People in the news

Dawn Johnsen

Professor of Constitutional Law at Indiana University

(Ann Schertz/Indiana University)

Why She Matters

Johnsen was Barack Obama's choice to head the Justice Department's Office of Legal Counsel. But Johnsen's nomination was stymied by conservative senators who objected to her fierce criticism of the war on terror as fought by the George W. Bush administration. She withdrew her nomination in April 2010.

Johnsen had used phrases like "shockingly flawed," "bogus" and "outlandish" to describe the former administration's decisions in Iraq. "The president of course is not above the law," she said in 2007. "Clearly what we need to do is restore OLC's tradition of independence and integrity."

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Background

At a Glance

Career History: Assistant Attorney General-designate for the Office of Legal Counsel (December 2008-April 2010); Professor of Constitutional Law at Indiana University (since 1998); Acting assistant attorney general for the Office of Legal Counsel (1997 to 1998); Deputy assistant attorney general for the Office of Legal Counsel (1993 to 1997); Legal Director for National Abortion & Reproductive Rights Action League (1988 to 1993)
Hometown: Long Island, New York
Alma Mater: Yale University, B.A. (economics and political science), 1983; Yale Law School, J.D., 1986

Spouse: John Hamilton
Web site

Path to Power

Johnsen says she always wanted to be a civil rights lawyer, despite not knowing any lawyers in her working-class Long Island suburb. Her father was a mailman and ran a gardening business on the side, and one summer he hired her younger brother to help him, but didn't hire Johnsen. She threatened to sue her dad for sexual discrimination. When the school board threatened to cut driver's education classes, she staged a walkout. When teachers were fired or budgets were cut, she organized petitions.

Johnsen studied economics and political science at Yale University, graduating summa cum laude in 1983. She earned a J.D. from Yale Law School in 1986 and clerked for Seventh Circuit Court of Appeals Judge Richard D. Cudahy for a year after law school. At law school, she was article and book review editor for the Yale Law Journal and she published a widely cited paper titled, "The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy and Equal Protection."

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She spurned corporate law firm jobs and immediately began working for reproductive rights organizations, first with the American Civil Liberties Union (ACLU) and later with the National Abortion & Reproductive Rights Action League (NARAL). With the ACLU, she worked as a senior counsel fellow for the Reproductive Freedom Project, which uses the resources of the ACLU to protect abortion rights, birth control and comprehensive sex education.

NARAL

After just a year, Johnsen moved to NARAL, whose Web site describes the group as "committed to protecting the right to choose and electing candidates who will promote policies to prevent unintended pregnancy. We are going on the offensive, reshaping the terms of the debate." As legal director of NARAL for five years, Johnsen directed all the legal and policy work for the organization. "It was just the perfect job, because you felt like everything you did made a difference," she said. "I worked around the clock. There was always more to be done."

In 1993, Johnsen left NARAL to join the Clinton administration in the Office of Legal Counsel. She started as OLC deputy assistant attorney general and then served as acting assistant attorney general for the OLC from 1997 to 1998. She worked on Whitewater testimonies, Monica Lewinsky and the federal investigations into the Oklahoma City bombings. "I loved the range of it," she says, "and working on the challenging constitutional issues that were hot."

Academic

In 1998, Johnsen left Washington and moved to Bloomington, Ind., where she became a professor at the Maurer School of Law at Indiana University. But even though she wasn't in Washington, Johnsen stayed involved in politics. At Indiana, she taught constitutional law as well as seminars on separation of powers and sexuality, reproduction and the Constitution.

After Obama won the 2008 presidential election, he tapped Johnsen to head up the Department of Justice's OLC, one of the most sought after legal jobs in Washington and the position that she held for a year under President Clinton.

If confirmed, Johnsen will be responsible for advising Bob Bauer, the general counsel for the president; the attorney general and the counsels for the executive departments on matters pertaining to constitutional law. Her office reviews all of the attorney general's proposed orders and acts as an outside counsel for the president.

After Obama nominated Johnsen, Republicans raised concerns about her lack of national security experience. Her nomination "raises significant concerns considering her position on the intelligence community's ability to conduct interrogations and gather critical, time-sensitive intelligence to prevent terrorist attacks," House Judiciary Committee ranking member Lamar Smith (R-Texas) said.

Supporters did not secure an up-or-down vote on Johnsen in 2009 and her nomination expired, but the Obama administration nominated her again in 2010.

But the votes were still close, and a debate over Johnsen meant a debate over torture. Johnsen withdrew her nomination in April 2010. ABCNews reported the White House "didn't have the stomach for the debate."

The Issues

Johnsen is a prolific and opinionated writer, posting dozens of columns about executive power and the Constitution on Slate during her time at Indiana University.

