Balkinization  

Tuesday, January 20, 2009

Marty Lederman joins the Office of Legal Counsel

JB

Some of you may have noticed that Marty Lederman has not been blogging recently at Balkinization. The reason is that he has been working on the Department of Justice Transition team. As of today, the commencement of the Obama Administration, he begins work as Deputy Assistant Attorney General in the Office of Legal Counsel. There he will be joined by two of his former OLC colleagues, Dawn Johnsen, nominated to be head of the office; and David Barron, who will serve as the Principal Deputy (and as the Acting AAG while the Senate considers Dawn’s nomination).

Both Dawn and David have been guest bloggers on Balkinization and I have also had the pleasure of being a co-blogger with Dawn, David and Marty on Slate's former legal blog Convictions. You may also recall that Marty and David are the co-authors of two splendid (and definitive) articles on the Commander-in-Chief power in the Harvard Law Review.

I have known Dawn, David, and Marty for years and think very highly of their legal skills, and more importantly, their judgment. I think that all three will do a splendid job in their new positions and I wish them every success.

Needless to say, I am very pleased for the country by Marty's new job. I do not exaggerate when I say that Marty is one of the finest lawyers I know, and there is perhaps no better time to put his remarkable talents to use in helping to reform a Justice Department that so badly needs reform.

Yet there is also a little sadness to this announcement, for Marty has been an integral part of this blog since he began writing on the torture memos in late 2005. He has the rare talent of being both a first class lawyer and a first class legal blogger. Things will not be the same without his amazingly sophisticated, detailed and cutting- edge legal analysis.

We at Balkinization send Marty all our of our good wishes and wish him the greatest of success in the OLC. We will keep his place for him here, awaiting the day when he finishes his service to our country and returns to private life.

Comments:

Congratulations, Marty. It's a terrible loss for the blog, but I think it's a fair burden to bear in order to have you at OLC instead.
 

I second those congratulations.

The Obama Administration has assembled a first class team for the Department of Justice in general and for the Office of Legal Counsel in particular.

They will have a herculean task to undo (insofar as possible) the damage done by the Bush Administration's appointees to the rule of law in the USA.

Some of the damage is irreparable. Persons who have been kidnapped, suffered rendition to torture, or been subjected to inhuman and degrading treatment and/or torture in prisons or "detention facilities" cannot be rendered physically or mentally whole again.

The propaganda value of such cases to extremists also cannot be undone.

But if there was any team able to "hit the ground running" and take decisive steps to restore the rule of law for the future, this is it.
 

This is very good news. Congratulations and good luck to Prof. Lederman, although I must say that his writings on this blog will be missed (at least by this long time reader and lurker). I learnt a lot from his writings and am ever grateful.
 

Congratulations and good luck to all of them.

The results should be fascinating.
 

Congratulations to Prof. Lederman. The challenges ahead are formidable, indeed, but he and his new/old colleagues are well equipped to meet them. My thoughts and prayers are with them.
 

Congratulations Professor Lederman. I have learned a tremendous amount from you on this site, and from your writings.

The country will be well served.
 

I hope the GOP archived their posts here for the confirmation hearings BEFORE deletion. Marty said he was for free speech, until it got too hot in his own kitchen.

I wonder if OLC will have to issue a memo explaining now that "natural born" citizen includes anyone born outside the United States?
 

I also congratulate Marty on his new position.

An interesting question, which I hope Professor Balkin will consider addressing, is what actions we can predict OLC will take if it were to follow the views expressed by ML on this blog. A few subjects that occur to me

Waterboarding prosecutions (my recollection is that ML thought they would be legally problematic)

Disclosure of OLC opinions (my recollection is that ML favored public disclosure of all OLC opinions, with redactions only for classified information, and total disclosure to Congress)

US Attorney investigation- I assume that ML would advocate OLC withdrawing its objections to testimony by Miers and Bolton in the congressional investigation, as well as releasing all documents subpoenaed by the House Judiciary Committee.
 

