How Bad Has The Obama DOJ Been?

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 Courtís 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

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    If you approved of the Bush DOJ, (5.00 / 1) (#2)
    by MO Blue on Sat Jun 20, 2009 at 09:39:56 AM EST
    you will think that the Obama DOJ is doing great.

    Same policies, just different name.

    And then there's this anti-gay Obama bullsh*t... (5.00 / 1) (#12)
    by JoeCHI on Sat Jun 20, 2009 at 10:20:27 AM EST
    I'm sorry (none / 0) (#48)
    by Ga6thDem on Sun Jun 21, 2009 at 05:41:54 PM EST
    but I feel zero sympathy for the americablog crowd. If they weren't smart enough to abandon Obama when he had McClurkin doing a tour then it's almost as if they were asking for this to happen.

    What concerns me is that these (5.00 / 7) (#14)
    by Anne on Sat Jun 20, 2009 at 10:24:02 AM EST
    actions by the Obama DOJ to support the positions of the Bush administration just give conservatives and Republicans the proof they need that their positions were the right ones all along.

    All through the campaign, there were stark differences painted between the Bush/conservative/GOP policies and positions, and those of the Democrats, and people voted, in some measure, for the Democrat because they wanted those positions to change, they wanted those policies to be repudiated, they wanted changes in the US Attorneys offices, they wanted Bush appointees out of the DOJ.  They wanted transparency and accountability.  It was going to be made crystal clear - or so we were led to believe - that "they" were wrong about a long list of things that had us off on a side trip to judicial hell, and it was a Democratic administration that would set things back on track.

    Colossal fail on almost every single point.  And that is going to make it exceedingly difficult for Democrats to run against Republicans because now Democrats will have to repudiate, in pretty spectacular fashion, a lot of people who were once considered to be on their side.

    As for the Court, it's starting to feel like the activism is purposely out of control to form a bulwark against expected changes in the Court's composition.  Really, really disappointing.

    Yes. (5.00 / 1) (#45)
    by Romberry on Sun Jun 21, 2009 at 12:05:13 AM EST
    (T)hese actions by the Obama DOJ to support the positions of the Bush administration just give conservatives and Republicans the proof they need that their positions were the right ones all along.

    Yes. This.

    When the new Democratic admin adopts these same arguments, the arguments effectively become the normalized mainstream. Now we have numerous examples on record where the policies of the previous radical administration are being advanced by the administration of hope and change.

    What I don't get is why some nominal progressives/liberals/Democrats are so quick to defend the very things that they were sternly opposed to only six months ago. Could it be tha some parts of the "reality based community" have succumbed to the virus of the cult of personality? Aren't they supposed to be immune?


    This was all baked into the bread in January (5.00 / 3) (#16)
    by tokin librul on Sat Jun 20, 2009 at 10:30:10 AM EST
    when Obama named Holder to the AG position.

    Holder defended Chiquita against charges the company had hired, armed, and trained para-military 'enforcers' top quash union activity on Chiquita plantations. (They did everything of which they were accused, but since the victims were only campesinos and peons, Holder got 'em off, scott free...)

    Yes, everyone deserves a defense.

    No, I don;t think such a defense qualifies an applicant for the position of ATTORNEY GENERAL in an allegedly people-friendly regime.

    One step forward, two steps back. (none / 0) (#34)
    by oldpro on Sat Jun 20, 2009 at 04:38:37 PM EST
    Hard to know what progress really looks like...

    I have, of late, being thinking just (5.00 / 2) (#22)
    by KeysDan on Sat Jun 20, 2009 at 01:11:33 PM EST
    how bad the DOJ is.  Clearly, the once sterling justice department has been more than  badly tarnished.  Have the problems become intractable or is the leadership intransigent?  Holder seems to be just a figurehead reacting to keep critics at bay.    Gee, maybe Justice Souter would to interested in a new job-- a sign of bipartisanship and a chance for integrity. But, we know he would never be nominated, nor confirmed.

