Justice 2.0: Hoping for Change to Believe In

The Bush administration left a legacy of having distorted or deformed the mission of many executive branch agencies. The State Department was frozen out of Iraq diplomacy and reconstruction. The Environmental Protection Agency was forced to ignore global warming. The Interior Department was transformed from a steward to a despoiler of public lands.
    No department suffered more, however, than the Justice Department. The Immigration and Naturalization Service, then part of Justice, grossly abused many of the aliens rounded up after 9/11. The Office of Legal Counsel produced legal opinions to give the president extraconstitutional powers as commander in chief and to define torture all but out of existence.
    The FBI was silenced in its objections to the “enhanced interrogation” techniques being used on suspected terrorists. The civil rights division was turned into an employment center for right-wing ideologues. And, most embarrassingly, Attorney General Alberto Gonzales allowed the unprecedented, politically motivated midterm dismissals of at least half a dozen U.S. attorneys and then dissembled about the episode under oath before congressional committees.
    Against that background, the Justice Department has nowhere to go but up under President Obama and the new attorney general, Eric H. Holder Jr. As a candidate, Obama sharply criticized the politicization of the Justice Department. As president-elect, he chose as one of his first Cabinet appointees the experienced and well-regarded Holder to head the department. In confirmation hearings, Holder and other senior Justice appointees assured the Senate Judiciary Committee that partisan politics will play no part in line-level hiring at Justice.
    Significantly, Obama made Holder — a former federal prosecutor, local superior court judge and deputy U.S. attorney general— the point man on his first major policy initiative. Holder’s Justice Department, not the Pentagon, was put in charge of reviewing the case files of the remaining 242 prisoners being held at the detention camp at Guantanamo Bay and fulfilling the pledge to close the facility within one year.
    Another, less dramatic harbinger of change came two weeks later at the Supreme Court. The solicitor general’s office moved on Feb. 6 to dismiss the Bush administration’s appeal of a lower court order requiring stricter regulation of mercury emissions from power plants. The federal appeals court in Washington had rejected the Environmental Protection Agency’s planned “cap and trade” system of regulating mercury as contrary to the Clean Air Act. The solicitor general’s office now says the EPA will adopt a plan consistent with the act.
    The solicitor general’s office had escaped most of the controversy over the politicization of the Justice Department. Paul Clement, solicitor general during Bush’s second term, won high praise from all sides not only as an accomplished advocate but also a straight shooter. Still, the solicitor general’s office was enlisted to help advance Bush’s political agenda at the Supreme Court.
    Under Clement, the solicitor general’s office sided during the 2006-2007 term with parents challenging racial diversity plans adopted by the Seattle and Louisville, Ky., school systems. It urged the court to overturn a century-old antitrust precedent against retail price fixing. At the White House’s direction, the solicitor general’s office during the next term refused to back up the Securities and Exchange Commission in an important securities fraud case. And in another case last term and one pending now, it backed businesses over consumers and state governments in endorsing federal preemption of product liability suits in state courts.
    The government’s position prevailed in all the decided cases. Most were decided by five-justice majorities over dissenters’ objections that the rulings either contradicted or disregarded established precedent. All were private suits that the Bush administration could have joined on either side or stayed out of altogether.
    As the new solicitor general-designate, Elena Kagan comes to the post with credentials and reputation nearly as sterling as Holder’s. As dean of Harvard Law School, she was widely admired by students and by professors from opposing ideological camps. Conservative blogs tried to rough her up in advance of her Feb. 10 confirmation hearings. The main exhibit was a brief she joined with other law schools challenging (unsuccessfully) the law that threatened a cutoff of federal funds to universities that barred military recruiters to protest the military’s “don’t ask, don’t tell” policy.
    Once confirmed, Kagan — like Clement before her — will be an advocate for policies often formed elsewhere. But one can confidently predict new stands on civil rights, consumer protection and government regulation. Still, in a worrisome sign for some civil liberties groups, Justice Department lawyers on Feb. 9 followed the Bush administration in endorsing the controversial “state secrets” privilege to block a suit by plaintiffs claiming they were tortured after being flown to other countries as part of the CIA’s “extraordinary rendition” program.
    Civil rights and civil liberties advocates may recall that a previous Democratic president, Bill Clinton, disappointed them on legal issues — for example, by signing a restrictive federal habeas corpus law and the Defense of Marriage Act. Those groups are giving Obama plaudits for his action on Guantanamo, but hawkish skeptics are noting that no one has been released yet. Obama’s other legal policies are even less well formed.