the lower income brackets,Garrity says.

The Anti-Fried Coalition: The Committee for ajust Supreme Court also opposes Fried'sconfirmation because of his positions onreproductive rights.

According to the coalition, Fried has proveduntrustworthy by flip-flopping on the abortionissue.

As Solicitor General under Ronald Reagan, Friedattempted to overturn the Roe v. Wadedecision. He currently says that he will upholdreproductive rights laws.

"This is a guy who slithers around and changeshis position when convenient," Sarah Wunsch, chairof the coalition, told the Boston Globe.

'Not a Personal Belief'

In a telephone interview last week, Frieddenied that his positions on reproductive healthissues would affect his capability to performfairly the duties of a judge on the SJC.

Fried said he spoke with representatives fromNOW last Tuesday and assured them that his actionsas a judge would not reduce women's reproductiverights.

"This seems to be more of a symbolic battle on[NOW and the coalition's] part because I don'tthink they have anything to be concerned about,"Fried says.

Fried says he intends to stand by the precedentestablished by the Supreme Court and to abide bycurrent federal law.

"In my view, precedents are important not justfor federal constitutional decisions, but forstate constitutional decisions because the stateconstitution can be amended more easily," Friedsays. "I will uphold the precedents and federaldecisions which have been made."

Laurence H. Tribe '62, Tyler professor ofConstitutional law and Fried's colleague, alsorefutes opposition to the nomination on thesegrounds.

"He is, broadly speaking, a libertarian," Tribesays. "He is a very strong proponent of freespeech."

"Even though I strongly opposed the positionwhich he took as Solicitor General regardingRoe v. Wade, believe that this did notreflect either a personal belief on reproductivefreedom, or the views which he would take as statejudge on these very critical issues," he says.

Rent Control

Michael H. Turk, chair of the Cambridge TenantsUnion, says his group opposes Fried's confirmationbecause of his opposition to rent control.

"[We will] make the case broadly across thestate as to why Charles Fried is a disaster as anappointment," Turk says.

Turk's criticism stems from Fried's notorioussupport for anti-rent control forced during lastyear's clash over Question 9, the statewidereferendum which abolished rent control inMassachusetts.

Turk campaigned to uphold rent control inCambridge, citing issues of tenants rights. But hesays that Fried opposed him, saying that rentcontrol had been abused and had caused adeterioration in housing and property values.

Turk says Fried is incapable in impartiality.

"The way in which Charles Fried actively playeda role in a recent political campaign to prohibitrent control raises questions about his ability toplay an impartial role," Turk says.

And he warns that Fried does not supportcommunity government.

"Fried made the case of `statism' [in the rentcontrol debate]," Turk says. "He argued that localcommunities have very limited powers and that itis the state which grants and withdraws powers atits whim. I think he has severely warped what wasthe home rule relationship between localcommunities and their states."

Turk also charges that Frieds' temperoverpowers his reason and logic when his opponentsdisagree with him.

"He engaged in heavy handed political rhetoricin the campaign," Turk says. "He takes a strong,perhaps even sort of violent exception to thosewith whom he disagrees."

According to Turk, Fried "described Cambridge[with rent control] as an infection which neededto be controlled."

"I don't think these are the words of a futurejudge," Turk says.

Turk also alleges that as a Cambridge landlordhimself, Fried broke city rent control laws whilehe was Solicitor General.

"Fried had something of a personal motive inthe rent control campaign and he was notparticularly forthright about it," Turk says.

"In 1987 he broke the city's rent control laws,overcharging his tenants. He had a responsibility[during the debate over Question 9] to say thatthis was a law that he ran afoul of. Instead, heattempted to sort of squirm his way out," Turksays.

He says these incidents "raise some importantethical issues" with regard to the nominationbecause Fried "reveals him self to be far lessthan exemplary."

But Fried characterizes Turk's charges as thewords of someone who is angry that he was on thelosing side.

"There was a fight [over ending rent control]and they lost, and now they're mad," Fried says."The decision about rent control was taken to thehighest state authority and they lost 5-0 in theSupreme Judicial Court," he adds.

Threatening Students

Yet another obstacle to Fried's nomination isan incident which occurred at Harvard Law School(HLS) in 1992, when he reportedly threatened tohave students disbarred for holding a sit-in inhis office.

