Legal Commentary

How Bad Has The Obama DOJ Been?

By Big Tent Democrat

In his dissent in Gross v. FBL Financial Services (PDF), where the SCOTUS again engaged in an act of brazen extreme right wing judicial activism, Justice Stevens wrote:

The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide. . . . In the usual course, this Court would not entertain such a request raised only in a merits brief . . . Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible. . . . I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking.

(Emphasis supplied.) Would the intervention of the Obama Justice Department really have mattered? [My hyperbole aside, as Steve M. points out, the Obama DOJ almost certainly would have argued Stevens' view (PDF). But the Roberts Court would not have cared.] After all, we have seen that the Obama DOJ has a penchant for adopting the views of the Bush DOJ. As Glenn Greenwald points out, the Obama Justice Department adopted the Bush Administration position in the DNA case (as it has in the state secrets cases):

[T]his was yet another case where the Obama DOJ sided with the Bush administration and advocated the position that the conservative justices adopted. The Obama DOJ aggressively argued before the Court that convicted criminals have no constitutional right to access evidence for DNA analysis. Indeed, its decision to embrace this extreme Bush position caused much controversy and anger back in February. Law Professor Darren Hutchinson wrote back then:

The Office of the Solicitor General has adhered to Bush's position that the inmate does not have a constitutional right to re-test the DNA evidence, even though doing so could establish his innocence and despite the fact that his attorney will pay for the new scientific analysis of the evidence. . . .

As a state senator, Obama sponsored and lobbied for legislation that gave all inmates a post-conviction right to DNA evidence -- the same right that Osborne asserts in this case. . . . The Bush administration was not required to take a position in this case. Although the Bush administration decided to submit a brief in the case, the Obama administration could have refused to defend it, withdrawn it, or even switched position.

Indeed, the Obama DOJ rejected explicit requests from defendants rights advocates to repudiate the Bush position. Instead, the Obama DOJ announced that Deputy Solicitor General Neal Katyal would make his debut appearance before the Supreme Court in that capacity advocating the Bush position (and that's what then happened):

The solicitor general's office has turned down a request by the Innocence Project to disavow a Bush Administration stance on prisoners' access to DNA evidence in post-conviction proceedings. As a result, on March 2, Neal Katyal will make his debut as deputy solicitor general by arguing before the Supreme Court in support of the state of Alaska's view that prisoners have no constitutional right to obtain DNA evidence that might help them prove their innocence -- even if the prisoners pay for the DNA testing themselves. . . .

There can be no doubt that, to date, the Obama Justice Department has been the most disappointing agency of the new Administration.

Speaking for me only

Full post as published by TalkLeft on June 20, 2009 (boomark / email).