Good point!
Sen. Orrin Hatch is on fire now! He is not going to let the minority party repeat the abuses of 2002. He even raised his voice. 'I am so doggone tired of hearing about this Professor Bender.' Orrin's nailing Bender now - Estrada's #1 critic.
'Mr. Bender is an extremist by even the most liberal standards." Bender's a porn defender. Go, Orrin!
A recent exception to this generalization underscores the perils that arise when inexperienced political lawyers overrule the career lawyers and insist on an abrupt change in position in the middle of a case. Near the beginning of his service as President Clinton's first Solicitor General, Drew Days filed a confession of error in a brief on the merits in Knox v. United States, 510 U.S. 939 (1993), a child pornography conviction. Although the career lawyers in the Bush Administration had argued that the conviction should be upheld, Days-reportedly at the urging of his new Political Deputy Paul Bender-argued that the lower courts had applied an improperly broad interpretation of the statute. See Joan Biskupic, Politics Still Plays a Role in Solicitor General's Office, WASH. POST, Feb. 22, 1994, at A1. According to the new Solicitor General's position, free speech considerations required that the "lascivious exhibition of the genitals or pubic area" of children be interpreted to mean exhibitions in which the genital areas are fully exposed. In the films produced by Knox, by contrast, young girls were shown cavorting in tight bathing suits, leotards, or underpants. See Brief for the United States, at 10-13, 20-23, Knox v. United States, 510 U.S. 939 (1993) (No. 92-1183). Upon receiving this confession or error, the Court vacated and remanded the conviction for reconsideration by the lower court.
Days' action was undoubtedly motivated by sincere concerns about free speech values. But it proved to be deeply embarrassing to the Clinton Administration. Republicans had a field day suggesting that the Administration favored coddling child pornographers, and secured a unanimous resolution in the Senate condemning the new interpretation. See Biskupic, supra note 26. When, on remand, the Third Circuit rejected the new interpretation and reaffirmed Knox's conviction, Attorney General Reno took the highly unusual step of publicly repudiating the Solicitor General's prior position, and signing the opposition to certiorari herself. See David G. Savage & Ronald J. Ostrow, U.S. Won't Fight Pornography Conviction, L.A. TIMES, Nov. 11, 1994, at A34. The Court then denied certiorari without comment. See Knox v. United States, 513 U.S. 1109 (1995).