Dawn Johnsen, Nominee for Assistant Attorney General for the Office of Legal Counsel

The Facts

The Office of Legal Counsel (OLC) is extremely important. It was the originating point of the infamous "torture memos" and many other legal justifications for the Bush administration's unconstitutional policies and practices. Dawn Johnsen has been a fierce and outspoken critic of the Bush administration's policies as well as their legal underpinnings. She will be a strong voice for constitutional values within the DOJ, which is perhaps why the Far Right has targeted her ... that, and the fact that she worked for NARAL Pro-Choice America for several years. Some on the Right are so intent on maintaining politicization at the DOJ based on their own litmus tests that they seem to think anyone with pro-choice bona fides should be instantly disqualified.

On March 19, the Senate Judiciary Committee sent Johnsen's nomination to the full Senate for consideration on a party-line vote with all the Republicans on the Committee voting "no" and Ranking Member Sen. Arlen Specter (R-PA) not voting. This could signal significant opposition from the full Republican cause -- even a possible filibuster.

In advance of the floor fight, People For the American Way would like to set the record straight about this superb nominee:

  • Johnsen is an eminently qualified nominee. She has extensive previous experience in the Office of Legal Counsel (OLC), including a service as acting head of OLC. 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 being “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 criticized by the Right for a footnote she included twenty years ago in a brief filed in the abortion rights case, Webster v. Reproductive Health Services. The footnote drew an analogy between government compelled childbirth and involuntary servitude, but she did not, as critics claim, assert in that brief a Thirteenth Amendment right to an abortion. Rather, the brief, which was submitted by a broadly diverse group of seventy-seven organizations, including the League of Women Voters, Business and Professional Women’s clubs, the American Association of Social Workers, and others, served as a response to an aggressive, frontal attack being made on Roe v. Wade. The arguments in the brief were completely grounded in previous precedents and the Fourteenth Amendment.
  • 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, for example, in the context of the nominations of John Ashcroft and Alberto Gonzales to be Attorney General:
    • Senator Orrin Hatch (discussing the Ashcroft nomination): “[We] must afford the President a significant degree of deference to shape his Cabinet as he sees fit. The election is over, President Bush won, and nothing will change that fact.” (Senator Hatch went on to enunciate two additional criteria, (1) experience and qualifications and (2) integrity and ethics, both of which Johnsen scored incredibly high marks on.
    • Senator Cornyn (discussing the Gonzales nomination): “We held a popular referendum on November 2 and, frankly, the politics of obstruction and anger were repudiated. What the American people want and expect is that we will get the business of the American people done in this body and that we will not degenerate into partisan finger pointing or name-calling, nor obstruction of the kind we have seen occur time and time again against this President’s nominees...”
    • Senator Lindsey Graham (discussing the Ashcroft nomination): “[F]or persons nominated to serve in the president’s cabinet … there is a very strong presumption that the president should have the right to choose whomever he feels would effectively carry out his administration’s policies.”
    • Senator Jon Kyl (discussing the Ashcroft nomination): quoting Senator Leahy: “The President should get to pick his own team.”
    • Senator Jon Kyl (discussing the Gonzales nomination): “When someone is qualified and has the confidence of the President …. unless there is some highly disqualifying factor brought to our attention [we] should accede to the President’s request for his nomination and confirm the individual.”
    • Senator Arlen Specter: (discussing the Ashcroft nomination): “Historically, members of the United States Senate have given the President Republican or Democrat the benefit of the doubt when it comes to the confirmation of a Cabinet official.”
    • Senator Arlen Specter: (discussing the Gonzales nomination): “Politics, however, is a poor reason for denying the President his choice to be Attorney General.”
  • And Tom Coburn, during debate over the “nuclear option,” (the Republican efforts to eliminate the filibuster on judicial nominations,) stated clearly and unequivocally, that “no presidential nomination [judicial or executive] should ever be filibustered.”
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