SCOOP44 asked the nation’s foremost legal scholars:

1. What specific reversals of legal policy do you anticipate from the Bush years?
2. What new policies will be implemented swiftly?
3. What signal is the President sending about potential Supreme Court nominees he would consider?

Interviews with Harvard’s Tribe and Tushnet, NYU’s Revesz, Yale’s Greenhouse and Carter, UVA’s White, American’s Wermiel, Pepperdine’s Kmiec, Georgetown’s Lazarus and Barnett, Indiana’s Hoffmann, Attorneys Millett and Casey, Chapman’s Eastman, and Texas’s Powe.

Tribe: ‘A cautious and pragmatic course’ to change recent constitutional law

“Based on all I know of President Obama over the past two decades, including having worked with him and having absorbed his announced policies and his appointments to date, I expect him to follow a cautious and pragmatic course in gradually rectifying the severe constitutional imbalances that the last eight years of presidential leadership and congressional acquiescence have left in their wake.”

“I do not expect radical or rash reversals of settled practices in the national security field, although I take the President at his word about closing the legal black hole that festered so long at Guantanamo and ending the officially sanctioned torture that so marred our moral stature in the world and betrayed our deepest commitments. ”

“When a Supreme Court vacancy occurs, I fully expect the President to nominate someone who would bring to the tasks of constitutional adjudication and statutory interpretation uncommon wisdom and a refreshing breadth of worldly experience and not solely razor-sharp analytical intelligence, although resisting some of the tendencies that President Obama has eloquently criticized as characterizing the Court as currently composed will certainly require a powerful intellect and unquestioned command of legal materials and methodology, something not readily found in those with solely political experience. ”

“I am of course aware of potential candidates for appointment to the Court but am not inclined to discuss their names or what I view as their comparative merits or prospects.”

–Lawrence Tribe, Professor at Harvard Law School

Revesz: ‘Top-flight legal talent’ expected with many good options

“President Obama has tapped top-flight legal talent for his administration, and has already made several important breaks with the Bush administrations’ legal doctrines, including revoking the legal justification for torture. Right now, the President is focused almost entirely on pulling the economy back from the precipice, but he has started working on many other important policy goals, like health care reform, energy security, and regulating greenhouse gases. ”

“He is likely to devote even more attention to these issues soon. Cass Sunstein, as the head of the Office of Information and Regulatory Affairs, will have the most immediate say in reviewing regulations adopted by administrative agencies. Eric Holder and Elena Kagan will play key roles in enforcing and defending the administration’s agenda. The Supreme Court process is always obscure, but President Obama clearly has many good options.”

– Richard Revesz, Dean of NYU Law School

Greenhouse: Quick movement on legal doctrine reversals: ‘regulatory agencies that really regulate

“These appointments show that President Obama is looking to surround himself with the highest quality legal minds in the country so that he can get policy advice based on sound legal analysis. The Solicitor General’s office has already moved to withdraw from the Supreme Court a pending petition in an environmental case that defended the Bush administration’s refusal to regulate mercury emissions.”

“I think we will see regulatory agencies that really regulate, rather than agencies that expend legal efforts to dodge their statutory responsibilities and then cover their tracks. The Justice Department will hire people who are committed to carrying out, rather than subverting, the assigned missions of the department’s various divisions.”

“As for Supreme Court nominations – it’s obvious that the President will look for top quality. But every nomination is contingent on many factors that we can’t predict in advance, so I’m not going to get into the business of naming names.”

