One year ago, on Inauguration Day, the liberal legal establishment was drooling over itself at the prospect of a Democratic administration applying its version of the "rule of law" to American life. Survivors of eight long years of partisanship, cronyism, misfeasance and malfeasance during the Bush era, enemies of Unitary Executive Theory, aghast at the destruction wrought by men like John Yoo and Alberto Gonzales and David Addington and Dick Cheney, these lawyers and judges and academics and authors believed (or said they did) that President Barack Obama, a former constitutional scholar and a progressive thinker, would right the ship.
One year later, we can say with certainty only that things mostly did not get worse. We can say, as our financial experts tell us about the economy, that the freefall in legal principle and policy "bottomed out" in 2009 as a result of the decisions by the President and his Attorney General, Eric Holder. We can say that the Obama administration has created a foundation upon which it may continue to build over the next three years. And we can point to a few specific instances of direct reversals in policy-- from Bush to Obama-- that have altered the nation's legal landscape and future.
What we cannot say is that the current administration has achieved a comfortable level of certainty and clarity over some of the most pressing and vital legal events and issues of our time. The war on terrorism is still mostly a muddled mess. The U.S. Attorney scandal has not been fully explored. The fat-cat architects of our economic disaster remain mostly free, rich, and still earning bonuses.
What follows is a brief list of the five best and five worst accomplishments by the Obama administration since taking office on January 20, 2009.
The five best law-related moves by the Obama White House and Justice Department:
1. The decision to bring 9/11 planner Khalid Sheikh Mohammed to trial in federal civilian court in New York City. Some particularly overwrought yahoos-- fellow travelers of the same folks who gave us torture and unlawful military tribunals-- see this as the worst move ever in the history of American governance. I see it as bold and brilliant. For too long now, our government and many in our media have portrayed people like Mohammed as monsters. Our courts and our trials will reveal them only to be men. Creepy, lame, pathetic, sorry men. You tell me what's wrong with that.
2. The decision to end the federal government's enforcement of its criminal laws against medical marijuana users. Not only does this signify a wiser use of limited resources, it also has spawned an important national debate about the validity of state laws that prohibit medical marijuana. Here we observe the government seeing the larger picture on pot-- ultimately it will be legalized and taxed like liquor and cigarettes-- and getting on the right side of history.
3. The decision to nominate Sonia Sotomayor for the United States Supreme Court. There is no way to tell for sure whether Justice Sotomayor is going to be good, bad, or just plain hapless on the High Court. But she was clearly qualified to be appointed, shakes up the Court in a way that cannot be bad, and gives hopes to millions of wise Latinas and Latinos that the highest barrier in our justice system is accessible to them.
4. The multi-administration, inter-branch compromise deal over the White House's assertion of "executive privilege" for Karl Rove in the continuing investigation into the 2007 U.S. Attorney scandal. It was not a perfect solution. But it avoided a showdown in the federal courts that would have lasted months, perhaps years, at a cost of even less bipartisanship in Washington. Some called it a cop-out by the White House. I call it practical.