    Call a spade a spade (5.00 / 3) (#27)
    by pluege on Sat Jun 20, 2009 at 02:37:00 PM EST
    How Bad Has The Obama DOJ Been?

    The DOJ reflects the will of its master. So the horrific bush-enabling Obama DOJ is terrible view into who Obama is - a huge phony that is very good at offering words to seduce and make people think that he something (progressive) that he clearly is not.

    So the real question is 'How Bad is Obama regarding civil rights and decency?' And the answer is: terrible.

    Incredibly disappointing (none / 0) (#1)
    by andgarden on Sat Jun 20, 2009 at 09:35:03 AM EST
    WTF has gotten in to Holder, or is it worse than that?

    It may be Holder (5.00 / 2) (#3)
    by Zorba on Sat Jun 20, 2009 at 09:42:25 AM EST
    it may be farther up.  Ultimately, it's the President's responsibility.  As Harry Truman said, "The buck stops here."  Obama may not know what's going on (in which case he's incompetent, given all the publicity the DOJ has had lately), or he approves (in which case he's not the guy most of us thought we were voting for).

    Yup, buck stops with Obama (5.00 / 1) (#4)
    by andgarden on Sat Jun 20, 2009 at 09:50:24 AM EST
    I honestly don't know what they're thinking.

    i think the issue (5.00 / 3) (#17)
    by sancho on Sat Jun 20, 2009 at 11:17:52 AM EST
    is that one does not vote for a person so much as a power structure--or a commitment to maintaining a certain kind of institutional power. and in that respect on mnay key issues obama does not seem to be that much different from bush. but this observation is less about the merits (or lack of them) of bush and obama than the continutity that exists on many crucial issues regardless of which party is in power.

    the supreme court is fascinating in part because one sometimes sees actual ideological tilts happen and then be decided before one's eyes (brown, casey).

    notwithstanding, what a piece of work roberts is, though. sheesh.


    And it should (5.00 / 1) (#40)
    by cal1942 on Sat Jun 20, 2009 at 08:10:50 PM EST
    have given pause to his allegedly superior 'creative class' supporters had they paid attention to Obama's behavior regarding the Roberts nomination.

    i decided (none / 0) (#44)
    by sancho on Sat Jun 20, 2009 at 09:45:47 PM EST
    that the roberts--he wants to support but staffers told him not to--confirmation story was an early instance of WORM. that is, obama wanted people who wanted to believe that he was anything and everything. that he really was, in his heart, truly bipartisan and respectful of others' judgement. thus, it was that bad old partisan politics that kept him from giving the qualified roberts his due. or, for others, when the chips are down, see?, obama votes the right way.

    playing the game. he's good at it. the game. its all about the game.  

    for me, thinking of voting for roberts (even as an artful lie) was a close to a dealbreaker.


    Another righteous Catholic boy, (none / 0) (#21)
    by oldpro on Sat Jun 20, 2009 at 12:56:28 PM EST
    John Roberts...start to finish.

    Smart as Hell, though.  Sotomayer should give him a run for his money.


    Familiar (none / 0) (#43)
    by cal1942 on Sat Jun 20, 2009 at 08:34:27 PM EST
    Smart as Hell, though

    That's why Obama, as Senator, wanted to support the Roberts nomination until his chief of staff told him it was bad form.


    Yup. It's not enough. (5.00 / 1) (#46)
    by oldpro on Sun Jun 21, 2009 at 12:46:34 AM EST
    One also needs empathy and a wee bit of humility wouldn't hurt.

    So sorry. No. (none / 0) (#23)
    by Sumner on Sat Jun 20, 2009 at 01:23:35 PM EST
    Ultimately it's our responsibility.

    Good. (none / 0) (#32)
    by Fabian on Sat Jun 20, 2009 at 04:27:45 PM EST
    When can we impeach Holder?

    Yeah, right.  We don't have the power, so is it correct to say that we have the responsibility?  We are responsible to some degree, but those who have the most power bear the most responsibility.


