Private Practice for Porn Dogs Senate Nominee Ogden

Members of the Senate Judiciary Committee pressed Deputy Attorney General nominee David Ogden today to distance himself from the views of those he represented in private practice, reviving a debate over how much senators should weigh a nominee’s choice of clients.

The issue is especially prominent for Ogden because he has often represented controversial clients in high-profile appellate cases. The American Family Association and anti-pornography activists have sent out e mail blasts urging their supporters to telegraph their senators they are vigorously opposed to Ogden’s selection. Meanwhile, in New Orleans, members of the First Amendment Lawyers’ Association are holding their annual meeting and celebrating his selection.

One of the key questions from Senator Orrin Hatch of Utah dealt with Ogden’s opposition to federal record keeping requirements regarding pornographic images. Hatch pointedly asked Ogden “How can we believe that the Justice Department will enforce this law and defend its constitutionality when you have argued for 20 years that it’s unconstitutional?”

It is worth sharing Ogden’s answer. “A lawyer in private practice does not sit in judgment on his clients. His job is to present their view as persuasively as possible,” he said. The most common question a criminal lawyer is asked is ‘how can you represent that person?’; how can you represent a guilty person.

I think you have to stand your ground and remind your inquisitors that as you meet your client the first time, he is not guilty and presumed innocent. You point out that within an adversary system each side gets to make a fair presentation of their case, and what you promise your client is effective advocacy.

More than anyone, United States senators should know that best. The inquiries were almost inappropriate coming from their chairs. I have said it before and I will say it again. Just because you represent someone accused of indecent exposure does not mean you leave your law office and go to Annie Beck Park wearing nothing but a raincoat. You simply provide for your client the defense your biggest critic would want for his own child if that kid were charged.

The Judiciary Committee has not set a date to vote on Ogden’s nomination, but I will be anxious to see how many on both sides of the aisle fail to support Ogden because of whom he once represented. It will only embarrass them and reflect their failure to grasp an understanding of the very system they are supposed to represent.