Obama, The Supreme Court And DOJ

Legal Analyst Cohen On Obama Impact On Courts And Dept. Of Justice

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

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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.

[eroosevelt08]

It is my hope that President-Elect Obama will look back on his presidency satisfied that he did the best he could. It was an honor to vote for him.

[joezap5]

Congratulations to all of those Obama supporters that I gave a rough time to on this blog. It was a fun campaign.


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Posted by TheLastVoter at 11:00 PM : Nov 06, 2008

As a liberal Democrat I have to say that was spoken like a true American. Your words of goodwill are encouraging- We''ll need all hands on deck for this one...

[thelastvoter]

Congratulations to the Obama Campaign Team! As a Conservative Republican, I voted for Senator McCain. Your campaign was well organized, focused, and though you had most of the press and media with you, Senator Obama was able to handle himself with class throughout the campaign and the debates. If the Bush Administration and those Republicans in Congress had shown your discipline when it came to government spending and Conservative ideals, including oversight of the Congressional banking and finance committees when they were in charge between 2000 and 2006, this election might have turned out differently. %u201CMy Republicans%u201D, with a number of exceptions, did not deserve to be re-elected, and it was ashamed that the McCain-Palin ticket got caught in the %u201Ccrossfire%u201D, because both McCain and Palin were two decent candidates who could have helped our nation. I hope that the Obama supporters recognize that our nation is nearly %u201Cbankrupt%u201D and therefore, they should not push the president-elect to keep promises that might have to be delayed for some time. Give him time and let him lead at his own pace. Again, Congratulations to all of those Obama supporters that I gave a rough time to on this blog. It was a fun campaign.

[sunhunter2]

President-elect Obama might consider appointing:
1) Ohio Attorney General Richard Cordray
2) Senator Hillary Clinton
3) University of Texas'' Larry Sager

[kevnkar]

%u201CWhat gets to me is how many cowards have come out of the woodwork, since this whole election thing started. Where were you guys when Bush and co. started this illegal war that has cost you the taxpayer over a trillion dollars and counting.
Posted by sayfud-deen at 06:33 AM : Nov 06, 2008

This is not an illegal war. It was voted on and passed overwhelmingly by congress. Then when it wasn''t over in a month they claim they were lied to. B. S. facts are coming to light and will continue to that vindicate the decision to go to war with Sadam.

[byebyecow-2009]

prometheus41 I think you misunderstood what Cohan was saying. He was stating that McCain could help Obama to get Obama''s picks through the system more quickly and to help bridge the gap between both sides. Besides why would Obama, who pledged to work openly with both sides, be "Betraying them all?" Without republican backers and independent voters all whose beliefs actually align more closely with McCain''s beliefs Obama would not have won this election. He should stay true to his promise to reach across party lines and work with those willing to reach back in return. Otherwise he would be truly betraying the American People. People who disagree on most of the fundamentals with Obama backed him because they believed he could bring the country together and that he could lead them out of the mess they are in.

I is of course the American people who will need to lead ourselves out of this mess. We just have to hope and pray Obama works with us to do that.

I did not vote for Obama because I disagreed with him on most everything he stands for. With that said he is my new President Elect and I will support him. I encourage those who are upset by his election to remember we need to do our best to come together while respectfully making our voices heard. We must share our opinions, lobby for our causes and ask our representatives to support us as well as our communities.

[onarollagain]

Wall Street is continuing to pull out...serious investors know to take the profit now and only pay 85% cap rather than what Osama wants to increase the tax to on cap gains...the middle class has been duped and are going to get seriously hurt under this socialist.

So hold on to your hats; history was really made...the worst ever loss after a presidential election continues today....wise American investors know what he is going to do to them so they are getting out!! The facts speak for themselves....suckers!! America has been duped!!

Year Dow S&P Nasdaq President elect
2008 -5.05 -5.27 -5.53 Barack Obama
2004 +1.01 1.12 0.98 George W. Bush
2000 -0.41 -1.58 -5.39 No decision: G.W. Bush v Al Gore*
1996 1.59 1.46 1.34 William Clinton
1992 -0.91 -0.67 0.16 William Clinton
1988 -0.43 -0.66 -0.29 George H. W. Bush
1984 -0.88 -0.73 -0.32 Ronald Reagan
1980 1.70 1.77 1.49 Ronald Reagan
1976 -0.99 -1.14 -1.12 James Carter
1972 -0.11 -0.55 -0.39 Richard Nixon
1968 0.34 0.16 --- Richard Nixon
1964 -0.19 -0.05 --- Lyndon Johnson
1960 0.77 0.44 --- John Kennedy

[skysoldier75]

Michelle Obama for US Supreme Court!