    Well actually (none / 0) (#5)
    by Steve M on Sat Jun 20, 2009 at 10:01:34 AM EST
    the Obama DOJ did submit a strong brief in support of the plaintiff alleging discrimination in Gross, the conservatives just chose not to address it...

    Interesting (none / 0) (#6)
    by andgarden on Sat Jun 20, 2009 at 10:03:39 AM EST
    So we have a runaway extreme Supreme Court. I really almost hope they piss people off to a sufficient degree that it can be packed without much controversy.

    Stevens' point is different (none / 0) (#7)
    by Big Tent Democrat on Sat Jun 20, 2009 at 10:10:08 AM EST
    as is mine. for example, in the government brief, the question presented:


    Whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a discrimination case under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq.

    The Court ruled on whether ADEA allows for a mixed motive instruction at all.



    To clarify my point (5.00 / 0) (#15)
    by Big Tent Democrat on Sat Jun 20, 2009 at 10:27:35 AM EST
    I was using Stevens' phrase as a jumping off point to wonder at the Obama Justice Department.

    I take Steve M's point that on this particular matter, the Obama DOJ would likely have adopted the view articulated by Justice Stevens.


    There are many reasons to wonder (5.00 / 1) (#29)
    by TChris on Sat Jun 20, 2009 at 03:03:01 PM EST
    what is going on at DOJ, but I think Gross is the wrong jumping off point. DOJ filed a brief taking the employee's side on the question presented, and at oral argument took the position that the Court shouldn't decide a question not presented.  DOJ can't be faulted for not taking a position on a question that nobody thought was before the Court except Roberts and his 4 followers.

    As for the Obama Justice Department, given my assumption that the president doesn't typically review merits briefs, I am less inclined to fault Obama than Holder.  I might guess that Holder got stuck with a bunch of lawyers appointed by the Bush administration and (perhaps understandably, given the breadth of the mess he inherited) he isn't rethinking or redirecting the administration's position in pending cases as quickly as he should.  On the other hand, Holder has had his hands full just trying to clean up the messes left behind by prosecutors who cheat.  Yes, the buck stops with Obama and I'd like to see both Obama and Holder give a higher priority to reviewing DOJ's interpretation and defense of legislation and constitutional issues, but I'll be much more upset if the Obama DOJ is still replicating the Bush DOJ's positions six months from now.


    When do you think Obama might consider (5.00 / 2) (#31)
    by Anne on Sat Jun 20, 2009 at 03:17:47 PM EST
    replacing the Bush US Attorneys?  I think a lot of people were thinking that might happen very quickly once Obama took office, given that it does seem like the kind of thing they could have been ready to do - but when you couple the rather disturbing affinity for the Bush policies with leaving the US Attorneys in place, it isn't particularly encouraging for the kind of new direction a lot of people were hoping for.

    Replacement has begun. (none / 0) (#33)
    by oldpro on Sat Jun 20, 2009 at 04:36:24 PM EST
    He's named 6 nominees...among them, Jenny Durkan in my neighborhood...an openly lesbian over-achiever who is being attacked on 'ethics' grounds for her Democratic activities and ties.  The attacks are bogus.  She's a winner.

    Color me unimpressed that he's only (5.00 / 1) (#37)
    by Anne on Sat Jun 20, 2009 at 05:20:14 PM EST
    managed 6 nominations in five months.

    And color me puzzled that, as far as I can tell, he has not lifted a finger to whip the Dawn Johnsen OLC nomination or the Harold Koh nomination.  

    It's hard to take him seriously when it appears that he thinks that his work is done once he has placed a name in nomination.


    I don't disagree. It's a (none / 0) (#38)
    by oldpro on Sat Jun 20, 2009 at 06:38:40 PM EST
    question of priorities.  He had speeches to give, dates to keep, PR to pursue with the MSM.  Lots of activity.  Not much progress.

