CARLY FIORINA – A CHIP OFF THE OLD BLOCK

 

Published on The Weekly Standard (www.weeklystandard.com)

A Chip Off the Old Block?

The distinguished career of Carly Fiorina’s father.

Terry Eastland

June 22, 2015, Vol. 20, No. 39

A largely unnoticed story about Carly Fiorina is that she is the daughter of a man who was one of the finest lawyers of his generation. His influence on her, she says, is “huge.” Asked in an interview whether he would be surprised by her bid for the Oval Office, Fiorina said he “probably would be,” adding, “I hope he would be proud. I think he would be proud.”

Joseph Tyree Sneed III was born in 1920 in a small town about 100 miles northeast of Austin, Texas. His father was a cotton farmer and cattle rancher, and Sneed grew up, it appears, quite at home on the range, fancying himself a cowboy. After high school, he went to the oldest university in the state, Southwestern, in Georgetown, graduating in 1941 with a degree in business administration. He entered the University of Texas School of Law in Austin, but left in 1942 to join the U.S. Army Air Corps. After the war, Sneed resumed his legal education, finishing in 1947 at the top of his class. The faculty had a high regard for Sneed and asked him to stay on as a professor.

In Austin, where Carly was born in 1954, Sneed excelled as a scholar and teacher. In 1957, Cornell Law School hired him from Texas, and in 1962, Stanford Law School, then scouring the country for accomplished professors, hired him from Cornell. Sneed’s claim to fame was his work in tax law. His pathbreaking book was Configurations of Gross Income (1967), which, as one reviewer summarized it, “on a grand scale and with much success” filled “the longstanding gap between economic theory and pure legal analysis.” The reviewer added, “This is a book that most teachers of tax law will wish they had written.”

In 1971, Duke Law School sought out Sneed to be its dean. As her father mulled whether to take the job, Carly Sneed was about to enter her senior year in high school and wasn’t keen on pulling up roots in California for the unknown of Durham, N.C. She told her father as much. “I was complaining,” she says. “I didn’t want to move.” Fiorina recalls her father’s response: “Carly, sometimes you just have to follow your star.” The Sneeds moved east.

Sneed was the rare dean of a distinguished law school who was Republican. Not long after arriving in Durham he met President Nixon, whose law degree was from Duke. The dean and the president hit it off, and in February 1973 Nixon appointed Sneed deputy attorney general, the second-ranking position at the Justice Department. Sneed was in no way connected to the Watergate scandal, and those who knew him well say that when a seat opened on the U.S. Court of Appeals for the Ninth Circuit, he was pleased that Nixon asked him to fill it. Roughly a week passed between his nomination and confirmation, and on August 24, 1973, Sneed was commissioned. Sneed spent just six months as deputy attorney general; his principal accomplishment was helping defuse the tensions during the 71-day standoff at Wounded Knee, probably saving lives as a result.

Sneed served almost 14 years on the Ninth Circuit, taking senior status in 1987 and participating in cases as long as his health permitted. He was 87 when he passed away in 2008. Clerks of his I spoke with for this article remembered him as a trusted mentor and a wise teacher. And they invariably remarked on his intellectual curiosity, which led him (among other pursuits) to write a history of the enactment of the Fourteenth Amendment, Footprints on the Rocks of the Mountain (1997), a book he hoped could assist judges in deciding cases brought under that part of the Constitution. In the book’s epilogue, addressing late-twentieth-century controversies over individual and group rights, Sneed expressed his view that “freedom’s focus should remain on the individual; and equality should be absolute with respect to the individual’s basic civil rights, and in accordance with his capacities in other respects,” adding, “This will not be easy.”

Sneed’s legacy as a judge is found in his many opinions and the judicial philosophy they reflected. He was a judicial conservative, concerned perhaps above all that the courts not stray beyond their limited jurisdiction. A case in which Sneed’s court did that was Rucker v. Davis. At issue was the meaning of the Anti-Drug Abuse Act of 1988, which required that every public housing lease include a provision permitting termination of tenancy when a tenant or members of his household or guests engaged in “drug-related criminal activity on or near public housing premises.” Those challenging that requirement said public housing tenancies could not be terminated for drug activity on the premises unless the tenants knew about the activity, and the Ninth Circuit agreed.

