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GOP Focuses on Deputy AG Nominee Ogden's Work at Wilmer Cutler
Legal Times
February 09, 2009
Wilmer Cutler's David Ogden
Image: Legal Times/Roberto Westbrook
The nomination of David Ogden to be deputy attorney general has given senators a chance to revisit some of most controversial Supreme Court decisions of the last two decades.
During a two-hour confirmation hearing last week, members of the Senate Judiciary Committee questioned Ogden about his work on cases involving abortion, the death penalty, foreign law and obscenity, repeatedly asking whether he personally holds the views that he argued on behalf of his clients. The partner at Wilmer Cutler Pickering Hale and Dorr replied that in many cases he does not, and that in others he would still enforce the law if confirmed as the No. 2 official at the Justice Department.
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.
"A lawyer in private practice does not sit in judgment of his clients. His job is to present their view as persuasively as possible," Ogden said at the Feb. 5 hearing.
The Judiciary Committee has not set a date to vote on Ogden's nomination. Senators have until Feb. 12 to submit questions in writing, and the Senate has a recess scheduled for the week of Feb. 16, potentially pushing a vote to the week of Feb. 23. Two other top Justice Department nominees, Thomas Perrelli for associate attorney general and Elena Kagan for solicitor general, go before the committee Feb. 10.
Senators' focus on Ogden's Supreme Court work is noteworthy because the deputy attorney general's responsibilities are far broader, including day-to-day oversight of the more than 100,000 Justice Department employees. Paul McNulty, former deputy attorney general, says he occasionally helped guide appellate strategy on national security matters, but that was the exception.
"The deputy attorney general does not have much involvement with Supreme Court advocacy. The solicitor general is fully responsible for that," McNulty says.
Still, senators wanted to know how Ogden would enforce federal laws, and appellate advocacy took up a significant portion of Ogden's time in private practice. He and fellow Wilmer partner and former solicitor general Seth Waxman teamed up on behalf of death-row inmate Christopher Simmons in Roper v. Simmons (2005), in which the Court struck down the death penalty for those who committed their crimes as minors.
Sen. Jeff Sessions (R-Ala.) criticized the idea that such a punishment is cruel and unusual. He asked Ogden, "The Constitution allows things that could be rarely done, doesn't it?"
Ogden parried back about the Eighth Amendment's two-pronged test of cruel and unusual before promising to uphold federal law on the death penalty whatever it is.
A reference by Waxman and Ogden in their Roper brief to "worldwide revulsion against the execution of juvenile offenders" drew the ire of Sen. Jon Kyl (R-Ariz.). Asked how much weight he gives foreign law, Ogden replied, "I think typically very little weight, Senator."
Senators further pressed Ogden about his work for the American Psychological Association in the 1992 abortion case Planned Parenthood v. Casey; for librarians' associations in United States v. American Library Association, a 2003 case in which the Court upheld congressionally mandated Internet filtering software against the librarians' wishes; and for booksellers and others in 1993 in Knox v. United States, a case that hinged on the definition of child pornography.
"They wanted just to know, to have a clear line between what was legal and what was illegal," Ogden said, explaining the booksellers' position.
No one asked Ogden about a brief he wrote for the American Psychological Association in Lawrence v. Texas, the 2003 case that overturned state sodomy laws, but perhaps they'll submit a question in writing.
