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.

---

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.

[colt8881]

Hillary Clinton for the next Supreme Court Judge MAYBE ????

I am sure Barack Obama made some kind of Deal with Hill Dog and America will see what that deal was maybe my January 20th. Or at least in the next 2 years.

I can just hear it REPUBLICANS SCREAMING if Hillary Clinton and the Word Supreme Court are in the same sentence and that sentence comes out of Obama''s mouth.

Hell, Fire & Brim-Stone OMG !

[treknutz]

Although I do not think Hilary would accept such an appointment if she did at least she would balance out that "Get Over It" right wing fanatic idiot Scalia. He''s the biggest PUTZ on the bench. Thomas a very close second!

[treknutz]

Just a second thought here, Judges are supposed to be impartial and unbiased....The CONservatives have seen to it that we now have the most dangerous kind of Supreme Court right wing Neo Nazi jerkweeds who only have their own adjenda.

[kmar20009]

While Hillary might indeed be a fine choice, I believe that Obama must choose younger people for the Supreme Court. This is not due to any failing on the part of older candidates, but to insure that these seats are safe from the Republicans for as long as possible.

[kc629]

He should make McCain Sec. of Defense

[lewiston14]

Who will swear in Obama on Jan 20. Will it be chief justice Roberts?

[likeitis5050]

Hillary Clinton for the next Supreme Court Judge MAYBE ????

I am sure Barack Obama made some kind of Deal with Hill Dog and America will see what that deal was maybe my January 20th. Or at least in the next 2 years.

I can just hear it REPUBLICANS SCREAMING if Hillary Clinton and the Word Supreme Court are in the same sentence and that sentence comes out of Obama''''s mouth.

Hell, Fire & Brim-Stone OMG !


--------------------------------------------------------------------------------

Posted by Colt8881

what''s wrong with Bill?

[pretty_d-2009]

Wow. Blaming everything on the Republican party makes no sense. Oh wait. You''re from San Francisco. That explains it. Whatcha gonna do now that the Dems control EVERYTHING (which, by the way American voters--not too smart to let happen)? Who are you gonna blame when things are bad? Just stick your head in the sand. See if you can do your job in that position.

[centerfall93]

OMG That would be AWESOME! 8-)

[centerfall93]

Posted by treknutz at 11:58 AM : Nov 05, 2008
+ report abuse
Hillary Clinton for the next Supreme Court Judge MAYBE ????

OMG that would be AWESOME! 8-)

[ne_patriot7]

Wow. Blaming everything on the Republican party makes no sense. Oh wait. You''''re from San Francisco. That explains it. Whatcha gonna do now that the Dems control EVERYTHING (which, by the way American voters--not too smart to let happen)? Who are you gonna blame when things are bad? Just stick your head in the sand. See if you can do your job in that position.


--------------------------------------------------------------------------------

Posted by pretty_d at 01:46 PM : Nov 05, 2008


You don''t seem to have a very good memory... or is that omission on purpose?... Repugnats controlled BOTH houses of congress and the White House for 6 of the past 8 years... and they destroyed the country.. Full democratic control could hardly do any worse than the a$$holes that just lost the elections..

I would venture to say, no matter what happens over the next 4 years, good or bad, YOU will be one of the idiots to find fault with any/all of it... even if it directly benefits you..

prove me wrong...

[ttmo2]

Although Hillary Clinton may help to balance out Scalia and the ultra conservative bent of the Supreme Court, Obama will have to gain the confidence of all Americans to give credibility to his call for unity and inclusion. If he gains that credibility and trust first, appointing her might be possible, but if an appointment becomes necessary within the next two years, I doubt that he would appoint her. For those that are advocating "strict constitutionalist" judges, this country would never have righted many of the ills of the country without reasonable INTERPRETATION of the INTENT of the constitution. The advocates of literal adherence to the constitution tend to be the same folks that beleive in a rigid literal reading of the Bible. Although the Supreme Court must be careful to not overreach in its interpretation to the point that it becomes more legislative than judicial, neither should it be overly rigid.

[fredcs25]

What a pack of liberal left wing air-heads.

[indianaman13]

The Supreme Court of These United States needs to be balanced so as to be fair to any case that comes under its august presence. The Supreme Court needs to correctly reflect the opinions of the people who are represented by the living document called the Constitution of the United States. Women make up more than 50% of the population, if you want to talk about Gods influence on births and gender, then look no farther than that one fact alone because it reflects the WORLDS population, yet only one Justice of the higher court is a women? I doubt God judges a soul by its genitalia.

[tmittelstaed]

Now you see the new agenda of the Republicans at work here, with them trumpeting "reaching across the aisle" All the conservatives want is to retain their gains. If Obama did nothing during his term other than appoint the most liberal judges imaginable, then MAYBE in 8 years from now we MIGHT have a fair and balanced Judicial branch.

[rbi149]

A few "thank you''''s" are in order.
Thank you to the REPUBLICAN''''T PARTY for:

-Sarah Palin
-Joe the Plumber
-Williams Ayers as a non-issue
-ACORN as a non-issue
-referring to Obama as "that one" in the debates
-lipstick on a pig
-Coal
-Last minute Rev. Wright ads that turned off voters
-"my fellow prisoners"
-McCain suspending his campaign (who noticed?)
-Socialism
-Communism
-characterizing Obama as a "celebrity"
-criticizing Obama as being "elite" (elite is good, morons)
-calling Obama a Muslim
-Generally inciting hate and division
-never having a consistent message
-NEVER addressing the pressing issues that concern the American people, but focusing on the above BS

and most of all...

