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Profile: Jeffrey Rosen
Jeffrey Rosen was a participant or observer in the following events:
Jack Goldsmith succeeds Jay Bybee as the head of the Justice Department’s Office of Legal Counsel (OLC). The OLC essentially performs two functions: advising the executive branch on the legal limits of presidential power, and crafts legal justifications for the actions of the president and the executive branch. Goldsmith, who along with fellow Justice Department counsel and law professor John Yoo, is seen as one of the department’s newest and brightest conservative stars. But instead of aiding the Bush administration in expanding the power of the executive branch, Goldsmith will spend nine tumultuous months battling the White House on issues such as the NSA’s warrantless wiretapping program, the administration’s advocacy of torture in the interrogation of terrorism suspects, and the extralegal detention and military tribunals of “enemy combatants.” Goldsmith will find himself at odds with Yoo, the author of two controversial OLC memos that grant the US government wide latitude in torturing terror suspects (see January 9, 2002 and August 1, 2002), with White House counsel and future attorney general Alberto Gonzales, and with the chief aide to Vice President Dick Cheney, David Addington, who along with Cheney is one of the strongest advocates of the so-called “unitary executive” theory of governance, which says the president has virtually unlimited powers, especially in the areas of national security and foreign policy, and is not always subject to Congressional or judicial oversight. Within hours of Goldsmith’s swearing-in, Goldsmith receives a phone call from Gonzales asking if the Fourth Geneva Convention, which protects civilians in war zones such as Iraq, covers terrorists and insurgents as well. Goldsmith, after intensive review with other lawyers in and out of the Justice Department, concludes that the conventions do indeed apply. Ashcroft concurs. The White House does not. Goldsmith’s deputy, Patrick Philbin, says to Goldsmith as they drive to the White House to meet with Gonzales and Addington, “They’re going to be really mad. They’re not going to understand our decision. They’ve never been told no.” Philbin’s prediction is accurate; Addington is, Goldsmith recalls, “livid.” The physically and intellectually imposing Addington thunders, “The president has already decided that terrorists do not receive Geneva Convention protections. You cannot question his decision.” Addington refuses to accept Goldsmith’s explanations. Months later, an unmollified Addington will tell Goldsmith in an argument about another presidential decision, “If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.” These initial encounters set the tone for Goldsmith’s stormy tenure as head of the OLC. Goldsmith will lead a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith will resign in June of 2004 (see June 17, 2004). [New York Times Magazine, 9/9/2007]
Entity Tags: Richard (“Dick”) Cheney, US Department of Justice, Office of Legal Counsel (DOJ), John C. Yoo, Jack Goldsmith, David S. Addington, Alberto R. Gonzales, National Security Agency, Jay S. Bybee, John Ashcroft, Jeffrey Rosen
Timeline Tags: Civil Liberties
Jack Goldsmith’s ‘The Terror Presidency.’ [Source: Barnes and Noble.com]Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel (OLC) from October 2003 through June 2004, is publishing a new book, The Terror Presidency, in which he details many of the controversies in which he found himself mired during his brief and stormy tenure. Goldsmith was viewed, along with his friend and fellow law professor John Yoo, as two of the department’s newest and brightest conservative stars; the two were called the “New Sovereigntists” by the prestigious political journal Foreign Affairs. But instead of adding his voice to others in the Bush administration who supported the expanding powers of the presidency at the cost of civil liberties, Goldsmith found himself at odds with Yoo, White House counsel Alberto Gonzales, and other White House and Justice Department officials. The OLC advises the president on the limits of executive power (and finds legal justifications for its actions as well), and Goldsmith became embattled in disputes with the White House over the Bush administration’s systematic attempts to push the boundaries of executive power almost from the onset of his term as OLC chief, especially in light of the administration’s responses to 9/11 and the threat of Islamist terrorism (see October 6, 2003). Goldsmith disagreed with the White House over issues surrounding the use of torture against terrorist suspects (see December 2003-June 2004), the NSA’s secret domestic wiretapping program (see June 17, 2004), the extra-constitutional detention and trial of enemy combatants (see January-June 2004), and other issues.
