A Conservative's Obi-Wan

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It's Lobby Day for Virginia's General Assembly, usually a whirl of photo ops and speeches by public officials. Shortly after noon, Kenneth T. Cuccinelli braves a cold January drizzle on his way to the Richmond Marriott, where he'll address a room full of business leaders from all over the state. Virginia's attorney general — little more than a year into his four-year term — arrives like a rock star. Eager supporters crowd him, pushing to the front to steal a word with him or shake his hand.

Moments later, state Del. Tom Rust, R-Fairfax, introduces him to an audience of about 100. Rust quips about Cuccinelli's legal attack on the Obama administration's health care legislation. "In my household, we refer to Ken Cuccinelli as Obi-Wan," Rust says. "Because as far as health care is concerned, he is our only hope."

Cuccinelli's suit, which argues that a provision in the law is unconstitutional because it requires Americans to buy health care insurance, is expected to be heard in the U.S. Supreme Court in coming months.

After Rust promotes the "General," as Cuccinelli is known by supporters, to a Jedi knight, the crowd responds with enthusiastic applause, and the slender, dark-haired attorney general takes the podium.

Partway through his impassioned speech, Cuccinelli declares, "This case is not about health care — it's about liberty!" The crowd rewards him with more clapping, and Cuccinelli launches into a lesson on tea parties of the past. "King George III acknowledged that they could not force the colonies to buy British goods, but the president and Congress think they can — and that is quite a contrast."

His address is a far cry from Patrick Henry's "Don't Tread on Me" oratory, but there is still plenty to get the blood pumping in this crowd of rosy-cheeked business leaders, exuding health and well being. Afterward, Cuccinelli lingers to shake hands. Rob Clapper, CEO of the Prince William Chamber of Commerce, wades to the front of the crowd swirling around Cuccinelli. "I had to make sure the attorney general knew that we are his chamber," Clapper says.  For many in Prince William's business community, Cuccinelli is the quintessential hometown boy done good.

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In the past year, Cuccinelli has become the Fox News version of a Justin Bieber pin-up poster. But his star shines now because of convictions that he's held fiercely since his college days. His success, too, is the product of circumstance. His 2002 arrival in Virginia state politics predated Sarah Palin and her Mama Grizzlies, and back then his views were too conservative for Virginia's moderate Republicans.

But since conservative culture shifted right after the 2008 presidential election, Cuccinelli has begun to speak for the conservative masses. His beliefs — fierce support of states' rights, traditional family values and vigorous opposition to big government — are among the rallying cries of the Tea Party, the powerful conservative populist movement that's altered national politics. And Cuccinelli's actions — challenging a global warming scientist and delivering a legal blow to the health care law — have made him a hero not only for Tea Partiers but also for like-minded conservatives outside the movement. And for Democrats, health care reform advocates, and Obama supporters, Cuccinelli has become a man to fear.

Last December, U.S. District Court Judge Henry E. Hudson ruled in favor of Cuccinelli's argument about the unconstitutionality of the individual insurance mandate in the Obama administration's Patient Protection and Affordable Care Act. The U.S. Appeals Court is scheduled to hear the case in May, and on Feb. 9, Cuccinelli, as well as Gov. Bob McDonnell, requested that it be fast-tracked to the Supreme Court. If that happens, the high court is expected to make room for the case on its June docket.

"Not all politicians, even very ambitious politicians, have the right circumstances to make them a statewide and national figure," says Daniel Palazzolo, director of the University of Richmond's Center for Government and Policy.

"I think what you're observing is a confluence, the coincidence of a very entrepreneurial politician ­— someone who is interested in going out and building his brand and his policy positions — with favorable conditions. The Tea Party and the national health care bill were laid in his lap. He couldn't have created a better circumstance for spotlighting his

policy concerns."

Cuccinelli lives in Prince William County rather than in Richmond. That means Cuccinelli spends at least four hours a day every day in his car with his driver. Cuccinelli, no back seat driver, sits in the front, so he can control the air conditioning and radio while simultaneously fielding calls and media interviews.

His formative years were spent in the outskirts of Washington, D.C., though he was born in 1968 in Edison, N.J. When Cuccinelli was 2 years old, his family moved to Fairfax County so that his father could pursue a career with the American Gas Association. Although their new home was in hyper-chic McLean, the Cuccinellis lived in a middle-class neighborhood.

The son of Roman Catholic parents, Cuccinelli was Jesuit-educated at the Gonzaga College High School. Afterward, he moved on to University of Virginia, where he studied to become a mechanical engineer. There, he got his first taste of the law after being elected to the student Judiciary Committee. There, he also experienced the often-untidy intersection between law and public policy.

During summer break in 1989, he and one of his brothers subletted a house from several female students. On an evening when one of the girls stayed overnight, an intruder came in through a window and assaulted her.

