David Ogden, former deputy attorney general of the United States, spoke Thursday night at Elon University about his experiences in government and the moral gray areas that result from interpreting the law through political lenses.
Ogden's speech was titled "Justice at the Intersection of Law and Politics," and he gave several examples of cases in which the line between politics and policy has been challenging to draw.
Lawyers who decide to dedicate their careers to being civil servants for the United States, its citizens their clients, are taking on important roles, Ogden said. It's a great privilege, but one that comes with great responsibility – and partisan political beliefs should not be considered in the policy-making process.
"There are plenty of ways the government can go wrong, and to let personal views or narrow interests drive decisions, it can let partisan thinking drive decisions," Ogden said. "It can make just plain bad decisions."
The debate over whether cable companies should be forced to carry broadcast channels was one instance he gave in which interpreting the Constitution is far less black-and-white when special interests play a role in decision-making.
In this case, the National Association of Broadcasters was concerned that cable companies had a monopoly and people would no longer watch their shows. This meant that people without cable would be hindered from watching television if the NAB was forced out of existence.
President George H.W. Bush vetoed a statute to force cable companies to carry their channels, but after much deliberation, the veto was eventually overturned when Bill Clinton was voted into office. This raises questions of whether Clinton acted improperly, or if changes in law should be expected with each election, Ogden said.
One student asked whether he thought the line between policy and politics has swayed over the years, based on his experience working with multiple administrations.
"I think more and more decisions get politicized across a broader and broader spectrum of what the government does," Ogden said. "I think that makes it harder to make decisions without being accused of being motivated the wrong way, and in fact, even sometimes without appearing that there's political motivation."
The Defense of Marriage Act, more commonly referenced as DOMA, was briefly discussed and Ogden said he does expect the act, which only recognizes the marriage of opposite-sex couples at the federal level, regardless of state laws, to be brought to the Supreme Court. "It's an important issue and it's a question of the constitutionality of an issue," Ogden said. "The issue will not become moot because the federal government continues to support the statute even if they don't defend it."
If DOMA is upheld, state laws will not have to change to stop recognizing same-sex marriage. But if the act were to be repealed, it is unknown whether states would be required to legalize and recognize same-sex marriage as well, Ogden said.
"It's a really good question because it really, I think, depends on why the Supreme Court decided DOMA was unconstitutional," he said. "If they decided it was unconstitutional because there was no sufficient rationale for denying people of the same sex to marry each other, then it's a little hard for me to see why a state could deny people of the same sex to marry each other. So if that's the rationale, I think it would have that effect but there are other ways the court could reach that conclusion"