President Obama has expressed his belief the U.S. Constitution should be interpreted through the lens of current events, and now he’s apparently preparing to install as a senior official at the U.S. Justice Department a lawyer who goes one step further, advocating for constitutional protections for abortionists, pornographers and protesters.

The condemnation of Justice Department nominee David Ogden, who would be deputy to Attorney General Eric Holder, comes from Fidelis, a consortium of organizations working to promote religious freedom, values of human life and the institutions of marriage and the family.

“Ogden is an abortion-on-demand absolutist. He opposes common sense restrictions on abortion, including policies that have significant support from the American people, such as parental notification by minors,” the organizations said in a report today.

Also, “Ogden is an absolutist on pornography and obscenity. He opposes common sense restrictions on the ability of pornography peddlers to sell their products. He believes pornography users have a constitutional right to view pornography at a public library.”

Additionally, “He believes private property owners’ right to exclude protesters from their property must yield to the protesters’ free speech right.”

And he “supports a ‘living Constitution’ that changes to fit the latest fad of the intelligentsia,” the report said.

Ogden’s belief system appears to align with the sentiments expressed by Obama earlier. WND has reported Obama believes the Constitution is flawed because it does not mandate redistribution of wealth, and he says the Supreme Court should have intervened years ago to accomplish that.

Obama also repeatedly has stated his desire for empathetic judges who “understand” the plight of minorities. In a 2007 speech to Planned Parenthood, the nation’s largest abortion provider, he said, “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

Fidelis called Obama’s nomination of Ogden, who was described as a “skilled manager” when his name was suggested for the Justice Department’s No. 2 post, a “major mistake.”

“David Ogden is a hired gun from Playboy and ACLU,” said Brian Burch, president of the pro-family group. “He can’t run from his long record of opposing common sense laws protecting families, women, and children. The United States Senate has a responsibility to the American people to insure that Mr. Ogden’s full record is fully reviewed before any vote on his nomination.”

The group’s extensive research on Ogden cites his work on behalf of homosexuality in Lawrence vs. Texas, for Playboy and Penthouse on issues involving pornography and his representation of a company that distributes videos titled “Bubblegum cuties,” “Sweet young things,” “Young girls” and “Fresh and young.”

“He has opposed filters on library computers protecting children from Internet smut, and successfully defended the right of pornographers to produce material with underage children,” Burch said.

“Ogden even sued the federal government in an attempt to publish Braille versions of Playboy magazine – at taxpayer expense, of course,” he said.

The report said Ogden has argued for the treatment of traditional definitions of marriage as a “social prejudice.”

“At a time when America’s families are under increasing assault, Mr. Ogden is a dangerous choice for a position whose responsibilities include the enforcement of our nation’s laws,” Burch said.

Fidelis spokesman Joshua Mercer told WND one of the major worries is that children should be protected from online sex predators and Ogden’s position goes beyond free speech absolutism.

“There is no such thing as free speech to yell ‘fire’ in movie theaters,” he said. “Child porn is not free speech either. It’s disheartening that the president would pick someone with that kind of radical views of human sexuality. You don’t want him as the No. 2 at Justice.”

According to the Washington Post, which reported on Ogden’s work leading the transition team at the Justice Department, he has “sterling Democratic credentials” and knowledge of the department from his work as chief of staff to ex-Attorney General Janet Reno.

Ogden, a partner at WilmerHale in Washington, D.C., also ran the department’s civil division under President Clinton.

But among other criticisms, has reported Ogden authored a brief in the U.S. Supreme Court arguing there were no negative effects from an abortion.

He wrote, “When women do experience regret, depression, or guilt, such feelings are mild and diminish rapidly without adversely affecting general functioning.” He blamed those who have “negative” responses to abortion on “pre-existing emotional problems.”

That would align with Obama’s campaign statement that he didn’t want his daughters “punished” with a son or daughter.

Fidelis, which has a Catholic-based value system and includes a flagship 501c4 group for lobbying and public education, a political action group, a Center for Law and Policy and the Fidelis Media Fund, has released its research online, calling Ogden an “Obscene Choice.”

The report, replete with links to Ogden’s actual court pleadings, confirm he has sought to push homosexuals in the military, extend racial preferences, oppose parental abortion notification, fought the Children’s Internet Protection Act and more.

“In all of these cases he has demonstrated a troubling approach to judicial decision-making. Ogden supports a ‘living Constitution’ that changes to fit the latest fad of the intelligentsia,” Fidelis said. “He believes that judges should rely heavily on social science when making decisions, that they should be ‘compassionate’ and partial to ‘suffering’ litigants, that they need not follow the Founders’ intent for the Constitution, and that they should consider ‘worldwide consensus’ and international law when making their decisions.

“In fact, He will use social science to reach whatever result he wants,” the report said.

According to the report and its links, his writings include:

  • “There is no question that the right to secure an abortion is fundamental.”

  • “[T]he mainstream view in the mental health professions is that the most appropriate response of a therapist treating an individual who is troubled about his or her homosexual feelings is to help that person cope with social prejudices against homosexuality and lead a happy and satisfying life as a lesbian or gay man.”
  • “By demanding that libraries be censors and devote resources – not to facilitating – but to interfering with patrons’ pursuit of information and ideas, Congress has subverted the role of librarians and public libraries and violated the First Amendment rights of library patrons.”

There was no response from the White House to a WND e-mail asking for a comment on the nomination.

But Ogden also argued to force the Library of Congress to print Playboy in Braille, and argued against including Playboy on a list of pornographic magazines potentially cited in the Meese Commission report.

In a challenge to the Telephone Decency Act he convinced a judge that “indecent” conversations between a client and a sex service were constitutionally protected, the report said.

WND reported Obama said in a 2001 radio interview the Constitution is flawed in that it does not mandate or allow for redistribution of wealth.

Obama told Chicago’s public station WBEZ-FM that “redistributive change” is needed, pointing to what he regarded as a failure of the U.S. Supreme Court under Chief Justice Earl Warren in its rulings on civil rights issues in the 1960s.

The Warren court, he said, failed to “break free from the essential constraints” in the U.S. Constitution and launch a major redistribution of wealth. But Obama, then an Illinois state lawmaker, said the legislative branch of government, rather than the courts, probably was the ideal avenue for accomplishing that goal.

In the 2001 interview, Obama said:

If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to invest formal rights in previously dispossessed people, so that now I would have the right to vote. I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be OK

But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it’s been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can’t do to you. Says what the federal government can’t do to you, but doesn’t say what the federal government or state government must do on your behalf.

And that hasn’t shifted and one of the, I think, tragedies of the civil rights movement was because the civil rights movement became so court-focused I think there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalition of powers through which you bring about redistributive change. In some ways we still suffer from that.

The video is available here:



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