The War Against Dawn Johnsen

I just was on a call sponsored by People For the American Way, Alliance for Justice, National Women's Law Center, and NARAL Pro-Choice America regarding the war being waged by extremist Right Wing groups against Dawn Johnsen, President Obama's nominee to head the Office of Legal Counsel in the Justice Department. As we have learned, the OLC is a very important part of any administration. Ms. Johnsen's views on torture and the right to choose have made her a prime target of the Right Wing machine.

Clinton Administration Solicitor General (and OLC head) Walter Dellinger and conservative legal scholar Doug Kmiec, who served as the head of the OLC during the Reagan Administration, spoke in support of Ms. Johnsen. In addition, Aviva Orenstein, Professor of Law at the Indiana University Mauer School of Law, Bloomington, Indiana, a colleague of Johnsen's, also spoke on her behalf. More . . .

Dellinger stresses the importance of the OLC, as recent events have borne out. Dellinger speaks glowingly of Johnsen, calling her one of President Obama's best nominees. He remarks that she has a track record at OLC, having served in the office in the past. Dellinger says that when Johnsen was in the office with him - the office motto was "Dawn Johnsen is always right." He labels her as one of the leading scholars on Executive power in the country.

Dellinger claims to be "bewildered" by the objections from Senate Republicans. He states Johnsen is "pro-choice" and did something about it. He addresses the "footnote" controversy regarding a brief filed for the League of Women Voters. (I am not familiar with that controversy to be frank.)

The other controversy revolves around Johnsen's views on torture and wiretapping, where Johnsen criticized the Bush Administration for breaking the law. Dellinger expresses bafflement that Johnsen is being criticized for condemning lawbreaking.

Doug Kmiec agreed with Dellinger's assessment. He notes that they come from different points of the policy spectrum. He argues that as a professional and advocate, she has always worked with care, precision and objectivity. Kmiec especially praises Johnsen on this point and pointedly notes that the Bush OLC did not reflect Johnsen's qualities.

Kmiec finds the objections to Johnsen "incredible" and crassly partisan.

Johnsen's colleague Professor Orenstein praises her collegiality, calm and reasonableness. She notes that Johnsen will not be afraid to say NO to the Administration. She finds the portrayal by her opponents as "mystifying."

Brian Beutler asks a great question on state secrets and how Ms. Johnsen would react to the Obama Administration embrace of the Bush state secrets position. Prof. Orenstein predicts that Obama should not be surprised that Johnsen may not agree with the view now espoused by the Obama Administration.

I asked about the notion of filibustering Executive Branch nominees and the Republican view of recent vintage that not only Executive Branch nominees, but judicial nominees, deserved up or down votes. To be clear, I believe judicial nominees should be completely subject to the filibuster option, since these are lifetime appointments in a separate branch of government. But I believe that Executive Branch nominees, subject to being unqualified for the post, should receive an up or down vote. (For example, I opposed the filibuster of John Bolton for UN Ambassador.) Professor Dellinger referred me to this April 20 WSJ piece he authored:

On the eve of George W. Bush's inauguration in 2001, I cautioned fellow Democrats against "delaying or denying confirmation of nominees to cabinet and subcabinet posts." I argued on these pages that blocking executive nominees would weaken the presidency and be counterproductive for the opposition: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration."

In the past few years, many Republican senators have agreed, saying that it is unacceptable to filibuster a nominee submitted to the Senate for its "advice and consent." Some Republicans have gone further than I would, asserting that filibusters of presidential nominations are unconstitutional.

I was therefore taken aback by recent speculation that Republicans might filibuster two of President Barack Obama's key nominees: Dawn Johnsen, to head the Justice Department's Office of Legal Counsel; and Harold Koh, to be legal adviser to the State Department.

Professor Dellinger gets to the nub of the issue.

Speaking for me only

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    Heh (5.00 / 1) (#2)
    by Steve M on Mon Apr 27, 2009 at 01:19:18 PM EST
    Dellinger speaks glowingly of Johnsen, calling her one of President Obama's nominees.

    Remind me not to ask Professor Dellinger for a letter of recommendation any time soon, if his idea of glowing praise is "She's one of President Obama's nominees!"  I assume there's actually a typo here but I can't resist the urge to make fun.

    I actually feel that not all executive nominees are equivalent for advice and consent purposes.  For an ambassador-type appointment like Bolton, I don't mind the minority using their available tools since that person is going to be part of our face to the world.  But if it's, say, an economic advisor or somesuch (even a high-level advisor), I think the President is entitled to a great deal of deference on who he wants to take advice from.  Of course my personal standard isn't particularly relevant unless I get elected to the Senate.