What a hopeful sign for this presidency! According to the Washington Post, the Obama transition team reads this blog. Now we have proof of it, and proof of Obama's apparent commitment to the rule of law, whatever the press has written about his desire to let the past rest.

-- http://www.washingtonpost.com/wp-dyn/content/article/2009/01/19/AR2009011903100.html?hpid=topnews&sid=ST2009011903399&s_pos=
 

As much as I'll miss his posts, I'd much rather he be making policy than blogging about how bad policy is. Maybe OLC opinions will be worth reading and considering again.

Congratulations to all.
 

Excellent news.
 

Personal loss here at my favorite cortical watering hole is more than amply compensated by my vest-button-bursting pride at having someone of whom I think so highly serving in such an esteemed post. Congrats, Professor Lederman. Not just congrats, but thanks, for slogging here in the trenches with us at the blog, and for serving the nation in your new post.
 

Marty,

Congratulations and good luck, sir.
 

Congratulations and good luck!
 

Prof. Lederman:

A hale and hearty congratulations to you, and we wish you every success. A more worthwhile appointment would be hard to find, and the entire OLC office sounds like just what the doctor ordered after the wholesale trashing by the previous maladministration.

I can only hope that you find the way to reverse the abominable decisions of the Dubya team and to hold those that did this responsible. I understand perhaps a desire for continuity and "settledness" WRT OLC rulings, but surely there's a limit to what kind of garbage that can be tolerated. Get the ammonia and Mr. Clean, and scrub the whole place out, if you please. We will all thank you.

Mourad:

Some of the damage is irreparable. Persons who have been kidnapped, suffered rendition to torture, or been subjected to inhuman and degrading treatment and/or torture in prisons or "detention facilities" cannot be rendered physically or mentally whole again.

What is truly and unarguably irreversible are the deaths of people under torture by the U.S. and their henchmen. These need prosecution ... and not just of the few "bad apples". Those responsible for this torture regime need to be held to account for the direct and foreseeable consequences of their policies. Those that ordered "enhanced interrogation" are the 'brains' of the outfit. As such, it was their thinking (even if the direct acts of others) that was responsible. War crimes are not pardonable, nor may they be ignored.

Cheers,
 

i'm stunned and happy for prof. lederman.

i immediately recalled the joking on this site that obama should select marty for a position in his administration and now it's happened.

now if only we could get Juan Cole in at State :)

Happy Days Are Here Again!
 

MLS:

Waterboarding prosecutions (my recollection is that ML thought they would be legally problematic)

"[L]egally problematic" as in illegal under international and U.S. law? But I won't presume to speak for Prof./ADA-OLC Lederman. Patience, grasshopper; you shall soon know the truth. See below:

Disclosure of OLC opinions (my recollection is that ML favored public disclosure of all OLC opinions, with redactions only for classified information, and total disclosure to Congress)

This would seem to be a good idea. Wasn't part of the 'justification' for the torture that there was no guidance as to what was permitted? If OLC keeps its 'opinions' secret, they suffer in two ways: 1). from lack of critique, and 2). from lack of utility.

US Attorney investigation- I assume that ML would advocate OLC withdrawing its objections to testimony by Miers and Bolton in the congressional investigation, as well as releasing all documents subpoenaed by the House Judiciary Committee.

The privilege invoked is a prerogative of the president. If President Obama decides that it is not in the national interest (under to those constitutionally permitted situations that permit an "executive privilege"), then Obama can rescind these claims. They do not attach to Bolten and Meirs; they belong to the president. I don't think that OLC needs to get involved here (other that rescinding their prior 'opinion' should they choose to clear the air).

Cheers,
 

Congratulation to Mr Lederman. MayI suggest publishing the new OLC memo's on this very website to compensate for the loss of this excellent legal blogger?
 

i would add my congrats to marty. if he is not writing at this site, i hope he keeps up with some of his friends here by reading the continued posts, as we will undoubtedly be trashing him for the next eight years.... good luck and godspeed my friend.
 

