Ogden Research 020309

To:

Interested Parties

From: Fidelis Date:

February 3, 2009

Re:

Research Brief on David W. Ogden, Nominee for Deputy Attorney General

OVERVIEW As an attorney in private practice, David W. Ogden has filed briefs pushing for gays in the military, for continued racial preferences, and for a virtually unlimited abortion license. He has litigated numerous obscenity and pornography cases on behalf of clients like Playboy, Penthouse, and the ACLU. While in the Clinton DOJ, he was a top aide to Janet Reno and leader of the Department’s tobacco litigation team. In various cases, he has filed briefs opposing parental notification before a minor’s abortion, opposing spousal notification before an abortion, opposing the military’s policy against public homosexuals serving in uniform, and opposing the Children’s Internet Protection Act and the Child Protection and Obscenity Enforcement Act. Finally, in all of these cases he has demonstrated a troubling approach to judicial decisionmaking. Ogden supports a “living Constitution” that changes to fit the latest fad of the intelligentsia. He believes that judges should rely heavily on social science when making decisions, that they should be “compassionate” and partial to “suffering” litigants, that they need not follow the Founders’ intent for the Constitution, and that they should consider “worldwide consensus” and international law when making their decisions. In fact, He will use social science to reach whatever result he wants (compare Roper, using social science to say that a 17-year-old lacks the intellectual and moral development to be liable for the death penalty, with Hartigan, using social science to say a 14-year-old has the intellectual and moral development to decide on her own whether or not to have an abortion without parental notification). CAREER 2001-Present: Private Practice with WilmerHale 1995-2001: Various leadership positions in the Department of Justice 1994-1995: Deputy General Counsel, U.S. Department of Defense 1983-1994: Private Practice with various firms 1982-1983: Law Clerk for Supreme Court Justice Harry A. Blackmun

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ABORTION Opposed Parental Notification by 14-year olds In Hartigan v. Zbaraz, 484 U.S. 171 (1987), Ogden co-authored a brief for the American Psychological Association arguing that parental notification was an unconstitutional burden on 14-year old adolescent girls seeking an abortion. Excerpt available online at http://www.psy.jhu.edu/~200.326/pdf/Hartigan%20v.%20Zbaraz%20APA%20brief.pdf - summary available online at http://www.apa.org/psyclaw/hartigan.html “There is no question that the right to secure an abortion is fundamental.” (p. 10). “By any objective standard, therefore, the decision to abort is one that a reasonable person, including a reasonable adolescent, could make.” (p. 11). “[E]mpirical studies have found few differences between minors aged 14-18 and adults in their understanding of information and their ability to think of options and consequences when asked to consider treatment-related decisions. These unvarying and highly significant findings indicate that with respect to the capacity to understand and reason logically, there is no qualitative or quantitative difference between minors in mid-adolescence, i.e., about 14-15 years of age, and adults.” (p. 18). A Virtually Unlimited Abortion License In Casey v. Planned Parenthood of S.E. Pennsylvania, 505 U.S. 833 (1992), Ogden coauthored an amicus brief in support of Planned Parenthood for the American Psychological Association. Available online at http://www.apa.org/psyclaw/plannedparenthood.pdf “This compelled spousal notification places a substantial burden on a married woman’s right to terminate her pregnancy. . . . This burden cannot be justified [by] the Commonwealth’s interest in promoting the integrity of the marital relationship.” (p. 2-3). “[E]mpirical research does not support the contention that abortion is a significant risk factor for detrimental psychological effects.” (p. 4). “The right to secure an abortion is fundamental, Roe v. Wade, 410 U.S. 113 (1973), protected at a minimum against the imposition of ‘undue burden[s]’…” (p. 16). “Singling out abortion for the recitation of purported detrimental effects coveys the false and misleading impression that abortions are more likely than alternatives to abortion to produce such detrimental effects. Indeed, research shows that substantial adverse emotional and psychological consequences to having an abortion are very rare. And the alternatives are not always psychologically benign. Studies demonstrate that potential negative psychological consequences may result from bearing and raising a child or relinquishing a child for adoption.” (p. 20). “Abortion rarely causes or exacerbates psychological or emotional problems. When women do experience regret, depression, or guilt, such feelings are mild and diminish rapidly without adversely affecting general functioning.” (p. 21). “For example, the requirement that every woman be informed that ‘[m]edical assistance benefits may be available for prenatal care, childbirth and neonatal care,’ and that ‘the father … is liable to assist in the support of the child’ … may be irrelevant to a woman for whom an abortion is required as a life-preserving measure or for genetic reasons.”(p. 25) (emphasis added). - 2-

