We’re attending the 2008 National Convention of the American Constitution Society (aka the Federalist Society of the Left, for those of you not familiar with the ACS). It’s being held today and tomorrow at the Hyatt Regency here in Washington, DC. The theme of this year’s conference: “Revitalizing Our Democracy: Progress and Possibilities.” Read: “Welcome President Obama: It’s Good To Be Back in the House!”

We may be filing some dispatches from the proceedings. We’d liveblog the panels contemporaneously, but neither the hotel wireless nor our wi-fi card worked inside the hotel’s subterranean ballroom. So we will post in between sessions, when we can.

These comments — essentially a liveblog, but posted after the fact — will have an unpolished, stream-of-consciousness quality. Expect lots of randomness (and typos).

The first report, about the very interesting (and star-studded) plenary panel, “Law and Justice Policies in a New Administration,” appears after the jump.

Law and Justice Policies in a New Administration (9:30-11:15)

Elena Kagan (moderator): Saintly dean of Harvard Law School; served in Clinton White House Counsel’s office, and nominated by Clinton to D.C. Circuit (lapsed); possible SCOTUS nominee in a Democratic administration. Black pants, grey jacket with a paisley pattern. Feeling of déjà vu - did she wear this outfit last year? Opening question: How will the DOJ differ under a new administration?

Jamie Gorelick: WilmerHale partner, former Deputy Attorney General and general counsel to Defense Department. Leading D.C. lawyer with gold-plated Rolodex, plus a security clearance higher than the Virgin Mary’s. Rocking the blond bob that she trotted out at last year’s convention - but oh, those roots! WilmerHale PPP is plenty high.

Props for the nice cheongsam-style jacket, black background, floral print, piping the color of green tea.

Oh sorry, what did she say? She said, in sum, that no matter who is elected, the new DOJ will be very different from the current DOJ. The DOJ has a longstanding set of traditions that may become reinvigorated under a new administration.

Walter Dellinger: O’Melveny & Myers partner, former acting Solicitor General, former head of Office of Legal Counsel.

“Fixing the Office of Legal Counsel is a very high priority.” The White House Counsel’s office plays the role of advocate. They argue with the head of OLC. OLC has to have some amount of independence.

“The challenge is to fix OLC without overcorrecting. There are legitimate responsibilities the president has to not enforce provisions that are unconstitutional….. Abuse of that authority does not mean that the authority itself is illegitimate.”

Chuck Cooper: Founding partner of Cooper & Kirk, former head of OLC, leading conservative lawyer (and the token conservative on this panel). Looks the part of a Republican lawyer: dark suit, crisp white shirt, preppy green and blue striped tie, slicked-back silver hair.

Kagan asks him whether the current Department has “gone off the rails.” Cooper defends the Mukasey DOJ. Notes that there have been some problems earlier, e.g., the U.S. Attorney firing “fiasco.” He also notes the difficulty of the task they’ve had in trying to draw the lines they’ve been called to draw in the wake of 9/11.
Cooper praises Dellinger for calling upon him and Ted Olson for advice when he (Dellinger) was at the DOJ.

Greg Craig: Legendary litigator, Williams & Connolly partner, who worked in the Clinton White House and helped Clinton get through the Monica mess. Dark suit, white shirt - but button-down collar, ick - nice tie, dark blue, with purple cross-hatching. Not quite as movie-star handsome as he used to be; looking older and a bit puffy, more like Ted Kennedy and less like Robert Redford.

A change in the Obama administration: “You’ll have a president who actually knows and enjoys the law.” [Laughter.]

Predicts that Obama will staff his administration with people who went to “great law schools.” A dig at the Bush DOJ and its hiring policies? (Regent Law School, holla.)

Wade Henderson: Leadership Conference of Civil Rights. Law professor at UDC. Tan suit, blue shirt with white contrast-collar, red tie with orange stripes (sounds hideous but actually snazzy) - may be the best-dressed panelist.

The DOJ civil rights department has been left “in a shambles,” due to political manipulation, a lack of proper leadership from the top, and a lack of respect for bipartisan traditions of the Department and for the work of career attorneys.