Oh my.
Congratulations, America.
 

Glenn Greenwald, in praising this announcement (along with others, I concur), noted something that made me laugh at loud:

Lederman's co-blogger, Yale Law School Professor Jack Balkin, reports that Lederman will also be in the OLC, working under Johnsen and Barron, as Deputy Assistant Attorney General in the Office of Legal Counsel -- John Yoo's former position.

Makes me think of them playing (so it is said) "The World Turned Upside Down" at Yorktown in 1781.

As the ML's opinions, it was noted Dawn Johnson, his presumptive boss, guest blogged here. Links to her posts might also be useful.

Glenn also linked to the c-i-c law review article.
 

God bless you, Professor Lederman.
 

Congratulations are in order. I noticed Marty Lederman's work originally in other sites, notably Scotusblog, and National Security Law blog, which each underwent substantial change over the past brief years.

I agree with the comment about transparency being one of his legacy concepts, especially as draft legislation was moving more rapidly than the cybersphere through congress. Hopefully, his office will have some voice to support expansion of transparency in that other part of the capitol.

As for the unanticipated consequences of the existence of the blog, quite an aggregation of provocative authorship has appeared hereabouts, so that likely will ameliorate the absence. I sense Georgetown's and other faculties must endure the same sense of deprivation for a while as their best minds appear in the nominations and appointment rosters in our political process.

Similarly, I noticed the recent nominations have included the counsel to one commenter here several years ago, Prof. Hundt. I hope he fares well in the hearings process, too.

For this writer, it is time to get back to the books now.
 

Arne- since I doubt you think it would be illegal under US or international law to prosecute people for waterboarding, you may have misunderstood my reference.

As for executive privilege, it is the position (at least as of noon today) of the Justice Department that the privilege may be asserted by the former President, as well as the current President. OLC will undoubtedly be asked for its views on that issue.
 

Fantastic news. Best wishes.
 

MLS:

Arne- since I doubt you think it would be illegal under US or international law to prosecute people for waterboarding, you may have misunderstood my reference.

No, I think it the other way around, and I apologise for my poor wording there. I meant to indicate that torture [including waterboarding] is illegal under both international and U.S. law, not that prosecution for such would be.

Yes, I think you're right; I think that Prof. Lederman did write that OLC opinions might be the basis for a defence in such a prosecution (btu I cant seem to find the post; any help would be appreciated), but this might well hinge on a couple of factors, such as whether the OLC opinions were reasonable, and not done/given for purposes of evading the law or justifying acts already performed. But such a "reliance on counsel"/"estoppel"/"just doing my job" defence is just that: appropriately raised as an affirmative defence, but not a bar to prosecution.

Cheers,
 

MLS:

As for executive privilege, it is the position (at least as of noon today) of the Justice Department that the privilege may be asserted by the former President, as well as the current President. OLC will undoubtedly be asked for its views on that issue.

Do you have a cite for this?

It is the position (at least as of noon today) that the U.S. Supreme Court doesn't think much of arbitrary invocations of executive opinion, certainly not when measured against the need for criminal investigation. See, e.g., U.S. v. Nixon. I'm sure the new OLC ... and the courts ... will take note of it.

Cheers.
 

Arne- funny, I couldn't find the ML post I was thinking of either. I believe it was in Feb 08 because I had a comment responding to it, but I could not find it in the archives.

With regard to the executive privilege issue, the Nixon v. GSA case is the foundation of the argument that former presidents can assert the privilege. The DOJ lawyer in the Miers contempt case was asked about this in the argument before the DC Circuit last fall, and he made a point of saying that question of whether to continue to assert executive privilege after the change of administration would be one for the former president.
 

Professor Lederman,

Congratulations.
 