 

“The Twenty-Four Hour Mandatory Delay [waiting period] Severely Burdens A Woman’s Right to Choose.” (p. 27). In Rust v. Sullivan, 500 U.S. 173 (1990), Ogden served as counsel to People for the American Way, the National Education Association, and others supporting petitioner’s claim that it was unconstitutional to limit the ability of Title X fund recipients to engage in abortion-related activities. In Scheidler v. National Organization for Women, 537 U.S. 393 (2003), Ogden co-authored the brief for the respondent NOW and several abortion clinics. They sought permanent injunctive relief under RICO, which was originally aimed at fighting organized mob crime, against pro-life protestors from Operation Rescue and the Pro-Life Action League. Available on WestLaw as 2002 WL 31154781. See also Gonzales v. Oregon, 546 U.S. 243 (2006), where Ogden served as counsel of record on behalf of law professors filing an amicus brief supporting Oregon’s Death with Dignity Act and opposing the Ashcroft Directive barring physician-assisted suicide. Available on LexisNexis as 2004 U.S. Briefs 623. Praised Justice Blackmun’s Roe opinion. “The Justice’s grounding in reality often leaves him with excruciating choices. The trimester framework of Roe v. Wade, for example, is the product of his searching look at the abortion problem from virtually every angle; a recognition of the real world suffering that criminalization would impose on many pregnant women required to carry their pregnancies to term; and a countervailing recognition that ‘the pregnant woman cannot be isolated in her privacy,’ because she carries potential human life.” David W. Ogden, In Appreciation of Justice Blackmun, 1990 Ann. Surv. Am. L. xliii, xliv-xlv. Available on HeinOnline. HOMOSEXUAL RIGHTS Brief in Lawrence v. Texas In Lawrence v. Texas, 539 U.S. 558 (2003), Ogden served as counsel of record for the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers filing an amicus brief in support of the defendants. Available online at http://www.apa.org/psyclaw/lawrence-v-texas.pdf. “[H]omosexuality is a normal form of human sexuality.” (p. 1). “[H]omosexuality is simply one normal variant of sexual identity.” (p. 2). “[T]he mainstream view in the mental health professions is that the most appropriate response of a therapist treating an individual who is troubled about his or her homosexual feelings is to help that person cope with social prejudices against homosexuality and lead a happy and satisfying life as a lesbian or gay man.” (p. 15). “Over the past two decades, research about the children of gay parents has yielded the consistent conclusion that these children demonstrate no deficits in intellectual development, social adjustment, or psychological well-being as compared to children of heterosexual parents.” (p. 20). (Compare with studies by the Marriage Law Project http://www.marriagewatch.org/publications/nobasis.pdf - and Child Trends http://www.childtrends.org/Files/Child_Trends-2002_06_01_RB_ChildsViewMarriage.pdf - surveying the social science and concluding that children do quantifiably better when raised by a mother and a father). - 3-

 

