Posted by Jonathan Adler:
Still More on the OLC Opinion Re: D.C. Voting Rights:
http://volokh.com/archives/archive_2009_03_29-2009_04_04.shtml#1238779980
In [1]another follow up story, the Washington Post provides more
detail about Attorney General Eric Holder's decision to seek a second
opinion after learning that OLC concluded that the D.C. representation
legislation is unconstitutional.
After receiving a legal memo that declared the pending D.C. voting
rights bill unconstitutional, Attorney General Eric H. Holder Jr.
reached out to another lawyer on whose judgment he had relied for
years.
Holder contacted Deputy Solicitor General Neal K. Katyal, who
served as one of his advisers in the Justice Department during the
Clinton era. Katyal gave Holder, who said he had already decided
that the bill passed muster, an informal view that the measure
could be defended in court if Congress passed it and the president
signed it. . . .
As attorney general, Holder has broad authority to make judgments
about the law and to reject conclusions from the department's
Office of Legal Counsel, an elite team of lawyers who often have
the final word on legal issues in the executive branch. Overriding
an OLC ruling is rare, former Justice Department officials said.
Matthew Miller, a spokesman for Holder, said the OLC took up the
issue this year as part of a routine process of examining
legislation moving through Congress. Holder read the OLC memo,
scrutinized research by other lawyers outside the department, and
determined for himself that the measure is constitutional. He later
reached out to Katyal not for a formal judgment from the solicitor
general's office but rather "as a check on his own thinking . . .
with a very smart attorney," Miller said.
The story also reports on the brewing controversy over whether the
Justice Department should release the OLC opinion Holder overuled.
Justice Department officials said Wednesday that they will not
release the memo, because it reflects internal deliberations and is
not a "final" or "formal" ruling. But Republican lawyers who have
worked at the department said that a signed OLC memo generally is a
finalized document.
Aides to the attorney general said they have no specific plans to
draft a new opinion on the bill, which could change yet again as it
awaits passage by the House.
Given that OLC nominee Dawn Johnsen and other administration officials
have argued that OLC should err on the side of disclosing all formal
OLC opinions, some argue that the Justice Department should release
the OLC memo at issue here. As much as I would like to see the
document, it is not clear that the principle advocated by Johnsen and
others applies in this case. It is one thing to demand the disclosure
of documents that represent the Justice Department's definitive
constitutional interpretations, binding on the executive branch. It is
quite another to demand working drafts and internal memoranda
articulating arguments and positions that are never adopted. So, for
instance, while OLC has recently released quite a few Bush
Administration opinions on various questions, it has not been
releasing various drafts of opinions that were never adopted as the
Department's official legal position.
Speaking of Dawn Johnsen, her nomination has received [2]significant
opposition, and she may have to wait several more weeks for a Senate
vote on her confirmation. This is unfortunate. While I am quite
certain I disagree with Professor Johnsen on a wide range of issues, I
see no reason to oppose her confirmation. In my opinion, some critics
of her nomination have focused on the wrong questions -- whether or
not she is too "liberal" or too critical of the Bush Administration --
instead of whether has the necessary qualifications and temperament
necessary to "provide an accurate and honest appraisal of applicable
law" as her position would require. So even assuming, for the sake of
argument, that some of the positions Professor Johnsen advocated as a
NARAL attorney or academic are extreme or unwise, this does not make
her unfit for the job. Just because she argued something in a brief
does not mean she would advance the same argument at OLC. Based on
what I have heard from those who worked with her at OLC in the past, I
believe she understands the difference between the role of a legal
advocate and an OLC attorney. Indeed, I suspect that, whatever her
personal views of the subject, the OLC memorandum on D.C. voting
representation would have reached the same conclusion were she in
charge of the office.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/02/AR2009040203979.html
2.
http://legaltimes.typepad.com/blt/2009/03/office-of-legal-counsel-nominee-still-awaiting-vote.html
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