The cited ruling provides importance both to Bush and Obama:

"Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it:

This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office. Unless he [p449] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends. The confidentiality necessary to this exchange cannot be measured by the few months or years between the submission of the information and the end of the President's tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President's tenure.

Brief for Federal Appellees 33.

At the same time, however, the fact that neither President Ford nor President Carter supports appellant's claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly."
 

This comment has been removed by the author.
 

MLS:

With regard to the executive privilege issue, the Nixon v. GSA case is the foundation of the argument that former presidents can assert the privilege. The DOJ lawyer in the Miers contempt case was asked about this in the argument before the DC Circuit last fall, and he made a point of saying that question of whether to continue to assert executive privilege after the change of administration would be one for the former president.

No, MLS, in Nixon v. GSA, the court upheld the Presidential Recordings and Materials Preservation Act against challenges based on separation of powers, privilege claims, and privacy claims, and said, amongst other things, that there wasn't any separation of powers issue, in part because the current and prior executives (that is, Presidents Carter and Ford) had been a party to it and/or agreed with it....

Some DoJ lawyer (if I may use that word) may have said that, but you will look long and hard to find such a sentiment in the Nixon case, which rejected Nixon's claims of privilege in its holding.

Cheers,
 

Joe:

[quoting Nixon v. GSA]: Nevertheless, we think that the Solicitor General states the sounder view, and we adopt it:

"This Court held in United States v. Nixon . . . that the privilege is necessary to provide the confidentiality required for the President's conduct of office."


Well, not really. They couldn't have held that, because they ruled against Nixon there as well. If anything, it was dicta, as it really wasn't any part of the holding or rationale used to reach that holding.

Cheers,
 

To forestall confusion, Nixon v. GSA "adopted" the principle that a former president can assert a privilege claim, but that current presidents would be in the "best position" to judge the matter. IOW, if the Obama Administration decides that letting the people testify wouldn't threaten it, the Supremes would give it much deference.

"anything, it was dicta, as it really wasn't any part of the holding or rationale used to reach that holding"

Either way, the Supreme Court "adopted" the solictor general's argument. And, "The privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution" is well recognized by this point, including in Cheney v. US District Court, so the fact it was "dicta" is not really key to the argument at hand.

FWIW, and I know the limits of headnotes, the headnotes for U.S. v. Nixon noted it "held" in part:

"the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice"

The priviso, of course, ignored by some strong executive types.
 

Arne- is your point that you don’t think former presidents should have any right to assert executive privilege? Or that there shouldn’t be any such thing as executive privilege in the first place? Or that the Supreme Court doesn’t understand its own opinions? (the language you objected to from Joe’s comment was a quote from Nixon v. GSA. btw).

These are arguments you can make in a law review article, but in the real world it is understood that former presidents do have a right to assert executive privilege (which is why, for example, the Presidential Records Act provides them an opportunity to make such assertions). Therefore, if former President Bush 43 asserts executive privilege with regard to the testimony of Miers and Bolten (which he will), the Obama administration is unlikely to just blow him off, but instead will ask OLC for advice on how to respond. Which is the only point I was making in the first place.
 

mls:

Of course you couldn't find it in the archives ;)
 

The Washington Post has an interesting article noting the beginnings of a wholesale transformation of the left's weak President theories applied to Mr. Bush to an embrace of Obama's exercise of those same Article II powers.

Of note from the article:

Dawn E. Johnsen, Obama's nominee to lead the Justice Department's Office of Legal Counsel, is best known for vigorous critiques of overreaching by Bush and Cheney. But her popular commentaries in Slate and elsewhere have diverted attention from scholarly writings that make a subtler point. Just last year, in the Boston Law Review, she affirmed that "in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views that do not track those of the Supreme Court or Congress." The trouble with Bush was not that he asserted the power, she wrote, but that he used it wrongly.
 

