Lederman for Head of OLC
To be perfectly honest, I don't care all that much who Barack Obama chooses to appoint to the multitude of positions that now have to be filled. I'm confident that he'll choose competent people who generally share his views, at least with respect to the area of government under their charge.
I will make one suggestion, though. Obama should consider appointing Georgetown Law Professor (and prolific legal blogger) Marty Lederman to head the Justice Department's Office of Legal Counsel.
As we saw with the Bush administration, the OLC is a tremendously powerful office. It functions as the chief internal arbiter of legality within the executive branch. After 9/11, John Yoo used his perch at the OLC to authorize a number of illegal activities--from torture to warrantless surveillance--that are not only deeply troubling but have badly damaged America's image in the world. Yoo was allowed to do most of this because the head of the OLC at the time, Jay Bybee, was not familiar with the relevant executive power issues and therefore allowed Yoo to run amok.
When Jack Goldsmith took over the OLC in 2003, he discovered--to his horror--that a multitude of Bush administration programs rested on entirely indefensible legal opinions drafted by the OLC during his predecessor's tenure. He was forced to walk most of them back, a move that caused a major internal dispute within the Bush administration and nearly resulted in the total implosion of the administration just prior to the 2004 election.
Whoever President Obama selects to head the OLC will have a critically important job. Virtually every opinion the OLC has issued during the post 9/11 era--even those written after Yoo's departure--will need to be reviewed and, in all likelihood, rewritten. Moreover, many of the terrorism-related laws that have been passed in the last few years--relating to surveillance, detention, torture, etc.--are filled with ambiguities and language that will require careful interpretation. Many new legal opinions, opinions that will be of enormous consequence, will need to be drafted.
Professor Lederman is exactly the sort of person I would want in charge of this important task. First, he's deeply familiar with all of the relevant executive power issues, having written about them extensively over the last few years. He is also intimately familiar with the workings of the OLC, having worked there from 1994-2002. And most importantly, I think Lederman has a good sense of what the OLC's role should be (i.e., not merely rubber-stamping whatever the president wants to do).
I have no idea if Marty is interested in the job. Perhaps he's not. But if he is, he'd be a very reassuring choice.
UPDATE: My suggestion is seconded by Glenn Greenwald, and interestingly, by Professor Orin Kerr.
I will make one suggestion, though. Obama should consider appointing Georgetown Law Professor (and prolific legal blogger) Marty Lederman to head the Justice Department's Office of Legal Counsel.
As we saw with the Bush administration, the OLC is a tremendously powerful office. It functions as the chief internal arbiter of legality within the executive branch. After 9/11, John Yoo used his perch at the OLC to authorize a number of illegal activities--from torture to warrantless surveillance--that are not only deeply troubling but have badly damaged America's image in the world. Yoo was allowed to do most of this because the head of the OLC at the time, Jay Bybee, was not familiar with the relevant executive power issues and therefore allowed Yoo to run amok.
When Jack Goldsmith took over the OLC in 2003, he discovered--to his horror--that a multitude of Bush administration programs rested on entirely indefensible legal opinions drafted by the OLC during his predecessor's tenure. He was forced to walk most of them back, a move that caused a major internal dispute within the Bush administration and nearly resulted in the total implosion of the administration just prior to the 2004 election.
Whoever President Obama selects to head the OLC will have a critically important job. Virtually every opinion the OLC has issued during the post 9/11 era--even those written after Yoo's departure--will need to be reviewed and, in all likelihood, rewritten. Moreover, many of the terrorism-related laws that have been passed in the last few years--relating to surveillance, detention, torture, etc.--are filled with ambiguities and language that will require careful interpretation. Many new legal opinions, opinions that will be of enormous consequence, will need to be drafted.
Professor Lederman is exactly the sort of person I would want in charge of this important task. First, he's deeply familiar with all of the relevant executive power issues, having written about them extensively over the last few years. He is also intimately familiar with the workings of the OLC, having worked there from 1994-2002. And most importantly, I think Lederman has a good sense of what the OLC's role should be (i.e., not merely rubber-stamping whatever the president wants to do).
I have no idea if Marty is interested in the job. Perhaps he's not. But if he is, he'd be a very reassuring choice.
UPDATE: My suggestion is seconded by Glenn Greenwald, and interestingly, by Professor Orin Kerr.
posted by A.L. at 11:32 AM
22 Comments:
I am reassured about the direction the chief legal offices will take given Obama's history with constitutional law. I think we're out of the woods now. Or we will be in January.
My countdown calendar says only 75 days.
Marty Lederman would make an excellent choice for head of OLC.
The biggest problem that the new AG will face is the hacks (like those from Liberty University) that the Bush administration hired. Getting rid of them won't be easy, they're not political appointments. Those hacks will do everything they can to sabotage the Obama administration.
I hope one of the things learned and well-observed by our new con-law teaching president-elect and judiciary committee-chairman vp-elect is the importance of picking good, honest people for these less publicly discussed jobs. This is the first place I've seen a name suggested for the post, and I'm excited to see it getting discussion. Makes me hopeful for a more transparent (or at least better watched) administration.
Good point on how to handle the hacks at OLC and DOJ. With 25 years experience as CLO of public/private corporations. There is a need for a managerial expert who has run legal departments as well as one who has been CLO of corporations with large numbers of employees i.e. 20,000 - 60,000 and is an expert on labor & employment. From there the judgment and management of those who do not measure up takes the form of a "self-weeding process" when one leaves knowing he/she does not fit in; in other instances incompetence alone allows for discharge, and in other circumstances a change of duties with a new manager may benefit the department so that more competent individuals can come in a backfill the vacated posts.