–Linda Greenhouse, former NYT Supreme Court Correspondent and Senior Fellow at Yale Law School

White: Kagan and Sunstein picks are possible stepping-stones for judgeships

“I don’t think one can predict much from the appointment of Holder himself, but it is clear that the Justice Department is going to be much more concerned with the regularization of national security cases: the treatment of those cases as being governed by the same constitutional constraints as other cases (allowing for the fact that the government will be articulating a “national security” rationale for not revealing information, for criminalizing activity, or for restricting expression). Holder strikes me as a ‘mainstream’ Democratic appointment with no particular agenda. ”

“The appointments of Kagan and Sunstein are intriguing. Both are highly visible, accomplished legal academics, and in both cases the appointments do not seem predictable ’steps up. That makes one inclined to think that future judgeships may have been part of the conversation. Kagan has been a very successful Dean at Harvard, but she has not had much experience as a litigator and has not done a great deal of writing. Sunstein is a very prolific scholar, with strong views on a number of subjects, including ‘regulatory affairs,’ and it sounds as if his job is something like resident intellectual. Both would be obvious candidates for a judgeship.

“‘Policy’ in the Solicitor General’s office takes the form of litigation, so it is more difficult to discern sharp breaks in the orientation of the office. Kagan is a moderate and not a legal technician, so I wouldn’t take her appointment as signaling anything dramatic about the posture of the SG’s office. With Sunstein, the question is what power his office could be expected to have.”

“If I am right that the office is mainly a mini-think tank, I would anticipate that Sunstein’s contribution would be to generate ideas as opposed to implementing policy. He is very good at generating ideas, but up to now they have been directed at any academic audience, as opposed to being concrete suggestions for legislation. Obama, who is probably the most knowledgeable president about the Court since Nixon, is clearly not going to appoint justices from the same pool as Bush, and should a ‘right-leaning’ justice leave, Obama’s first priority might be to appoint someone that he believed would shift the balance on what now is a closely divided Court.”

“That might not necessarily be a woman. Should, however, one of the ‘liberal’ justices leave, Obama might feel less constrained to appoint a justice on grounds of perceived orientation. He might well appoint a woman even if Ginsburg does not leave. He might appoint a Hispanic. All one can predict is that he will be closely involved with the appointment and will make it a very high priority.”

–G. Edward White, Professor at University of Virginia Law School

Wermiel: Measured change in affirmative action, civil rights enforcement, immigration prosecutions, national security powers, federalism cases

“In my view, legal change often takes place in a more measured and deliberative fashion than the demands of the political process may suggest. One reason is that it is often easier to define what you don’t like about a prior policy than to define with precision what to put in its place. Sometimes timing pressures make for quicker decisions. ”

“For example, the Justice Dept. had to do something about an environmental case involving whether to regulate power plant mercury emissions, so they announced that they plan to comply with the D.C. Circuit ruling and asked the Supreme Court to dismiss the case. ”

“Sometimes it is more complex, so the DOJ didn’t have a fully formulated “state secrets” policy in place in time to change positions in the 9th Circuit last week. Sometimes court precedents play a part; one might disagree with the Supreme Court on some issues and yet need to think through strategy about how to try to change the Court’s view, how far, how fast, what is the right case?”

“All of these factors can make legal change more complicated than it may seem. Having said that, I would expect to see change: in DOJ’s defense of affirmative action; in civil rights enforcement, including voter protection and voting rights; in the scope and zealousness of immigration prosecutions; in the broad assertion of presidential prerogatives (signing statements, national security powers); in issues involving federalism interests; and in the approach to the legal rights of Guantanamo detainees and others caught up in the post 9/11 legal quagmire. ”

“As to Supreme Court nominees, first you need a vacancy. All the speculation and rumors notwithstanding, I am not sure there will be a vacancy this summer and don’t know when there will be one. Having said that, I think he has indicated he will be looking for moderate progressive justices – more like Breyer and Ginsburg than like Brennan and Marshall.”

