Tuesday, February 10, 2009

Senate Judiciary Chairman Pat Leahy will try to rush though hearings on two Department of Justice appointees today before the public or the Senate can fully consider their records and positions.

That may be by design. The two appointees have far-left records.

The hearing last Thursday on the appointment of David Ogden to be deputy attorney general - the spot just under Attorney General Eric Holder - showed the Obama-Leahy confirmation strategy for legal appointees whose views are far outside the American mainstream.

The strategy is to deploy “the fog of constitutional war.” Smart, well-prepared lawyers who believe in a “living Constitution” that accommodates their political preferences obfuscate their way through senators’ questions, fogging up the issues instead of making them clear, all with a show of charm and ingratiating deference. And, when all else fails, making an Obama-like proffer of faux humility.

Take Ogden. This past Thursday in U.S. Senate hearings, the man who has in private legal practice been one of the porn industry’s main advocates sounded like he was trying to edge out Phyllis Schlafly in his desire to protect children from smut and exploitation. Meanwhile, the porn industry calls his nomination “refreshing.”

But facts are stubborn things. Ogden fought to remove porn filters from the Internet in public libraries. He argued that the law requiring producers of sexually explicit material to keep records about the identity and ages of their performers was unconstitutional. He submitted a Supreme Court brief on behalf of the ACLU arguing that a man had been improperly convicted under the federal child pornography statute because the man’s videotapes, “Little Girl Bottoms (Underside)” and “Little Blondes,” which the U.S. Court of Appeals for the Third Circuit had found “clearly were designed to pander to pedophiles,” aren’t really pornography under the Constitution. Then-President Bill Clinton disagreed with Ogden, as did the U.S. Senate, 100-0.

Ogden successfully asked the Supreme Court to overturn the death sentence of Christopher Simmons, who at the age of 17 broke into the house of a Missouri woman, bound her hands and feet and face with tape, and threw her into a river, where she drowned. “The evolving standards of human decency that mark a maturing society” don’t permit the death penalty for crimes committed at the tender age of 17. Never mind the text and history of the U.S. Constitution, which sets no minimum age for punishing murder with execution.

But the age of 14 is not too tender, according to Ogden, for girls to have abortions without telling their parents. Ogden explained away all of these positions. At one point, the legally sharp and scrupulously fair Republican ranking member, Arlen Specter, cut off the fog machine blowing at the dais, saying “I consider that a non-answer, candidly.”

Don’t expect any more transparency today, when Elena Kagan, the Obama nominee for Solicitor General, takes the stand. She has charmed many in the conservative legal community, particularly in the academic world, by hiring a couple of conservative law professors in her capacity as dean of Harvard Law School.

Kagan will doubtless turn on the constitutional fog machine when asked why she booted military recruiters off the Harvard Law campus. She’s vehemently against the Pentagon’s “Don’t Ask, Don’t Tell” policy - again, one embraced by President Clinton - because it discriminates against homosexuals who want to be open about their sexual orientation while serving in the military. She calls the U.S. military’s policy ” a moral injustice of the first order.” Wonder if she’ll enforce the Defense of Marriage Act as Solicitor General.

The list of far-left extremists poised to take over the Justice Department goes on: Dawn Johnsen, nominated to serve as head of the Office of Legal Counsel, worked at NARAL and the ACLU. She opposes even modest regulation of abortion, such as partial-birth abortion bans and parental notification for teenagers. She’s argued that restrictions on abortion violate the Thirteenth Amendment, which banned slavery, because “forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest.” Thomas Perrelli, nominated to be Assistant Attorney General, worked with the Florida ACLU to cut off basic food and water to Terri Schiavo, causing her to die, and later expressed disdain for the American people making laws through elected representatives that undo the work of legal extremists and activist courts.

President Obama promised “change” but has so far only nominated a slew of far-left activists to the Justice Department. If this is the change he believes in, President Obama will lose the support of the sensible moderates who voted for him.

Wendy E. Long is counsel to the Judicial Confirmation Network.

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