"She woke up with a hand upside her pants, screaming a scream I'd never heard," Cuccinelli recalls during an interview in his office. The man was later caught on the same street where the house was located. But, Cuccinelli says, "he had a twin brother so they wouldn't prosecute him." Scowling, he adds, "What a load of crap."

That was pivotal. Soon after, Cuccinelli started one of the country's first campus rape-awareness initiatives. Later, after graduating from law school at George Mason University, he attempted to bring a new approach to the difficult task of prosecuting sexual predators. Since guilty verdicts in sex-crime cases tried in criminal court are difficult to get, he reasoned that those who were found innocent could be tried a second time in civil court.

He says, "I had a notion as a lawyer that this was how I was going to attack this in the court system." But he couldn't find victims who were emotionally prepared to endure a second time on the stand facing their attacker. "You never overcome the challenge of the victim's participation," he says.

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On the night of Nov. 3, 2009, it was clear well before election returns were in that Republican gubernatorial candidate Bob McDonnell had delivered a thrashing to his Democratic opponent, Creigh Deeds. So in the evening's late hours, Democrats turned their attention to the race for state attorney general, hoping desperately that Cuccinelli would lose.

Since Cuccinelli plunged into politics as a 2002 midterm replacement in Virginia's General Assembly, he had become the kind of Republican that Democrats dread. He was one of a handful of staunch conservatives, and he began exerting influence on other Republicans. At times, he was even too conservative for his own party. In a 2006 fundraising letter, he bashed fellow Republican state senators for passing a gasoline tax increase, drawing public rebuke from senior Republican legislator Tommy Norment.

Cuccinelli's stand on illegal immigration was considered extreme. Most Republican state senators were thinking within a box framed by thousand-mile border fences. Cuccinelli, instead, introduced a bill that would overturn the 14th Amendment, which grants automatic citizenship to U.S.-born children of illegal immigrants. The strategy has since become a popular tune among some national and state legislators, but at the time, it wasn't catchy. Cuccinelli's 2007 defense of his state senate seat was a squeaker, contested until he won in a recount by fewer than 100 votes.

So in 2009 on election night, when a Democratic political operative anxiously paced the lobby of the Westin Hotel in Henrico County, he was imagining the worst. "McDonnell and [Lt. Gov. Bill] Bolling don't matter," he said. "There's nothing we can do about them, but it'll be a disaster for Virginia if Cuccinelli wins."

And from the point of view of many liberals and moderates, the attorney general has courted disaster ever since. Some three months into his term, he sent a letter to Virginia's public colleges and universities, saying that they did not have legal authority to prohibit discrimination against gay and lesbian employees. Students held protest marches, and McDonnell interceded, issuing an executive order that specifically prohibited discrimination based on sexual orientation.

A month later, in April 2010, Cuccinelli suggested that a former U.Va. scientist's work on global warming might be based on fraudulent evidence and issued a civil subpoena in an effort to get access to documents related to the researcher's work. In August, a retired Albemarle County Circuit Court judge brought in to hear the case dismissed the subpoena.

"He has an extremely ideological approach to interpreting the law," says Paul Goldman, a longtime strategist for the Democratic party. "And you can argue to some degree that he's violating his own philosophy. He's against judicial activism. You could make the same case against Ken Cuccinelli. Is he interpreting the law as the legislature wanted or is he doing it for his own ideological reason?"

Defending himself, Cuccinelli says, "In execution, that's where I might do some things differently than I did in the first year. I don't believe that any legal position we took was incorrect."

But while making occasional missteps in Virginia, he's made swift progress on the national front. At least 26 states have jointly challenged the health care reform law — making a claim similar to Cuccinelli's. But only Cuccinelli chose to go it alone, filing a separate suit in federal court in Richmond. In addition to arguing that the insurance mandate is unconstitutional, he also argues that his suit defends a 2010 Virginia law that exempts Virginians from the mandate.

When U.S. District Judge Henry E. Hudson ruled in Cuccinelli's favor, he became the first attorney general to win a round in the health care insurance battle. He got the ball rolling, which makes him a modern-day Patrick Henry in the eyes of his Tea Party supporters and many others opposed to the health care law.

Since his December win, the U.S. Court of Appeals for the Fourth Circuit agreed to fast track the Virginia case, which is expected to be heard in May.

On Feb. 9, when Cuccinelli asked the Supreme Court for an expedited hearing, Gov. McDonnell joined 27 other Republican governors requesting that Obama support fast tracking all of the states' health care lawsuits, the Richmond Times-Dispatch reported. In a letter, the governors asked that Obama direct the U.S. Justice Department to expedite the appellate process so that the high court could hear states' health-care lawsuits as soon as possible, the media report said.

Some constitutional scholars attribute Cuccinelli's first-round win to Hudson, a conservative judge whose ruling, they say, was colored by personal opinion. If that's the case, then Hudson's favorable ruling may be no harbinger of success for Cuccinelli's argument in the Supreme Court. For one, Cuccinelli may be ignoring an important Supreme Court precedent, says Ellis West, a retired University of Richmond political philosophy professor.

