Susan Estrich, attorney general?

IT IS A flaw in our system of selecting national Administrations that too little attention typically is paid to the mettle of individuals who will populate such Administrations apart from the President and Vice President. Who is to say, for example, that the promise to appoint Jesse Jackson as secretary of state or Jack Kemp as secretary of the treasury would not affect, one way or another, the votes of several hundred thousand Americans?

What immediately prompts this reflection is the virtual certainty that one of President Dukakis's first appointees would be his campaign manager, Susan Estrich. Miss Estrich, in between presidential elections, is a tenured law professor at Harvard, finding time also to serve on the national board of directors of the American Civil Liberties Union. The early odds suggest that she is likely to wind up somewhere in the Department of Justice, perhaps as solicitor general, perhaps even as attorney general.

What makes this such a provocative possibility is Miss Estrich's politics. While, like her mentor, she eschews political labels ("Labels mean different things to different people and they can be quite deceptive and not very helpful. I do believe in public service. We could go all day, issue by issue, and still not . . ."), her scholarly writings are quite instructive.

It cannot be said of her that she is close to middle ground even by Harvard Law standards. (Harvard Law is the breeding ground, readers will remember, for the increasingly influential neo-Marxist Critical Legal Studies school, which rejects traditional Western notions of the rule of law, instead claiming that legal argument can never be an enterprise distinct from political argument.) Take, for example, her essay on rape, published in the Yale Law Journal. This essay calls into question the traditional theory that liberals who have been mugged turn into conservatives. Not Miss Estrich, in any event. Rather, following her own rape at the hands of an ice-pick-armed attacker, she came around to the conclusion that the "history of rape . . . is a history of both racism and sexism." "Non-traditional" forms of rape, e.g., date rape, are dealt with insufficiently harshly by society because of antiquated social views of sex and women which "celebrate male aggressiveness and punish female passivity." Society's preoccupation with forcible or violent rape, according to Miss Estrich, has led it to ignore the equally serious case of males refusing to interpret female silence as non-consent. (What Miss Estrich ignores is the factual ambiguities that necessarily attend the latter conduct. It is not that society condones "non-traditional" forms of rape, but rather that our legal system properly insists upon the clearest possible definition of an offense and evidence of culpability before a criminal charge is leveled against an individual, even an alleged "date rapist.")

Miss Estrich further expounded on the state of "sexual justice" in a book published by the ACLU entitled Our Endangered Rights. Here she observed once more that American social thought was bound up with inappropriate and antiquated "cultural expectations and assumptions about gender" and that the Supreme Court itself was dominated by an ideology of "separate spheres." In one tragic decision, for example, the Court refused to strike down as unconstitutional a congressional act limiting the role of women in military combat roles. In another, it refused to void a pre-Dukakis Massachusetts state law affording civilservice hiring preferences to veterans, more of whom happened to be men than women.

It is a long-drawn-out tale, but ultimately Miss Estrich's solutions include abortion-on-demand, the legalization of homosexual and Lesbian marriages, the abolition of laws that distinguish between nuclear families living together and couples shacking up, the encouragement of homosexual adoption, the inclusion of sexual orientation (i.e., homosexuality) as a new "protected" civil-rights category, and the elimination of all gender barriers to any form of military service.

We may come to long for the days of Ramsey Clark at the Justice Department (never mind Ed Meese) if events conspire to put Michael Dukakis into the White House.