Dawn Johnsen Deserves a Thumbs Up to Head the OLC

Thursday, April 30, 2009

HERE ARE some facts about Dawn E. Johnsen, President Obama's nominee to head the Justice Department's Office of Legal Counsel (OLC): She is a graduate of Yale Law School, spent roughly five years as legal director of the abortion rights group now known as NARAL Pro-Choice America, worked for the next five in the Clinton administration's OLC, has been a professor at the Indiana University School of Law since 1998 and has been an outspoken critic of the Bush Justice Department's legal justification for harsh interrogation techniques. In other words, Ms. Johnsen is undoubtedly qualified for the position, and she should be confirmed.

Ms. Johnsen's confirmation has been held up by Republicans concerned that she's an "ideologue," in the words of Sen. John Cornyn (R-Tex.). Ms. Johnsen's nomination squeaked by on a party-line vote before the Senate Judiciary Committee and has been stalled for the past month amid filibuster threats from some Republicans.

Let's put aside, for the moment, the fact that the Justice Department under President Bush was perhaps the most politicized in a generation -- and that among the most warped sections of the Bush Justice Department was the OLC. It is nonetheless legitimate to ask whether Ms. Johnsen will behave as badly as some of her immediate predecessors.

Walter Dellinger III, Ms. Johnsen's boss during many of her years in the Clinton administration, wrote in a recent article in Politico that Ms. Johnsen's "commitment to the rule of law allowed her to put aside immediately and emphatically the confounding influences of policy preferences, political partiality and pressure from important governmental clients. . . ." Douglas Kmiec, a conservative and former Reagan OLC lawyer, cited in Legal Times several cases in which Ms. Johnsen "observed the law" even though it was at odds with her personal beliefs.

Senators concerned that Ms. Johnsen may try to contort the law to fit her beliefs can keep close tabs on her through the oversight process. This process, by the way, should be made easier by Ms. Johnsen's pledge to make public as many OLC opinions as possible. This is a welcome change from the previous administration and another reason to confirm Dawn Johnsen.

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