John Podesta: Executive Director, Center for American Progress. Grey-green suit, pale grey shirt, green tie. Looks good (although might be too “match”-y for some, in a Regis Philbin kind of way). Emphasizes that artisan politics should play no part in decisions relating to criminal and civil law enforcement decisions. The new president, hopefully Obama, should make a pledge that this will not happen again - as it did during the Bush Administration.

Chuck Cooper: Disagrees with Wade Henderson in part on role of career attorneys. They can be wrong. And elections have consequences. When a new administration comes in, “it will come in with its own ideas about controversial issues that divide our citizenry.” For example, the voter ID case in Indiana, cited by Wade, presents a legitimate political and legal debate. The political leadership of this Administration had every right to have a position different from that of career lawyers who work in that area.

Elena Kagan: What should the new administration do when it takes over the DOJ?

Chuck Cooper: There should be more written guidelines setting forth some of the Department’s traditions, to make sure they are followed in practice, not just given lip service.

Greg Craig: Excellence in hiring is key. You need independence, strength, hard work, public policy commitment. “If you get the best and the strongest and the brightest in those positions, you can’t do much more than that.”

Wade Henderson: Emphasizes the historic nature of this election. Points out that the date of Obama’s acceptance speech at the Democratic National Convention will take place 40 years after Martin Luther King Jr.’s “I Have A Dream” speech. (No pressure, Barack!)

Walter Dellinger: First and foremost, the new president needs to be reminded that the Department of Justice has a client, “and it’s not you: it’s the United States.” Process is key; career lawyers need to be consulted. Opinions of the OLC should not be a “yin-yang” situation, changing with each change of administration. There should be a review group focused on OLC, and OLC alumni from different administrations, from both political parties, should be brought into the loop.

Jamie Gorelick: Politicizing the balance between national security and civil liberties is very dangerous. The discussion has to be thoughtful, careful, and respectful of the rule of law. Also, it’s true that there are some national security issues that, due to their sensitive nature, can’t be debated publicly.

John Podesta: But there’s still lots of room for improvement in terms of openness and allowing the people to understand what the government is doing.

Chuck Cooper: OLC doesn’t get lots of black-and-white issues. Coming up with the right answers is difficult, even if the process is inclusive. Some positions will get rejected by the courts; that happens. Tough questions have been forced upon this Administration by 9/11. There are lots of gray areas.

Jamie Gorelick: This isn’t a matter of gray. What this Administration has given us has been “several standard deviations off the norm.”

Walter Dellinger: The new head of OLC should heed this advice: “Like other things in life, they will respect you more in the morning when you tell them no.” [Laughter.]

Elena Kagan: What about lawsuits against government officials for decisions they have made? (E.g., the lawsuit filed against former OLC official John Yoo.)

Jamie Gorelick: When Randy Moss was head of OLC, he had to make a decision on a tough issue in five minutes. That decision had consequences nationwide. If the person sitting in Randy’s chair is afraid of being sued for those decisions, you’re not going to get the kind of decisionmaking process you want. That sort of accountability is not the right way to go.

John Podesta: Gets in a dig at John Yoo: “The penalty for violating your oath is that you get to pretend you’re at Berkeley.” Ouch.

Walter Dellinger: “I would generally take the position that you don’t look back.” Generally it’s not a good idea to investigate the work of prior administrations - it leads to a cycle of recrimination. But what about serious allegations by former U.S. Attorneys that prosecutorial decisions were made for political reasons? These might be an exception.

Chuck Cooper: We should not attempt to criminalize differences of legal opinion. It would “open a Pandora’s Box” that would lead to subsequent administrations taking a tit-for-tat approach.

Elena Kagan: What should be the substantive priorities of the new administration?

Wade Henderson: Judicial nominations are key to focus upon. Yesterday’s ruling about the habeas rights of detainees was heartening - but note that it was a 5-4 decision. We need to focus on this. The confirmation process does not work well to unearth the judicial philosophies of nominees. We at the Leadership Conference opposed the nominations of both Chief Justice Roberts and Justice Alito. They claimed to respect precedent in the hearings, but look at cases like Ledbetter (the back-pay case), or the two school desegregation cases from last Term.