In March, 1992 fifteen students staged a sit-inat Fried's office protesting his allegedlydiscriminatory views on minority hiring practices.The sit-in occurred at a time when law schoolstudents were pressuring the administration todiversify the faculty at HLS.

The students unfurled banners in Fried's officeproclaiming their protest. Fried responded bythreatening the students with academic and policedisciplinary action, according to a 1992 Crimsonarticle.

Fried also reportedly said he would contact thestudent's respective bar districts and inform thebar associations of the students' trespassingoffense, according to Boston Herald reports atthat time.

Jane E. Sender, the president of theMassachusetts Women's Bar Association, says thisincident shows that Fried lacks the propertemperament for a judicial position.

"[The Women's Bar Association has] seriousreservations about Professor Fried...based on hisreputation for a lack of fairness and lack ofjudicial temperament," Sender told the Herald.

In a press conference last week, Cynthia Creem(D-Newton)--a member of the Governor's Councilwhich will make the final decision on Fried'snomination--also expressed concern about Fried'sTemperament.

"I am concerned with what I heard and theinformation that calls into question his judicialtemperament," Creem says.

Even though Fried acknowledged in the BostonHerald that it was "a mistake" to threaten thestudents with extensive disciplinary measures, hetold The Crimson that the students were wrong tohave held their protest in his office.

"These are young lawyers," Fried says. "Theyshould think about what would happen if they satin on a judge's chambers or in the [districtAttorney's] office."

"It's completely inconsistent behavior withrespect for law and orderly behavior," Fried says."In an attorney it would be completelyunacceptable."

Tribe says the incident should not be allowedto overshadow Fried's legal talents.

"He is a person with a temper from time totime," Tribe says, "but I think he is capable ofbeing entirely judicious."

"I don't think that anyone is perfect, and hehas made mistakes,' Tribe says. "My experience ofhim as a colleague for over a quarter of a centuryleads me to think that he will make an excellentjudge."

Frankfurter Professor of Law Alan M.Dershowitz, another colleague of Freid's, alsobelieves Fried is capable of handling a positionon the SJC.

"Charles Fried would be a wonderful justice,"Dershowitz says. "He is a true libertarian whounderstands the line between free speech andviolence and who values the Bill of Rights overpolitical correctness."

Credentials

While presenting his case to the Governor'sCouncil for Fried's nomination, Weld called Frieda "legal giant" and "intellectual powerhouse."

Weld's nominee received undergraduate degreesfrom Princeton University in 1956 and OxfordUniversity in 1958. In 1960, he received aMaster's degree from Oxford University and a lawdegree from Columbia University.

He joined the Harvard faculty as an assistantprofessor of law in 1961, became a full professorin 1965 and was appointed to an endowed chair1981.

Fried teaches courses on constitutional law andthe federal courts, and writes about legalphilosophy and constitutional law.

According to the Harvard Faculty booklet,Fried's "representative publications" are Orderand Law: Arguing the Reagan evolution,published in 1991, and Contract as Promise,published in 1981.

The Process

Fried's confirmation will be debated and votedupon by the Massachusetts Governor's Council inthe next few months.

Dorothy Kelly-Gay, chair of the council, saysshe would like to go to all the districts inMassachusetts to gauge public opinion before thecouncil holds its final vote.

While taking the confirmation process "on theroad," is not unprecedented, Kelly-Gay says it isstill unusual.

But she says her desire to visit each districtbefore deciding how to vote on Fried'sconfirmation was a campaign promise she made whenshe ran for election to the council.

"[It has] nothing to do with the professor; ithas everything to do with the process," she says.

She says she is not sure how the councilmembers will vote on Fried's confirmation.

"I've read that there's a lot of controversyover it," she says. "I'd like to wait and see howhe stands up to the council and its questionCrimson File Photo

"On the reproductive rights issue, CharlesFried supports the [Planned Parenthood v.]Casey decision which allowed the state toimpose restrictions on access to abortion,"Garrity says.

"We are opposed to that because inMassachusetts we provide greater rights than theU.S. Constitution," she says. "We feel thatreproductive rights would be threatened [byFried's appointment to the court]."

The Casey Supreme Court decision in 1992re-interpreted the ground-breaking Roe v.Wade (1973) decision which legalized abortionfor the first time. In Casey, the courtmandated a 24-hour waiting period between the timea woman approaches her doctor with the request foran abortion and the time when the operation isperformed.

