(updated below – Update II)
There is some genuinely good news today from the Obama camp: following up on the appointment of the excellent Dawn Johnsen to be OLC Chief, it was announced yesterday that Johnsen’s second-in-command at OLC will be Harvard Law Professor and vehement Bush critic David Barron, who, among other things, co-wrote this superb Law Review article arguing that the President’s “war powers” have been wildly overstated over the last many decades while Congressional power in this area has been vastly understated. Also joining the Justice Department in a still-unknown capacity is one of the smartest, most principled, and most unyielding opponents of the legal radicalism that prevailed over the last eight years: blogger and Georgetown Law Professor Marty Lederman (who co-wrote that law review article with Barron on the Constitutional limits on the “commander-in-chief” powers). It is virtually impossible to imagine that particular group of individuals placing political allegiance to Barack Obama over the principles they have so forcefully advocated over the last several years.
The importance of these appointments shouldn’t be understated. There are many limitations that ought to constrain what a President does: political limits, checks from other branches, the principles (or lack thereof) of the Executive himself, and legal restrictions. Virtually all of those checks were non-existent over the last eight years. It is the DOJ generally, and the OLC specifically, that has a real ability to impose legal constraints on what a President can do, to decree that what a President wants to do is contrary to a valid statute or the Constitution. Much of the Bush illegality was accomplished by having DOJ lawyers do the opposite: by decreeing that anything the President wished to do was legal. It is unlikely in the extreme that this group of new appointees would do that.
Instead, these individuals are highly likely to impose real limits when the law or the Constitution dictates — and Obama, who obviously knows that, chose them despite (or, more likely, because of) that fact, and thus deserves real credit for purposely placing people like this in positions that can create real impediments for what he might want to do.
These appointments aren’t a panacea. Nobody knows what someone will do when they actually wield power (as opposed to what they say when they are out of power). Our political system is suffuse with examples of people who advocate principles when out of power and then who suddenly discard them once in power for partisan, careerist or other ends. And, as we’ve seen the last eight years, it isn’t hard for a President in our political culture to brush away even clear and obvious legal barriers. But even taking all that into account, for anyone familiar with the work of Johnsen, Barron and Lederman, it’s hard not to view these appointments as quite positive and meaningful steps.
UPDATE: Lederman’s co-blogger, Yale Law School Professor Jack Balkin, reports that Lederman will also be in the OLC, working under Johnsen and Barron, as Deputy Assistant Attorney General in the Office of Legal Counsel — John Yoo’s former position.
On a less positive note, it was also announced that Georgetown Law Professor Neal Katyal, who served as lead counsel for the Guantanamo detainee-plaintiffs in the Hamdan case, has been named Deputy Solicitor General. While Katyal’s work on Hamdan was both good and important, he more recently has formed an alliance with former Bush official Jack Goldsmith and Brookings Institution’s Ben Wittes to become one of the leading advocates for the creation of “national security courts” — special courts with “looser” rules of evidence (i.e., allowing evidence obtained through “coercion”) in which accused terrorist suspects will be tried. This is probably the most important short-term question regarding Obama’s commitment to restoring Constitutional values — will a special new legal procedure be created to try accused terrorists? — and Katyal’s appointment bears close watching in that regard.
UPDATE II: This was the passage from Obama’s Inaugural Address that, tellingly, appeared to provoke the most enthusiastic crowd response:
As for our common defense, we reject as false the choice between our safety and our ideals.
Our founding fathers faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations.
Those ideals still light the world, and we will not give them up for expedience’s sake.
And so, to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman and child who seeks a future of peace and dignity, and we are ready to lead once more.
Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with the sturdy alliances and enduring convictions.
They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use. Our security emanates from the justness of our cause; the force of our example; the tempering qualities of humility and restraint.
We are the keepers of this legacy, guided by these principles once more, we can meet those new threats that demand even greater effort, even greater cooperation and understanding between nations
Those are nice words. The challenge is to turn them into something more than that, and the only question in this regard that really matters is whether he will.