Mayn Im suggest that I be appointed the head of the OLC? Even though I'm not a lawyer, I can spell the word, pronounce it and I am in frequent spiritual contact with the ghost of Molly Ivins. Also, having been unsuccessfully "married" twice, I can say with absolutely NO RESERVATION that I know a bullshitter when I meet one and I don't even have to have sex with them anymore to identify one. Therefore, I figure I'm as qualified as anyone currently serving in the Bush "administration" and am ready and eager to leap in and kick some ass. Plus I could use some good governmant type healthcare.
Having learned from Marty Lederman how much unaccountable power is seated at OLC; knowing firsthand the difference between a legal opinion and a legal brief, a judicial opinion and a partisan screed; knowing how a grasp of that difference – it's just one difference – turns on having an intellectual conscience, a fair-minded logic that looks at rank contentions and screams, "The words don't get you there!"; knowing that, even where such a conscience exists, it is invariably the first casualty of power politics -- knowing all of this and what Marty Lederman has said and done during the dark times we're trying to come out of with all our might, I cast my vote with A.L.'s.
AL
That brings us to another question when Obama picks his Treasury Secretary. In his economic advisory board, what is the mayor of LA (Antonio Villaraigosa) doing?
(http://politicalticker.blogs.cnn.com/2008/11/06/obama-biden-to-meet-with-economic-advisers-friday/#more-29635)
The Bush administration showed a lot of skill in marginalizing and making generally unwelcome the old hands who weren't on the program. So we can take a few lessons from them on what to do with the Liberty U. graduates.
Or, they can just rent a warehouse in the suburbs, put in a few desks and chairs (but no phones or computers) and transfer them all there -- with no work to do, of course. They can stick around collecting paychecks until they get bored and move to a think tank somewhere.
I wonder if Obama would consider either Don Siegelman or Elliot Spitzer for Attorney General. ;)
Then we could start rounding up war criminals and shipping them off to Gitmo.
Please excuse the somewhat off-topic comment, but it does have to do with who Obama picks to fill out his cabinet, administration posts, etc.
Pass the word...a great selection for Secretary of Energy would be Dr. Joseph Romm.
As one anonymous to another, might I suggest that changing the personnel practices willy nilly, with a hey-nonny-nonny and a ha-cha-cha at the Fedral Government is not practical. The Bush hirelings have Civil Service protections, if they've been plugged into career positions. Of course, they could always quit one step ahead of indictments...
Let me throw out a related appointment that would be wonderful...
Russ Feingold for Attorney General
dilip;
Antonio Villaraigosa had a long career in the union labor movement before he began his career in elected office, rising to become president of the American Federation of Government Employees.
I expect he's there to speak for American workers, along with Robert Reich. I know, we aren't used to seeing workers represented on such panels, but those of us who are older remember that before Reagan, it was actually common practice for workers to be represented on economic councils.
Sure, great idea. However, I'm a little concerned that you blindly trust that Obama will do the right thing insofar as appointments to other posts. So far he is 1-1 on following in the footsteps of Bush, by appointing Emanuel.
Regarding Antonio Villaraigosa: he never worked for the AFGE, but was instead an employee of the United Teachers of Los Angeles, which is a hybrid organization affiliated with both the NEA and the AFT.
As for appointing him to the transitional Economic Advisory Board, that train has left the station. I don't think Villaraigosa brings much in the way of experience to that job; I'm more comfortable with Bonior. And if you meant appointing him to the Council of Economic Advisers, I don't think he's qualified.
Getting back (sort of) to the topic at hand: it is not a good idea to throw out civil service protections for federal attorneys (or federal employees generally), regardless how noble the goal. Yes the Bush Administration broke the law in its hiring practices, but that hardly means we should follow its example. This goes for the warehouse suggestion--cute but wrong.
I agree wholeheartedly that Prof. Lederman should be considered to head the OLC.
I think Obama should appoint as many of the whistleblowers from the previous administration who lost their jobs as is possible. They showed judgment and--courage.
ML sounds like a good choice though honestly a few times he seemed a bit too moderate.
(1) As a few regulars noted, just because the OLC or whatever says something, it is not necessarily some total out.
He criticized Yoo et. al. but only so far -- flimsy reasoning? yeah. totally illegitimate? unclear.
(2) ML and others at his blog are quite friendly with Kerr, so his recommendation is far from surprising. A bit too friendly, actually; see Glenn Greenwald earlier in the week.
(3) When comments argued that an actual investigation (investigation mind you) should be made on stripping Yoo of tenure, he joined the others on his blog in effect taking an extreme view of academic freedom, and did not respect the quite intelligent lawyer sorts who took a different view, sorts typically loyal 1A sorts.
(4) He's a Clintonite; wouldn't mind a new face, but that's a bit picky. He led the loyal opposition on his blog, if anything, more so than Obama on certain civil liberty issues.
So, he seems an ideal mostly okay liberal sort that will annoy some who realize Obama is not the great big leftie he was put out to be, but a moderate leftie sort.
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Lederman could be great. I do agree that it'll be important to get plenty of new blood as well throughout government, balanced with some experienced hands.
Lederman would be OK but not great. And, we're already seeing too many Clintonite types getting consideration for too many posts?
Don't think Feingold wants AG. Besides, he could wind up chairing Foreign Relations. (Of course, that scenario would require Warren Christopher Jr., aka John Kerry, being named Secretary of State.)
Graduates from Liberty, Regent, and other conservative law schools in DOJ? There's plenty of work in combating crime that all civilized people abhor: human trafficking, exploitation of minors, nursing home abuse, hard drug smuggling and selling, illegal weapons sales, for starters. Keep them away from policy but let's put them to work using their skills.
If you are going to have change, you have to believe that change is possible :)
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