Garrity also says that the group opposes Friedbecause he approves of the 1988 Rust v.Sullivan Supreme Court decision upholding agag order which prevents federally-funded clinicsfrom offering information to women seeking to haveabortions.

NOW argues that this policy effectively denieslow-income women the opportunity to make a fullyinformed decision about reproductive healthoptions since federally-funded clinics arepatronized by women in the lower income brackets,Garrity says.

The Anti-Fried Coalition: The Committee for ajust Supreme Court also opposes Fried'sconfirmation because of his positions onreproductive rights.

According to the coalition, Fried has proveduntrustworthy by flip-flopping on the abortionissue.

As Solicitor General under Ronald Reagan, Friedattempted to overturn the Roe v. Wadedecision. He currently says that he will upholdreproductive rights laws.

"This is a guy who slithers around and changeshis position when convenient," Sarah Wunsch, chairof the coalition, told the Boston Globe.

'Not a Personal Belief'

In a telephone interview last week, Frieddenied that his positions on reproductive healthissues would affect his capability to performfairly the duties of a judge on the SJC.

Fried said he spoke with representatives fromNOW last Tuesday and assured them that his actionsas a judge would not reduce women's reproductiverights.

"This seems to be more of a symbolic battle on[NOW and the coalition's] part because I don'tthink they have anything to be concerned about,"Fried says.

Fried says he intends to stand by the precedentestablished by the Supreme Court and to abide bycurrent federal law.

"In my view, precedents are important not justfor federal constitutional decisions, but forstate constitutional decisions because the stateconstitution can be amended more easily," Friedsays. "I will uphold the precedents and federaldecisions which have been made."

Laurence H. Tribe '62, Tyler professor ofConstitutional law and Fried's colleague, alsorefutes opposition to the nomination on thesegrounds.

"He is, broadly speaking, a libertarian," Tribesays. "He is a very strong proponent of freespeech."

"Even though I strongly opposed the positionwhich he took as Solicitor General regardingRoe v. Wade, believe that this did notreflect either a personal belief on reproductivefreedom, or the views which he would take as statejudge on these very critical issues," he says.

Rent Control

Michael H. Turk, chair of the Cambridge TenantsUnion, says his group opposes Fried's confirmationbecause of his opposition to rent control.

"[We will] make the case broadly across thestate as to why Charles Fried is a disaster as anappointment," Turk says.

Turk's criticism stems from Fried's notorioussupport for anti-rent control forced during lastyear's clash over Question 9, the statewidereferendum which abolished rent control inMassachusetts.

Turk campaigned to uphold rent control inCambridge, citing issues of tenants rights. But hesays that Fried opposed him, saying that rentcontrol had been abused and had caused adeterioration in housing and property values.

Turk says Fried is incapable in impartiality.

"The way in which Charles Fried actively playeda role in a recent political campaign to prohibitrent control raises questions about his ability toplay an impartial role," Turk says.

And he warns that Fried does not supportcommunity government.

"Fried made the case of `statism' [in the rentcontrol debate]," Turk says. "He argued that localcommunities have very limited powers and that itis the state which grants and withdraws powers atits whim. I think he has severely warped what wasthe home rule relationship between localcommunities and their states."

Turk also charges that Frieds' temperoverpowers his reason and logic when his opponentsdisagree with him.

"He engaged in heavy handed political rhetoricin the campaign," Turk says. "He takes a strong,perhaps even sort of violent exception to thosewith whom he disagrees."

According to Turk, Fried "described Cambridge[with rent control] as an infection which neededto be controlled."

"I don't think these are the words of a futurejudge," Turk says.

Turk also alleges that as a Cambridge landlordhimself, Fried broke city rent control laws whilehe was Solicitor General.

"Fried had something of a personal motive inthe rent control campaign and he was notparticularly forthright about it," Turk says.

"In 1987 he broke the city's rent control laws,overcharging his tenants. He had a responsibility[during the debate over Question 9] to say thatthis was a law that he ran afoul of. Instead, heattempted to sort of squirm his way out," Turksays.

He says these incidents "raise some importantethical issues" with regard to the nominationbecause Fried "reveals him self to be far lessthan exemplary."

