For Ken Cuccinelli, losing big cases won’t work forever

Robert McCartney
Columnist June 30, 2012

When it comes to high-profile legal cases, Virginia Attorney General Ken Cuccinelli II reminds me of Teddy Roosevelt — but not the actual progressive president of a century ago. Instead, Cuccinelli is akin to the oversized, foam-headed Teddy mascot who “competes” against other presidents in fourth-inning footraces at Nationals Park.

Teddy, famously, has never won. With two new, major court defeats last week, Cuccinelli’s record is almost as woeful.

Robert McCartney’s column on local issues appears Thursdays and Sundays in The Post’s Metro section. View Archive

With these latest reverses, it’s clear that Cuccinelli’s legal crusades serve primarily to win him right-wing acclaim and not to actually roll back the allegedly tyrannical liberal legislation he decries.

The ambitious Virginia conservative, who’s running for governor, lost big on Thursday when the Supreme Court upheld President Obama’s health-care reform act. Cuccinelli (R) had become a nationally known tea party champion by rushing in 2010 to be the first state attorney general to file suit against the law, acting just minutes after the president signed it.

He suffered another setback on Tuesday when a federal appeals court in the District slapped down a legal case against the Environmental Protection Agency. Cuccinelli was a leader among plaintiffs arguing that the EPA was wrong to find that greenhouse gases contribute to climate change and threaten public health. In a sharply worded rebuff, the court said instead that the EPA’s position was “unambiguously correct.”


Attorney General Ken Cuccinelli II, right, is running for governor of Virginia. (Tracy A. Woodward/THE WASHINGTON POST)

Like Teddy, Cuccinelli is used to coming up short. Although he’s won battles over voter redistricting and Medicaid fraud, he’s had a remarkable number of losses on closely watched cases. Ironically, his much-publicized complaint against Obamacare didn’t even make it to the Supreme Court, because an appeals court tossed it out on grounds that he lacked standing to sue.

The twin defeats last week, however, were landmarks. For Cuccinelli and other conservative legal activists, health care and climate change have been marquee issues in which they sought to portray the Obama administration as trampling on the Constitution and threatening American liberties.

Now they’ve had their day in court – and lost. The Supreme Court decision is final, of course, and legal analysts said any appeal of the EPA decision is unlikely to succeed.

The reverses feel particularly dramatic because the tea party’s rhetoric about the stakes has been so apocalyptic. In his initial response to the health-care ruling, Cuccinelli called it “a dark day for the American people, the Constitution and the rule of law.”

Consider the extremity of that statement. A Supreme Court decision written by a conservative chief justice supposedly threatened “the rule of law” just because it upheld a moderately liberal social program that Cuccinelli viewed as unjustified.

Less than two hours later, after he’d read the full ruling, Cuccinelli softened the criticism and found things to like in the decision. For example, he praised the Court for reining in the federal government’s ability to use its power over commerce as a way to expand its reach in the future.

Still, there’s no overcoming the fact that a law that Cuccinelli once described as “definitely out in constitutional never-never land” will stand.

“It’s a nice spin, but a loss is a loss,” said Carl Tobias, a constitutional law professor at the University of Richmond.

The setback in the EPA case was even more resounding. Cuccinelli argued that the EPA was wrong to rely on outside scientists to help it conclude that human activity is leading to global warming.

The court mocked that contention. It said building on past research “is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.”

University of Virginia law professor Jonathan Cannon said Cuccinelli’s case against the EPA “was a long shot, clearly,” because both the law and the science were against him. But Cuccinelli fought this battle not necessarily to win, but to make a political statement.

“There seems to be a symbolic element to some of the litigation that he’s selected,” Cannon said diplomatically.

So far, regardless of the legal outcomes, Cuccinelli’s courtroom drives have worked for him politically. He’s the darling of the Virginia Republican conservative base.

The GOP’s recent decision to pick the 2013 gubernatorial candidate not in a primary but at a convention, where activists typically dominate, gives Cuccinelli a big edge. He is the early favorite to win the nomination over his establishment rival, Lt. Gov. Bill Bolling.

At some point, though, symbolism alone will not be enough. It may work at the ballpark for Teddy, who’s celebrated as lovable. But for a politician, in the long run, voters aren’t going to respect a loser.

For previous Robert McCartney columns, go to washingtonpost.com/mccartney.

SECTION: {section=local, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: {allow_comments=true, allow_photos=false, allow_videos=false, comments_period=14, comments_source=washpost.com, default_sort=, default_tab=, display_comments=true, is_ugc_gallery=false, max_items_to_display=15, max_items_to_display_top=3, moderation_required=false, stream_id=}!!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Comments
SECTION: {section=local, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: {allow_comments=true, allow_photos=false, allow_videos=false, comments_period=14, comments_source=washpost.com, default_sort=, default_tab=, display_comments=true, is_ugc_gallery=false, max_items_to_display=15, max_items_to_display_top=3, moderation_required=false, stream_id=}!!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=m6yzjj840m, display_more=true, moderationrequired=false, includefeaturenotification=true, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, defaultsort=reverseChronological, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=3, source=washpost.com, allow_photos=false, maxitems=15, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Show Comments