MLS:

Arne- is your point that you don’t think [snip two things I haven't asserter and that are not germane] ... that the Supreme Court doesn’t understand its own opinions? (the language you objected to from Joe’s comment was a quote from Nixon v. GSA. btw).

I know it does. Judges don't always write coherent opinions, and people are perfectly free to sift through them for the stuff that suits their purposes (after all. of judges always wrote the most lucid, comprehensive, and coherent opinions, we wouldn't need lawyers to argue the lacunae, would we?)

But do you disagree that holdings are the most persuasive (and least ambiguous) parts of opinions? And that when the holding is that a person doesn't have a cognisable claim of executive privilege in that instance, the case can hardly be held as strong precedent for the proposition that he does? Courts don't (usually) rule on fact situations not before them, and -- even in the abstract, if such privilege existed under different facts and such were adverted to by the court -- this case (Nixon v. GSA) can hardly be taken to have held so. While people do get lazy and cite from later cases which restate earlier holdings in support of a proposition, the more honest thing to do is to cite to the cases that have in fact held that the proposition stated is true.

These are arguments you can make in a law review article, but in the real world it is understood that former presidents do have a right to assert executive privilege (which is why, for example, the Presidential Records Act provides them an opportunity to make such assertions)....

... and if it didn't? As Nixon v. GSA pointed out, the act was within the power of Congress. If the act said that the privilege inhered (in the end) with the executive (the current one, not one tossed on the ash-heap of history)?

Interestingly, the advocates of a strong (or "unitary") executive should be the ones beating the drums most loudly for past preznits not having any say here. "Bart"? Calling "Bart".....

... Therefore, if former President Bush 43 asserts executive privilege with regard to the testimony of Miers and Bolten (which he will), the Obama administration is unlikely to just blow him off, but instead will ask OLC for advice on how to respond....

Typo there: Should be "a real OLC".

Considering that the testimony sought doesn't concern any preznitential communications (we hope, and Dubya has said), they'll probably say "Wha' da fu' are you taaaalllkingg about, 'executive privilege'?!?!?"

Which is the only point I was making in the first place.

Cheers,
 

"Bart" quotes Barton Gellman:

Just last year, in the Boston Law Review, [Dawn Johnsen] affirmed that "in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views that do not track those of the Supreme Court or Congress." The trouble with Bush was not that he asserted the power, she wrote, but that he used it wrongly.

As has been pointed out previously, Clinton and others in the executive have said that they may indeed advance their views of the Constitution, and even act on them. In fact, every time the Solicitor General gets up and argues the gummint position before the Supes, they're doing just that, and such is hardly remarkable. But the substantial difference is that when Clinton did so, he did it publicly and prosecuted such views in court. And when told by the courts that he was wrong, he didn't continue to defy the courts. Dubya first tried to hide everything he was doing, and when it leaked, kept on with his own view despite serial bitch-slaps from the U.S. Supreme Court and numerous threats and actual contempt citations from both courts and Congress.

There's a significant difference between advancing a position, and simply ignoring and dismissing other authority.

Cheers,
 

Arne:

1) Clinton did not make public his rendition program or any other classified intelligence gathering.

2) Bush won most of his court battles and complied with every single adverse Supreme Court ruling.

Regardless of how many false strawmen you offer, the left's hypocrisy on Article II is increasingly hard to spin away.

Meet the new boss, same as the old boss.
 

1) Clinton did not make public his rendition program or any other classified intelligence gathering.

And this (whatever it is; you didn't say) has what to do with the price of tea in Sri Lanka?

2) Bush won most of his court battles and complied with every single adverse Supreme Court ruling.

"... and Spiderman has teamed up with Obama to fight Evid-Doers™ everywhere, and Jack Bauer saved the U.S. from a Terra-ist nuke...."