;-)

[oh-_1975]

So blackman9 you think that you deserve money for slavery that ended over 140 years ago? How about getting a job and not living off the welfare of hardworking blacks, whites and all other color americans.

[imispgh]

James Comey should not be permitted to return to government service. I understand that he accomplished some great things while he was there - but he has squandered that as general counsel for Lockheed Martin.

First - Lockheed Martin is under investigation for the Deepwater issues. This creates a conflict of interest relative to him leading the DoJ. Second - Mr. Comey has not chosen the ethical path in leading Lockheed Martin in these efforts. He has sided with the contractor when he should not have. There is hand-signed proof of his participation in the fraud. (See the Law.com article from Dec 07). If Mr. Comey were to show true ethical fortitude he would resign from Lockheed and do the right thing. Anything short of that disqualifies him from his return to government service in the capacity suggested.

[imispgh]

James Comey should not be permitted to return to government service. I understand that he accomplished some great things while he was there - but he has squandered that as general counsel for Lockheed Martin.

First - Lockheed Martin is under investigation for the Deepwater issues. This creates a conflict of interest relative to him leading the DoJ. Second - Mr. Comey has not chosen the ethical path in leading Lockheed Martin in these efforts. He has sided with the contractor when he should not have. There is hand-signed proof of his participation in the fraud. (See the Law.com article from Dec 07). If Mr. Comey were to show true ethical fortitude he would resign from Lockheed and do the right thing. Anything short of that disqualifies him from his return to government service in the capacity suggested.

[hroams]

Lieberman for Supreme court, he''d never know which side of the fence he was on!!!!

[mugaluv]

To CBSisPravda:

Your one-sided slant on views is more like communism than anything I''ve heard said on these comment boards. You sound more like a dictator with only your extreme right views allowed. You do not love America, you hate it because it allows everyone to take part in our democratic process. I know you don''t like that your party lost, but I am thankful that the people''s voice was heard, whether Obama makes a good president or not. The people decided, and that includes Republicans and Independents. McCain won the majority in Texas, home of the redneck Republican. I''m proud of the people in Texas who voted for him, but there were many people who voted for Obama and I am proud that they voted for him too. Instead of calling for Obama''s administratiaon to fail, you should be praying that it doesn''t. He won''t be perfect, but the people have put their trust in him and I pray he will be a very successful president. We need to pull together and give our new president and administration our help and constructive criticism, not have a temper tantrum. By spewing this hatred, you sound like a spoiled child who only wants things his way and no other way. Let it go and be part of the solution, not part of the problem. Be An American for a change, not just a Republican. I''m proud to be an American and I''m proud the people''s voice was heard and, if you voted, even yours. Let the votes talk, not the hate mongers of any policital affiliation.

[yongamerica]

CBSisPravda - just because your Republican president Bush was such a dismal failure you cannot stand the thought that a Democrat president will be able to succeed.

[jolsonbear]

I''m proud to have Obama as my new President but I''m afraid he''s not going to be liberal enough to make the real changes this country needs.

[incog-nito]

Well it appears that the rightward movement of SCOTUS will be halted, if not reversed. And not a moment too soon.

[lambofgoth]

Jesus Christ... did CBS manage to attract every illiterate in America to their site? And fools blaming Bill Clinton for not putting OBL in jail while the REAGAN administration supplied him with cash and weapons?? My my...how quickly we forget.
Since when did CBS turn into FOX? Don''t you conservative types have some gay pOrn you need to be downloading?

[norepubs]

Which reminds most Americans of the Bu$h Adnministration..........
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.....Reminds me of what happened in Germany in the early 30''''s.

[lambofgoth]

insite4u - I would highly recommend typing your responses in Microsoft Word with the grammar and spell checkers on, then cutting and pasting. That wasn''t even English.

[norepubs]

Of course, the Bu$h mismanagement of the economy,the LIES about why we should go to war in Iraq, the "Patriot" Act, the Corporate Socialist $1 trillion giveaway,$10 trillion nation debt,etc,etc.
Non of these events had anything to to with the failed republican agenda. Did they????????
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it''''s enough that the press controlled the election.