In the last few days, a number of conservative groups have tried to rally opposition to David Ogden, President Obama’s nominee for Deputy Attorney General. In my view, their arguments are simply terrible. For example, at Heritage, Steven Groves notes that in successfully defending an inmate on death row before the U.S. Supreme Court, Ogden argued that the Supreme Court should look to foreign law to interpret the Constitution. Well, of course he made that argument: He had an ethical duty of zealous advocacy on his client’s behalf, and he properly made the argument that he thought had the best chance of winning. (Can you imagine a lawyer representing a client on death row and opting not to make an argument that would win and save his client’s life?!?) I personally don’t think the Supreme Court should have agreed with Ogden’s position. But that’s my problem with the Court, not the lawyer representing his client.
UPDATE: In the comment thread, Steven Groves responds:
My argument was not that Mr. Ogden shouldn’t zealously represent his client, but rather that the Senate should probe his beliefs regarding constitutional interpretation vis-a-vis foreign jurisprudence. I thought that was clear from the paper.
I appreciate the clarification. I wonder, though, why probe Ogden’s views of the issue, as opposed to the views of other nominees? The Deputy AG isn’t generally in a position to engage in a lot of constitutional theorizing. And as far as I know, this isn’t a question that other DOJ nominees have been asked. (Anyone know if it came up at Holder’s hearings?) Perhaps Groves would want the beliefs of every DOJ nominee probed on this issue, and he is picking out Ogden simply because by coincidence Ogden happens to have represented a client in case where the issue came up. That’s certainly possible. On the other hand, my sense is that urging the Senate to “probe his beliefs” is likely to be understood not just as suggesting a line of questions generally, but more specifically as suggesting this issue as a possible objection to Ogden’s confirmation.