Obama's DOJ Nominees through the Lens of Bush's OLC

Obama just announced several new nominations for DOJ. I thought I’d look at the two most notable appointments from the perspective of their response to Bush’s DOJ.

As expected, Obama nominated Elena Kagan to be Solicitor General, in what is almost certainly a stepping stone to a SCOTUS appointment for her.

Kagan, as Dean of Harvard Law School, is the person who hired Jack Goldsmith after he left Bush’s DOJ. Here’s what Kagan had to say about that appointment. 

 "Jack Goldsmith is a bold and creative thinker whose scholarship and teaching will enrich the Law School immeasurably," said Kagan. "His talents and energy will help to ensure that Harvard remains the premiere place to study international and comparative law."

Now, I’m not entirely opposed to hiring people like Goldsmith in academia; my sense is his scholarship–unlike that of John Yoo–is at least internally consistent, even if I disagree with it. One wonders, though, whether Kagan thought she was getting someone who approved of Bush’s torture and wiretapping, or someone who disapproved of it?

Dawn Johnsen, whom Obama has appointed to head OLC, has been much more critical of Bush’s own OLC. After the Yoo memo was leaked in 2004, she was one of a number of former OLC lawyers who signed the Principles to Guide the Office of Legal Counsel, an attempt to prevent similar misuses of the OLC advisory process. More recently, Johnsen testified before Russ Feingold’s "Secret Law" hearing. Here’s her criticism of the way the Bush Administration used secrecy to bypass statute:

The Bush Administration has not complied with this public notice standard and has operated in extraordinary secrecy, generally and with regard to its interrogation policy. Again, the Administration kept secret OLC’s determination that the President had the constitutional authority to violate a federal statutory ban on torture, in an opinion that did not evaluate Congress’s competing constitutional authorities or the most relevant Supreme Court precedent. The public learned of this determination only through a leak almost two years after OLC issued its written opinion and after the Administration began engaging in unlawful interrogations.

Rather than acknowledge it is asserting the authority to act contrary to a federal statute, the Bush Administration often claims it is simply “interpreting” the statutory provision—sometimes inconsistent with the best reading of the text and legislative intent—to avoid a conflict with the Administration’s expansive view of the President’s powers. The Administration cites for support to the judicial canon of constitutional avoidance. Given the Bush Administration’s propensity to claim that it is simply engaging in statutory interpretation when it in effect is claiming the authority to disregard a statute, Congress should amend the current notification requirement to extend beyond cases in which the executive branch acknowledges it is refusing to comply with a statute. Presidents should explain publicly not only when they determine a statute is unconstitutional and need not be enforced, but also whenever they purport to rely upon the constitutional avoidance canon to interpret a statute.

[snip]

The Bush Administration, however, repeatedly has relied upon the avoidance doctrine in secret, depriving Congress of any opportunity to respond with clarifying legislation. Congress cannot effectively legislate unless it knows how the executive branch is implementing existing laws. Moreover, if the President refuses even to notify Congress when he refuses to comply with a statutory requirement, Congress—and the public—has little ability to monitor the executive branch’s legal compliance and significant reason for suspicion. The public notification regarding either nonenforcement or the use of the avoidance canon should contain sufficient detail and analysis genuinely to inform the public of the legal reasoning behind the administration’s legal conclusions, as well as of its potential future action.

Our system does not work when the executive branch secretly determines not to follow enacted statutes—or interprets them away under extreme constitutional theories. This is not to deny the executive branch its constitutional authority. It is to assure that in our constitutional democracy, where the rule of law is paramount, all branches of government and the American people know what the law is.

Let’s hope Johnsen maintains these standards when she assumes control over OLC.

Now, to be fair, these are not parallel comments on Bush’s OLC. But there is much to be thrilled about with the Johnsen nomination. Kagan, on the other hand, seems to be much more closely tied to Obama’s desire for post-partisan love and happiness throughout his government. 

Update: Here’s Glenzilla rejoicing over the Johnsen nomination.