Attacks on DOJ Nominees Signal Right's Judicial Nominations Strategy

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Right-wing political and legal organizations have unleashed a coordinated campaign of over-the-top attacks on the qualifications, records, and fitness of President Obama's nominees for important positions in the U.S. Justice Department. Deputy Attorney General nominee David Ogden has been the prime target of the Right's wrath, but Solicitor General nominee Elena Kagan, Associate Attorney General nominee Thomas Perrelli, and Office of Legal Counsel nominee Dawn Johnsen have also come in for their share of criticism.

The rhetoric used in the attacks, documented extensively on, suggests that the campaign may be less about actually stopping any of these nominees and more about getting right-wing activists, pundits, and lawmakers warmed up for similar attacks on eventual Obama nominees to the federal judiciary, and in particular to the U.S. Supreme Court. Right-wing leaders want to tarnish the image of Obama to strengthen their hand when they try to block his judicial nominees. But the deceptive and distorted nature of the attacks should signal to senators, journalists, and others the importance of questioning the credibility of those charges when they come.

The Right hopes that their distorted stories about Obama's DOJ nominees will condition conservative activists and media (and, they hope, a broader public) to believe that:

  • Obama is a dangerous radical who is using his appointment power to turn the government over to out-of-the-mainstream extremists; and
  • his judicial nominees will be extremists who plan to rule based on their feelings and political beliefs rather than the law or the Constitution.

Right-wing leaders have launched these attacks against undeniably qualified and widely respected nominees who have won wide support across the political spectrum, including from many individuals who served as Justice Department officials under Presidents Reagan, Bush I, and Bush II. Their careers show a commitment to the rule of law and to ensuring equal justice and fairness for all Americans principles deeply embedded in the Constitution. The feverish attacks from far-right leaders, whose similarly hyperbolic rants about the threat of an Obama presidency were rejected by voters, make it clear that they are the ones "out of the mainstream."

Extremist Rhetoric

Religious Right leaders have sought to out-do each other in condemning David Ogden, Elena Kagan, Thomas Perrelli, and Dawn Johnsen, denouncing President Obama for having nominated them, and urging activists to demand that senators reject the nominations. The list of issues is a familiar one for the Religious Right: the nominees are attacked for opposing censorship and defending the First Amendment, for promoting equality under the law for gay and lesbian Americans, for backing a constitutional right to reproductive choice, and for supporting a family's right to make difficult end-of-life decisions without interference by the government. Of course, that's not how the Right describes things.

The rhetoric denouncing Obama and the "hard-left extremists" that are poised to "take over" the Justice Department would stretch for pages even in summary form. But you can get the flavor with a small sampling of the denunciations against nominee David Ogden:

"He's just one more in a long line of outrageous Obama appointments of homosexuals, pro-aborts, and now pro-pornography zealots." The Traditional Values Coalition

"He will be a great ally for advocates for death and homosexuality inside the Justice Department." The TVC's Andrea Lafferty

"Are we now looking at a future where the United States will also fund the international production and distribution of pornography?" Janet Shaw Crouse, on the "nightmarish possibility" of Ogden's confirmation.

"The fact is this nomination is one more example of this administration's apparent hostility towards pro-life, pro-family Americans. The move feels more like a way to say 'thank you' to his left-wing extremist supporters. I'm sure the pro-abortion, pro-pornography, 'how-can-we-rely-on-such-an-old-document-written-by-white-racists' crowd will love him for it." Mario Diaz, Concerned Women for America.

David Ogden: The Right v. The Reality

To summarize, the Right says David Ogden is a hard-left pro-gay, pro-choice extremist bent on promoting pornography, enabling the exploitation of women and children, and subverting the Constitution to judges' personal whims and to international law.

Many of those attacks are based on his record as a private attorney, where he represented such "extremist" organizations as the American Library Association, the American Booksellers Association, the American Psychological Association, the American Psychiatric Association, and, yes, Playboy, which is what led a hyperventilating pundit to cry, "Has the Playboy flag really displaced the Stars and Stripes over Washington?" As Ogden has explained, in those cases he was a lawyer representing his clients and their interests in preserving the First Amendment. He never, in spite of the Right's claims, argued that obscene materials or child pornography should go unregulated or unpunished. In fact, Ogden served in the Justice Department as Assistant Attorney General in the Civil Division and Associate Deputy Attorney General and Chief of Staff and Counsel to Attorney General Janet Reno. While at Justice he led the government's defense of anti-pornography laws whose constitutionality was being challenged in the courts.

Among the hard-left radicals who have endorsed Ogden's nomination:

  • National Center for Missing and Exploited Children
  • National District Attorneys Association
  • Fraternal Order of Police
  • National Association of Police Officers
  • National Sherriff's Association
  • Federal Law Enforcement Officers' Association
  • and at least 15 Justice Department and other legal officials from the Reagan, Bush, and Bush administration

Faithfulness to the Constitution: A Prelude to the Debate on Judges

Some attacks on David Ogden focus on the Right's caricature of the idea of a "living Constitution." They suggest that Ogden and President Obama believe judges can just make things up without regard to the laws or the text, principles, and history of the Constitution. The charge that Obama and his nominees believe judges should follow their feelings rather than the Constitution is, of course, a false portrayal of Obama's position, and a willful misrepresentation of his comments as a candidate that he would seek judges who had compassion. Who, coming before a judge, would not want to face a person who was willing to apply the law with fairness and an open mind, while understanding the consequences for the people involved? To suggest that such an approach to judging is somehow inconsistent with a commitment to the Constitution and its core values of justice, equality, and opportunity for all exposes a monumental misunderstanding of that document.

