Letter to Sen. Harry Reid from Progressive Leaders on the Delay in Confirming Dawn Johnsen

October 29, 2009

The Honorable Harry Reid, Majority Leader
United States Senate
S-221 Capitol Building
Washington, DC 20510

Dear Senator Reid:

We are writing today to express our concern over the delay in confirming Dawn Johnsen, President Obama’s nominee to head the Department of Justice’s Office of Legal Counsel (OLC). Professor Johnsen was nominated for this critical position on February 11, 2009 and was favorably reported by the Senate Judiciary Committee on March 19, 2009. Yet to date, in the absence of a time agreement, Professor Johnsen’s nomination has not been voted on by the full Senate. This delay is extraordinary and unacceptable.

As you know the Office of Legal Counsel performs a critical role in guiding executive branch activities, advising the President and his Administration on the constitutionality of proposed policies, legislation, and executive orders. It requires an individual of exceptional scholarship and unimpeachable integrity, someone with the strength of character and tough-mindedness to deliver unbiased advice without qualification.

No one is better qualified for this position than Professor Johnsen. She has extensive previous experience in the Office of Legal Counsel, including service as acting head of OLC for over a year in the Clinton Administration, and has demonstrated throughout her career an ability to work with others across the political spectrum in the interest of supporting the rule of law. She’s received support from legal scholars liberal and conservative alike - as well as endorsements from officials from the administrations of Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush. In 2004, after Bush administration OLC abuses came to light, she organized an impressive panel of former OLC lawyers which set forth a statement of principles to guide the office going forward. That document has been praised by Republican and Democratic officials alike. Doug Kmiec the OLC head under Presidents Ronald Reagan and H.W. Bush -- has affirmed, during her previous service at OLC, Johnsen “repeatedly separated policy preference from rendered opinion.”

Professor Johnsen’s nomination, along with other executive branch nominations, has been delayed to an unprecedented extent. In the 60 years since the rules of the Senate were changed to allow debate on nominations to be brought to a close through a vote on cloture, there have been only 24 executive branch nominations on which cloture votes have been taken. Yet in just the first 9 months of the Obama Administration, the minority has already forced cloture votes on 5 nominees. Another 37 executive nominations are currently on the Senate’s Executive Calendar, many of which have been pending for some time, raising the specter of yet more unprecedented and unnecessary cloture votes to fill key Administration positions. Indeed it is a full three months since a significant majority (65%) of these individuals was nominated. This degree of obstruction cannot be tolerated. It throws sand in the gears of executive branch departments and agencies that are serving critical public needs. And it defies the deference traditionally provided Presidents in shaping their Administrations, particularly with respect to sub-Cabinet level positions.

Professor Johnsen has the experience, the integrity, and the intellect to head this critical office. She should be confirmed without further delay. We understand the press of legislative business before the Senate. But further delay is untenable. We urge you to use the full force of your office to bring this nomination to a vote at the earliest possible date.

Sincerely,