“Of course, families headed by gay couples may encounter particular issues and challenges, much as families of racial and ethnic minority group members, low-income families, and single-parent families do.” (p. 21). “Lesbians and gay men in the United States encounter extensive prejudice, discrimination, and violence because of their sexual orientation. Intense prejudice against gay men and lesbians was widespread throughout much of the 20th century; … Although a shift in public opinion concerning homosexuality occurred in the 1990s, hostility towards gay men and lesbians remains common in contemporary American society. Prejudice against bisexuals appears to exist at comparable levels. Discrimination against gay people in employment and housing also appears to remain widespread. The severity of this anti-gay prejudice is reflected in the consistently high rate of anti-gay harassment and violence in American society.” (p. 23-24). Brief in Bowers v. Hartwick In Bowers v. Hartwick, 478 U.S. 186 (1986), Ogden co-authored an amicus brief on behalf of the American Psychological Association and American Public Health Association supporting the defendants. Available online at http://www.apa.org/psyclaw/bowers.pdf “Mental health professionals have found that the sexual conduct prohibited by Georgia is not harmful to health or sexual functioning, whether engaged in by persons of different sexes or the same sex. Clinical research also indicates that the freedom to engage in such conduct is important to the psychological health of individuals and of their most intimate and profound relationships.” (p. 2). “Because neither homosexuality nor the prohibited sexual conduct is pathological in and of itself, preventing the development of homosexuality and deterring the prohibited conduct cannot be defended as mental health goals…” (p. 3). “Most important, given what we know about the fundamental nature and strength of the sex drive in humans, it is unrealistic to think that fear of criminal sanction will effectively deter forbidden sexual conduct in private between consenting adults.” (p. 21). Defends “safe sex” education that teaches about oral and anal sex. (p. 26-27). Gays in the Military In Watkins v. United States Army, 875 F.2d 699 (9th Cir. 1989), Ogden filed an amicus brief on behalf of the American Psychological Association. In it, APA argued “that: (1) the Ninth Circuit Panel's decision that homosexual people constitute a discrete and insular minority requiring the protection of heightened scrutiny under the Equal Protection Clause is supported by scientific research and opinion; (2) sexual orientation does not affect a person's ability to contribute to society; (3) discrimination against gay people is substantially based on erroneous stereotypes; (4) sexual orientation is highly resistant to change, and it is therefore abhorrent for government to penalize homosexual status; (5) the Army's regulations stigmatize homosexuals and encourage gay soldiers to conceal their homosexuality, which may be harmful to their mental health; (6) the Army's self-declared rationale for excluding lesbians and gay men is contradicted by scientific research; (7) the government may not penalize a group solely because others are prejudiced against it; (8) prejudice against lesbians and gay men in the Army is likely to be reduced by encouraging contact between homosexuals and heterosexuals; and (9) there was no rational basis for the Army's exclusion of gay people.” APA summary online at http://www.apa.org/psyclaw/watkins.html; see also Donald N. Bersoff and David W. Ogden, “APA Amicus Curiae Briefs: Furthering Lesbian and Gay Male Civil Rights,” American - 4-

 

Psychologist, Vol. 46, No. 9, p. 950-956 (September 1991). Available online at http://psycnet.apa.org/index.cfm?fa=main.doiLanding&uid=1992-07506-001 Strict Scrutiny for Gay Rights Claims In an article for the APA, Ogden called for “strict scrutiny” of claims by homosexual persons. “[I]f consensual, voluntary sexual behavior between adult men or between adult women conducted in private settings were encompassed by the fundamental right of privacy or if same-gender sexual orientation were denominated as a suspect classification, either determination would require the reviewing court to use strict scrutiny. The determination to use strict scrutiny almost invariably determines the outcome - when it is applied, the courts find the statute at issue unconstitutional; when the rational basis test is applied, the law is upheld. … The APA’s brief [in Watkins v. U.S. Army] showed that gay men and lesbians constitute a discrete and insular minority deserving strict equal protection scrutiny and that, in most cases, sexual orientation is involuntarily acquired and highly resistant to change.” Donald N. Bersoff and David W. Ogden, “APA Amicus Curiae Briefs: Furthering Lesbian and Gay Male Civil Rights,” American Psychologist, Vol. 46, No. 9, p. 950-956 (September 1991). Available online at http://psycnet.apa.org/index.cfm?fa=main.doiLanding&uid=1992-07506-001 See also amicus briefs in Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1992); State v. Schochet, 580 A.2d 176 (1990); Minnesota v. Gray, 413 N.W.2d 107 (Mn. 1987); and State v. Stover, 350 S.E.2d 577 (Ga. 1986), opposing state sexual behavior statutes. PORNOGRAPHY AND OBSCENITY Opposed the Children’s Internet Protection Act of 2000 In United States v. American Library Association, Ogden served as counsel of record for an amicus brief filed on behalf of fifteen library directors in support of the Association. Available online at http://supreme.lp.findlaw.com/supreme_court/briefs/02-361/02-361.mer.ami.cpl.pdf “As a condition of receiving federal funds, Congress has – with the Children’s Internet Protection Act … - insisted that public libraries affirmatively censor constitutionallyprotected material. By demanding that libraries be censors and devote resources - not to facilitating - but to interfering with patrons’ pursuit of information and ideas, Congress has subverted the role of librarians and public libraries and violated the First Amendment rights of library patrons.” (p. 3). “Imposition of mandatory filtering on public libraries impairs the ability of librarians to fulfill the purpose of public libraries – namely, assisting library patrons in their quest for information…” (p. 3). “Congress cannot condition public libraries’ receipt of funds on their agreement to violate the First Amendment rights of library patrons.” (p. 4). CIPA “impairs the ability of librarians to aid patrons seeking information.” (p. 11). Challenged the Child Protection and Obscenity Enforcement Act Ogden represented several communications trade associations challenging provisions of the Child Protection and Obscenity Enforcement Act of 1988 and its companion Child Protection Restoration and Penalties Enhancement Act of 1990. He convinced the court that requiring producers of pornographic materials to personally verify that models were over age 18 at the time the materials were made would “burden too heavily and infringe too deeply on the right to produce First Amendment protected material.” American Library Association v. Thornburgh, 713 - 5-

