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Marty Lederman for Head of OLC?:
Anonymous Liberal makes the case. Glenn Greenwald agrees, and I do, too: I think Marty would be a very good choice as OLC head.
Steve:
As long as he brings along Bart DePalma to correct his many misunderstandings of the Constitution, I'm all in favor.
11.6.2008 1:43pm
OrinKerr:
Steve,

You won the thread before it even got underway....
11.6.2008 1:46pm
Bart (mail):
:::chuckle:::

Shall I submit my resume?
11.6.2008 1:48pm
MGoBlue (mail):
GO BLUE!
11.6.2008 2:01pm
Chico's Bail Bonds (mail):
Bart DePalma . . . Bawah ha ha ha ha ha !
11.6.2008 2:02pm
Bart (mail):
Seriously, it will be interesting to see whether Obama desires to follow the post Vietnam Carter precedent and agree to self emasculate the executive and cede CiC and executive powers to Congress.

If the OLC ends up being Marty or someone of a similar viewpoint, the answer will be yes.

We shall see.
11.6.2008 2:21pm
A.S.:
I forget, did Lederman draft the December 19, 2000 OLC memo explaining why it was legal for President Clinton to continue the hostilities in Kosovo after the expiration of sixty days under section 5(b) of the War Powers Resolution? I recall vaguely that he did. Anyone know?

(I enjoyed that memo, which said that the passage of an appropriations bill was sufficient to satisfy the war powers act, even though the WPA specifically provided to the contrary, and Congress had debated giving the required WPA authorization and rejected it. That kind of creative legal thinking in furtherance of executive war powers is something I can get behind!)
11.6.2008 2:24pm
wm13:
I think it's safe to say that if we have a Democratic president, Prof. Lederman's views on executive power will be much closer to Bart DePalma's. Of course, Mr. DePalma's views may also change. Sort of like Good Bear and Bad Bear, for those who remember that poem.
11.6.2008 2:58pm
Oren:

I think it's safe to say that if we have a Democratic president, Prof. Lederman's views on executive power will be much closer to Bart DePalma's. Of course, Mr. DePalma's views may also change. Sort of like Good Bear and Bad Bear, for those who remember that poem.

Yeah, they got Orin's memo.
11.6.2008 3:00pm
Anon321:
I'm not sure if Prof. Lederman was the author of the Dec. 19, 2000 memo in question. But I do know that he's said that if he ever finds himself in government service again, he'll be much more wary of justifications of executive power that are premised on the idea that "it might be questionable in the abstract, but we can trust our side to use this power wisely." In other words, he'd try to remember that executive powers can be wielded by the George Bushes and Dick Cheneys of the world, and therefore would be cautious about signing off on their expansion in the service of the agenda of someone he believes in.

Also, as much as I like, respect, and admire Prof. Lederman, he tends to give off a little bit of an "absent-minded Professor" vibe. I don't know to what extent being head of OLC calls for executive and managerial skills. Nor can I say for sure that Prof. Lederman lacks them (he's obviously a prolific writer, so I don't mean to suggest that he can't "get things done"). But I just wonder if he'd be better suited to the role of analyst and adviser than to manager. I hope my concerns are unfounded, though, because I think he'd otherwise do a great job.
11.6.2008 3:04pm
General Disarray:
Geez, Kerr, agreeing with Greenwald? What an obvious ploy to distance yourself from your Bush administration apologetics and ingratiate yourself to the man who has your number. Too late, you lawless radical!
11.6.2008 3:44pm
Dave:
oops, the link didn't work. try this.
11.6.2008 4:05pm
Plastic:
Orin,
You sure seem to care a lot recently about Glenn Greenwald's opinion, any particular reason?
11.6.2008 4:47pm
MisterBigTop (mail):
"I think it's safe to say that if we have a Democratic president, Prof. Lederman's views on executive power will be much closer to Bart DePalma's. Of course, Mr. DePalma's views may also change. Sort of like Good Bear and Bad Bear, for those who remember that poem."

I agree with this. I don't think it's insulting to suggest it because it's more or less human nature. I have no doubt that Lederman will stick with his current positions regarding the WoT in an Obama administration, but time will tell how consistently he applies them to any new crisis that starts during Obama's term.
11.6.2008 4:56pm
OrinKerr:
Plastic,

When did you stop beating your wife?
11.6.2008 5:52pm
zippypinhead:
"Glenn Greenwald agrees, and I do, too"
Huh? This is one of those sentences I wouldn't have anticipated reading even if the proverbial thousand typing monkeys really did figure out Hamlet. Maybe it got spewed out in the exhaust plume of the Infinite Improbability Drive of Hitchhikers' Guide to the Galaxy fame?

