Top 10 Bush cases Obama should redo.

The law, lawyers, and the court.
Feb. 9 2009 3:01 PM

There's a New Lawyer in Town

The top 10 cases the Obama Justice Department should redo.

Emily Bazelon recently chatted online with readers about this article. Read the transcript.

(Continued from Page 2)

7. ACLU v. DoD
In 2003, the American Civil Liberties Union began filing lawsuits to enforce its requests, under the Freedom of Information Act, for the release of memos by the Office of Legal Counsel that gave a green light to the Bush administration's policies of detention, interrogation, surveillance, and extraordinary rendition. (The government even argued that it was protecting prisoners' privacy by refusing to release pictures.) The ACLU has won some of its battles, including a judgment in the 2nd Circuit in September of 2008 requiring it to produce some of the memos. Yet the ACLU says that "most of the key OLC memos are still being withheld." This chart from ProPublica tracks which OLC documents are being kept secret. The Obama administration should comply with FOIA by dropping Bush's broad claims of executive privilege, review all of the OLC documents to determine which, if any, need to remain classified—as Dawn Johnsen, Obama's choice to head the OLC, has argued—and make the rest public.

8. United States v. New York City Board of Education
In 1996, the Clinton Justice Department sued the New York City Board of Education over discriminatory recruitment for school custodian jobs. The New York schools had been relying for hiring on word of mouth among male custodians and leaving out women and minorities, the lawsuit alleged. In a 1999 settlement, the DoJ and the city schools agreed that 50 women and minority custodians who'd been doing their jobs provisionally would get permanent employment and retroactive seniority. Then a group of white male custodians who didn't like the settlement entered the case, arguing that they were victims of reverse discrimination. By then, President Bush was in office. His DoJ refused to defend the settlement agreement for all of the white women and some of the minorities, and instead used the case to attack affirmative action. That was a switch by the DoJ in the wrong direction.

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The women and minority custodians succeeded in defending most of the settlement before a district court judge last year. Now that ruling is on appeal to the 2nd Circuit, and the DoJ should go back to the original Clinton stance. The Obama lawyers should reject the Bush position and return to defending the 1999 settlement as well as the principle of breaking down old patterns of job segregation in public employment.

9. In re Polar Bear Litigation
Moving to the district courts, environmental groups sued the Bush administration in 2005 to protect the polar bear under the Endangered Species Act, because its habitat is disappearing as warming Arctic temperatures shrink the sea ice. Last May, a district court judge ruled that the Interior Department had to follow the ESA and make a decision about whether to protect the bear. Interior Secretary Dirk Kempthorne gave in and listed the polar bear as threatened—at significant risk of becoming endangered by midcentury. But Kempthorne took a swipe at the ESA, calling it "perhaps the least flexible law Congress has ever enacted," and issued a rule providing that greenhouse gases could not be regulated in order to protect the bear. The administration also ruled out any limits on oil or gas exploration. "So this leaves everything as it was, in a way," Andrew Revkin wrote in the New York Times.

The Obama administration has already broken with the Bush administration by accepting a judge's order to regulate the mercury from power plants and issuing a promising memo about standards for the energy efficiency of appliances. It should also bump up the polar bear's listing from threatened to endangered and withdraw the rule that exempts greenhouse gases from regulation that would help protect the bear.

10. Thompson v. HUD
We close by highlighting the struggles of district Judge Marvin Garbis, who tried to rectify the Bush administration's violations of anti-discrimination law. In 2005, Garbis held that the Department of Housing and Urban Development violated the Fair Housing Act by unfairly concentrating African-American public-housing residents in the most impoverished, segregated areas of Baltimore. The judge faulted HUD for treating Baltimore as "an island reservation for use as a container for all of the poor of a contiguous region." Faced with the judge's ruling, the Bush administration argued that he had no authority to order a remedy and then did not address the severe segregation it has spawned—despite Judge Garbis' admonition that "it is high time that HUD live up to its statutory mandate."

The plaintiffs in this case are proposing an innovative plan that takes a regional approach to desegregation and helps public-housing residents move out of Baltimore to parts of Maryland with more job opportunities. The new government should stop stonewalling and start figuring out how to desegregate.

DoJ, we appreciate that there's a lot of work to do.

Emily Bazelon isa Slate senior editor.Judith Resnik is the Arthur Liman professor of law at Yale Law School. She signed an amicus brief in Iqbal and is involved in writing one in Denedo.

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