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Clint Bolick - Attorney says Goldwater Institute has become a watchdog that bites

November 8, 2014

The walls in Clint Bolick’s office at the Goldwater Institute are bedecked with icons of the conservative movement in America, leaving no doubt who his ideological idols are. Ronald Reagan is represented. Next to him is a photo of Clarence Thomas being sworn in as a U.S. Supreme Court justice. There is also a framed enlargement of the Ayn Rand stamp released in 1999 by the U. S. Postal Service. And, of course, a pair of Barry Goldwater mementos: a signed photo of the longtime Arizona senator and a Goldwater for President poster from his 1964 campaign.

Bolick heads up the Goldwater Institutes Scharf-Norton Center for Constitutional Litigation, picking up where he left off when he left the Institute for Justice a libertarian public interest law firm that he founded to lead the Alliance for School Choice in the fight for expanding school-voucher programs across the country.

Since coming to the Goldwater Institute and starting the organizations litigation arm, Bolick has filed suits against government officials he says are infringing on the freedoms provided to Arizonans in the states’ Constitution. Among his targets thus far have been state schools chief Tom Horne, Tempe Mayor Hugh Hallman and the city of Mesa. Currently, the Goldwater Institute is challenging the constitutionality of the city of Phoenixs nearly $100 million subsidy to build a retail shopping center.

Bolick spoke with Arizona Capitol Times on Feb. 12 about his goals, the effects of litigation on public policy formation and his unique relationship with the Supreme Court justice enshrined on his wall.

Since you took the helm, the Goldwater Institute seems to have changed its approach to public policy issues, shifting from providing analysis and giving advice to policy-makers to litigating the problems you identify. What’s the reason for the change?

It seems to be a natural extension to back up our policy prescriptions with litigation. A number of times, we believe lawmakers exceed their constitutional boundaries. And it definitely adds some clout to our policy prescriptions to be able to back them up with litigation.

We are, by the way, the first free-market-oriented group to establish a litigation center.

I guess you could say that we’ve gone from being a watchdog to being a watchdog that bites.

What are the criteria for the Goldwater Institute to take on a case?

Our goal is to vindicate the tremendous promise of freedom in the Arizona Constitution. There are a number of clauses that have been largely dormant because there hasn’t been anyone around to help enforce them. So, we look for clear abuses of government power and clear constitutional guarantees. That combination gives us a chance to make positive precedent.

As you can imagine, there are a lot more bureaucrats that deserve to be sued than there are resources to sue them, so we have to choose our cases carefully. The criterion, really, is maximum impact.

Even if the Goldwater Institute is not successful in the courtroom on your legal challenges, is there still a benefit to public policy discussions by bringing lawsuits forward?

Absolutely. Brown vs. Board of Education is probably the greatest example of a case that had as much impact in the court of public opinion as in the court of law. Over the course of my career, we’ve won cases in the court of public opinion that were lost in the courtroom.

Probably the best example here in Arizona was when I was with the Institute for Justice and litigated the Bailey eminent domain case. The Bailey case led to legislative reform and, ultimately, to Prop 207, the property rights protection act.

Likewise, our case challenging the CityNorth subsidies has helped encourage some cities to rein back the extravagant spending on corporate subsidies, and I think that has helped lead the Legislature in the right direction, as well.

Lets talk about CityNorth. What is it about the city of Phoenix’s subsidy that is so onerous on taxpayers and Arizonans?

Arizona leads the nation in many wonderful things, but one area where it shouldn’t be leading the nation is its current status as the corporate welfare capital of the country. CityNorth exemplifies the craziness of cities competing over tax revenues by lining developers pockets. Here we have a luxury shopping mall that many of the people who are paying for it wont be able to afford to shop at. Its Robin Hood in reverse.

We picked that case there were many among which we could have chosen, unfortunately because its simply unjustifiable to ask taxpayers to pick up the tab for a high-end shopping mall.

When you mentioned earlier that the CityNorth case has pushed the Legislature in the right direction, I’m assuming you’re referring to the law created last year that restricts such subsidies in Maricopa and Pinal counties.

That’s right. And unfortunately that law has the perverse byproduct of making the playing field even more unlevel, because some cities can do it and some cities cant. Fortunately, we have a constitutional provision that, if enforced, will create a level playing field and take subsidies off the table across the board.

And that’s what this lawsuit against CityNorth is all about?

That’s exactly right. To put it in football terms, the Legislature carried the ball down the field and were in the red zone now.

What is the ultimate goal of the Goldwater Institute? I think a lot of people look at the legislative report card you issue every year and see that, last year, Sen. Ron Gould by and large considered to be the most conservative lawmaker was only conservative enough to get an A- and that other very conservative legislators didn’t even warrant scores that high. What does the Goldwater Institute strive for in public policy?

We are trying to preserve the legacy of Barry Goldwater, which is to allow the largest possible realm of individual autonomy in all regards. Unfortunately, even in a state that has probably one of the most conservative legislatures in the country, there is this creeping growth of government. I think our report cards illustrate that even terrific legislators tend to increase the size and scope of government.