Walter Dellinger: When it comes to judicial nominations, we should start thinking more about “the politics of addition, not just the politics of subtraction.” In other words, we shouldn’t focus just on defeating nominees of the other side. Instead, parties should think about making deals featuring inclusive slates of nominees - if there are three seats open on a court, maybe we can put up nominees from both parties to fill them.

John Podesta: I can’t agree with that. Bad trades get made. The new president should focus less on party and more about the kind of people he wants to appoint to the court, who have integrity, who are moderate (really? isn’t this the ACS?). “But if Senator McCain gets elected, I’m more open to Walter’s solution.” [Laughter.]

[Greg Craig pours Chuck Cooper a glass of water - very courteous.]

John Podesta: My view (“moderate” nominees) is not the only view. Some folks, such as Judge Reinhardt (supposed to be here but couldn’t make it because of health issues), think we should be more aggressive about appointing super-liberal judges to push the law to the left - since the other side is appointing judges who push the law to the right. I don’t think that’s wise. We should appoint highly qualified judges with excellent experience.

Greg Craig: Emphasizes (as he has done at several points in the panel) that his views are his views, not Obama’s (whom he advises). Makes two points. First, judicial salaries need to be raised. Second, the transition process needs to start earlier, and both Obama and McCain should start thinking about this. It’s impossible to do this properly in the 70-odd days you have between Election Day and Inauguration Day.

Jamie Gorelick: The new administration’s DOJ needs to focus more on the plain-vanilla criminal law enforcement that has been overlooked under the current administration. Sure, much of this is the province of state and local governments, but the federal government needs to do more.

Walter Dellinger: The new administration is going to inherit a “moral blight”: a mass incarceration problem, many of them African-American males. Many of them are imprisoned for aiding or abetting an activity that has been virtually decriminalized, at least on the demand side. This is unacceptable. [Applause.]

Wade Henderson: One downside of the current, history-making election: it could mislead people into thinking that we have solved problems of inequality.

Elena Kagan: Let’s think about what the new Attorney General would prioritize. The new AG should focus on [blank]. Let’s fill in that blank.

Chuck Cooper: If McCain wins, there are some areas where he has parted ways with the rest of the Republican Party - e.g., immigration.

Jamie Gorelick: Civil rights would see some major changes in an Obama administration. Second priority would be antitrust. Third would be environmental.

John Podesta: Rethinking the approach to national security would be a top priority of a new administration. Also, how can the DOJ be an instrument of policy change? Two policy priorities for Democrats: health care reform and climate change.

Wade Henderson: Immigration has become the new third rail of American politics. Anyone who wants to advocate a humane and sensible approach to this issue faces a lot of flak. I’m hoping the new AG can add a voice of reason and compassion to this debate, to counterbalance the tendency to move too far in the wrong direction. [Applause.]

Elena Kagan: What should the new AG look like? (Loaded question? Gorelick should say: “Me!”)

John Podesta: “I’d go with the dean of a law school.” [Laughter.]

Walter Dellinger: Closeness to the president should not be a disqualifying factor. Sometimes that closeness can offer protection to the workings of the Justice Department. Ted Olson was close to the president, which tended to insulate the Solicitor General’s office from political pressure. It would be wonderful to have someone “of true accomplishment within the profession,” who has the stature to ensure independence, and who can essentially say, “I don’t need this job, I can go back to being head of my firm’s national security practice [Gorelick], or dean of Harvard Law School [Kagan].”

Jamie Gorelick: I would not disqualify any classes of people (e.g., no judges). I agree with Walter - I’d focus on stature and independence.

Wade Henderson: The next AG needs, unlike the two AGs before Mukasey, “a dash of leadership and inspiration” to bring back to a “deeply troubled” Department. The message needs to be sent: the DOJ is back in business.

Chuck Cooper: The net should be cast widely: academia, the bench, the private practice of law. The nominee must have a record of professional achievement, and that achievement should be independent of closeness to the president. (A dig at Alberto Gonzales?)

Greg Craig: Personality and temperament are important. The AG should be able to advocate strongly for the president’s position in a way that builds support rather than dividing people.

John Podesta: As my old boss [President Clinton] once said, we should have a Cabinet that looks like America.