–Steve Wermiel, Associate Director of Marshall-Brennan Constitutional Literacy Project at American University College of Law

Kmiec: Obama DOJ more concerned with ‘professional ethic’ than political polarization

“My sense is that the Obama Justice Department has already taken a substantial reorientation from a Department that had become heavily politicized toward one that would reestablish the professional ethic that has long typified the service of career lawyers in the Department of Justice, and until the last administration, presidential appointees as well. ”

“Eric Holder got things started well in his confirmation hearing by disassociating the United States from the previous articulation of interrogation policy that would be contrary to our promises under the international covenants against torture. In addition, it is reasonably known that the Department is examining all of the implications associated with the closing of Guantánamo including the proper repatriation of those who have been wrongfully detained as well as the appropriate trial of individuals within the Article III court system, or perhaps within an international forum, those suspected of war crimes.  ”

“The department has to respond to Supreme Court pleadings in the al Mari case as to whether habeas corpus is available to a noncitizen terror related suspect who was taken into detention within the United States.”

“Thus far, the administration has not modified the approach to state secrets in ongoing litigation with respect to the FISA lawsuit in the Ninth Circuit, but I speculate that it is only a matter of time before the state secrets doctrine comes in for serious re-examination to better calibrate the role of the court, the executive, and the bona fide needs of national security when weighed against the interests of citizens who find themselves without adequate remedy for a constitutional injury because the state secrets privilege has been asserted unnecessarily or too broadly.”

“Even prior to the confirmation of Eric Holder, the Obama White House had given needed clarity to the scope of presidential executive privilege, creating a presumption in favor of transparency and accountability, giving substantial deference to the archivist for the release of presidential records, and narrowing the circumstances under which a former president could assert the privilege, except as approved by a court of law.”

“This rethinking arguably could affect the inquiry into the idiosyncratic dismissal of US attorneys by the Bush Justice Department, but frankly, the most important policy to emerge from any such inquiry would be simply the necessary steps to avoid the dismissal of US attorneys in the future in circumstances that would undermine in reality or in appearance an ongoing investigation, especially public corruption investigations.”

“On the issue of judicial appointment, I believe the president has made this commitment: the minimum requirements are comprehensive knowledge of the law, a superior reputation in the profession, integrity, and the unique but quite important empathetic understanding of how the law applies to individual citizens. In particular, most sensitively, an appreciation for the liberty and property interests of American citizens that are caught up in federal litigation and the interests of those who are often not well represented, such as the poor and disadvantaged.”

“In terms of Supreme Court appointment, the good news is that there are no immediate vacancies. That is good news because it means that John Paul Stevens even at an advanced age is enjoying his work and performing the Supreme Court task with the usual diligence and intelligence that he brings to the work. It also means that Ruth Ginsburg whose health has been fragile in the past has not been adversely set back by the discovery of pancreatic cancer which can be devastating if not discovered early. ”

“Of course, there will be vacancies that will arise, and at such time I would expect the president to follow the criteria outlined above in terms of selection, but I would further expect, that nominees would include such notables as Kathleen Sullivan, Elena Kagan, Harold Koh, Merrick Garland, Walter Dellinger, David Tatel, Kim Wardlaw, and Diane Wood to mention just a few of the highly talented men and women available for judicial appointments. In terms of the process of selection, the president will be greatly assisted by a splendid lawyering of Greg Craig and they vary in large White House counsels that that one can anticipate will be aggressively defending the president’s legal policy interests as well as compiling the dossiers of potential judicial nominees.”

–Douglas W. Kmiec, Professor at Pepperdine University School of Law

Lazarus: Holder, Kagan, and Sunstein are ‘three very different people’

“This is a complicated question, perhaps mostly because the three appointments you cite are three very different people. I very much doubt if Elena Kagan as Solicitor General will herself be the immediate catalyst for ‘reversals of legal policy.’ The Solicitor General can be, but rarely is. Most often the SG is not itself the source of the legal policy but the entity responsible for defending in the Supreme Court the legal policy otherwise embraced by the Administration. And, in her Senate confirmation testimony, Ms. Kagan made fairly clear her understanding of that traditional role.”

