Wilmer Cutler's David Ogden
Image: Legal Times/Roberto Westbrook
President-elect Barack Obama began stocking the new Justice Department Monday, announcing the nominations of four well-known players to key posts, including deputy attorney general, the department's No. 2 spot.
That nod went to Wilmer Cutler Pickering Hale and Dorr's David Ogden, a former head of the department's Civil Division under President Bill Clinton who has been overseeing the DOJ transition work for Obama. Ogden's nomination had been seen as preordained by Washington lawyers and insiders for weeks.
His deputy on the transition team, Thomas Perrelli, managing partner of Jenner & Block's Washington, D.C. office, was tapped for the Justice Department's No. 3 slot, associate attorney general. Like Ogden, Perrelli served in several positions in the Clinton Justice Department, leaving in 2001 as the head of the Civil Division's Federal Programs Branch.
The bigger surprises came in Obama's selection of Elena Kagan, dean of Harvard Law School, to serve as solicitor general, and Dawn Johnsen, a law professor at Indiana University School of Law, to head the Office of Legal Counsel, the high-profile arm of the Justice Department that provides legal advice to the president and all executive branch agencies.
Kagan and Johnsen too served in the Clinton administration. Conservatives were quick to make the association.
"The nominations further the perception that we're heading into a third Clinton administration," says Tom Fitton, president of Judicial Watch, a conservative public interest group. "Anyone out of that Justice Department needs to be seriously, thoroughly examined." Michael Greve, a scholar at the conservative American Enterprise Institute, says the four picks are "not encouraging choices" for the business and conservative communities but "not remotely as bad as they could have been." "At least they know what business litigation, what real life looks like," Greve says. He adds they're not "strolling into Washington and saying, 'Let's remake the world.' " He adds that Kagan could provide "adult supervision" for what he describes as more-liberal nominees at the Labor Department and the Environmental Protection Agency.
Kathryn Kolbert, president of the liberal People for the American Way, says the nominees are in the mold of Attorney General-designate Eric Holder Jr. "They're pragmatic people who've been around Washington and know how the system works -- when they can push and when they don't need to," Kolbert says.
The OLC nomination, in particular, had been highly anticipated. The office's profile was raised during the Bush administration, as it generated controversial legal opinions condoning the use of harsh interrogation methods on suspected terrorists and the warrantless eavesdropping program of the National Security Agency.
Johnsen served as both deputy assistant attorney general and acting chief of the OLC under Clinton. She, too, has been working on the Justice Department transition -- alongside a cadre of other OLC veterans-turned-prominent legal scholars, including Harvard Law professor David Barren, Georgetown Law professor Martin Lederman, and Duke Law professor Christopher Schroeder, and Neil Kinkopf, a professor at Georgia State University College of Law.
Before joining the department, Johnsen was legal director of the National Abortion and Reproductive Rights Action League. She has been a frequent critic of the Bush administration. Her most recent publication is entitled, "What's a President to Do? Interpreting the Constitution in the Wake of the Bush Administration's Abuses."
Former OLC colleagues describe Johnsen as a tremendous intellect who often served as the office's compass, even before she took over as acting chief.
"She was always regarded as the conscience of the office, the person who stressed every day the need to get it right," says Wilmer partner Randolph Moss, a former deputy assistant attorney general in the office.
Kagan's nomination also drew broad praise.
"Absolutely superb -- I have unbounded admiration for her," says Harvard Law professor Laurence Tribe, who has known Kagan as one of his students as well as his dean. "She transformed an almost dysfunctional institution into the best law school in the world."
Kagan would be the first Senate-confirmed woman to serve as the government's chief advocate before the Supreme Court. She has also been mentioned as a potential nominee to the Supreme Court, and her role as solicitor general could burnish her appeal.
An academic who has also worked in the Clinton White House as well as at Williams & Connolly, Kagan was nominated in 1999 by Clinton to fill the vacancy on the U.S. Court of Appeals for the D.C. Circuit that was ultimately filled by John Roberts Jr., when George W. Bush became president. (Kagan's nomination expired in the waning days of the Clinton administration.)
As varied as Kagan's background is, it does not include actually arguing before the Supreme Court, as she will be called on to do in her new job. But none of those interviewed saw this as a serious deficit, given her other talents.
"She certainly has a lot of experience persuading some independent thinkers," says Patricia Millett, referring to the Harvard law faculty. "Many solicitors general have come to the position without that experience, and it wasn't held against them," adds Millett, an Akin Gump Strauss Hauer & Feld partner who served in the SG's office until September 2007.
Obama's announcement of four more DOJ nominees comes little more than a week before the Jan. 15 Senate confirmation hearing for his attorney general pick, Holder, now a partner at Covington & Burling. Ogden, Holder's future No. 2, previously worked closely with him at the Justice Department. Ogden was chief of staff to Attorney General Janet Reno before his appointment to lead the Civil Division.
"He's going to be the superb example of a public servant. He has excellent analytical skills, and he uses those to bring people together around an issue," says Reno. "It's just exciting when you see things come out of that mix -- he's a fierce advocate but he immediately becomes a team player when that is necessary."
Reno says she spoke with her former chief of staff soon after he was nominated to congratulate him. "I told him to call me when he had a problem."
Ogden is currently 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 Deutsche Lufthansa AG, which he is representing in a massive air cargo price-fixing case in federal court in New York. 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 crimes committed by those under 18. His friends say he keeps a plaque in his office commemorating the victory.
The deputy attorney general, who oversees the day-to-day operation of the department, typically comes to the job with a criminal law background. Moss, who is Ogden's co-chairman at Wilmer, says Ogden's civil background would complement Holder's experience (Holder was started out in the Justice Department as a public corruption prosecutor in the 1970s). "The fact that Eric brings enormous expertise on criminal matters creates a nice balance," Moss says.
Wilmer's Ethan Shenkman, another DOJ veteran who has partnered with Ogden on several international cases, calls Ogden "one of the brightest lawyers and greatest legal strategists I have ever worked with."
Ogden's practice often cuts across foreign legal regimes, and Shenkman says Ogden has developed a keen interest in and respect for international law, which could influence his thinking as the Justice Department wades through more than a hundred habeas cases brought by Guantanamo Bay detainees.
Supreme Court correspondent Tony Mauro and reporter David Ingram contributed to this article.
