Deputy Attorney General nominee David Ogden is turning to the words of two stars of the Senate confirmation process to help answer lingering questions from lawmakers.
Ogden, in written answers that follow up on his Feb. 5 confirmation hearing, quotes Chief Justice John Roberts Jr. twice, to make clear that his personal views might differ from those of his clients and to explain his approach to interpreting the Constitution. Ogden quotes Attorney General Eric Holder Jr. three times in answering questions about presidential power in national security matters.
In all, the questions and answers take up 54 typed pages released late Wednesday by the Senate Judiciary Committee.
Sen. Tom Coburn (R-Okla.), alluding to Ogden’s representation of some controversial clients, including the adult entertainment industry, asked Ogden (pdf) whether he was at any time required to represent those clients. And, Coburn added, “If, at any time, you were not required to represent a client, is it correct to conclude, in those situations, you had the freedom to accept or reject any client who sought your services?”
Ogden, after explaining that senior lawyers sometimes dictate whom a firm represents, quotes Roberts: “During his confirmation process, Chief Justice Roberts put this very well: ‘it was my view that lawyers don’t stand in the shoes of their clients, and that good lawyers can give advice and argue any side of a case.’” Ogden continues the quote for a full paragraph.
In another question, Sen. Arlen Specter (R-Pa.) quotes (pdf) a 1994 opinion written by Walter Dellinger, then assistant attorney general for the Office of Legal Counsel. Dellinger, now chair of the appellate practice at O’Melveny & Myers, wrote that a president may sometimes decline to abide by a law if he believes the law encroaches on his constitutional powers.
“Do you agree with this statement?” Specter asked.
“I agree with the following comments of Attorney General Holder on this subject,” Ogden replied, before quoting Holder at length.
Holder and Roberts each won confirmation in the Senate by a wide margin. The Senate voted 78-22 for Roberts in 2005 and 75-21 for Holder this month, following debate over his role in several Clinton-era scandals. Ogden is awaiting a vote in the Senate Judiciary Committee as soon as next week.
Six senators, all Republicans, submitted written questions to Ogden, a partner at Wilmer Cutler Pickering Hale and Dorr. In all cases, Ogden pledged to uphold and enforce federal law, though he declined to state his personal views regarding the death penalty, same-sex marriage, the Second Amendment, or Kelo v. City of New London, the 2005 case in which the Supreme Court allowed states to take private property for economic development.
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