Justice Department attorney Carl Nichols didn’t get through his first full sentence defending the constitutionality of retroactive immunity for spying telecom carriers before U.S. district judge Vaughn Walker interrupted to ask about President-elect Barack Obama.
“We are going to have new attorney general,” Walker interjected in Tuesday morning’s hearing in a San Francisco courthouse. “Why shouldn’t the court wait to see what the new attorney general will do?”
— Ryan Singel, Obama Will Fight For Wiretap Immunity, Bush Lawyer Tells Judge, Wired’s Threat Level
Unsurprisingly, Nichols did his job and responded by saying that the Obama administration would defend the constitutionality of the statute, noting that “The Department of Justice rarely, if ever, declines to defend the constitutionality of a statute.”  Well, yeah, he would say that, wouldn’t he?
In reality, it’s very difficult to predict how the new administration will react. Prominent Catholic Obama supporter Douglas Kmeic, quoted in Carol Williams’ LA Times article, describes the tensions:
“They would want to get rid of these cases, to move on,” Pepperdine University law professor Douglas W. Kmiec said of the incoming administration. “But I also think there will be a proper impulse within the Obama Justice Department to get the law right. It’s one thing to have a clean worktable, and another to have a clean worktable where the laws have been brushed to the floor and all lie broken and scattered.”
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