Or maybe Professor Kerr was feeling bad after having just mopped the floor with Greenwald?

IMHO, at this particular point in history, I wouldn't wish AAG/OLC on my worse enemy. Too much broken legal crockery to have to clean up. A thoroughly thankless (and if you get it the least bit wrong, career-limiting) task...
11.6.2008 6:07pm
Felix Sulla:
I thought Bill Ayers had a lock on that position...
11.6.2008 6:44pm
Bart (mail):
wm13:

I think it's safe to say that if we have a Democratic president, Prof. Lederman's views on executive power will be much closer to Bart DePalma's. Of course, Mr. DePalma's views may also change. Sort of like Good Bear and Bad Bear, for those who remember that poem.

My views are not party dependent. I want Obama and every other President to be able to fully exercise all of their CiC powers - especially when we are at war. I will only go off on Obama in this area if he pulls a Carter and cedes his Article II powers to Congress.

I do not have this same confidence in some Dem critics of Mr. Bush in academia. I do not recall any of this ruckus when Mr. Clinton was blowing off the Article I requirement that he seek a declaration of war (or its functional equivalent - the AUMF) and blew off the UN to avoid a Russian veto during his military invasion of the Balkans.
11.6.2008 6:47pm
Bill Dyer (mail) (www):
Have you even considered non-law professors?
11.6.2008 9:24pm
Richard W (mail):
Felix Sulla:

Nah, Bill Ayers is going to head up Education
11.6.2008 11:33pm
OrinKerr:
Bill,

Actually, I think most of the people who would excel at that job are not law professors. Notably, Marty is only a law professor very recently; he spent the great majority of his career in practice and in government. I'm curious, though, why do you ask?
11.6.2008 11:39pm
Sagar:
"If I recall correctly, you thought she would be an outstanding Supreme Court Justice."

there is no way to definitively prove that Miers would have been bad; just like no way to prove Kerry would not have been an improvement over Bush
11.7.2008 12:16am
Oren:
there is no way to definitively prove that Miers would have been bad
We can make reasoned judgments based on the biography and qualifications of the candidates. It's no secret that I disagree with Roberts and Alito on a great number of things, but there is no question that even half of either one was more qualified that Miers.
11.7.2008 12:47am
Bill Dyer (mail) (www):
Prof. Kerr:

I don't mean to knock law professors across the board -- obviously there are huge variations within that sub-specialty of the legal profession, and they're essential for legal education and scholarship. I've done CLE instruction and clinical (trial skills) instruction of law students myself, and I respect those who choose to make their careers as legal educators; I worked with some fabulous law professors on their law review publications when I was in law school, and certainly came to appreciate the challenges in that too. I wouldn't read this blog (or several others) so regularly if I didn't respect the law professors who write them.

Prof. Lederman, in the limited blogospheric conversations I've had with him, was wonderfully gracious and well-spoken, and he's obviously very bright. I have no beef with him in particular either, nor reason to doubt his fitness.

But we now are about to have another law professor (to use that term generically and as used by the University of Chicago Law School press release) as President. (The last one ended his term in a position from which he was obliged to surrender his law license, but I'll concede there's no cause-and-effect to that, nor is that a fair basis for generalization.)

I think that as a class, law professors are already probably adequately represented in the federal government -- adequately, that is, considering the extent that they tend to bring skill-sets and perspectives common to one another. By contrast, I think practicing lawyers, and especially private-sector practicing lawyers, have been comparatively under-represented going back at least to the beginning of the Clinton Administration. Some law professors also have experience in the practice of law, but most don't have much. And I do think that as a class, with some exceptions, they tend to suffer from a lack of real-world savvy and practical applications, at least as compared to practicing lawyers.

I nevertheless expect to see the percentage of presidential appointees who are law professors climb in the Obama Administration, both for Article II and Article III appointments.

I infer from your comment that you, Prof. Kerr, are open to the notion that practicing lawyers ought to be considered too, along with academics, for presidential nominations -- and perhaps especially for some particular jobs. That satisfies the curiosity on my part which prompted my comment. And if you or anyone else took offense from it, or from this further comment, all I can say is that none was or is intended.
11.7.2008 4:01am
I Know It All:
Unfortunately. lawyers are the American aristocracy.
11.7.2008 9:45am
A.S.:
Lederman says he had nothing to do with "any OLC matters related to Kosovo."