'Behind-the-Scenes Revolt' - After nine contentious months leading a small group of administration lawyers in what New York Times Magazine reporter Jeffrey Rosen calls a “behind-the-scenes revolt against what [Goldsmith] considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror,” Goldsmith resigned. He says of his mindset at the end of his term, “I was disgusted with the whole process and fed up and exhausted.” Goldsmith chose to remain quiet about his resignation, and as a result, his silence was widely misinterpreted by media, legal, and administration observers. Some even felt that Goldsmith should be investigated for his supposed role in drafting the torture memos he had actually opposed. “It was a nightmare,” Goldsmith recalls. “I didn’t say anything to defend myself, except that I didn’t do the things I was accused of.” [New York Times Magazine, 9/9/2007]
Not a Whistleblower - Goldsmith, who now teaches law at Harvard, does not regard himself as a whistleblower. “This book is not about whistle blowing,” he says. “It’s about trying to explain to the public the enormous pressures and tensions inside the executive branch to keep Americans safe and about how that pressure bumps into the wall, and about the difficulties that everyone in the administration has and the pressure to do everything possible to keep Americans safe, and the intense pressure to comply with the law. And it’s an attempt to give a fair-minded and deeply sympathetic description of that tension, and I actually think there’s a structural problem in the presidency because of this, and I’m trying to explain the pressure the administration is under and why it did the things it did, and why it did things correctly in some circumstances and why it made mistakes.” He says he has learned some difficult lessons from his tenure in Washington: “I came away from my time in government thinking, as many people do, that there’s too much secrecy. Both too much secrecy inside the executive branch and between the executive branch and Congress. There’s obviously a trade-off and it’s hard to know when to draw the line. If issues and debates are too tightly drawn, and there’s too much secrecy, then two pathologies occur and we saw them occur in this administration. One is you don’t have the wide-range debate needed to help you avoid errors. Two is, it’s pretty well known that excessive secrecy leaves other people in the government to question what is going on when they get wind of it, and to leak it.” [Newsweek, 9/8/2007]
Bush, Administration Officials Going Too Far in Placing Politics Above Law - Goldsmith believes that Bush and his officials are their own worst enemies in their attempts to expand presidential power. Goldsmith, like his heroes Abraham Lincoln and Franklin D. Roosevelt, regards the law as secondary to political leadership. Bush’s indifference and even contempt for the political process has weakened his abilities as a wartime leader, in direct contrast to Lincoln and Roosevelt. “I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making,” Goldsmith says. Since Bush is not a lawyer, “[i]t’s hard to know how he would know.” Bush’s refusal to work with Congress is in direct contradiction to Lincoln’s and Roosevelt’s approaches, and that refusal has damaged his administration’s ability to combat terrorism and achieve its agenda. Goldsmith writes that Bush has willfully ignored the axiom that the strongest presidential power is the power to persuade. “The Bush administration has operated on an entirely different concept of power that relies on minimal deliberation, unilateral action and legalistic defense,” Goldsmith writes. “This approach largely eschews politics: the need to explain, to justify, to convince, to get people on board, to compromise.” While Goldsmith agrees with the administration that the terrorist threat is extremely serious, and that the US must counter it aggressively, he quotes his conservative Harvard colleague Charles Fried that Bush “badly overplayed a winning hand.” Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, he says, Bush weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it. The Bush administration has borrowed its power against future presidents.” [New York Times Magazine, 9/9/2007]
Adding to Presidential Power - He adds, “Basically, the administration has the conception of executive power that suggests they clearly have a public agenda item of wanting to leave the presidency more powerful than they found it. Vice President Cheney was in the Ford White House at the dawn of the resurgent Congress after Watergate and Vietnam and he believed then that the 1970s restrictions put on the executive branch by Congress related to war and intelligence harm the presidency. So one of their agenda items before 9/11 was to keep the power of presidency and expand the power of the presidency to put it back to its rightful place.… They’ve certainly lost a lot of trust of Congress. And the Supreme Court really, I think, cut back on certain presidential prerogatives.… Future presidencies will face a culture of distrust and worry, I believe, because of the actions taken by the Bush administration. A lot of it was unnecessary.… So when you have those pressures [to battle terrorism and keep the nation safe] and then you run into laws that don’t allow you to do what you need to do, I think the prescription is that going it alone unilaterally with executive power is not as good as getting the other institutions on board through consensus and consultation.” [Newsweek, 9/8/2007]
Entity Tags: Charles Fried, Bush administration (43), Abraham Lincoln, US Department of Justice, Office of Legal Counsel (DOJ), Jeffrey Rosen, Alberto R. Gonzales, George W. Bush, Jack Goldsmith, John C. Yoo, Franklin Delano Roosevelt
Timeline Tags: Civil Liberties
New Republic legal correspondent Jeffrey Rosen, a law professor at George Washington University, writes an analysis of appeals court judge Sonia Sotomayor, considered by many to be a leading candidate to replace retiring Justice David Souter on the Supreme Court.
