Solicitor General Rex E. Lee, often criticized by liberals for his success in turning the Supreme Court toward the right, now stands accused of being too liberal in his litigation strategy before the court.
The multi-count indictment comes in an article in Benchmark, a conservative legal publication, which demands Lee's "prompt removal" for betraying the true principles of conservatism and the administration.
The article, by Benchmark editor James McClellan, attacks Lee for not moving to make the Supreme Court reverse established precedents on issues such as abortion, school prayer and the application of the Bill of Rights to the states.
It says that "instead of demanding reversal of liberal precedents, Lee has consistently addressed the Court as a dutiful and fawning serf might approach the Czar: painfully careful not to offend the sensibilities of the Crown, seeking only a small pittance, but grateful for a crumb."
It accuses Lee of championing "Big Government" by defending congressional acts, such as the law against age discrimination, when they were challenged by state governments on the grounds that they unconstitutionally intruded on state sovereignty.
It questions the strength of Lee's opposition to "reverse discrimination," criticizing him for filing a brief favoring the application of sex discrimination laws to partnership decisions in large law firms.
And, most broadly, it says the administration should be assaulting the established legal doctrine under which states are made to adhere to the Bill of Rights. That doctrine, the article said, "is the great seedbed of judicial power in the modern court."
Lee has maintained a "slavish submission to prior rulings" of the court, the article says. "In short, Lee is a judicial supremacist, who subscribes to the view that interpretation of the Constitution is the exclusive prerogative of the court, and believes further that the court's interpretations of the Constitution enjoy constitutional status and are themselves part of the supreme law."
The criticism is ironic, because liberals have periodically charged Lee with going too far in questioning precedents, particularly in civil rights and church-state separation. On one occasion when he did go out on a limb -- hinting to the justices two years ago that the court's 1973 decision that legalized abortion might be flawed -- the court responded by strongly reaffirming the precedent.
None of the conservative criticisms of Lee are new. But the Benchmark article represents the fullest treatment of them and is sure to become the conservative manifesto against Lee should Reagan ever nominate him for a federal judgeship.
Liberals will undoubtedly use the article as an example of what might happen in a second Reagan administration if an extreme conservative is appointed solicitor general or to the Supreme Court.
Asked about the article, Lee chose not to respond point by point. He said, "The only way that this office can really help the court and our clients to develop long-range principles is through the litigation of each case on a case-by-case basis, analyzing . . . what we can realistically do in that particular litigation." THE PICTURE DIDN'T DO JUSTICE . . .
Toward the end of the last Supreme Court term, it was reported that Justice John Paul Stevens requested that courtroom artists' sketches of him be removed from an exhibition in the court building, apparently because he didn't like the way he looked.
It turns out, according to the latest version of the story, that it was Chief Justice Warren E. Burger who had the sketches removed. Burger acted after Stevens wondered out loud why the exhibit had been on display so long in the first floor corridor. Stevens apparently never asked that any sketches be removed and was embarrassed when word circulated that he had. COUNSEL TO THE HIGH COURT . . . Richard Schickele has been named Supreme Court counsel, replacing Joe R. Caldwell, who is going to Harvard University to pursue advanced degrees in law and government. The counsel heads the court's legal office, a little-known office with the important job of handling emergency applications and motions, as well as disputes between states that come to the court under its "original" jurisdiction.