Darn.

Whoever wrote that memo ought to be the head of OLC.
11.7.2008 10:46am
WillSpeed (mail):
"I think it's safe to say that if we have a Democratic president, Prof. Lederman's views on executive power will be much closer to Bart DePalma's. Of course, Mr. DePalma's views may also change. Sort of like Good Bear and Bad Bear, for those who remember that poem."

I very much doubt that. As a general political truism it is likely true that the different sides will now embrace a reversal of paradigms and imperatives in relation to the reversal of positions and power in Washington. But a full-bore up-is-down, down-is-up world-weary equivalency? No, that is self-evidently false. And any reversal won't be in some kind of Newtonian equal measure either.

As a cheeky observation, I'm sure it's worth making, but nonetheless the charge is false on the substance.

The idea that the Unitary Executive, torture permissiveness, and other Schmittian manifestations of executive power in OLC and DOJ memoranda, is something that the Democrats are ever going to embrace purely because they're in charge is simply risible. Same goes for even the Bellinger school of putting a more respectable face on international law-avoidance, ducking Charming Betsy, etc., or other more pugnacious approaches. These a fundamental differences that don't change; indeed, the Bush Administration has in many ways reified and defined Democrats in opposition to these excesses for a the foreseeable future.

To accept that charge also requires us to ignore the normal OLC tradition of career lawyer analyses, as provided by people of Goldsmith and Marty's calibre, when they represent true norm against the Addington-Yoo legal outlier. It would also require us to think of this tradition, and the mainstream Democratic/progressive jurisprudence of which Obama is himself a part, as sheer political artifice.

Some conservatives might be smugly prepared to do that - but it's not intellectually honest.
11.7.2008 2:32pm
roan:
Marty Lederman appears to have the ability and the integrity to be able to restore the OLC to its methods and standards under previous administrations, based on his former service there.

BUT.

Did we, perchance, learn anything about dangerous avenues of abuse inherent to that office (OLC) as presently structured, in the last eight years? Avenues which - if unaddressed - will remain to be exploited, if not by an Obama administration with a Lederman-led OLC, then by a subsequent, less honorable set of incumbents? Or do we all just shrug off the atrocities enabled by that office of late, and continue to place our "trust" in the fallible humans chosen for that powerful post in future?

My ideal - if perhaps unattainable - criterion for a new OLC head would be that the person be prepared to recommend, participate in developing and encourage Congress to enact limits on the ability of the OLC to secretly mislead/misdirect actors in the vast, sprawling Executive Branch of government.

Mind you, such a job rightly belongs to Congress, but, well... No more need be said about the likelihood of competent, self-starting action on this front from the tired hacks ensconced on Capitol Hill.

Judge Henry Kennedy's opinion a week ago in the ACLU FOIA case regarding OLC's warrantless spying opinions heightened this concern for me. Kennedy's seemingly-wholesale acceptance, two years into the case, of a continued blanket secrecy about an all-but-admitted-to-be-unlawful program's OLC-provided "legal" basis included this: "That is, absent contrary evidence or bad faith – neither of which exists in this case – this court will not second guess DOJ's determination that release of the classified information in these documents would harm national security."

Just two days before in another FOIA case, Kennedy's colleague Judge Lamberth (the read-in head of the FISC when the warrantless NSA spying was implemented) used the same phrase - he would not "second guess" the administration's claimed need for secrecy - in denying the ACLU access to redacted Guantanamo transcripts. Lamberth couldn't even be bothered to read the documents in camera to review their redactions, as Kennedy has at least agreed to do with the OLC spying opinions (before, it seems quite likely, Kennedy concurs with the "good faith" of those in the administration who carefully crafted arguments to endrun FISA in secret and then declared that no part of those legal memoranda can see the light of day, five years on).

The hurdles, including the multiple Circuit Court-delineated "privileges" to act in secret, which must be overcome for the rest of us to know what our government is doing in our names, grow ever more insurmountable.

What makes secret legal analysis that's binding on an entire Executive Branch and the civilians atop an enormous war machine somehow healthier or wiser for our nation than secret laws, which I hope we can all still abhor?

My remedy would be to consider making OLC final products public by default once implemented, with narrowly defined exceptions. That's a debate I'd like to see, and soon, regarding the future of DOJ's Office of Legal Counsel.
11.8.2008 12:14am