In dissent, Sneed protested his court’s disregard of Congress’s “unmistakably clear statutory language” and said it had basically rewritten the statute “based on nothing more than the majority’s understanding of what is ‘reasonable’ or ‘absurd.’ ” The court, wrote Sneed, had “overstepped its constitutional limits.” The Supreme Court agreed in an 8-0 opinion, observing that the view held by the Ninth Circuit “would trench upon the legislative powers vested in Congress” by the Constitution.

“From my father,” writes Carly Fiorina in her obligatory campaign book, Rising to the Challenge, “I learned that character is the core of who we are and the foundation of what we can become.” She also learned from her father about politics. In our interview she recalled sitting with him “from a young age when he would watch the news at night and read the newspaper at breakfast.” And he would comment on everything he was watching or reading, especially the stories about politics and important events abroad. “So I grew up with this running commentary.” She didn’t realize at the time “what an education” she was getting. “I just liked being with my dad.”

Fiorina didn’t become a lawyer like her father. “I made it about one semester,” before dropping out of UCLA, a decision that disappointed him. Nor, while she pursued her business career in the high-tech industry, was Fiorina very active in politics. She was a registered Republican who didn’t vote, she says. “I didn’t vote for the same reason I hear from people on the campaign trail—that they don’t think it matters. I didn’t vote because I .  .  . couldn’t see a connection between my vote and what happens.” She now thinks there is or can be one; politics, she writes inRising to the Challenge, is “something within our power to change.”

So Judge Sneed probably would have been surprised by his daughter’s political career, which started after she left Hewlett Packard in 2005. It’s unlikely he ever expected her to become a candidate for office—first in 2010 for a seat in the U.S. Senate (when she challenged Barbara Boxer) and now for the White House, against the Republican field and, potentially, Hillary Rodham Clinton. He probably would be pleased with presidential candidate Fiorina, so far at least.

In our interview I asked Fiorina about the role the Constitution plays in her approach to politics. “That’s a lot of what my dad was all about,” she said. “He taught tax law because he thought the power to tax was the most consequential power the government has.” Fiorina is running a campaign concerned about the continually growing and often ineffective big government that tax dollars must pay for, and how to go about limiting and reforming this behemoth. That’s not exactly a new message for a Republican presidential candidate, but on the stump Fiorina is delivering it with believable conviction.

Also top of mind for Fiorina, constitutionally speaking, is the presidential oath of office (found in Article II), which obligates a president to “preserve, protect, and defend the Constitution of the United States.” “That’s everything,” she says, meaning the most important thing a president must do.

When the subject turns to the kind of attorney general she’d appoint, she says, “While it is a political position, it cannot be a political position”—by which she means it is a position that is held by a political (presidential) appointee, but it is not a position the appointee should exploit for political gain; justice, after all, is the name of the department the attorney general administers (with the help of the deputy attorney general, not incidentally). Fiorina says that under President Obama and Eric Holder the department has been politicized. “And that’s a huge problem.” She would consider for AG (and DAG, and other presidentially appointed positions at Justice) individuals who see the department not as some kind of “political weapon” but as an agency appropriately engaged in “the pursuit of justice.”

Fiorina is critical of Obama’s executive unilateralism and says that as president she would challenge it, in the areas of immigration and health care in particular. She is aware of the irony of using an executive order to roll back an (Obama) executive order, but that is what she says she’ll do. Even so, “I don’t intend if I’m in the White House to govern through executive action.”

In a single four-year term, the next president could make as many as 200 nominations to the federal bench. In our interview, I’d just finished asking Fiorina a question—that of what kind of lawyers, having what kind of judicial philosophy, would she appoint—when I realized how she would answer it. And so she did: “I’d be looking for people like my dad.” She went on: “I’d be looking for people who love the law, have great reverence for the Constitution, who are people of great integrity—and who know that the position of a judge, a powerful position, is not about them.”

Asked which justices she admires, she named Samuel Alito. “He is not the only justice I admire,” says Fiorina, “but he’s plain-spoken, he’s clear, he’s stayed true to his judicial philosophy. .  .  . He’s not always the most popular justice, but he doesn’t seem to waver.”

Fiorina announced her candidacy on May 5. It is a mistake to regard her bid for the White House only in terms of her business career. The influence of her father is, as she said, “huge.” She is following her own star, and the question is where that star leads.

Terry Eastland is an executive editor at The Weekly Standard.

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