Barack Obama has been president-elect for less than 48 hours, but Washington, D.C., lawyers are already in the throes of one of their favorite guessing games: Who'll get key jobs in the new administration?
Much of the action is centered on slots at the regulatory agencies and the Justice Department -- positions that are more likely to have a direct impact on clients than Cabinet-level or West Wing jobs like White House counsel or attorney general.
The following are positions that are being closely watched -- and early names that are being bandied about by D.C. insiders:
• FCC Openings: Communications lawyers say the same handful of names continue to come up in discussions about who Obama may appoint as chairman or commissioners at the Federal Communications Commission. William Kennard, managing director at the Carlyle Group, and Reed Hundt, a senior adviser at McKinsey & Co., both served as FCC chairman during the Clinton administration and are possibilities for the job this time as well. Kennard served as a surrogate for Obama during the campaign. Other possibilities, communications lawyers say, are Blair Levin, who was FCC chief of staff to Hundt, and Julius Genachowski, who was an adviser to Hundt. Genachowski was also a classmate of Obama's at Harvard.
• FDA Chief Counsel: Sheldon Bradshaw, former chief counsel of the Food and Drug Administration and current Hunton & Williams partner, says one name immediately springs to mind when asked who could be FDA chief counsel in the Obama administration: "Scott Lassman at Wilmer [Cutler Pickering Hale and Dorr]. He has a great reputation, has a good food and drug practice, and is a prominent Democrat and Obama supporter."
Lassman donated $4,600 to the Obama campaign, according to the Center for Responsive Politics. Still, the co-chairman of Wilmer Cutler Pickering Hale and Dorr's FDA group sounds genuinely surprised by Bradshaw's assessment. "That was very nice of him to say," Lassman says. "I think it'd be a very fun job, very challenging, but no one's given me a call."
Other lawyers in the practice area say speculation about the FDA slot is premature. "It's too early. I don't think they've gotten down to that level yet," says Alan Bennett, managing partner of Ropes & Gray's D.C. office. However, in addition to the chief counsel slot, he says there will also be room for one or two lawyers to assist the new FDA commissioner.
• FTC Chairman: Arnold & Porter counsel Robert Pitofsky says he's been involved with the transition team for the Federal Trade Commission, but declined to discuss any names that have been mentioned for the FTC chairmanship. Bert Foer of the American Antitrust Institute listed several possible names such as Harvard Law School professor Einer Elhauge, Hogan & Hartson partner Janet McDavid, Arnold & Porter partner William Baer, and Wilmer partner William Kolasky. Foer also added two current FTC commissioners, Pamela Jones Harbour and Jon Leibowitz to that list.
• PTO Chief and IP Czar: Intellectual property lawyers are keeping a close eye on Obama's choice to head the U.S. Patent and Trademark Office. One name has already surfaced, former Clinton PTO chief and undersecretary of commerce for intellectual property Q. Todd Dickinson, now head of the American Intellectual Property Law Association. Dickinson, a self-described "enthusiastic" Obama supporter, won't comment on whether he would consider going back into the PTO, and would only say, "I enjoyed my time there, I think it was very successful."
Another IP slot will be closely watched. The Intellectual Property Rights Act of 2008 created an intellectual property coordinator, which is a politically appointed, White House-level position charged with overseeing and coordinating the law enforcement efforts of the U.S. trade representative, the Department of Homeland Security, the State Department, and the Justice Department when it comes to piracy and IP infringement matters.
"I think, as a functional manner, it's a great idea. It's an extremely challenging job," says Dickinson, who would not say whether he would be open to taking the position. "This person, to be successful I think, is going to have to be someone who comes with the strong backing of the president's team and the president himself."
Alan Kasper, vice president of AIPLA, and director of Sughrue Mion's international department, says he expects that AIPLA, as well as the Intellectual Property Owners Association will soon release criteria for what they want in both the PTO and the new, IP coordinator positions.
• SEC Chairman: The economic tumult and problems on Wall Street are calling for a high-profile name to lead the Securities and Exchange Commission. Names such as John Olson at Gibson, Dunn & Crutcher, New Jersey Gov. Jon Corzine, former acting chairwoman of the SEC Mary Schapiro, and MFS Investment Management chairman Robert Pozen have all been mentioned by D.C. corporate securities lawyers as possible Obama administration SEC chairmen.
But the name that appears near the top of everyone's list is Columbia Law School professor Harvey Goldschmid. A former SEC official says that selecting Goldschmid, an SEC commissioner from 2002 until 2005, might be a long shot considering he only donated $2,300 to Obama. The official says that big fundraisers with SEC and Wall Street experience are typically the ones to get tapped as SEC chairman. But others, including Arnold & Porter partner and former Commodity Futures Trading Commission general counsel Daniel Waldman, aren't so sure that campaign money will hold back Goldschmid.
"I'd be surprised in this selection that fund raising is going to be a big disqualifier," Waldman says. "The financial meltdown and the lack of SEC action is going to force a high-profile name. The person won't just be an ambassador."
Waldman's name has come up in talks for the CFTC chairmanship. But there are two other CFTC commissioners who some think could also be on the list. Michael Dunn and Bart Chilton both appear to be in line for the CFTC's top role. James Doty, a partner with Baker Botts, says Bingham McCutchen's Geoffrey Aronow could also be a viable option. "Geoffrey Aronow would bring 360 degrees of securities markets experience and enforcement experience and could certainly be considered," Doty says.
• Solicitor General: No woman has ever served as solicitor general, but a number have been mentioned as candidates for the job in an Obama administration. Stanford Law School professors Kathleen Sullivan and Pamela Karlan and Harvard Law School Dean Elena Kagan are possibilities, as well as Morrison & Foerster partner Beth Brinkmann and MetLife litigation counsel Teresa Wynn Roseborough. They could also be considered to lead of the Justice Department's Office of Legal Counsel, which produces legal opinions on complex matters for the attorney general and the president. Lawyers who have held both positions have gone on to become Supreme Court justices. Chief Justice Charles Evans Hughes and Justices Stanley Reed and Thurgood Marshall were solicitors general. The late Chief Justice William Rehnquist and current Justice Antonin Scalia once headed the Office of Legal Counsel. That experience could come in handy should one or more Supreme Court justices step down in the next four years.
Supreme Court Correspondent Tony Mauro contributed to this article.