Cheers,
 

MLS (and the "Barterino"):

More good news (from here):

Late Update: In fact, the new administration is already acting to avoid a future repeat of Cheney's effort to claim expansive power. Among several executive orders issued by President Obama today dealing with transparency and secrecy issues, was the following:

Finally the Executive Order on Presidential Records brings those principles [of openness and transparency] to presidential records by giving the American people greater access to these historic documents. This order ends the practice of having others besides the President assert executive privilege for records after an administration ends. Now, only the President will have that power, limiting its potential for abuse. And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution.

So in other words, the vice president can no longer claim executive privilege to keep records from the public. It really is a new day.


Other parts of the article cover Ctheney's continued obstructionism, but that may just a tempofrary bump in the road to driving the government back out into the harsh light of day.

Cheers,
 

If it is such a "new day" then why did Marty delete archived posts from this blog?
 

BTW:

Just last year, in the Boston Law Review, [Dawn Johnsen] affirmed that "in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views..."

That word needs bolding. That does not include memos that should embarrass a 1L.

Cheers,
 

Speaking of the "lost" -- some might allege "nefariously deleted ", but they would seemingly be wrong -- Lederman post concerning prosecutions of CIA operatives for torture, I think this is the post I had in mind.

Cheers,
 

Arne- thanks for the heads up on the EO, as well as to the link to ML’s post. With regard to the EO, the summary you quoted (from TPM, I think) is not quite accurate. The former president is allowed to assert executive privilege; however, instead of being bound to respect this assertion, as was the case under the previous Bush EO, the Archivist is now directed to consult with OLC and others to determine whether it is appropriate to respect the assertion. This (appropriately) returns the process to what it was under the Reagan EO which Bush (inappropriately) superseded in 2001. And, needless to say, it is entirely consistent with what I said would happen in the case of Bush’s asserting exec privilege in the Miers case.

The ML post you found is also the one I was thinking of. (How I missed it when I looked for that precise date I am not sure- but absent further evidence I will chalk it up to approaching senility rather than a conspiracy). This confirms my recollection of ML’s stance on prosecuting the waterboarders, although I had forgotten that he also raised the (fairly remote) possibility of prosecuting the OLC lawyers:

“If the OLC advice was patently wrong, and if the lawyers in question knew it Case at Nuremburg -- then that would raise very interesting, thorny issues about the criminal culpability of the advice-givers, in the event that DOJ ever (i.e., in a different Administration) concludes their advice was egregiously mistaken. That, in my view, is the more pertinent and difficult question (although even here, I can't imagine actual prosecution of the lawyers, absent proof that they knowingly provided bad legal advice). [This is as good a time as any to repeat my disclosure that I worked in OLC until November 2002, but had no involvement in, or knowledge of, the events or advice in question.]

But prosecution of the waterboarders themselves? Well, I think that would be targeting the wrong government actors (we should want CIA officers to be able to rely on OLC advice) and, in any event, such a prosecution would be of dubious constitutionality. (And again, none of this even becomes relevant unless and until the President and DOJ change their views on the legality of the underlying conduct.)”

I can’t wait until Members of Congress start writing to OLC asking whether it has reached a determination on whether it has determined that the prior advice of its office was “egregiously mistaken.”
 

MLS:

[Prof. Lederman]: [W]e should want CIA officers to be able to rely on OLC advice)...

Which is why we need to make sure they never get such advice again. Which I think Prof. Lederman echoed elsewhere.

Plus, we might want to rethink the idea that OLC advice is necessarily of sufficient quality and reliability that such reliance is warranted for the government purpose of furthering efficient executive activities.

I can’t wait until Members of Congress start writing to OLC asking whether it has reached a determination on whether it has determined that the prior advice of its office was “egregiously mistaken.”

The people that will be involved have not been exactly raving in their 'reviews'.... ;-)

Cheers,
 

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Bart- before the inevitable wave of invective arrives in response to your last comment, could you provide substantiation for the allegation that dozens of ML's posts have been deleted? The link you provide just takes me back to the current post.
 

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The apparent censorship of Professor Lederman opinions as the price of getting an OLC job raises the disturbing question...

