Whomever the next president selects as his attorney general is going to have a lot on his or her plate come January. That person better be ready to make tough decisions, panelists at the 2008 convention of the American Constitution Society said today.
Panelists discussed and sometimes debated a wide array of issues facing the Justice Department (especially the Office of Legal Counsel), including what issues should come first for the newcomers, what direction the department needs to take in the wake of the Bush administration, and what qualities the new attorney general should bring to the job.
“It’s really going to take a [person with the] willingness to reach out and expand the number of opinions and perspectives that go into each decision,” said Duke law professor Walter Dellinger III.
Dellinger was joined on the "What's at Stake: Law and Justice Policies in a New Administration" panel by Gregory Craig, a partner at Williams & Connolly; Charles Cooper, a name partner at Cooper & Kirk; Jamie Gorelick, a partner at Wilmer Cutler Pickering Hale and Dorr; Wade Henderson, president and chief executive officer of the Leadership Conference on Civil Rights; and John Podesta, executive director of the Center for American Progress. Elena Kagan, dean of Harvard Law School, moderated the discussion.
Gorelick, who served as general counsel of the Department of Defense under President Bill Clinton, argued for a more reserved approach to Justice than the current administration has sometimes displayed.
Cooper, who supports Sen. John McCain in the general election, said it’s not always so easy to come to a consensus when dealing with complex issues in the OLC because they rarely come in a black-and-white format. Of course various viewpoints should be factored in, but eventually someone is going to have to make the hard decision. And in cases of a tie, the tie should go to the president.
Gorelick responded by saying, “You have to leave running room in the gray areas. The AG has to restore the notion that the opinion coming out of the Justice Department is in keeping with the norm.”
Turning to present issues, Podesta said he hopes Congress doesn’t get too caught up in trying to pursue criminal charges against Justice officials after the firing of eight U.S. attorneys. “Looking at what happened and having a full account of what happened is appropriate,” he said. “Having a bipartisan review of the situation is fine, but a criminal investigation may not be the best way to go.”
Panelists also discussed ways to improve the appointment process for federal judges, which Henderson called “broken.” Craig, who said he was speaking for himself and not Sen. Barack Obama whom he supports, offered increased salaries as a way to improve the quality of those seeking a seat on federal courts.
Craig also said the candidates should already be thinking about who they want in their Justice Department instead of leaving it until after they are inaugurated.
Dellinger summed up the debate in a bit of advice he would give the new president and the attorney general, if he had the chance: “I would tell the president that the attorney general and the Office of Legal Counsel have a client and it’s not you. It’s the United States. He may be the executive and can overrule policies, but he needs to remember that his client is the United States as well.”
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