    Typo fixed (none / 0) (#4)
    by Big Tent Democrat on Mon Apr 27, 2009 at 01:27:21 PM EST
    Tks for the snarky headsup.

    A good argument (5.00 / 2) (#6)
    by Steve M on Mon Apr 27, 2009 at 01:29:14 PM EST
    Orin Kerr argues that if Ted Olson wasn't filibustered, Dawn Johnsen certainly shouldn't be.  Hard to disagree that the precedent is compelling.

    amen (5.00 / 1) (#8)
    by Capt Howdy on Mon Apr 27, 2009 at 01:31:13 PM EST
    to that

    Good for Orin Kerr (none / 0) (#9)
    by Big Tent Democrat on Mon Apr 27, 2009 at 01:34:47 PM EST
    I disagree (none / 0) (#5)
    by Big Tent Democrat on Mon Apr 27, 2009 at 01:28:10 PM EST
    And mentioned Bolton as an example of Dem abuse of the process on the call.

    I'm OK with the concept of exec. nom. filibusters (none / 0) (#14)
    by magster on Mon Apr 27, 2009 at 02:11:42 PM EST
    If the rules allow it, then it's fair game.  The Dems just have to make the Republicans pay for it, while using recess appointments.  Bolton is horrible and Dems could defend their filibuster. Sebelius and Johnson are not horrible, and the Dems can use the obstruction to their advantage in 2010 Senate races.

    Nope (5.00 / 0) (#15)
    by Big Tent Democrat on Mon Apr 27, 2009 at 02:23:40 PM EST
    Elections have consequences.

    Election results are consequences. (none / 0) (#16)
    by magster on Mon Apr 27, 2009 at 02:38:28 PM EST
    well, in her case (none / 0) (#7)
    by Capt Howdy on Mon Apr 27, 2009 at 01:30:35 PM EST
    the abortion objection seems a little far fetched.
    her job has pretty much nothing to do with abortion, correct?

    Well (5.00 / 1) (#11)
    by Steve M on Mon Apr 27, 2009 at 01:36:56 PM EST
    very little, yes.  But I wouldn't be surprised, for example, if Clinton relied on advice from the OLC before issuing this abortion-related signing statement.  Not that I think a different OLC head would have advised him differently.

    Really the GOP is just trying to make a point about opposing so-called radicals in general.  It has little to do with anyone's qualifications for the actual job they've been appointed to.


    can he make these (none / 0) (#1)
    by Capt Howdy on Mon Apr 27, 2009 at 01:16:19 PM EST
    recess appointments?
    when is the next recess?

    btw (5.00 / 2) (#3)
    by Capt Howdy on Mon Apr 27, 2009 at 01:19:59 PM EST
    when I first started reading about this woman I thought it was the best indication that something might actually be done about Bush war crimes because of her outspoken stance on this.

    do you think this is the primary reason they are blocking her or is it the whole package?


    He probably could (none / 0) (#13)
    by jbindc on Mon Apr 27, 2009 at 01:44:14 PM EST
    But her appointment would only be good for a year, I believe.

    I have to wonder if the (none / 0) (#10)
    by oldpro on Mon Apr 27, 2009 at 01:36:11 PM EST
    Obama White House is standing behind her at this point, given the torture issue, or letting her twist in the wind...hoping she will withdraw and relieve them of the responsibility of shepharding her through.  I'm even wondering...will they dump her?

    wow (none / 0) (#12)
    by Capt Howdy on Mon Apr 27, 2009 at 01:41:08 PM EST
    I really hope not.  but it might be an acceptable bone to toss the wingnuts.

    from his point of view I mean, not mine.


    Not only a bone to toss (none / 0) (#17)
    by oldpro on Mon Apr 27, 2009 at 03:56:09 PM EST
    the wingnuts...also removing a counselor who may well tell the president he did the wrong thing by immunizing CIA agents for/from their war crimes and illegal activities.

    Nobody likes a nag and she would be a constant reminder of Obama's first big wrong step for transparent political reasons.


    unfortunately (none / 0) (#18)
    by Capt Howdy on Mon Apr 27, 2009 at 04:14:43 PM EST
    that does not make me more confident that he will stand behind her nomination.

    No reason that it should... (5.00 / 0) (#19)
    by oldpro on Mon Apr 27, 2009 at 04:44:39 PM EST
    after all, it's pretty damn crowded here under the bus...she may be greeted like Alice at the tea party..."No room! No room!"