“One is more likely to see the Attorney General, Eric Holder, be the source of reversals of legal policy because, as the Attorney General, he oversees the Department’s overall development of legal policy, especially in terms of civil rights enforcement priorities, antitrust enforcement priorities environmental enforcement policies, and the legal opinions of the Office of Legal Counsel on executive branch authority in general and Presidential Power in particular.”

“Here, I expect we may well see significant changes in DOJ enforcement policies. For instance, civil rights career attorneys have recently complained that there has been too little enforcement and I expect we will see enhanced resources committed to civil rights enforcement, including on voting rights issues.”

“On question of executive branch and Presidential authority, I expect there will be less of a profound shift in the theoretical reach of such authority as there will be in decisions whether to exercise that authority to its fullest theoretical reach. There will be a reluctance to deny the potential existence of such authority, but a far greater willingness to not asssert in the kind of far-reaching way we have seen in recent years. ”

“As for Cass Sunstein, he is in a completely different kind of policy position. The most interesting thing to watch will be the extent to which Sunstein might serve as a break on changes in legal policies that might be favored by political appointees within the new Administration, especially at EPA. Sunstein has long championed the enhanced use of cost-benefit analysis in agency rulemaking in a manner more like that seen in recent years under Republican Administrations than under Democratic ones. ”

“As a result, there may well be conflict, or at least tension, should political appointees submit rules for his review that take a narrow view of the proper role of cost-benefit analysis. For that reason, some environmental groups and legal academics have expressed some concern about his appointment to OMB. Their concern is not that he will reverse existing legal policies, but just the opposite. Their concern is that he may resist such reversal.”

– Richard Lazarus, Professor at Georgetown Law

Tushnet: Actions ‘likely to be driven by larger political considerations’

“A quick response — can’t predict much about individual actions or priorities, which are likely to be driven by larger political considerations and the internal politics of the Justice Department, and particularly by the priorities of division heads who haven’t taken office yet or selected their own staffs.”

“On the Supreme Court, again prediction is hazardous, but the standard view, that the President will pick a relatively pragmatic person slightly to the left of the center of the current Court, isn’t undermined by the DOJ appointments. The standard name is Sonia Sotomayor, – but there are always lots of contingencies that people can’t anticipate (timing of the vacancy, political demands of the moment, whether the potential nominee and the President ‘hit it off,’ etc.).”

–Mark Tushnet, Professor at Harvard Law School

Barnett: ‘Less reluctant to appoint an academic’

“I suspect President Obama will be less reluctant than President Bush to appoint an academic–especially with the big majority Democrats now have in the Senate. His appointments of prominent law professors like Elena Kagen and Cass Sunstein to prominent positions in his administration may be a hint of his inclinations.”

–Randy Barnett, Professor at Georgetown Law

Hoffmann: Illinois collaborative work suggest Obama’s ‘exceptional’ legal acumen

“I actually met President Obama in 2002, when he was an Illinois State Senator serving on a legislative committee that was reviewing a proposal I had drafted for revising Illinois’s death-penalty law. At the time, I not only got to see him do his work publicly as a member of the committee, but also had the chance to engage in private discussion with him about the pros and cons of the proposal. I should note that my proposal was being promoted by the Republicans in the Illinois Senate, although eventually (in 2003) it gained the full support of the Democrats (including Obama) as well.”

“My interactions with Obama taught me what everyone now seems to acknowledge– that he is not only an exceptional legal thinker, but also a careful, thoughtful, and pragmatic individual who prefers to work cooperatively across ideological lines (even where he may have his own strong position on an issue). I would expect President Obama, therefore, to adopt legal policies, and also to nominate Supreme Court Justices, based on a similarly thoughtful and pragmatic approach. It is who he is.”