Rose from Poverty to Consideration for High Court - Rosen gives a brief biographical sketch of Sotomayor, whom he labels as a “compelling” candidate both for her legal accomplishments and her life story. Sotomayor is the daughter of poor Puerto Rican immigrants, grew up in the South Bronx, and graduated with high academic honors from Princeton and Yale. She has served as a prosecutor, a corporate litigator, and a judge. If nominated and confirmed, Sotomayor would be the Court’s first Hispanic member and only its third female member. She has the support of both New York senators, Democrats Charles Schumer and Kirsten Gillibrand.
Conflicting Opinions Largely from Anonymous Sources - Rosen notes that her former clerks praise her as “demanding but thoughtful” and “commit[ted] to legal fairness,” a “rule-bound pragmatist—very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background.” Rosen quotes several anonymous sources—“nearly all… former law clerks… or former federal prosecutors in New York”—who, he says, question “her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.” According to one former law clerk, Sotomayor is “not that smart and kind of a bully on the bench,” egotistical, and “domineering.” In contrast, one of his named sources, fellow Second Circuit appeals court judge Jose Cabranes, said of her, “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.” Anonymous sources tell Rosen that Sotomayor is more apt to quibble with a colleague’s grammar and syntax rather than the focus of their legal arguments. Another former clerk praises Sotomayor for being tough-minded and “impressive.” Rosen admits that he has not read enough of Sotomayor’s opinions “to have a confident sense of them,” nor has he “talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths. It’s possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they’re not motivated by sour grapes or by ideological disagreement—they’d like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard.” Rosen concludes that President Obama would be taking an unnecessary “gamble” by nominating her to the high court. [New Republic, 5/4/2009]
Repercussions of Analysis - Rosen’s column triggers several demeaning characterizations of Sotomayor in the conservative press (see May 4, 2009 and May 5, 2009), characterizations that will intensify when she is nominated for the Court (see May 26, 2009). His use of anonymous sources to base his negative coverage will be repudiated by a number of critics (see May 5, 2009).
Mark Hemingway of the conservative National Review uses law professor Jeffrey Rosen’s analysis of prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009) to call her “dumb and obnoxious.” [National Review, 5/4/2009] Fellow Review columnist John Derbyshire responds to Hemingway’s slam by writing: “Judge Sotomayor may indeed be dumb and obnoxious; but she’s also female and Hispanic, and those are the things that count nowadays. Get with the program, Pal.” [National Review, 5/4/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009). After her nomination, Hemingway will attempt to backtrack from his characterizations of Sotomayor, claiming: “I never ‘attacked’ Sotomayor. I was only characterizing what Jeffrey Rosen wrote.” [National Review, 5/26/2009]
Columnist Marc Ambinder joins in the wave of conservative criticism against prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009) triggered by an analysis in the New Republic (see May 4, 2009). Ambinder warns the Obama administration not to choose Sotomayor simply because some liberals and Hispanics want her on the bench, calls her “solid if unspectacular,” and writes, “And the respectable intellectual center… is beginning to have doubts.” Ambinder does not note who, exactly, makes up the “intellectual center” he cites. [Atlantic Monthly, 5/5/2009] Nation columnist Chris Hayes retorts: “One gossipy article from Jeff Rosen means ‘the respectable intellectual center… is beginning to have doubts.’ Really?” [Salon, 5/5/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009).