    C'mon, Chris. It's not as if (none / 0) (#35)
    by oldpro on Sat Jun 20, 2009 at 04:46:00 PM EST
    everyone with justic on his/her mind hasn't been thinking of what the Obama admin's priorities should be since November '08...or before!  LONG before.

    No damn excuses.  Either Holder is a sloppy and careless administrator or he is captive of the Bush legacy at DOJ...by default or by design.  I'm not even a lawyer but I could do better than this.


    I agree that this is the wrong jumping off point (none / 0) (#36)
    by ericinatl on Sat Jun 20, 2009 at 04:48:20 PM EST
    The point is to tangential - since it is the Supreme Court that really screwed the pooch by deciding on an issue not briefed by EITHER party.

    But I do take issue that it is not Obama's responsibility.  People (including Obama) have taken pleasure in blaming his appointees for the actions of the administration.  For example, the left (and Obama) blames Geithner for the various financial rescue plans, not Obama.  That is more than disingenuous.  As someone else noted, Obama is ultimately responsible for ALL actions in his administration.  While Obama seems to want to distance himself from his appointees (e.g., him saying Geithner being on a short-leash), all major decisions fall to him.  

    While I do not disagree with the responses to the financial crisis, I do take exception to the egregious acts of the DOJ.  But this was the wrong place to start.


    "Yes, the buck stops with Obama" (5.00 / 0) (#39)
    by TChris on Sat Jun 20, 2009 at 07:49:00 PM EST
    to quote myself with approval.  I agree that all major decisions fall to him.  I wouldn't agree that the language used or specific arguments made in a brief involve major decisions in which the president should participate.  Rethinking policy positions in cases that are in the briefing stages of an appeal is tricky. If there's time to reverse direction on a significant policy issue, I would expect Holder to consult with Obama.  I don't know how often that has happened.

    Yeah (none / 0) (#42)
    by cal1942 on Sat Jun 20, 2009 at 08:28:24 PM EST
    If there's time to reverse direction on a significant policy issue, I would expect Holder to consult with Obama.  I don't know how often that has happened.

    And that speaks to important organizational matters that aren't rocket science.

    Reagan gave brief general instructions (or wish list) then took a nap.


    Imagine the Government's brief (none / 0) (#8)
    by Big Tent Democrat on Sat Jun 20, 2009 at 10:11:48 AM EST
    on the question decided by the Court. It is amazing that the question was not fully briefed and yet decided by the Court.

    Though (none / 0) (#10)
    by Big Tent Democrat on Sat Jun 20, 2009 at 10:16:33 AM EST
    I imagine they would have argued Stevens' view.

    I thought it was exceptionally rare (none / 0) (#9)
    by andgarden on Sat Jun 20, 2009 at 10:11:52 AM EST
    for the Court to decide on an issue not briefed.

    I never have seen it before myself (none / 0) (#11)
    by Big Tent Democrat on Sat Jun 20, 2009 at 10:16:54 AM EST
    As soon as Franken is seated (5.00 / 1) (#13)
    by andgarden on Sat Jun 20, 2009 at 10:23:13 AM EST
    I want to see a bill adding 4 seats to the Court.

    It won't happen, but it's an entirely appropriate response.


    I only recently realized that we could (none / 0) (#19)
    by Militarytracy on Sat Jun 20, 2009 at 12:40:20 PM EST
    have more justices if it was decided that we needed them.

    9 is not set in stone! (none / 0) (#20)
    by andgarden on Sat Jun 20, 2009 at 12:43:33 PM EST
    Heh (5.00 / 1) (#24)
    by Steve M on Sat Jun 20, 2009 at 01:56:07 PM EST
    Even FDR at the height of his power... well, heck, you know this.

    I suppose it would be fun for us to have someone propose such a bill, kind of like it's fun for the conservatives to propose bills splitting the Ninth Circuit or stripping jurisdiction to hear school prayer cases.