“In the area of legal policies, the most obvious change is already underway: the renunciation of Bush-administration policies with respect to torture, rendition, and the incarceration at Guantanamo of persons suspected of terrorism. Even in the first few weeks of his presidency, however, Obama has made it clear that he will carefully consider the consequences of these changes. ”

“For example, I suspect that we will see the continued long-term incarceration of substantial numbers of the Guantanamo detainees – albeit under different conditions, and in a different location – if Obama does not manage to convince other trustworthy partner nations to take responsibility for them. He is not going to release dangerous suspected terrorists from custody simply to make a point about human rights and the rule of law. Another area where I think we will see major changes is in environmental law and policy. ”

“A third area where we are already seeing a major change is in legal rules that protect the labor movement. Here, President Obama has already signaled a much stronger commitment to the legal rights of workers and unions. Even here, however, he has also backed away, ever so slightly, from positions he took as a candidate — indicating, for example, that a proposed new law to allow unions to conduct elections without secret ballots (which he supported as a candidate) won’t matter much if the factories all shut down due to the current economic crisis.”

“Finally, with respect to the Supreme Court, I would start by noting two important caveats: (1) It’s not clear when, if ever, President Obama will have any Supreme Court vacancies to fill. The oldest sitting Justice, Justice Stevens (age 88), is in good health and seems to be enjoying his work immensely. Others (most notably Justice Ginsburg, who has had health issues, and Justice Souter, who is rumored not to enjoy his life in Washington DC) may be more likely to resign soon. But predictions about such matters prove wrong more often than they prove right. We could easily go four more years without any changes on the Court.
“(2) Presidential nominations to the Court turn out to surprise the President who made them more often than almost any other things that Presidents do. Having said all of that, and if the chances arise, I would expect President Obama to nominate thoughtful, intellectually powerful persons who would be able to hold their own with such intellectual powerhouses as Justice Scalia.  ”

“Three strong possibilities who are, or until very recently were, law professors are Elena Kagan and Cass Sunstein (both former Harvard Law School professors, now part of the Obama administration), and Pamela Karlan (former Supreme Court law clerk, currently Professor at Stanford Law School and Director of the Supreme Court Litigation Clinic). All three are known for their powerful intellects, and also for the fact that — like President Obama himself — they are thoughtful and pragmatic, rather than impulsive or ideologically driven.”

– Joseph Hoffmann, Professor of Law at Indiana University’s Maurer School of Law

Millett: ‘Massive amount of new legislation’ to revive economy is opportunity for regulation

“We will undoubtedly see a change in legal policies associated with the war on terror. The Solicitor General’s Office has already sought extra time to file a brief in the Al Marri case, which involves the detention of alleged enemy combatants on US soil and the process due to them. I expect changes in environmental policy and, indeed, we have already seen one certiorari petition filed by the Bush Administration withdrawn by the Obama administration.”

“I expect we will see litigation approaches that suggest a more cooperative attitude towards States and local governments that want to be more aggressive about protecting the environment. I expect we will see far fewer arguments that federal laws and regulatory policies preempt tort actions against businesses. The Bush Administration generally (although not universally) took a pro-business view in preemption cases and tried to narrow the ability of tort plaintiffs to sue regulated companies for damages when injury resulted from the use of their products. I expect the Obama Administration will view private enforcement as more complementary (rather than an obstacle) to their own regulatory enforcement efforts. ”

“I also expect that we will see significantly greater regulatory oversight of businesses and the financial sector. That is inevitable given the current economic crisis and how the lack of regulation and oversight allowed the financial sector to get itself into such dire straits. The massive amount of new legislation that will be aimed at economic revival (stimulus, bail-outs, and new programs in agencies’ own appropriation bills) will increase the opportunity and demand for regulatory oversight.”

“Finally, I expect we will see the Bush Justice Department more aggressive in the enforcement of civil rights laws and voting rights laws. Expect an increase in enforcement actions, and expect the Solicitor General’s Office to appear much more consistently on the side of the civil rights’ plaintiff in Supreme Court cases.”