Atlantic columnist Ta-Nehisi Coates lambasts law professor Jeffrey Rosen for his recent analysis of prospective Supreme Court nominee Sonia Sotomayor (see May 4, 2009). Citing Rosen’s line, “I haven’t read enough of Sotomayor’s opinions to have a confident sense of them, nor have I talked to enough of Sotomayor’s detractors and supporters, to get a fully balanced picture of her strengths,” Coates responds: “Rosen is attacking Sotomayor’s ability to do the necessary intellectual heavy-lifting, while explicitly neglecting to do any of his own. In this instance, his piece reads like a burglar’s brief against rampant criminality. Authored mid-robbery, no less.” She also slams her Atlantic colleague Marc Ambinder’s criticisms of Sotomayor (see May 5, 2009), noting, “You don’t get to be the ‘respectable intellectual center’ and then practice your craft in the gossip-laden, ignorant muck.” [Atlantic Monthly, 5/5/2009] Former civil litigator Glenn Greenwald joins Coates in criticizing the early attacks on Sotomayor. Greenwald calls Rosen’s reliance on anonymous sources to attack Sotomayor’s character and professional conduct “shoddy, irresponsible, and… intellectually irresponsible,” and cites several instances where Rosen’s reporting has been countered by sources willing to go on the record. Greenwald writes of his amazement at how quickly Sotomayor has been “transformed in conventional wisdom, largely as a result of Rosen’s piece, into a stupid, shrill, out-of-her-depth Puerto Rican woman who is being considered for the Supreme Court solely due to anti-merit, affirmative action reasons.” Greenwald writes that he twice faced Sotomayor in court, and found her “extremely perceptive, smart, shrewd, and intellectually insightful.” She could be forceful, “at times unpleasantly so,” he recalls, and remembers being dressed down by her for a “substantial procedural mistake” he committed, but notes that such behavior by judges “is the opposite of uncommon.” Greenwald writes that behavior usually characterized as “tough,” “forceful,” and “authoritative” by white males is often reworked into characterizations of “domineering” and “egotistical” when the same behaviors are exhibited by women. Greenwald also notes that Rosen was one of the strongest media voices in favor of the nomination of conservative jurist John Roberts (see September 29, 2005) to the Court. [Salon, 5/5/2009] Less than a month later, Sotomayor will be nominated to the Court (see May 26, 2009).
New Republic columnist Jeffrey Rosen, stung by criticism of his recent article using anonymous sources questioning the character and reputation of Supreme Court nominee Sonia Sotomayor (see May 4, 2009, May 5, 2009, and May 26, 2009), attempts to backtrack from his original assertions. He writes, “Of course, Judge Sotomayor should be confirmed to the Supreme Court,” and continues: “In my view the strongest case to be made for Sotomayor is not her inspiring life story: [Supreme Court Justice] Clarence Thomas overcame similar personal obstacles, but far from giving him a sense of empathy, his background has created a sense of anger and ideological rigidity. Instead, the strongest case to be made for Sotomayor is the idea that the range of her experience—as a trial judge, appellate judge, and commercial litigator—might give her the humility to recognize that courts participate in a dialogue with the political branches when it comes to defining constitutional rights, rather than having the last word.… Conservatives are already citing my initial piece on Sotomayor as a basis for opposing her. This willfully misreads both my piece and the follow-up response. My concern was that she might not make the most effective liberal voice on the Court—not that she didn’t have the potential to be a fine justice. Questions of temperament are often overlooked, but history suggests that they are the most relevant in predicting judicial success. (Justice [Antonin] Scalia may be a brilliant bomb-thrower, but has failed in his attempts to build coalitions and bipartisan majorities.) Now is the time to think more broadly about the role Justice Sotomayor is likely to play on the Supreme Court, and I look forward to doing that in the weeks ahead.” [New Republic, 5/26/2009]
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