 

F.Supp. 469, 477 (D.D.C. 1989); American Library Association v. Barr, 794 F. Supp. 412 (D.D.C. 1992); American Library Association v. Reno, 33 F.3d 78 (D.C. 1994) and 47 F.3d 1215 (D.C. 1995, denial of rehearing en banc). Representation of Pornographers Ogden represented Playboy Enterprises, among others, seeking an order forcing the Library of Congress to use taxpayer funds to print Playboy Magazine’s articles in Braille against the express wishes of Congress. American Council for the Blind v. Boorstin, 644 F.Supp. 811 (1986). Ogden said the decision was important in “turning the tide in the censorship battle” and was part of a “judicial reaction to the censorial mood in the government and a belief that it needs to be checked.” Nancy Lewis, “Halting Braille Playboy Ruled Unconstitutional,” Washington Post, August 29, 1986. Available on Proquest. Ogden represented Playboy Enterprises seeking an injunction against the inclusion of Playboy in a list of pornographic magazines that would potentially be included in the Meese Commission report. Playboy Enterprises, Inc. v. Meese, 746 F.Supp. 154 (D.D.C. 1990). Ogden represented a mail-order pornography distributor with a nation-wide business who complained of an allegedly unconstitutional multi-district prosecution strategy by the Department of Justice. P.HE., Inc., v. United States Department of Justice, 743 F.Supp. 15 (D.D.C. 1990) and United States v. P.H.E., Inc., 965 F.2d 848 (10th Cir. 1992). Ogden represented the Consenting Adults Telephone Rights Association in a challenge to the Telephone Decency Act. He convinced a judge that “indecent conversations” between a client and a telephone sex service were constitutionally protected. Roe v. Meese, 689 F. Supp. 344 (1988). Ogden represented Playboy Enterprises and the Playboy Programming Distribution Corp. in a challenge to Puerto Rico’s decision to ban obscene content from cable. The court rules that the federal Cable Communications Policy Act of 1984 preempts Puerto Rico’s statue allowing prosecution for broadcasting obscene content. Playboy v. Public Service Commission, 698 F. Supp. 401 (D.P.R. 1988) and 906 F.2d 25 (1st Cir. 1990). Ogden represented a fire captain who challenged a Los Angeles Fire Department sexual harassment regulation that barred “sexually-oriented magazines, particularly those containing nude pictures, such as Playboy, Penthouse and Playgirl” from the firehouse. Johnson v. County of Los Angeles, 865 F. Supp. 1430 (Cent.Ca. 1994). Ogden has filed numerous amicus briefs in pornography and obscenity cases, including Knox v. United States, 510 U.S. 375 (1993) (on behalf of the ACLU and others); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (on behalf of mail-order pornography distributor P.H.E., Inc.); Virginia v. American Booksellers Association, 484 U.S. 383 (1988) (on behalf of the Freedom to Read Foundation); Pope v. Illinois, 481 U.S. 497 (1987) (on behalf of the ACLU and P.H.E., Inc.); Stall v. Florida, 570 So. 2d 257 (Fla. 1990) (on behalf of P.H.E., Inc. and Ultra Corp). See also Meese v. Keene, 481 U.S. 465 (1987) (on behalf of Playboy Enterprises, Inc., and the American Booksellers Association). EVOLVING, COMPASSION-DRIVEN CONSTITUTIONAL INTEPRETATION Criticizes judicial decision-making based on Framers’ Original Meaning “Constitutional interpretation cannot be limited to ascertain the way a particular law would have been viewed by the Framers. While constitutional principles do not change, the society and - 6-