Ellis says that former U.S. Chief Justice John Marshall, who served from 1801 to 1835, interpreted the power of federal government liberally so that it could regulate "anything that affects interstate commerce." Since buying and selling health insurance throughout the United States is almost certain to affect interstate commerce in some way, then the health care law could be ruled constitutional, Ellis reasons. He describes Marshall's decision as a "very broad interpretation of the interstate commerce clause, whereby the federal government can regulate any and all respects of the U.S. economy …"

The Obama administration argues that the high cost of providing health care for the uninsured is passed on to consumers who do buy health insurance. The administration argues that since that problem would be solved by the insurance mandate, the mandate falls under the Constitution's "taxing and spending for the general welfare clause. " Hence, it's constitutional.

Cuccinelli's argument, which leans heavily on interpreting the Founding Fathers' intentions, is a lot easier to explain. "You're going to order me to buy a product, therefore I am less free. It is utterly at odds with the Founders' vision."

If that reasoning prevails, then Cuccinelli may become the key player in putting the kibosh on Obama's signature achievement and rolling back the nation's first major health care reform bill in decades before many Americans were able to use it.

"What we're going to ask for in the Supreme Court [is that] the whole thing goes away," Cuccinelli says.

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Before speaking to the business community on Lobby Day, Cuccinelli stopped at the Virginia Department of Transportation on East Broad Street in Richmond. He had to address about 100 members of the Fraternal Order of Police. As fellow law enforcement agents from around the state, they should have been his crowd.

Cuccinelli recited a litany of initiatives and activities — the 50-percent increase in the Medicare-Medicaid fraud division, expansion of the GRIP anti-gang program started by his predecessor, and efforts to step up vigilance against cyber-criminals. Meanwhile, the officers shifted from side to side in their hard-backed folding chairs. Without his bully pulpit of liberty and the national health care reform challenge, Cuccinelli's state-focused speech seemed to fall a bit flat. As he finished, the crowd clapped politely and then delivered a rousing welcome for Gov. McDonnell.

Amid Lobby Day events, Cuccinelli returned with aides to his office at 900 E. Main St., which overlooks Capitol Square. While invariably neat in appearance, dressed in pressed suits and hair carefully parted, he declares that his desk, cluttered with papers, is a horrible mess.

The desk is flanked not only by the U.S. and Virginia flags but also by the banner that has become the Tea Party's most recognizable symbol — the canary-yellow Gadsden, with its coiled rattlesnake and its "Don't Tread on Me" slogan. On the wall opposite his desk is a print of a painting of the Battle of Concord.

This is a rare moment of downtime. His handlers continue to pressure him to stay on schedule, but instead he relaxes on the red leather couch below the depiction of the Minutemen he admires. He leans over, reaches inside his well-creased black leather cowboy boots to give a yank on what he insists are not dress socks. Swearing by the boots, he says, "It's great, I haven't worn dress socks in years."

His cell phone rings constantly, and he ignores virtually all of the calls. The only one he takes is from his wife, Teiro — her maiden name is Alice Monteiro. "I have to get this," he says when he sees her number flash on his Blackberry. "This is my One."

Some political analysts instantly see a national politician in Cuccinelli. As a lawyer with nine years in public office, he has the pedigree to be a palatable and persuasive spokesperson for the Tea Party. Pala-zzolo says now that the conservative movement has catapulted Cuccinelli, he can move onward with or without them. "It's an open book what he's going to do," Palazzolo says. "He's going to look for higher office, there's no question."

Others say that he'll never be able to climb the first step to a seat in Congress because he's too conservative in a state that has become increasingly moderate. People who describe him as a rock star going "gangbusters" in Virginia, "I think they're dreaming," Goldman says.

At least at this moment — during an interview weeks before U.S. Sen. Jim Webb, D-Va., announced on Feb. 9 that he would not run for reelection — Cuccinelli dismisses the idea of running for Congress in the near future. "To me national office only means the president," he says. "And the answer is no."

"I certainly expect to fulfill [my] term [which ends in 2013], whether I'm running for reelection or anything else," he says, suggesting a second stint as attorney general might be in his playbook. "Well, for one, I like practicing law. And we do that here."

And to some degree, Cuccinelli distances himself from the Tea Party, which, he says, will never fully ally itself with elected officials. "It's one of the beauties of the Tea Party movement," he says. "It's the 21st-century version of  ‘question authority.' The principles will always be there. ... They apply as much today as in 1776. But the question is, how long will the Tea Party last?"

As Cuccinelli sees it, his political future cannot be predicted by reading tea leaves. He was around a long time before the Tea Party arrived. "I haven't changed a lick," he says. "I've been doing the same thing I'm doing now from a policy standpoint since I began running for office."