The Obama Judges
Obama Nominates Four To Senior Justice Posts
By Carrie Johnson and Robert Barnes
Washington Post Staff Writers
Tuesday, January 6, 2009; A02
President-elect Barack Obama selected four prominent lawyers yesterday for senior posts at the Justice Department, naming pragmatic leaders who are likely to reverse some of the more divisive policies of the Bush administration.
The most controversial nomination was that of Indiana University law school professor Dawn E. Johnsen to lead the Office of Legal Counsel, which has blessed coercive detainee interrogation techniques and warrantless domestic wiretapping programs that have been criticized by scholars and lawmakers on both sides of the political aisle.
Johnsen, who led the office in an interim capacity during the Clinton administration, has been outspoken about what she called overly expansive views of executive power that the Justice Department has adopted in recent years. In congressional testimony last spring, Johnsen said legal interpretations were "tainted by the administration's desired policy ends and overriding objective of expanding presidential power."
Conservatives signaled yesterday that Johnsen would face questions at her Senate confirmation hearing about her approach to national security and intelligence gathering.
Obama also selected Harvard Law School Dean Elena Kagan, who drew immediate praise from conservatives for her efforts to attract an ideologically diverse faculty at Harvard. Kagan is the first woman nominated to be solicitor general. Career Justice staff members praised Clinton-era veterans David W. Ogden, the choice to serve as the department's second in command, and Thomas J. Perrelli, the choice for civil division chief.
Bradford Berenson, a Republican lawyer who has served under President Bush, said the four selections represented a "very solid, sober, responsible group."
"None of these individuals is on the fringes of the legal profession," added Berenson, who worked on the Harvard Law Review with Obama and has worked with Johnsen. "All of them are well-respected, pragmatic people who are very attuned to the institutional priorities of the Justice Department and the government as a whole."
If confirmed, Kagan will fill a prestigious post sometimes likened to serving as the Supreme Court's "10th justice." The solicitor general's office advises the court on which cases warrant its attention, defends the government and takes positions in cases in which the administration deems it has a stake.
Kagan has extensive experience in the federal government and legal academia but limited courtroom experience. She was a clerk for Justice Thurgood Marshall but is not a member of the Supreme Court Bar and has never argued a case before the court, officials there said.
Walter Dellinger, a top Supreme Court practitioner and acting solicitor general for President Bill Clinton, said that would not be a hindrance. "She is a first-rate legal scholar, but she brings much more than that," Dellinger said. "She knows government, and she knows how to run institutions."
Kagan stood up to faculty unease over the hiring of Jack L. Goldsmith, who for a time had led the Office of Legal Counsel under Bush. Kagan also recruited Cass R. Sunstein, a prolific legal scholar and Obama friend from the University of Chicago, where she and Obama once taught.
"She is very, very highly respected by everybody I know," said Theodore B. Olson, a former Bush solicitor general who is a stalwart of the Federalist Society. He said Kagan has been "very gracious" to conservative students and faculty at Harvard, "and that isn't always the case at law schools around the country."
Kagan is often mentioned as a potential Supreme Court justice, though she has never been a judge. The title of solicitor general would give her an even more attractive résumé for a seat on the high court.
Less widely known outside Washington is Ogden, who as deputy attorney general will essentially manage the day-to-day operations of the 110,000-employee department. Ogden, a partner at the WilmerHale firm, held senior roles in the Justice and Defense departments in the Clinton administration.
Perrelli, picked for the civil division, worked side by side with Obama as his managing editor at the Harvard Law Review in the early 1990s.
For the past two months, Ogden and Perrelli have led the Justice Department transition team, getting a preview of the policy and budget challenges that are likely to soon preoccupy them.
Among other issues, the new team can expect to face an immediate and administration-defining decision on a Supreme Court case about whether the president may order the military to indefinitely detain suspects living lawfully in the United States. It is one of the broadest claims of executive power the Bush administration has asserted in the nation's anti-terrorism efforts.
The government's brief in the case of Ali Saleh Kahlah al-Marri -- a Qatari national seized in Illinois and held in a Navy brig for more than five years without formal charges -- is due at the court about a month after Obama is inaugurated. The case presents the new administration with the option of endorsing the aggressive use of executive power favored by Bush or striking a new path in how the country confronts those suspected of plotting terrorism.
Douglas A. Berman, law professor at Ohio State University, said he was cheered by the inclusion of two nominees with backgrounds in academia rather than Washington's political scene. "Kagan and Johnsen should diminish the concerns I was hearing from a number of folks, who asked, 'Where is the change I was seeking on the Justice issue?' " Berman said.
In a statement, Obama said, "These individuals bring the integrity, depth of experience and tenacity that the Department of Justice demands in these uncertain times. I have the fullest confidence that they will ensure that the Department of Justice once again fulfills its highest purpose: to uphold the Constitution and protect the American people."
Research editor Alice Crites contributed to this report.
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