The Concerned Women for America's Mario Diaz, writing in Human Events, called Ogden's supposed judicial philosophy "perhaps the most troubling aspect" of his nomination, citing a 1986 Legal Times op-ed by Ogden that said, in part, "While constitutional principles do not change, the society and individuals in whom they are applied do, and our knowledge about that society and those individuals improves with time." That's a straightforward comment about applying core constitutional principles to a changing world. But for CWA, it reflects a "dangerous philosophy" and a "low view of the Constitution…as a 'living Constitution' that he and his allies should get to rewrite."

It's no surprise that the Right is waging this line of attack it was often the Right's rallying cry during the presidential campaign. Of course, their favored candidate lost that campaign, in which he publicly repeated their attacks on Obama's view of the judiciary and Constitution. So now they're working hard to enlist Republican senators in an effort to fight the same battle over again, and using Justice Department nominees like David Ogden as a warm-up.

Their eagerness to fight President Obama's judicial nominees was evident in the way right-wing pundits rallied around the results of anextremely dubious Rasmussen Poll that purported to show, in the words of one columnist, "a vast divide between President Barack Obama and the American public when it comes to judicial appointments" and used the poll to claim that Obama is "outside the mainstream" when it comes to federal judges. Christian Broadcasting Network commentator David Brody warned that the Rasmussen poll is a "danger zone" for President Obama.

The Rasmussen poll was deeply flawed; it forced people to make a false choice about whether judges should make decisions based on what's in the Constitution or based on fairness and justice, an inappropriate and false dichotomy. In November, Americans gave President Obama a mandate to appoint judges who understand that the law and Constitution provide equal justice for all, and that they need to be applied faithfully -- and fairly.

In their own words: It's all About Judges

Evidence that attacks on David Ogden and other Justice Department nominees are really a warm up for judicial confirmation battles comes not only from the familiar rhetoric, but because the Right has pretty much said so openly.

During the presidential campaign, for example, right-wing groups and leaders worked hard to sound an alarm about President Obama's potential judicial nominees. They haven't stopped to take a breath. Here, in typically measured tones, is Gary Marx of the Judicial Confirmation Network, a right-wing organization created to push for confirmation of Bush administration judicial nominees, including Chief Justice John Roberts and Justice Samuel Alito. "Obama could cement the balance of the Supreme Court to a permanent activist stance where judicial restraint and following the text of the Constitution as our North Star are relegated to the ash bin of legal history."

When Republican senators chose not to go to the wall against Treasury Secretary Tim Geithner after his nomination ran into tax troubles, the National Review's Byron York suggested that they were saving their fire for judicial nominees, noting that "members of the minority party have just so much ammunition, and using it against a cabinet official who serves at the pleasure of the president is not as wise as saving it to use against, say, a judicial nominee seeking a lifetime appointment to the bench."

Senators may be saving their fire, but right-wing activist leaders obviously aren't.

Ken Blackwell, the former Ohio Secretary of State, failed Senate candidate, and failed candidate for chairmanship of the RNC, makes the connection to the courts clear by saying Ogden, Kagan, and Johnsen must be defeated because their DOJ positions could all be stepping stones to the Supreme Court.

Blackwell's boss at the Family Research Council, Tony Perkins, makes a similar connection, telling CBN News that President Obama's DOJ nominations foreshadow a series of "hard-left ideologues" to come.

"These people will not only be extremely influential in the application of law. They will also play key roles in filling judicial vacancies on the nation's highest courts," he said.

Perkins added that their selection shows "Obama's rhetoric doesn't meet with reality." He says the country's highest courts would now be "packed" with "left-wing judicial activists bent on imposing personal and political agendas on the American people."

The Judicial Confirmation Network has even insisted that Senators assume the worst about President Obama's nominees: "For every nominee, there should be a presumption that he would as President Obama has told us he prefers decide cases based on his personal views." Of course, the judicial confirmation process is an important part of the Senate's constitutional duties, and judicial nominees should be expected to demonstrate a knowledge of and commitment to the Constitution and to the progress that our nation has made in bringing ever more Americans under its protection. That's a far cry from the JCN's reflexive opposition to nominees not even named yet and its effort to provoke conflict over nominations as a means of making itself politically relevant.

For Future Reference

Sometime in the coming months, Religious Right leaders and their allies will unleash attacks on Obama administration judicial nominees as radical, hard-left extremists bent on undermining faith, family, and the Constitution. That will be a good time for senators and others to review the charges leveled against David Ogden and other DOJ nominees, and give the right-wing charges the minimal respect they deserve.

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