–Patricia Millett, Partner at Akin Gump Strauss Hauer & Feld, LLP

Carter: A few big changes and ‘quibbling over details’

“I am no oracle on politics, and I have only a dim understanding of the day-to-day events in Washington. But I read a lot of history, and I am pretty sure that the new Administration will swiftly learn what just about every new Administration has learned: One changes a few big things, with a great fanfare, and then, with respect to the rest, quibbles over the details. ”

“Events have a momentum, and so do policies. Some policies are always bad, but many seemingly bad ones turn out, on close examination, to be good. Often they stay in place. When new Presidents decide not to overturn everything mentioned in the campaign, they are accused by ideologues of reneging on their promises. Really, they are learning the difference between campaigning and governing.”

–Stephen Carter, Professor at Yale Law School

Casey: SC appointments are like ’speculating on who will win the Oscar for best picture…only the Academy knows’

“I would not want to hazard specific guesses on which policies the Obama Administration may reverse. It is probably the case that the Obama Administration, in general, will bring more environmental enforcement cases that it will have less of an emphasis on obscenity cases. Obviously, look for a serious expansion in enforcement of the securities laws. As to the signals Obama may be sending regarding Supreme Court appointments, obviously there has been a lot of speculation that he selected Elena Kagan as SG as a means of credentialing her for the Court. ”

“I tend not to put much stock in such speculation. There are a number of individuals, scholars, jurists, former officials & etc. on the Democrat side that are potential nominees, including all of the individuals you mention in your e-mail. However, so many considerations go into selecting a nominee, from judicial philosophy, to political benefits or costs (i.e., can the person be confirmed), to age and what kind of figure will the individual cut on the Court — a leader, a follower, an intellectual powerhouse, that it really is impossible to predict.”

“Speculating on who it might be is kind of like speculating on who will win the Oscar for best picture. Take your pick. You might be right, and you might be wrong. Only the Academy knows for sure, and then only after the votes have been counted.”

–Lee Casey, Partner at Baker Hostetler

Eastman: Bets on part-Hispanic Clinton appointee Kim Wardlaw

“I think it fair to say that the ‘era of big government is over’ days are themselves over. The flap over moving responsibility of the Bureau of the Census to the White House is a window into how far the administration seems willing to bend the rules in order to gain advantage for the preferred policies of the hard left wing of the Democrat party. Manipulating the census numbers by use of questionable statistics was at issue there, but I expect to see a slew of environmental regulation coming out of Cass Sunstein’s shop. ”

“‘Best available science’ limitations on regulatory authority will probably be brushed aside. I think we will also see an attempt to restrict core political speech in some fashion, either by a new ‘fairness doctrine,’ or by simply non-renewal of licenses for stations that, in the administration’s view, do not sufficiently advance the public good. First Supreme Court pick: Tough call.  ”

“Holder and Kagan are both being groomed, but they’re going to need some time on the appellate bench first, and I think there will be a vacancy before that can happen. I’m betting on Kim Wardlaw. She’s young. Part Hispanic. Woman. Clinton appointee. 15 years as a litigator with O’Melveney. Two years experience as a district court judge, and a decade as a Ninth Circuit Appellate Court judge.”

–John C. Eastman, Dean of Chapman University School of Law

Powe: Obama pressed to appoint a woman; confidence in outsider appointment familiar with understanding of ‘the country and how things work’

“I have no idea about Cass [Sunstein]. I would expect the biggest changes at DOJ would relate to the war on terror. I expect more sensitivity to first and fourth amendment concerns. I think the important thing about the Supreme Court is whether Obama will feel constrained to promote federal judges (as Roberts obviously pushed for in Liptak’s NYT piece today).”

“I hope not. The Court lacks experience except for prior judicial experience. We need justices with some understanding of the country and how things work. I would hope Obama would look outside the federal judiciary – Deval Patrick would be a good choice. I am sure Obama will feel pressed to appoint a woman (especially if Ruth Bader Ginsburg goes first). Here my choice would be Kagan (although the more prominent names are 2 court of appeals judges Diane Wood and Sonia Sotemeyer).”

– Lucas Powe, Law Chair at the University of Texas

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