But Fried characterizes Turk's charges as thewords of someone who is angry that he was on thelosing side.

"There was a fight [over ending rent control]and they lost, and now they're mad," Fried says."The decision about rent control was taken to thehighest state authority and they lost 5-0 in theSupreme Judicial Court," he adds.

Threatening Students

Yet another obstacle to Fried's nomination isan incident which occurred at Harvard Law School(HLS) in 1992, when he reportedly threatened tohave students disbarred for holding a sit-in inhis office.

In March, 1992 fifteen students staged a sit-inat Fried's office protesting his allegedlydiscriminatory views on minority hiring practices.The sit-in occurred at a time when law schoolstudents were pressuring the administration todiversify the faculty at HLS.

The students unfurled banners in Fried's officeproclaiming their protest. Fried responded bythreatening the students with academic and policedisciplinary action, according to a 1992 Crimsonarticle.

Fried also reportedly said he would contact thestudent's respective bar districts and inform thebar associations of the students' trespassingoffense, according to Boston Herald reports atthat time.

Jane E. Sender, the president of theMassachusetts Women's Bar Association, says thisincident shows that Fried lacks the propertemperament for a judicial position.

"[The Women's Bar Association has] seriousreservations about Professor Fried...based on hisreputation for a lack of fairness and lack ofjudicial temperament," Sender told the Herald.

In a press conference last week, Cynthia Creem(D-Newton)--a member of the Governor's Councilwhich will make the final decision on Fried'snomination--also expressed concern about Fried'sTemperament.

"I am concerned with what I heard and theinformation that calls into question his judicialtemperament," Creem says.

Even though Fried acknowledged in the BostonHerald that it was "a mistake" to threaten thestudents with extensive disciplinary measures, hetold The Crimson that the students were wrong tohave held their protest in his office.

"These are young lawyers," Fried says. "Theyshould think about what would happen if they satin on a judge's chambers or in the [districtAttorney's] office."

"It's completely inconsistent behavior withrespect for law and orderly behavior," Fried says."In an attorney it would be completelyunacceptable."

Tribe says the incident should not be allowedto overshadow Fried's legal talents.

"He is a person with a temper from time totime," Tribe says, "but I think he is capable ofbeing entirely judicious."

"I don't think that anyone is perfect, and hehas made mistakes,' Tribe says. "My experience ofhim as a colleague for over a quarter of a centuryleads me to think that he will make an excellentjudge."

Frankfurter Professor of Law Alan M.Dershowitz, another colleague of Freid's, alsobelieves Fried is capable of handling a positionon the SJC.

"Charles Fried would be a wonderful justice,"Dershowitz says. "He is a true libertarian whounderstands the line between free speech andviolence and who values the Bill of Rights overpolitical correctness."

Credentials

While presenting his case to the Governor'sCouncil for Fried's nomination, Weld called Frieda "legal giant" and "intellectual powerhouse."

Weld's nominee received undergraduate degreesfrom Princeton University in 1956 and OxfordUniversity in 1958. In 1960, he received aMaster's degree from Oxford University and a lawdegree from Columbia University.

He joined the Harvard faculty as an assistantprofessor of law in 1961, became a full professorin 1965 and was appointed to an endowed chair1981.

Fried teaches courses on constitutional law andthe federal courts, and writes about legalphilosophy and constitutional law.

According to the Harvard Faculty booklet,Fried's "representative publications" are Orderand Law: Arguing the Reagan evolution,published in 1991, and Contract as Promise,published in 1981.

The Process

Fried's confirmation will be debated and votedupon by the Massachusetts Governor's Council inthe next few months.

Dorothy Kelly-Gay, chair of the council, saysshe would like to go to all the districts inMassachusetts to gauge public opinion before thecouncil holds its final vote.

While taking the confirmation process "on theroad," is not unprecedented, Kelly-Gay says it isstill unusual.

But she says her desire to visit each districtbefore deciding how to vote on Fried'sconfirmation was a campaign promise she made whenshe ran for election to the council.

"[It has] nothing to do with the professor; ithas everything to do with the process," she says.

She says she is not sure how the councilmembers will vote on Fried's confirmation.

"I've read that there's a lot of controversyover it," she says. "I'd like to wait and see howhe stands up to the council and its questionCrimson File Photo

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