Johnsen is an eminently qualified nominee. She has extensive previous experience in OLC, including service as acting head of OLC for over a year. The New York Times recently editorialized: “There is no corner of the executive branch in greater need of a new direction than the Office of Legal Counsel. The impressive Ms. Johnsen is an excellent choice to provide it.”
Her criticisms of Bush Administration’s excesses and her assertions of the need to respect the rule of law are in the mainstream of bipartisan thought. Jack Goldsmith, who headed OLC for part of the Bush Administration expressed concern about the “deeply flawed” OLC counterterrorism opinions that were “sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President.” Senator Lindsey Graham, said of the Torture Memo that it was “entirely wrong in its focus.” The Bush Administration itself repudiated the OLC opinion on the torture statute after it was publicly leaked. And, as widely reported, senior members of the Bush Administration DOJ threatened to resign rather than approve the legality of the NSA’s original domestic surveillance program.
She cares deeply about the integrity of the Office of Legal Counsel. In 2004, after Bush administration abuses came to light, she organized an impressive panel of former OLC lawyers setting forth a statement of principles to guide the office going forward. That document has been praised by Republican and Democratic officials.
She has demonstrated an ability to work with others across the political spectrum in the interest of supporting the rule of law. For example, she worked with Brad Berenson, who worked in the White House Counsel’s Office under President George W. Bush, to help craft legislation to bring greater transparency and integrity to OLC. Berenson says of that work together: Throughout our negotiations, I found Prof. Johnsen to be fair and reasonable. When she made sound points, I compromised on issues and concern that I had, and when I made sound substantive points, she responded in kind.”
She has the support of other individuals who served Republican Administrations, including: Alan Kreczko, who served in senior positions in the State Department and National Security Council during the Reagan, Bush and Clinton Administrations; Neal Wolin, who served in the CIA under Presidents George H.W. Bush and Bill Clinton; and Lewis Merletti, former Director of the Secret Service, who served with the agency under Presidents Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, and Bill Clinton, who said of Johnsen: “I found her to be keenly responsive, dedicated, and conscientious in applying herself to the highest standards of conduct.”
She is being opposed by some because she has a history of support for Roe v. Wade, having served as general counsel for NARAL and having written on this constitutional right. Certainly being an advocate for women’s reproductive freedom cannot be considered disqualifying for such a position.
It’s well-accepted that the President’s nominees are given deference by the Senate in its Advise and Consent role, and this is particularly true for a sub-cabinet executive branch nomination such as this. This principle was enunciated many times by Republicans such as Orrin Hatch, John Cornyn, Jon Kyl, Lindsey Graham, Arlen Specter, and others.