The solicitor general of the United States, in jet-black tails and crisp white shirt, is standing before the Supreme Court with only 10 minutes to argue the Reagan administration's position on a controversial and complicated voting-rights case before a small red light will tell him to stop.
He is somewhat theatrical in his gestures and arguments, his British-accented voice resonating off the marble and mahogany as he weaves his way through the intricacies of the statute, its legislative history and the relevant precedents. He is deferential yet not obsequious as he fields questions from the justices and so concise that he concludes his presentation before his time is up -- an accomplishment at the Supreme Court.
It is a solid performance, especially considering the fact that, before he came to Washington last January, Charles Fried had not argued a case in 24 years.
Rather, Charles Fried, Carter professor of general jurisprudence at Harvard Law School, was enveloped in the abstract world of legal philosophy, writing works such as "Moral Causation" and "Right and Wrong -- Preliminary Considerations."
"I tried one case once," said Fried, who prefers to think of himself as a scholar rather than a litigator. "Oral arguments are still the hardest part of my job to get used to . . . . I feel nervous every time I argue before the Supreme Court."
Six months on the job and Fried, 50, is hitting his stride. Yet the smoothness of his performance belies the recent controversy surrounding the office, which represents the government before the Supreme Court. Under the Reagan administration, the office of solicitor general, long admired for its independence, is being called "political."
These charges were being made when Rex E. Lee, Fried's predecessor, was solicitor general, but they reached a peak in July when Fried, in an amicus curiae (friend of the court) brief, challenged the court's 12-year-old precedent legalizing abortion despite the fact that the court -- by a solid majority -- had strongly reaffirmed Roe v. Wade less than three years before.
Fried dismisses these criticisms, bluntly stating that there is nothing so sacred about the Supreme Court that it cannot be challenged even when the odds of winning are slight.
"I think there's something condescending about only saying things which, on some kind of nose-counting prognostication, the court is going to adopt," he said. "I think it is less political, not more political, it is more scholarly, not less scholarly, it is less manipulative, not more manipulative, to speak to the logic of the case as we see it."
The justices, he said, "are not there to speak wisdom in general. No one chose them for that, and they're not particularly qualified for all-purpose wise persons . . . "
He likens the justices to umpires. "When the umpire says you're out, that's the last word. But that doesn't mean he's right," Fried said. "Any one of us can say that the Supreme Court made a mistake . . . . There is a difference between being the final judge and being infallible. To say, 'Because they have spoken, it's the best judgment' -- that's a total non sequitur."
Nonetheless, the criticism persists.
"I am quite concerned with the direction of the solicitor general's office these days," said Erwin Griswold, solicitor general during the Johnson and Nixon years. "I have been watching the office for 40 or 50 years, and I have never seen an administration get this involved, intervening so much. There seems to be a lot of pressure from higher up."
"Precedents are chipped away, not just tumbled," said Daniel Meador, professor at the University of Virginia law school and a Justice Department official during the Carter administration. "It's rare to get an overruling like this . . . . It's too drastic."
Although a refugee from Czechoslovakia reared in New York, Fried sounds vaguely British. His normal conversational style -- he sounds like he's carefully rehearsed even when he's being spontaneous -- is worthy of a Shakespearean actor, whether he's talking about the view from his office or about constitutional law.
He attributes this to having learned English in Britain, where his family fled from Nazi-controlled Prague in 1938. He left England when he was 5, but the accent remains. He was graduated from The Lawrenceville School in New Jersey and from Princeton, and also studied at Oxford. He holds two law degrees, from Oxford and Columbia University. Right out of law school, he clerked for Supreme Court Justice John Harlan, then entered academia.
Fried is described by former students and his colleagues at Harvard as pedantic and theatrical. At the time he left Harvard, he was embroiled in the bitter fight over legal education there, a celebrated controversy pitting liberal faculty members against conservatives, which reportedly has had a paralyzing effect on hiring. One liberal professor who asked not to be named called Fried a "field marshal of the right."
Fried contends he never single-handedly blocked an appointment, but said "there were a few I would have liked to . . . . I was well-known as being willing to state my views clearly and without fooling around. I wasn't running for a popularity contest, that's true."
His role in the conflict at Harvard led some to call him an ideologue. "That's like asking someone if they consider themselves a hypocrite," he said. "I don't think anyone, not even an ideologue, would consider themselves an ideologue. An ideologue is someone else's name for a person with strong convictions and well-worked-out views."
