EDITOR’S NOTE: The Senate Judiciary Committee is scheduled to consider David Ogden’s nomination Thursday, February 26. Ogden, who has been criticized for representing pornographers, is the nominee for the No. 2 position in the Justice Department. Senators can be contacted through the Capitol switchboard (202-224-3121).
NASHVILLE, Tenn. (BP)–In the United States, attorneys are free to represent whomever they choose. And while I am grateful that I have never had the need for legal counsel in a criminal or civil matter (except for the closing on a home), I feel confident an attorney would seek zealously to defend my interests, despite his or her personal beliefs about my guilt or innocence.
With that said, I still harbor serious concerns about David Ogden, who has been nominated by President Barack Obama as deputy attorney general — the No. 2 position — in the U.S. Justice Department. While I want to be careful about drawing connections where connections don’t exist, I am more than a little bit troubled by several of the legal cases in which Ogden was involved.
According to Internet chatter, particularly from right-leaning sites and groups, Ogden’s participation in pornography cases, often in legal briefs in support of the individual or company associated with pornography, reflects a disturbing trend.
According to ThePublicDiscourse.com, an online publication of the Witherspoon Institute, Ogden represented the head of the nation’s largest mail-order pornography shop in seeking to stop a Justice Department investigation into the business.
In United States v. American Library Association (2003), Ogden filed a friend-of-the-court brief for the library association and argued that in the Children’s Internet Protection Act (CIPA) Congress “subverted the role of librarians and public libraries and violated the First Amendment rights of library patrons.” CIPA mandates that on condition of receiving federal funding libraries must put in place mechanisms that block pornography and restrict Internet access for minors.
In a number of other pornography and obscenity cases, Ogden has filed briefs before the Supreme Court of the United States pleading for the First Amendment free speech rights of pornographers.
While Ogden, in his confirmation hearing, pledged that his personal perspective on the dissemination and use of so-called adult-content material would not interfere with his Justice Department responsibilities to protect women and children from this material and/or their exploitation by the pornography industry itself, I find his promise a little hard to believe.
Some praise for the nominee doesn’t help his case. For instance, XBIZ, an online newswire for the porn industry, quoted an “adult industry attorney” in Los Angeles as saying the pick of Ogden and Attorney General Eric Holder was a “good sign for the adult industry.”
Who can argue with them?
It appears Ogden is steeped in the mindset that adults’ rights to view pornography trump the need to safeguard children. And while our nation has problems enough with activist judges, we don’t need any more activist attorneys running roughshod over our rights from their lofty perch in the federal government.
In Watkins v. United States Army (1989), Ogden argued on behalf of the plaintiff who alleged the U.S. Army discriminated against homosexuals and bisexuals in its policies, writing, “There is no rational basis for the Army’s exclusion of gay people.” In Rust v. Sullivan (1990), Ogden represented the American Library Association in filing a brief with the Supreme Court that argued the Department of Health and Human Services did not have the right to forbid federal funds from being spent where abortion is a method of family planning.
Others have expressed concerns about an opinion piece Ogden wrote and that was published in the Legal Times, July 21, 1986 that some say is an indication that he ascribes to a belief that the Constitution is a “living, breathing” document that evolves with the culture:
“Constitutional interpretation cannot be limited to ascertain the way a particular law would have been viewed by the Framers,” he wrote. “While constitutional principles do not change, the society and individuals in whom they are applied do, and our knowledge about that society and those individuals improves with time.”
Ogden knows his way around the Justice Department. For a time, he served as chief of staff to Attorney General Janet Reno during the Clinton administration, among other positions in the department.
Yet I have to imagine there are other more-than-capable attorneys in the U.S. whose Rolodex, to use an old image, isn’t littered with such a troubling list of clients.
Jacob Sullum, a senior editor at Reason magazine and at reason.com said Ogden would be “one of the bright spots in the Obama administration.”
“Last fall I considered the pornography record of Ogden’s new boss, Eric Holder,” Sullum wrote. “In the February issue of Reason, I drew parallels between obscenity and drug paraphernalia prosecutions and predicted that neither would be a big priority in the Obama administration.”
At least we can be thankful Ogden doesn’t have tax problems.
In his appearance before the Senate Judiciary Committee, Ogden promised to put “put the interests of the United States and the rule of law above any other” consideration. Given the high likelihood of his confirmation by the Senate, I am hopeful Mr. Ogden will also include the interests of families, particularly children, above these other considerations.
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Dwayne Hastings is a vice president with the Ethics & Religious Liberty Commission of the Southern Baptist Convention.