Bart, one thing we can take to the bank: your mind will be plagued by "disturbing questions" for as long as President Obama remains in office.

(If I were in ML's position, knowing that wingnuts like yourself might enjoy scouring the archives in search of embarrassing cross-talk I would seriously consider removing blog posts.)
 

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Hmm, the problem is that your search results don't seem to include some posts (specifically, the 2-8-08 post that Arne and I were discussing earlier) that can be obtained by going to the archives.

Perhaps we can simply ask Professor Balkin whether or not any posts have been deleted.
 

This comment has been removed by the author.
 

Bart, no posts have been deleted. You should use the archive function in Blogger to find them. (It's at the lower right hand side of the webpage). For convenience, you can also go to the Anti-Torture Memos page that Marty kept to see most of the relevant posts since 2005. We'll be updating that at some point to take into account all the posts put on the blog recently since it was last updated.
 

Bart, do you plan on posting an apology on your blog for the entry you posted on this topic, and have since removed?
 

"Bart" DeGOPApologist:

Hiding past radical views and associations of Obama and members of his team has been SOP for the campaign and now the administration. In order to enforce this SOP in the Administration, Team Obama imposed the most invasive vetting in presidential history with a seven page application and intensive background checks. Of note on the application:

Applicants... must include any e-mail that might embarrass the president-elect, along with any blog posts and links to their Facebook pages.

The application also asks applicants to “please list all aliases or ‘handles’ you have used to communicate on the Internet.”


And how does that compare with asking if they're Republicans, and their views on abortion?

While such vetting is probably a good idea, just so you know what you're up against -- the Rethuglicans will surely be hot-to-trot in digging out potential "dirt" or other detritus to start flinging in nomination hearings -- it's not clear that any "wrong" answers are a disqualification for service ... unlike the Dubya maladministration that apparently had a litmus-test for ideological purity and party loyalty for any job applicants (leading to the Brownie disaster in Katrina, and the horrors of the CPA in the Iraq fustercluck, as detailed in Chandrasekaran's "Imperial Life in the Emerald City"), as well as other horrors.

Cheers,
 

"Bart" DeCluelessAboutTheIntertoobz:

During the application process, it appears that Professor Lederman has deleted dozens of his Balkinization posts apart from a handful advancing opinions shared publicly by Mr. Obama.

Try a real search, moron, before you start flinging false accusations (that's what got you banned at Unclaimed Territory, you know):

Cheers,
 

mattski:

(If I were in ML's position, knowing that wingnuts like yourself might enjoy scouring the archives in search of embarrassing cross-talk I would seriously consider removing blog posts.)

... or at least the comments (including "Bart"'s). A habit that Prof. Lederman has in fact exhibited in the past, perhaps with remarkable foresight, in retrospect.

Cheers,
 

Professor Balkin:

Thank you very much for the correction. I humbly and sincerely apologize to Professor Lederman for my mistake alleging that he erased his posts. I have removed my posts making that claim.

I do not like making mistakes like that. Do have any idea why Professor Lederman's posts were not showing up in a search using his name?
 

Dear Brian:

Please stop calling these important appointments to the new administration as "losses" to the law schools from whence these distinquished and hard working colleagues have come. The Obama administration has tapped some of the best minds to work hard on the difficult problems facing our country and their commitment to action is far more important than a few courses or new articles they they would produce as legal scholars and teachers. We should thank them for the "gain" to our country --not a loss. So Congratulations to Neal Katyal, Marty Lederman, Dan Tarullo, Elena Kagan, Danny Meltzer, Cass Sunstein, David Barron, Trevor Morrison and hopefully, countless others who will serve us and the nation. Somehow the next generation of law students will be educated, and perhaps even be inspired to serve.
 

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* We support our recruiters with a multi-million-dollar research budget.


As a result, we create enduring matches between committed, focused candidates and the most prestigious organizations in the legal market. "


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