It also shows that the Goldwater Institute will call them as we see them. Just shifting back to the litigation for one moment, three of the first government officials we went against were Republicans: Tom Horne, Andy Thomas and Hugh Hallman. Likewise, if there are Republican legislators not fully pursuing Republican principles, then we will go after them as tenaciously as we will free-spending Democrats. And we will applaud Democrats when they do the right thing.

Having said all of that, we recognize that the report card doesn’t adequately recognize leadership on important issues, so we are going to adjust our report cards to reflect the true champions of liberty in a more meaningful way.

You spoke about the creeping growth of government in Arizona. What is the ideal role of government?

The primary role of government is to protect freedom. We need to have effective police protection and security of private property rights and peoples liberties. We find that government gets into areas that it shouldn’t be, and as a consequence it doesn’t do as good a job in the role that it should play.

For example, at the same time we are giving subsidies to Chicago developers, our crime rates are soaring here in Phoenix. Were trying to hold government to its primary functions.

You co-founded the Institute for Justice in 1991 what was your biggest accomplishment there?

No question it was successfully defending school-choice programs. I spent a dozen years defending every single school-choice program in the country, including Arizona’s scholarship tax credits. When the U.S. Supreme Court upheld the Cleveland voucher program in 2002, it was a giant step forward for the unfulfilled promise of Brown vs. Board of Education.

I should also mention freeing up the direct shipment and sales of wine across state lines. That’s a case that had some wonderful tangible benefits.

Critics of voucher programs say the Arizona Constitution prevents the program. Why arent they prohibited by the Constitution?

If school vouchers violate the Constitution, so does the GI Bill or Pell grants. The constitutional principle is that government cant subsidize religion, but it can make resources available to people to make their own best decisions.

We have the freest educational system in the country here in Arizona. As a result, your neighborhood is only the first possibility. You can choose among charter schools. If you’re a parent that has a disabled child or foster child or is low-income, you can choose among private schools, as well. That competition, diversity and choice is the hallmark of America. Especially in a state where we have serious educational challenges with an increasingly non-English-speaking population, we need all the choices we can get.

There have been proposals at the Legislature that would create a statewide voucher program, but they’ve never gotten the needed support to become law. What would that kind of program do for Arizona’s education system?

It came so close to passing in the mid-1990s that we got charter schools as a result that was the compromise. Even the push for universal school choice is positive in terms of the reform benefits.

Basically, what it would do is make education about children, not about the system to put an equal amount of resources behind every child and force the system to respond to the individual child’s needs, whether the child is in a public school, private school, charter school or sitting in front of a computer at home.

Back to the Institute for Justice why did you leave an organization that you helped build from the ground up?

I was recruited to lead a new organization called the Alliance for School Choice that was the product of a merger of a number of other school choice groups. Because of my passion for school choice, I couldn’t say no. After three years and helping to lead the expansion of two-dozen school choice programs around the country, I felt that the organization was in good enough shape that I could get back to my true love, which is suing bureaucrats.

And that, in turn, led you to come to the Goldwater Institute?

What I absolutely love about Goldwater is I get to do what I love the most and not have to stray outside of Arizona anymore. I have two young kids and I like to stay home at night. This is the first time in my career that I’m not traveling like a presidential candidate.

Prior to starting the Institute for Justice, you worked at the EEOC under now U.S. Supreme Court Justice Clarence Thomas. What is your relationship with him?

Very, very close. In fact, he is my middle sons godfather. He was an inspiration, and remains an inspiration. He really got me started on a focus on empowering individuals at the bottom rungs of the economic ladder.

There are a lot of issues that are important, but he believes that helping people earn their share of the American Dream is foremost among our priorities. My work in challenging barriers to entrepreneurship, pursuing school choice and defending private property rights really emanates from the time I spent with Clarence Thomas.

I think some people would take what you said about helping people pursue the American dream and juxtapose it against your, and the Goldwater Institutes, support of Ward Connerly’s push to do away with affirmative action policies in Arizona.

I view racial preferences as trickle-down civil rights. They tend to help the people at the top and do nothing to solve the glaring problems at the problem of the economic ladder. Its only when you remove the easy, superficial out of racial preferences from the policy arsenal that you begin to develop true affirmative action, which I define as programs to help the truly disadvantaged climb up that ladder.

Most conservative politicians and pundits rail against judicial activism as being bad for public policy, but you espouse exactly the opposite in your book David’s Hammer, saying there needs to be more of an activist judiciary. Explain that concept and how its not at odds with conservative philosophy.

The courts have given themselves a bad name by taking on legislative and executive roles. I do not consider that judicial activism I consider that judicial lawlessness. Its illegitimate. But when courts are activist and protect peoples rights, that’s the role that the framers intended, and the courts don’t do nearly enough of that.

When Randy Bailey loses his business to eminent domain, there is only one place he can go, and that’s to the court of law. My book David’s Hammer uses the metaphor of the judicial gavel as the modern equivalent of David’s slingshot. It is that forum where people whose rights are violated by a combination of government and special interests can vindicate their rights.

Clint, thank you for your time.

Thank you so much.




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