 

individuals in whom they are applied do, and our knowledge about that society and those individuals improves with time.” David W. Ogden, op-ed in the Legal Times, July 21, 1986 (discussing Bowers v. Hartwick), quoted in Senate Judiciary Committee, “Hearing on the Nominations of David W. Ogden and Robert Raben,” August 4, 1993. Available on EbscoHost. Praises Commitment to “Compassion” Over Impartiality. “Any student of the Court knows that Justice Blackmun’s votes and writings reflect an extraordinary concern about human need and human dignity. . . . It may be that only a Justice with Justice Blackmun’s remarkable humility would candidly express the view that compassion may properly guide the law when the lawyer’s stock of precedent and logic fail to yield a clear answer. Surely the Justice is correct that fashioning legal rules without regard to human vulnerability and suffering is, at best, a ‘sterile’ exercise.” David W. Ogden, In Appreciation of Justice Blackmun, 1990 Ann. Surv. Am. L. xliii, xlv-xlvi. Available on HeinOnline. Files Brief Supporting Impartiality In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), Ogden served as counsel of record for the National Association of Criminal Defense Lawyers as amicus curiae supporting the defendant. Available on Westlaw as 2002 WL 264660. These quotes are interesting when juxtaposed against the compassion quote describing Justice Blackmun and the quotes from then-Senator Obama about “heart” and “empathy” in judges. “Judges, including elected judges, belong to an institution that is fundamentally apolitical and that depends for its very legitimacy on remaining at all times scrupulously impartial.” (p. 2). “Whereas officials in the political branches of government are quite properly elected on the basis of promises to effectuate policy commitments, and are expected while in office to take the opinions of voters into account when making their decisions, basic notions of due process and the nature of the judicial role bar judges from doing the same. While deciding cases, judges must be independent of external political forces and must base their actions only on the law and the evidence before them.” (p. 2-3). “[T]he responsibility of a judge is to decide each case based on the law and the rights of the litigants before them, including every litigant’s fundamental constitutional right to a fair and unbiased proceeding.” (p. 5). RACIAL PREFERENCES Brief in Parents Involved In Parents Involved v. Seattle School District No. 1, 127 S.Ct. 2738 (2007), Ogden co-authored a brief on behalf of the American Psychological Association supporting the School District. Available online at http://www.apa.org/psyclaw/parents-v-seattle-and-merredith-v-jeffersonco.pdf “The diversity necessary to generate these substantial benefits in public K-12 education is unlikely to result purely as a matter of private parental choice. Fear of the unknown and unfamiliar often leads individuals to shy away from substantial interaction with persons of other races, and instead to gravitate toward homogeneous neighborhoods, communities, and schools. Even those who consciously disclaim racial prejudice often unconsciously harbor, and act in accordance with, racial stereotypes and racial bias. - 7-

 

