Members of the Senate Judiciary Committee pressed Deputy Attorney General nominee David Ogden on Thursday to distance himself from the views of those he represented in private practice, reviving a debate over how much senators should weigh a nominee's choice of clients.
The issue is especially prominent for Ogden because, as a partner at Wilmer Cutler Pickering Hale and Dorr, he has often represented controversial clients in high-profile appellate cases. In contrast to Attorney General Eric Holder Jr., whose work at Covington & Burling the last eight years included few appellate cases, Ogden's name has appeared on 20 briefs in Supreme Court cases that reached the merits since 2002.
Anti-pornography activists have been among the most vocal critics of Ogden's nomination because of his work on behalf of the adult entertainment industry in First Amendment cases.
Sen. Orrin Hatch, R-Utah, asked Ogden about his argument in one case that federal record-keeping requirements regarding the creation of pornography were unconstitutional in how they were applied. Congress has since passed an amended form of the law.
"How can we believe that the Justice Department will enforce this law and defend its constitutionality when you have argued for 20 years that it's unconstitutional?" Hatch asked.
Ogden replied, "The Congress fixed it, and I think the law is constitutional as it stands today."
During his two-hour confirmation hearing, he also faced questions from Sen. Arlen Specter, R-Pa., about a brief he filed in the abortion case Planned Parenthood v. Casey (1992) on behalf of the American Psychological Association and from several senators about a brief he filed in Roper v. Simmons (2005), in which the Court struck down the death penalty for those who committed their crimes as minors. Ogden said he would uphold federal law as it related to the death penalty, regardless of his own views, and he said he wrote the brief in Casey based on evidence at the time, which he said might have changed since.
Rather than objecting to the questions, Ogden frequently thanked the senators for giving him a chance to express his own views. "A lawyer in private practice does not sit in judgment on his clients. His job is to present their view as persuasively as possible," he said.
In at least two instances, Ogden backed away from his own words. He said he no longer agreed with a 1983 memo (pdf) he wrote while clerking for Justice Harry Blackmun, in which Ogden condemned "the 'morality'-based type of regulation" of commercial speech. He also said he does not believe in a "rigid approach" to affirmative action, as Sen. Jon Kyle, R-Ariz., suggested Ogden did in 1990.
Chairman Patrick Leahy, D-Vt., asked Ogden about his qualifications to oversee criminal investigations and prosecutions, given that his background is largely in civil law. Ogden pointed to his six years in the Justice Department during the 1990s, including a year as chief of staff to then-Attorney General Janet Reno. "I met with, on a regular basis, the law enforcement components of the attorney general," he said.
In response to other questions, Ogden criticized an August 2002 opinion from the Office of Legal Counsel that said physical pain short of organ failure is not torture, and he promised a "strong, law enforcement response" to potential Wall Street prosecutions. "Serving jail time may well be an appropriate result, and it could be a deterrent in the future," he said.
The Judiciary Committee has not set a date to vote on Ogden's nomination. Senators will be allowed to submit questions to him in writing for one week, and the Senate has a recess scheduled for the week of Feb. 16, potentially pushing a vote to the week of Feb. 23.
This article first appeared on The BLT: The Blog of Legal Times.
