Obama, The Supreme Court And DOJ

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

When he looks to select the next Attorney General of the United States, or the next Supreme Court justice, or even just the lower federal courts, President-elect Barack Obama will see plenty of smart options and certainly many opportunities to continue his brand of "new" politics.

Let's look first at the Attorney General position. It is imperative that Obama select someone who will continue to reform and rebuild the Justice Department in the wake of Alberto Gonzales' disastrous reign. The candidate must restore professionalism and nonpartisanship within the Department and also continue to adapt to the evolving legal war on terror.

One obvious choice for the position is Eric Holder, a former Justice Department official in the Clinton Administration who has kept a suitably low profile in Washington during the Democrats' exile from the White House. Holder is a Democrat, but it will be hard for Republicans to tag him as a crony of the Left. He knows the ropes at Justice, has some experience in dealing with terror law and domestic crime (which is up), and has the intelligence and demeanor to generate confidence in the halls of Congress.

If Obama were to look beyond his own party, he could select for Justice either James B. Comey or Patrick J. Fitzgerald, two Republicans who have left deep marks in the law during their time in government. Comey was Deputy Attorney General (to John Ashcroft) during the Bush Administration and showed great integrity during one of the most significant scandals in Justice Department history. It was Comey, sitting in for an ailing Ashcroft, who refused under pressure to certify the White House's controversial (and, at the time, arguably illegal) "domestic surveillance" operation.

Fitzgerald, too, showed great political courage and legal acumen when he was named special prosecutor in the CIA leak case. A masterful trial lawyer and dogged personality, Fitzgerald successfully prosecuted I. Lewis "Scooter" Libby. His nomination for the AG position clearly would send a "bipartisan" message to the Congress and the courts. He has the talent to reach a new level in government and Obama could do worse than giving him a chance.

Now let's look to the Supreme Court. Right now, seven of the nine Justices were appointed by Republicans; the oldest members are the most liberal and the youngest are the most conservative. It is very likely that Justices John Paul Stevens (age 88) and Ruth Bader Ginsburg (age 75) will retire within the next four years. "Swing" vote Justice Anthony Kennedy and Antonin Scalia are both 72. So Obama should have an opportunity to appoint several new Justices.

First, forget any talk of big-time Washington lawyer Robert Barnett getting the nod. You can also discount the idea that law professors Cass Sunstein or Laurence Tribe will be called upon by Team Obama. But that's not to say that he can't or won't select a candidate who is not currently an active judge. Indeed, the Supreme Court clearly could use justice who doesn't come from a federal appeals court; someone with a background like Sandra Day O'Connor, who spent some time as a state legislator in Arizona before becoming a state court judge and then the first female Justice in history.

How about Elena Kagan, dean of the Harvard Law School? She's brilliant, got some experience in government during the Clinton Administration, and doesn't appear to raise the hair on the backs of the necks of conservative. Oh, and not incidentally, she clerked for the late Justice Thurgood Marshall, the first black Justice. She's 48, which means she's just a tick older that Obama himself.

Another unconventional candidate would be Hillary Rodham Clinton. Don't laugh. She has a law background and was famously good in her youth as counsel for the Democrats during the Watergate investigation. If she doesn't want to continue as one voice in 100 in the Senate, or if she no longer has the will to run in 2016, it's not hard to see a scenario where she parks herself at the Supreme Court. Obama certainly will offer her some sort of position within his Administration - as payback for her wonderful soldier-like work during the campaign. Why not a spot on the Court?

When it comes to trial court vacancies, Obama will have an opportunity over the next few years to begin to rebalance the federal judiciary after 20 of 28 years of Republican rule. Although it is often difficult to label a federal trial judge as "liberal" or "conservative," one recent report suggested that the courts have about a 60-40 balance now in favor of conservative jurists. That balance is sure to change during the Obama Administration. But just how far and how quickly is an open question.

Ironically, it is here, with the question of judicial appointments, where Sen. John McCain can perhaps best help his former rival. McCain is precisely the sort of politician who can work with Senate Democrats to break the logjam of judicial appointments that has marked the last few years of the Bush Administration. He's done it before. And if he can help fill the many vacancies on the federal bench - and thus help ordinary litigants get their disputes resolved more quickly - he'll be doing the country and Obama a favor.

It's a brand new world and it provides Obama with an opportunity to place into power within the world of the law cornerstones of his commitment to a new style of governance. There are plenty of highly capable, integrity-laden people out there, of both parties, who deserve a chance and if Obama is true to his word he will give it to them.

By Andrew Cohen
  • Andrew Cohen

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