These phenomena help to explain why, all things being equal, many parents are unlikely to choose to send their children to schools predominantly populated by children of other races. Thus, without school district involvement, children are far less likely to reap the benefits of learning, at an early age, to resist the racial stereotypes that so often result in division and discrimination.” (p. 3). “These studies indicate that private choice alone is unlikely to produce schools in which children of different races have the opportunity to engage in meaningful intergroup interaction. Experience thus suggests that school districts have an important role to play in providing schools that help students overcome the implicit biases and prejudices that have historically resulted in de facto segregation.” (p. 27). Believes race-based A.A. is the only way “Thus, the Justice [Blackmun] wrote, ‘It would be impossible to arrange an affirmative action program in a racially neutral way and have it be successful. . . . In order to get beyond racism, we must first take account of race. There is no other way.’ . . . To this day, no other writing on the subject of affirmative action is so persuasive to me as the Justice’s short Bakke concurrence.” David W. Ogden, In Appreciation of Justice Blackmun, 1990 Ann. Surv. Am. L. xliii, xliv. Available on HeinOnline. TOBACCO LITIGATION Asks courts to ‘send message’ and ‘address a national health crisis’ “I consider this to be a very important lawsuit. Proceeding under established legal principles, it calls upon federal courts to send the message that businesses may not operate by defrauding the public about deadly and addictive products and expect profit from it. It also calls upon the courts to fashion injunctive relief to address a national health crisis born of decades of fraud, and to stop the cigarette companies from continuing to market cigarettes - and their cycle of addiction, disease, and death – to America’s youth.” Testimony of David W. Ogden, Senate Judiciary Committee, “Management of Tobacco Litigation,” September 5, 2001. Available on EbscoHost. Sen. Sessions Critiques Lawsuit “This is not a normal litigation. This is a matter of national public policy that many highly paid, enriched attorneys and people who have very strong views about tobacco are not satisfied with the way the public elected officials have conducted that policy, and they would like to do it through the legal system.” Senator Sessions, Senate Judiciary Committee, “Hearing on the Nominations of David W. Ogden and Robert Raben,” August 4, 1993. Available on EbscoHost. OTHER ISSUES No Respect for Private Property Rights In his student note for the Harvard Law Review, Ogden praises a decision from the California Supreme Court saying that private property owners may not exclude protestors and leafleteers engaged in political speech from their property. Unsigned student note, State-Guaranteed Right to Speak in Privately Owned Shopping Centers, 94 Harv. L. Rev. 169 (1980). Available on HeinOnline.

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Use of International Law in American courts In the Simmons brief attacking the juvenile death penalty, Ogden wrote, “In the 15 years since Stanford, it has become clear that an overwhelming worldwide consensus rejects the execution of juvenile offenders.” (p. 47). His proof for this proposition is the U.N. Convention on the Rights of the Child, which the United States has pointedly refused to ratify, and a decision of the InterAmerican Commission on Human Rights. No medication so criminals can stand trial In Khiem v. United States, 612 A.2d 160 (D.C. 1992), Ogden co-authored an amicus brief for the American Civil Liberties Union of the National Capital Area in support of defendant Khiem. Khiem was arguing that it was an unconstitutional invasion of his bodily integrity for the trial court to order a hospital to administer psychotropic drugs over his direction so that he would behave in the courtroom during his murder trial. NOTABLE CLIENTS PHE, Inc: The nation's largest distributor of hard-core porn videos and other sex-related products. Run by Philip Harvey, who has supervised Population Services International, a nonprofit corporation that works to promote population control overseas. (PHE distributes a number of DVDs with titles that suggest it would have problems with the Children's Internet Protection Act and the Child Protection and Obscenity Enforcement Act. (Titles include terms like "School girls," "Bubblegum cuties," "Sweet young things," "Young Girls," and "Fresh and Young.") Maryland Psychological Ass'n, Institute for Advanced Study of Human Sexuality, American College of Sexologists, Society for the Scientific Study Of Sex, And Population Planning Associates. As amicus in SCHOCHET v. STATE 320 Md. 714 (1990). NOW and two abortion clinics: Delaware Women's Health Organization and Summit Women's Health Organization (of Milwaukee). DWHO and SWHO perform 1st and 2nd trimester abortions (http://gynpages.com/nwho/abortion.html). The 2nd trimester abortions use D&E. In Scheidler v. National Organization for Women. Center for Military Readiness (gays in Military) http://cmrlink.org/elainebio.asp CONCLUSIONS 1. Ogden is an abortion-on-demand absolutist. He opposes common sense restrictions on abortion, including policies that have significant support from the American people, such as parental notification by minors. 2. Ogden is an absolutist on pornography and obscenity. He opposes common sense restrictions on the ability of pornography peddlers to sell their products. He believes pornography users have a constitutional right to view pornography at a public library. He believes private property owners’ right to exclude protestors from their property must yield to the protestors’ free speech right. 3. Ogden supports a “living Constitution” that changes to fit the latest fad of the intelligentsia. He will use social science to reach whatever result he wants. 4. Ogden supports the use of courts as a policy- and law-making vehicle to advance his social agenda and left-wing values regarding abortion, homosexuality, the death penalty, and other issues. He will seek to overturn established precedents that he disagrees with on a policy level. - 9-