Three high-level DOJ picks are no strangers to the First Amendment

Jan 14, 2009 Three high-level DOJ picks are no strangers to the First Amendment

United States Constitution (From public domain.)

Not long after I started law school in 1986, numerous people encouraged the resume benefits of working at the Justice Department. I had trouble jibing that with Ed Meese’s control of the Justice Department at the time. However, after Dick Thornburgh took over from Meese and through today, I recognized that I had deep systemic issues with the Justice Department that went far beyond any named attorney general, particularly with the policing and prosecutorial arms of that agency.

I got varied reactions from Justice Department lawyers who worked there during Meese’s tenure. Two career people from the department — who are able to stay no matter the party in control of the presidency — just shook their heads and referred to "Old Ed", appreciating when he would keep his nose out of their areas of work (environmental and wildlife). One of my law professors who worked in the Solicitor General’s Office during the Meese years suggested that his work for the SG’s office was hardly similar to working more directly with Meese and his influence. At a campus Passover seder, a tablemate was interested that I was a law student, but became upset when I told him I would never work at the Justice Department under Meese; he countered that Meese’s position there did not discount the importance of this lawyer’s work going after Nazis. The summer before my second year of law school, at a roundtable presentation to law students about career opportunities on Capitol Hill, I walked up to a Justice Department lawyer involved in putting together the presentation, and asked if lawyers there ever complained amongst themselves about Meese. His face contorted into a sourpuss, and insisted that such a question is not appropriate to be asked; I retorted that such a question is completely appropriate in a society claiming to be so democratic.

In any event, for decades the Justice Department has consistently attracted law school graduates with the same high grades, law review membership and high-ranking law schools that most large law firms highly value for first-year associates. When they leave, they are among the most marketable lawyers.

Recently, I learned that Barack Obama’s picks for three top Justice Department posts not only have the sparkling resumes that big law firms seek — and all. like Obama, are Harvard law school graduates — but they also have significant experience dealing with the First Amendment, with at least two of them including experience working opposite the side of the angels. All are former Clinton Administration officials, and are close in age to Obama, with none of them more than seven years apart from him. Here is a brief rundown of the three:

– Obama nominated David W. Ogden to be Deputy Attorney General, which is the department’s second highest post. In the First Amendment arena, on the one hand, Mr. Ogden has litigated against the unconstitutional 18 U.S.C. § 2257 regulations to maintain records of the ages of models in sexually explicit videos, films, and photographs. He also obtained an injunction against a state law limiting Internet speech. Among his Bill Clinton Administration posts, Ogden was the Assistant Attorney General for the Civil Division, which probably would have included cases aimed at restricting First Amendment rights. A question becomes whether First Amendment advocates prefer a First Amendment supporter doing such work, versus a lawyer who only pays lip service to this cherished amendment.

– Obama nominated Thomas J. Perrelli to be Associate Attorney General, in charge of the department’s Civil, Antitrust, and Civil Rights divisions. Repeatedly litigating for the Recording Industry, by default Mr. Perrelli has repeatedly worked to contract free expression rights rather than to expand them. CNET News’s Declan McCullagh finds the Perrelli pick unsurprising: "Campaign rhetoric aside, this should be no surprise. Obama’s selection of Joe Biden as vice president showed that the presidential hopeful was comfortable with someone with firmly pro-RIAA views. Biden urged the criminal prosecutions of copyright-infringing peer-to-peer users and tried to create a new federal felony involving playing unauthorized music." Perrelli’s confirmation hearing may not go smoothly, considering the upset of social conservatives over his advocacy work to remove Terri Schiavo’s feeding tube.

– Reaching to Harvard’s deanship, Obama has named Elena Kagan to be Solicitor General. The Solicitor General argues on behalf of the United States government for most major Supreme Court oral arguments. She apparently has never presented appellate oral argument anywhere. Ms. Kagan has repeatedly written on free speech. Kagan scores points with me for having attacked  the disingenuous secondary effects doctrine.

Fortunately, Kagan and Ogden understand the pro-free speech side. Perrelli concerns me for having a resume showing much experience trying to limit speech, without my having found any information to counterbalance that. Jon Katz

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