Thank you for BEHAVING LIKE REPUBLICANS

[benighse]

A new day for all America....The dawn has broken and the sun has risen....It''s time to get to work fixing the gop problems and cleaning up the Bush mess....Hope and enthusiasm will be good for the Country...Along with a renewed Liberty and Justice for all....

[noloyalisti]

Actually America died when the (un) "Patriot" Act was passed in 2003 after the attack on 911 that was allowed to happen by the Bush Neo Cons for personal financial gain.

As in all fascist countries, propaganda spread through the media owned by war profiteering media companies. Americans were made to disappear and were locked up without charges against them. Minorities were demonized, civil rights and the rule of law was disregarded by the right wing nuts because of their fear.

Rampant flag waving, masquerading as patriotism began and huge emphasis was placed on military power. On November 4th, we got a HUGE charge of hope for the future, when the centrist half black BARACK OBAMA, who came from nowhere to save us from the fascist corporations.

[wheear]

Get a grip cbsispravda!

I switched from Democrat to Republican many years ago. I voted for Reagan and hadn''t changed until this year. I used to love the values the party represented. But this year I took a long look at my views. I have endorsed several presidents based on their abortion stance. I realized however that not one abortion has been stopped in my lifetime because a Republican was in office. While I am very much against abortion, selecting a president based on this belief unfortunately isn''t saving lives. There have been however over 4000 troops killed in a senseless war. Many people have been maimed as well. Where is the cry for them? I think that the Republican party can take a page from the textbook of the Democrats. Make Newt Gingrich, Rush Limbaugh and all of the other yesteryear Republicans sit down and shut up like Jesse Jackson and Al Sharpton did. Find someone with a fresh approach with new ideas to lead the party. Then I will vote Republican again. Stop acting like the Republican party are the only ones with brains. Do you want to fix OUR (republican) issues or not? Pointing fingers at the other party has not solved anything. That''s why McCain is McGone!

[downsteamjim]

Judge Joe Brown would make a great selection as Supreme Court Judge. He would add ''gravitos'' to Obama.

[joule18]

It''s enough that the press controlled the election.

Now that Obama has won, you want to control and manage his decisions.

It''s time you reported the news instead of influencing the news. You report acurately, we evaluate and make our own decisions. Comprende''?

[joule18]

Has Obama kept paying the Obamabots to incluence us? Reminds me of what happened in Germany in the early 30''s.

The time for devisiveness is over. The time for your ugliness has passed. This will not help your beloved.

[timothyone-2009]

What did Fitzgerald deliver?- A single scapegoat who will soon be pardoned.
Eric Holders'' "suitably low profile" was nothing more than an avoidance of responsibility. Anyone of any character would have been much less "low profile" by speaking out.

Who wrote this right-wing piece of shlt essay? We don''t need to keep anyone who promoted or ignored Bush right-wing crimes or enabled the basstards. We need new names to make it a new game, you can keep your old allies, Karl.

[humanavance]

There is no war on terror.

Only a war on American Liberty.

And Bush and Obama are winning.
ST


"It''s not a war on terror gone wrong, it''s a war on American liberty gone right."
SearingTruth

A Future of the Brave

[norepubs]

Blame "CON" delezza Rice, the Bu$h "National Security Advisor" who *IGNORED* warnings of an impending terrorist attack
''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''
infer that any one would allow 9/11 to happen for financial gain makes you a moron. If you really want to blame anyone blame your hero Bill Clinton he is the one who passed up putting OBL in priso

[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????????
''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''


it''''s enough that the press controlled the election.

[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]

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

[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?

[incog-nito]

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

[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.

[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.

[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.

[hroams]

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

[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.

[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.

[skysoldier75]

Michelle Obama for US Supreme Court!

;-)

[curmudgeon99]

This is the smartest comment I%u2019ve read and it bears repeating.

Posted by sayfud-deen at 06:33 AM : Nov 06, 2008

%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! i don%u2019t hear any of you calling for bush and co. to be impeached for war crimes and crimes against humanity! Yeah! a whole bunch of men and women died while Bush Cheney and the rest of the gang have gotten filthy rich through Halliburton and it%u2019s many subsidiaries! and all of the security contractors like Blackwater and so on. i don%u2019t hear any of you asking Bush why he took away our right to habeas corpus or the bill of rights! i didn%u2019t hear any of you asking Bush why he is still spending 10 billion a month in Iraq! for a war that can%u2019t be won militarily! %u201C

Best part is now there is now necessity to impeach them and both buggers are out in the open with no cover.. There is no rush come to a judgment until all the dirt and hypocrisy and lies are brought to the surface. Let%u2019s give it five years and then chuck in Guantanamo, torture and bring the buggers up in front of The Hague for the World to spit at.

The only reason to rush is for fear Cheney will croak before he can be trashed.

[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

[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.

[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.

[sunhunter2]

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

[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.

[joezap5]

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


--------------------------------------------------------------------------------

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...

[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.