Laying Down the Law

What Obama can learn about justice from his predecessors.

Jae C. Hong

News reports indicate that Eric Holder will be the attorney general in the Obama administration. There is much to do and to undo after the disastrous administrations of Attorneys General Ashcroft and Gonzales. Plus, the Clinton Justice Department had its problems—Waco, disgraceful pardons in the final hours, and slow and contentious judicial appointments. Old political ties linger, and Obama’s Justice administration must start with as clean a slate as possible. Holder has wide experience and close ties to the Obama transition team, but it is important that the dept bring in a fresh, apolitical, aggressive but high-minded team. Obama could take a leaf from the pages of the Robert F. Kennedy’s department, which was notably successful. Obama needs people who speak with his voice. At a comparable time of public cynicism about government and justice, President Ford chose Edward Levi as attorney general, an academic from the University of Chicago, and he got very high points for running a clean and quality dept.

Obama could take a leaf from the pages of the Robert F. Kennedy’s department, which was notably successful.

Edward Bennett Williams, the famous Washington, D.C., attorney, told me he thought the Justice Department needed to be run by a player coach—someone who was experienced with the play on the field. Investigative agencies don’t like to collaborate with each other and resist efforts to coordinate information gathering. That happened in the RFK era and it is happening in the post 9/11 era. Past Attorneys General who were political and were disasters. As Eric Lichtblau, New York Times Pulitzer Prize-winning author, wrote in Bush’s Law, The Remaking of American Justice, Attorneys General Ashcroft and Gonzales caused more problems to the administration than they were worth. In the Nixon administration, those department leaders who were independent, (Eliot Richardson, for example) were honored; those who were not (Robert Bork, for example) were diminished. President Reagan chose a political crony who ended up being investigated (and exonerated) by a special prosecutor. RFK chose Whizzer White and Nick Katzenbach as his top deputies—neither brought prior government or political credentials. Obama has a wide range of fresh choices from all his connections. That’s where he should look. The solicitor general will influence all cases the government pursues across the whole bureaucracy. That person must be a scholar, and independent enough to tip the scales in all debates about government positions in the Supreme Court; and he or she must have the power and respect of the president to prevail in inevitable policy debates among government agencies. Former University of Chicago, and now Harvard, law professor Cass Sunstein is a likely suspect; he is respected by the President-elect from their days at the University of Chicago Law School. Jeffrey Rosen, a George Washington University Law School professor and prolific author on legal and constitutional issues is another likely candidate—or ought to be. Kathleen Sullivan, former Stanford University Law School professor and administrator, now in law practice in Silicon Valley, is someone to be considered for a top Justice Department position The president and his attorney general need to pick the department’s leaders carefully. RFK had few qualities to run the Justice Department when he was selected, against his judgment, but at the insistence of the president and his father. But he chose un-political, very competent private attorneys to run his departments, and listened to them while they ran things, offering assistance when they needed it. Rather than picking young lawyers for political reasons, as the Bush department did to its disgrace and with horrible results, Kennedy chose honor students who came to Washington with no politics, intense devotion, and high-minded public spiritedness. The Obama administration has the opportunity to bring that fervor to Washington again and must recruit from the best and brightest (oops, bad phrase) around the country. Every Justice Department changes the areas of special interest. Kennedy’s closed down the Internal Security Division as a thing of the past, and invigorated a dormant small organized crime section into a dynamic active focus of the department. The Obama administration should emphasize the divisions handling environmental and anti-trust law enforcement to synchronize with other agencies working in those fields to bring the economy back to life. And it must have a new, strong, responsible anti-terrorism office which is tough and constitutionally sensitive. We have problems abroad that must be addressed efficiently and forcefully, without creating new problems at home by lawless law enforcement. During the presidential campaign, I wrote, “It’s the courts, stupid”—noting the importance of choosing a new judiciary. President Bush appointed one-third of the current federal judiciary. There are fifty-eight judicial positions waiting to be filled in January and three Supreme Court Justices (all from the four of the current 5-4 balance) reportedly considering departure. The choices of those judges will color the judiciary for decades. By the end of eight years, President Obama will have had the opportunity of appointing 58 percent of the federal judiciary. The Supreme Court decides about seventy cases a year; the federal trial and appellate courts decide thirty thousand! He should look at the Carter administration’s use of merit selection commissions to choose top-notch judges, and the slough of partisan wrangling of the past decades after Carter. The Justice Department is now filled with political appointees who came to light in recent congressional hearings. They need to be purged, and replaced with a merit system that reaches out to new, dedicated, energetic men and women of excellence. The Obama Justice Department ought to reflect the man’s and his campaign’s ideals. Ronald Goldfarb is a Washington, D.C. attorney, author, and literary agent, who served as a Special Prosecutor in the Robert F. Kennedy Justice Department. His book, Perfect Villains, Imperfect Heroes, about the RFK Justice Department, has been optioned and scripted for a movie.