    That's exactly the point (5.00 / 4) (#25)
    by andgarden on Sat Jun 20, 2009 at 02:02:47 PM EST
    The people on our side who pretend that there is no way for political discourse to impact the law are ignoring the evidence.

    And let's not pretend that we don't have the power to bend the Court to our will. We just choose not to.

    By my count, only the 3rd Circuit has enough vacancies to get a Democratic majority any time soon. We can do something about that too, but we choose not to.


    From buhdydharma's diary today (5.00 / 1) (#26)
    by Militarytracy on Sat Jun 20, 2009 at 02:36:40 PM EST
    Just because the Republicans, lobbyist and shills are yelling louder and on the verge of establishing their paradigms, frames, and conventional wisdom....just because THEY are effectively Yelling Louder on every frikkin issue.....doesn't mean you should be allowed let your voices raise above a polite whisper and a golf clap.

    After all! Just think how bad things would be if McCain had won!

    So OBVIOUSLY now is the time to be vewy vewy qwiet! We are hunting mediocrity here!



    During a period (none / 0) (#41)
    by cal1942 on Sat Jun 20, 2009 at 08:18:26 PM EST
    in the 19th century there were 10 justices.

    In the FDR case he wanted to add a justice every time a sitting judge turned 70.  Can't rememberr if he wanted to add a finite number in addition to the open ended addition based on age.


    Obamas biggest threat right now (none / 0) (#18)
    by SOS on Sat Jun 20, 2009 at 11:22:40 AM EST
    is being wrecked by his own Party.

    He could just go along to get along for the next 3 and half years though.

    I don't understand your comment (5.00 / 2) (#28)
    by Spamlet on Sat Jun 20, 2009 at 02:53:00 PM EST
    Obama's biggest threat right now is being wrecked by his own Party.

    My impression is that the Democratic Party has been pretty well trashed by the Obama brand, though I realize that my point of view is so May 2008.


    I took it as saying that if (5.00 / 6) (#30)
    by Anne on Sat Jun 20, 2009 at 03:03:35 PM EST
    the Democratic Party did the unthinkable and actually pushed back against policies it does not agree with, it might "hurt" Obama.

    Perish the thought.  Far, far better to enact and go along with things that hurt the people and hurt the democracy in order to protect and support the president's brand.

    I mean, we have to keep our priorities straight.

    /extreme sarcasm and accompanying eye-rolling.


    You may have a point (2.00 / 1) (#47)
    by Socraticsilence on Sun Jun 21, 2009 at 11:59:09 AM EST
    I mean Obama is almost as disasterous as the Clintons and they cost us Congress.

    Here's (5.00 / 0) (#49)
    by Ga6thDem on Sun Jun 21, 2009 at 05:48:27 PM EST
    what people like you dont understand: Obama is a weasel and nobody respects weasels. You can't vote present your entire life and hide the closet and hope the problem solves itself.

    By your standards Jimmy Carter was a smashing success as a President.


    Talk about "the Clintons" (eye roll) (none / 0) (#50)
    by Spamlet on Sun Jun 21, 2009 at 07:26:36 PM EST
    Of course you don't offer a speck of analysis concerning why and how "the Clintons"--both of them, I guess, though maybe you mean Chelsea, too--allegedly "cost us [sic] Congress."

    But let's consider just a single aspect of President Obama's current approach to his job. Here is William Greider on Obama's false financial reform:

    If Obama were to tell the truth now about what went wrong in the financial system, he would face a far larger political problem trying to clean up the mess. Instead, he has opted for smooth talk and some fuzzy reforms that effectively evade the nasty complexities of our situation. He might get away with this in the short run. Congress doesn't much want to face the music either. But Obama's so-called reform is literally "kicking the can down the road," as he likes to say about other problems. In the long run, it will haunt the country because it fails to confront the true nature of the disorders.

    The long-term consequences here sound rather more serious than the fallout from a midterm election held almost 15 years ago, especially with today's Democratic-majority Congress largely circling the wagons around Obama's awesomeness.