With congressional pressure mounting, the short list for the Department of Justice's No. 2. position appears to be getting shorter all the time.
President-elect Barack Obama's transition staff has declined to discuss potential Justice nominees, or even reveal who on the transition team is mustering names. But Washington lawyers have been speculating for weeks that Wilmer Cutler Pickering Hale and Dorr's David Ogden, who is heading the Justice Department transition team, is the likely pick for deputy attorney general. One Washington lawyer close to the transition says his nomination is all but assured.
Elena Kagan, dean of Harvard Law School, has also been named as a possibility, though many say the position would be an odd fit. Denied a hearing by Republicans after President Bill Clinton nominated her to the U.S. Court of Appeals for the D.C. Circuit in 1999, Kagan has re-emerged as a potential Supreme Court pick for Obama.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., announced Dec. 15 that he would delay the confirmation hearings for Attorney General-designate Eric Holder Jr. for a week -- to Jan. 15. The date was pushed back to placate Republicans who said they needed more time to pick through Holder's record and, as Leahy noted sourly, because the "committee has not yet received the names of other designees for high-ranking Department of Justice officials that we had anticipated." (By press time, the committee still had not received a list, according to a Leahy spokeswoman.)
Ogden, who left Justice in 2001 as the head of the Civil Division, is co-chairman of Wilmer's government and regulatory litigation practice group, but his practice bleeds into policy and strategy, national security, government contracts, and international litigation and arbitration. His big clients include the Walt Disney Co., Royal Dutch Shell, BP and Lufthanasa AG (Europe's leading airline), which he is representing in a massive air cargo price-fixing case in federal court in New York.
In the Shell case, Ogden and his partners scuttled a Nicaraguan court order authorizing the government's seizure of Shell's trademarks and logos in the country. Ogden also played a principal role in Roper v. Simmons, in which the Supreme Court, in a 5-4 opinion, struck down the death penalty for those under 18. He keeps a plaque commemorating the victory in his office.
Ogden's co-chairman at Wilmer, partner Randolph Moss, a former deputy assistant attorney general in the Office of Legal Counsel, says Ogden proved his managerial facility as head of the Civil Division, supervising about 900 lawyers.
The deputy attorney general, who oversees the day-to-day operation of the department, typically comes to the job with a criminal law background, but Moss says Ogden and Holder would complement each other.
"The fact that Eric brings enormous expertise on criminal matters creates a nice balance," Moss says. And he adds that Ogden was associate deputy attorney general under then-Deputy Attorney General Jamie Gorelick, a job that required his involvement in numerous criminal investigations. Gorelick is now Ogden's colleague at Wilmer.
Before taking over the Civil Division, Ogden was chief of staff to then-Attorney General Janet Reno. He has also served as deputy general counsel at the Defense Department. Ogden did not respond to requests for comment.