Torture

Johnsen is a consistent critic of the Bush administration's expansion of executive power. In 2007, she published an article in the UCLA Law Review titled, "Faithfully executing the laws: Internal legal constraints on executive power." In it, she criticized the Bush administration for justifying "policies that would otherwise violate applicable legal constraints." She argued that the OLC under President George W. Bush chose advocacy for the president's policies over accuracy of the interpretation of the law.

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In April 2008, the OLC's now-famous "torture memo" gave legal justification for the president to use harsh interrogation techniques. Johnsen attacked the OLC for telling the president "he is not bound by the laws Congress has enacted." She called the memo's author, deputy assistant attorney general for the OLC John Yoo, defense of his memo "not merely false, but irresponsibly false in a way that impugns OLC's integrity over time and threatens to undermine public faith in the possibility that any administration can be expected to adhere to the rule of law."

Warrantless Wiretapping

In addition to disagreeing with the Bush administration's view on the legality of harsh interrogation techniques, Johnsen found ludicrous Vice President Dick Cheney's claim that he was not part of the executive branch and was not bound by the same freedom of information rules.

Johnsen also opposed the administration's National Security Administration's (NSA) wiretapping program. She said the NSA program violated the requirements of the Foreign Intelligence Surveillance Act, "hardly a triumph for the rule of law."

Abortion Rights

Johnsen's previous Justice Department stint included very little work on abortion rights, and she likely would not have spent much time on the issue had she been confirmed for Obama's Justice Department.

But fighting for abortion rights has been a hallmark of Johnsen's legal career. She spent the first five years of her professional life advocating for a woman's right to choose, increased funding for sex education and availability of birth control.

She wrote a Supreme Court brief for NARAL on behalf of women affected by legal and illegal abortions, and she testified in front of Congress against the confirmation of Supreme Court Justice Samuel Alito. "I don't regret at all being pulled back into the issue of reproductive rights," Johnsen said about that testimony. "But I guess I just feel like it's a waste of everybody's energy to have to fight the same battles over and over."

The Network

Johnsen worked at the Office of Legal Counsel under Janet Reno during the Clinton administration.

Johnsen was originally a supporter of Hillary Rodham Clinton during the 2008 Democratic presidential primary, but supported Obama in the general election.

Additional Resources

Tapper, Jake, ABCNews, "Senate Democratic Leadership Source: White House 'Didn't Have Stomach for the Debate over Dawn Johnsen," April 9, 2010
Johnsen, Dawn E., "Faithfully executing the laws: Internal legal constraints on executive power," UCLA Law Review, 2007; http://www.uclalawreview.org/articles/content/54/ext/pdf/6.1-3.pdf
Biography of Dawn Johnsen on Indiana University's Web site; http://info.law.indiana.edu/sb/page/normal/1419.html
Perez, Evan and Bravin, Jess, "Fierce Bush critic picked for Justice post," The Wall Street Journal, Jan. 6, 2009; http://online.wsj.com/article/SB123120462483255989.html#printMode
Speer, Christine, "Choosing her battles," Indianapolis Monthly, http://indymonthlyfixitlist.com/monthly/article.asp?Cover=0&Archive=1&articleID=5
Johnsen, Dawn, "Yet more on Cheney and unitary executive," Slate.com, March 19, 2008; http://www.slate.com/blogs/blogs/convictions/archive/2008/03/19/yet-more-on-cheney-and-unitary-executive.aspx
About the Office of Legal Counsel, Department of Justice; http://www.usdoj.gov/olc/
Johnsen, Dawn, "Outrage at the Latest OLC Torture Memo," Slate.com, April 3, 2008; http://www.slate.com/blogs/blogs/convictions/archive/2008/04/03/outrage-at-the-latest-olc-torture-memo.aspx
Lichtblau, Eric, "Obama pick to analyze broad powers of president," New York Times, Jan. 8, 2009; http://www.nytimes.com/2009/01/08/us/politics/08johnsen.html?partner=rss&emc=rss
"Text of Barack Obama's 2008 inaugural address," Via Yahoo! News, Jan. 20, 2009; http://news.yahoo.com/s/ap/20090120/ap_on_go_pr_wh/inauguration_obama_text
Johnson, Carrie, "Specter now says he'll support Dawn Johnsen for Office of Legal Council," The Washington Post, Jan. 13, 2010.
Orenstein, Aviva, "Columnist applauds the dawn of a new era in Washington," Heraldtimesonline.com, Jan. 22, 2009; http://www.heraldtimesonline.com/stories/2009/01/22/column.qp-2985438.sto
Johnsen, Dawn, "Law and orders," Slate.com, June 8, 2007; http://www.slate.com/id/2167985/
"About Us," NARAL, Pro-choice America; http://www.prochoiceamerica.org/about-us/