Fried came to the Reagan team's attention before the 1980 campaign when, as a member of "Lawyers for Reagan," he helped prepare some issue papers. He was asked to formulate a position on the Equal Rights Amendment should candidate Ronald Reagan be confronted with the issue during the debates. Fried's response was that the ERA was unnecessary, because those rights were protected under the 14th Amendment.
In 1981, White House counsel Fred F. Fielding interviewed him for a position as a staff attorney, a job not commonly held by experienced Harvard Law School professors. Fielding says he was interested in Fried's expertise for long-range policy planning but that budget constraints prevented the hiring.
Lee brought in Fried as his deputy last January, at the end of a three-year battle waged against Lee by ultra-conservatives who thought he was insufficiently aggressive. One reason Lee was criticized was his unwillingness to urge outright reversal of the abortion ruling. The circumstances of Fried's arrival suggested to some critics that he was being brought in to "Reaganize" the office.
In fact, apart from the abortion brief, the positions urged under Fried are little different than those urged by Lee. Both sought a lowering of the "wall" separating church and state; both waged war on racial quotas and on lower court decisions they consider too generous to criminal defendants.
Fried's filing of the abortion brief perplexed Lee, who says he thinks that his own 1982 amicus in an abortion case -- which questioned Roe v. Wade but did not explicitly seek reversal -- prompted the court to reinforce the abortion ruling. "On balance you a pay large price when you file on any case," Lee said. "A major factor to be taken into account is whether you can win. There are major costs to a loss in the Supreme Court, and the principal one is you may strengthen the precedent against you. We paid a price."
Despite Fried's apparent zeal for the fray, there is some evidence to suggest that if indeed he is an ideologue on some issues, it is a recent phenomenon.
At least one person who has known Fried intimately during his tenure at Harvard suggests that Fried's views on Roe v. Wade, at the least, have evolved. "For the past decade, he and I have had long discussion about Roe v. Wade and the appropriateness of it," said a professor who asked not to be identified. "And he has consistently said that he thought the court made a principled and fine decision in legalizing abortion and that the states should not have jurisdiction for regulating it.
"Right before he went to Washington, we were together and someone asked him flat-out: 'Does the administration know your position on abortion?' He smiled and said, 'Well, I've never written it down.' "
When asked about this, Fried said: "I don't think I thought that. You never know when you're 50 -- you have said a lot of things. I don't remember what I thought about Roe v. Wade in 1973. I never paid much attention to it, as such . . . . And as a matter of fact, most of my academic work was not in constitutional issues but more in philosophical issues on one hand, and more common law and some statutory subjects on the other . . . . As I say, it was not a topic which was particularly high on my academic agenda at all."
Fried is vague about his beliefs concerning abortion. "My personal views on abortion are unsettled. There are some things like Northern Ireland, where if you don't have a definite view, you should be grateful . . . . I am really not covering up anything. I haven't had to deal with it . . . . I did not have to deal with the right-to-life issue."
One source familiar with the office maintains that Fried was, in fact, a voice of restraint on the abortion brief. The brief urges the overturn of Roe v. Wade on the grounds that the states -- not the federal government -- should be empowered to regulate abortion. But this source said that the more conservative factions at Justice wanted Fried to take the brief a step further -- to present the highly controversial argument that at inception a human embryo has a constitutionally protected right to life. "He viewed it as a major victory that he didn't have to take the brief that far," said this source.
"I think that account misstates the process," Fried said. "It's a wonderfully collegial office. There were just a variety of views, but I didn't feel any pressure."
Senior staff in the office said it is too early to judge Fried. One 20-year veteran, Deputy Solicitor General Louis Claiborne, abruptly quit in October. While Claiborne said in an interview from London that he did not leave specifically because of Fried, he expressed concern about the direction of the office under Attorney General Edwin Meese III. When Claiborne resigned, he told his friends at a going-away dinner that "having been raised in the old humility, I cannot easily accommodate to the new arrogance, and so I leave without regret." It was an apparent reference to recent remarks by Justice William J. Brennan Jr., who said Meese's views on constitutional law are "arrogance cloaked as humility."
In addition, while the solicitor general's office has traditionally attracted applications from the best and brightest young attorneys, senior lawyers in the office say that both the number and quality of applications have declined.
Sources are hesitant to blame Fried for this. "It seems to be more a reflection of Meese going around the country making a fool of himself than anything Charles has done," said one lawyer in the office.
Fried said he fully intends to return to Harvard at the end of this administration and declined to speculate on other options, such as a judgeship or other high appointment.
"I think this is the most wonderful job in the world," he said. "One sure way to spoil it is to do it while keeping an eye cocked to something else . . . . It's a wonderful job for a scholar."