cwnewz.com - Today, Members of the Senate Judiciary Committee are poised to vote to confirm David W. Ogden as deputy attorney general, the second in command at the Justice Department.
At his confirmation hearing last week, Ogden, a lawyer who opponents have accused of spending much of his career arguing on behalf of top pornographers and abortionists, appeared to blunt much of the criticism leveled against him, with his responses to tough questions from committee Republicans.
Despite the barrage of phone calls that sources say has been coming into to the committee against him, even some Republicans seemed to be mollified.
Sen. Jeff Sessions (R-Ala.), one of the most conservative members of the Senate, told the nominee: “I don’t think you should be disqualified for representing pornography interests, and for taking positions I don’t agree with. If you’ll follow law, and you understand some of the basic principles – that would not disqualify you.”
Sessions and other committee members on the other hand, pulled no punches in telling the nominee that they were not pleased that he had filed legal briefs in the past challenging laws they had written – laws against child pornography and laws to protect children from Internet and library pornography.
Sen. Arlen Specter (R-Pa.), a former prosecutor, even questioned Ogden as if he were a hostile witness in a courtroom. He queried the nominee about a brief Ogden had filed against the Children’s Internet Protection Act -- and the legal brief Ogden filed on behalf of the American Library Association.
Ogden, who had filed a legal brief seeking to overturn the statute as unconstitutional, told Specter he personally believes that child pornography laws and Internet filters are not only constitutional, they are needed.
Here’s a transcript of part of their exchange:
Sen. Arlen Specter, ranking Republican: What is your view on the propriety of Congress seeking to define obscenity and pornography – which we know what the legal definition is – and saying, at least as to minors, “You can’t show it to them if you’re getting federal funds in a library?”
David W. Ogden, nominee: I think as a preliminary matter, protected materials, constitutionally protected materials, as to adults, need to be respected by the law, but Congress does have broad power to protect minors from material that is obscene as to them, the court has recognized that. And I think that power is entirely appropriate.
A few moments later however, during questioning from Sen. Russ Feingold (D-Wis.), Ogden added to his answer, saying that he was only representing a client, the American Library Association, as a lawyer in private practice.
“As the chief justice said when he was before this committee, a lawyer in private practice does not sit in judgment on his clients – his job is to present their views as persuasively and appropriately as possible,” Ogden told the committee.
Ogden said the legal briefs he filed for groups like the ALA represented their views, not his.
“We did that with the scientific evidence in the American Psychological Association brief (in the abortion case, Casey vs. Planned Parenthood) – that wasn’t my view, that was the view of the association and, similarly, with the librarians, they have a strong view about the need to be free from censorship and they objected to that law -- the Supreme Court ruled otherwise.
Ogden added: “Of course, as counsel of the United States, my job will be different – it will be to represent as aggressively as possible the position of the U.S. And that’s what I’ve done. I have a record of doing that.”
Sen. Orrin Hatch (R-Utah), a former chairman of the committee, questioned Ogden closely about whether he “will be committed to enforcing laws that you have argued for so many years to be unconstitutional:
Sen. Orrin Hatch, former chairman: Let me be clear what I’m looking for here. I want to know your own views – if you will, the views you will be taking into the leadership of our Justice Department. If you personally disagree with the views and approaches that you have advocated in court so consistently for so many years, I think now would be a good time to say so.
Sen. Hatch (continuing): For example, you argued in 1989 that the law requiring producers of sexually explicit materials to keep records about the identity and age of performers was unconstitutional. I was one of authors of that bill. A revised version of that law is not only still on the books today, but a few years ago, Congress extended its reach as part of the Adam Walsh act. I had a lot to do with that.
Sen. Hatch (continuing): Now how can we believe that the Justice Department will properly enforce this law, and if necessary defend its constitutionality, when you have said for 20 years that it is unconstitutional?
David W. Ogden, nominee: Well, Senator, first of all I certainly agree, and the courts have made clear that Congress has the power and the government has the power to require that those records be kept. That law ultimately has been upheld. It was originally struck down – I think there were problems that the courts identified, and I think Congress corrected many of those problems. I believe it was struck down in my initial lawsuit on behalf of media organizations that were concerned about the way in which it was done – not the fact, but the way.
Mr. Ogden (continuing): The court agreed that it should be fixed, the Congress fixed it, and I think the law is constitutional as it stands today.
Mr. Ogden, meanwhile, recanted a pro-pornography memo he wrote when he clerked for the late Supreme Court Justice Harry Blackmun. Ogden told Sessions that he “regretted” the memo, which mocked “morality groups” and “Moral Majority-types,” that he made as a young lawyer.
“When I said those things, I was 29 or 28 years old,” Ogden said, “and I regret those remarks, and I’ll tell you why I do. I regret it for two reasons. First, I don’t think it’s sufficiently respectful to people and to opposing viewpoints.
“Certainly, if I got a memorandum like that from a younger lawyer today, I would take him aside, and say, 'This isn’t appropriate; you need to be more respectful of people. And you need to understand that people have legitimate points of view and that moral views are held sincerely, and perhaps more sincerely than any other views and are worthy of respect.' That’s certainly how I view it today, that’s what I would tell my children, that’s what I would tell younger lawyers.”
Mr. Ogden was introduced by Sen. John Warner (R-Va.), who pronounced him “well-qualified.” The nominee has the endorsement of a number of organizations, including the National Center for Missing and Exploited Children, which said, “Mr. Ogden's impressive career as a litigator, leader of the legal community and great public servant will serve the Justice Department, law enforcement and America's families well."
