Johnsen Opposition Mum on Possible Filibuster
Monday, October 26, 2009 at 12:38 pm
When the Senate Judiciary Committee held hearings on the nomination of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel in February, one of her harshest questioners was Sen. Arlen Specter, then a Republican from Pennsylvania facing a likely challenge from the conservative former Rep. Pat Toomey. Even then, though, Specter passed on the committee vote, and although in April he said he was considering supporting a filibuster against Johnsen, now he says he’s still considering her nomination.
That’s not going to get Johnsen any nearer to a vote, however. Seven months after her nomination was approved by the Senate Judiciary Committee, she still hasn’t gotten an up or down vote from the full Senate. Yet she’s been nominated for a critical position in the Justice Department — the senior lawyer to advise the president on the legality of his administration’s policies. Johnsen’s supporters are irate. When asked, Republican senators refuse to say where they stand on Johnsen, whether they would support a vote on her nomination, or if they plan to fillibuster.
At her confirmation hearing, Johnsen was pressed on her views of executive power and the war on terror, both of which she’d written about as a law professor. But she also took heat from Republicans for a footnote in a brief she co-authored with ten other lawyers 20 years ago that suggested an analogy between depriving a woman of the right to have an abortion and slavery.
“When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery,” Specter chastised Johnsen at her confirmation hearing, “that seems to me candidly beyond the pale.”
Johnsen, a law professor at the University of Indiana who served in the Office of Legal Counsel under President Clinton, responded that, as far as she could remember, she hadn’t actually equated outlawing abortion with slavery, but was just making an analogy. And the point, which may have actually been drafted by any of the ten other lawyers listed on the brief, was tangential to the core of the brief’s argument. Republicans, however, continued to use it against her. Anti-abortion rights groups, meanwhile, repeated the argument that she “compared pregnancy to slavery” and urged Senators to vote against her nomination.
Despite the opposition, Johnson is widely believed to have the 51 votes she needs for confirmation, and possibly 60 for cloture. Even if she doesn’t ultimately win support from Specter or from Sen. Ben Nelson (D-Neb.), who has said he’ll oppose her, she does have the support of her home state Republican, Sen. Richard Lugar. And she could win votes from moderate republicans such as Sens. Olympia Snowe and Susan Collins of Maine. The problem seems to be not simply support for a vote, but also that if there is a vote, Republicans won’t agree to any time limits on the debate over her nomination, no matter how much support she has. That means her opponents could take up to 30 hours of precious floor time debating her nomination while Congress debates key legislation on health care, climate change and the economy.
The result is that President Obama is unable to have the person he’s chosen to lead a critical office in the Department of Justice in place. The Office of Legal Counsel advises the president on the legal implications of the policies he wants to implement. Although formerly a little-known office, the OLC came under intense scrutiny and criticism during the Bush administration after its lawyers, John Yoo, Jay Bybee and Stephen Bradbury, issued a series of memos that defined torture extremely narrowly to allow a range of physical and mental abuse of detainees during interrogations, including waterboarding, weeks of sleep deprivation, stress positions and sexual humiliation. The office also authorized warrantless wiretapping and said that the President can suspend the Bill of Rights on U.S. soil during wartime.
Supporters stress that Johnsen’s confirmation is important because she’d be the chief lawyer responsible for advising the president on the constitutionality of a range of government practices and policies. “We saw the potential importance of OLC during the Bush administration when it was misused and pressured into giving and parotting the kinds of answers that the White House wanted,” says Marcia Greenberger, co-President of the National Women’s Law Center. Indeed, the lawyers from that Office during the Bush administration were investigated by the Office of Professional Responsibility to determine if their legal advice to the president strayed so far beyond reasonable legal interpretations as to violate legal ethics rules. The report of that investigation, although reportedly drafted last year, has not yet been released.
Johnsen, in both scholarly articles and blog posts, has written that it’s critical for the Office of Legal Counsel to use independent legal judgment and to be willing to say “no” to the president when necessary.
“What is key is to have a person of Dawn Johnsen’s caliber and independence who also has the confidence and trust of the administration,” said Greenberger. “That she has no ax to grind and is truly giving its best views.” In addition to winning the support of civil rights groups, Johnsen has won bipartisan support from previous OLC leaders, including Walter Dellinger, a former acting solicitor general who led the OLC under Clinton, and Douglas Kmiec, a professor of Constitutional Law at Pepperdine University and head of the OLC for Presidents Ronald Reagan and George H.W. Bush. Kmiec has said he admires her “independence of mind.”
Johnsen was one of many critics of that office’s legal opinions during the Bush presidency. And while that won her praise from many Bush critics, it also earned her the ire of many Republicans.
In voting against her nomination in the Senate Judiciary Committee, Sen. John Cornyn (R-Texas) accused Johnsen of making “numerous intemperate statements” and “ad hominem attacks” on Republicans in her popular writings. Cornyn also accused Johnsen of “retreating into the law-enforcement paradigm” in anti-terrorism policies by not supporting the view that the United States is at “war” with terrorism. “As I see it, Dawn Johnsen has not demonstrated the seriousness and necessary resolve to address the national security challenges we face,” Cornyn said.
“She’s being challenged because she had the temerity to question internally policies of the office supporting the administration’s position on torture, interrogation, and wiretapping,” said Wade Henderson, president of the Leadership Conference on Civil Rights, who says he’s “working aggressively” to get her confirmed. “All three of those are areas that spoke directly to the integrity and substance of the office.”
Johnsen was hardly the only law professor to criticize the office’s opinions. Former OLC leader under President George W. Bush and Harvard Law Professor Jack Goldsmith famously criticized some of the office’s opinions in his book, “The Terror Presidency,” writing that some were “deeply flawed: sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president….I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.”
Goldsmith wrote that after he left the OLC in 2003, however, whereas Johnsen is now being forced to confront her criticisms during the highly politicized confirmation process to be allowed to run the office.
Johnsen’s supporters are angry. “Dawn is caught up in a much larger fight that goes beyond her individual nomination,” said Henderson. “Republican Senate leadership, determined in particular by Sen. McConnell, has chosen to raise the bar for the confirmation of key personnel in the Obama administration in what appears to be a concerted effort to frustrate the new president’s ability to staff key offices with people of his choice. It’s turned into a partisan tug of war over the most basic positions in federal government, with dire implications for the effectiveness of the president’s ability to achieve his goals.”
The confirmation of State Department Legal Advisor Harold Koh, formerly the Dean of Yale Law School, was held up for about four months. And Civil Rights Division legal director Thomas Perez waited six months for confirmation.
“It’s a timing issue,” said Marge Baker, Executive Vice President at People for the American Way, which has been pressing for Johnsen’s confirmation. “They’re about to take up a debate on health care issues.” Even if there are enough votes to support cloture, the rules allow up to 30 hours for post-cloture debate before there is a final vote. “That’s a huge chunk of time when you have a lot to move,” says Baker.
The assumption is that Republicans will insist on taking all of that time. Calls to Sens. McConnell and Jeff Sessions (R-S.C.), the ranking Republican leader on the judiciary committee, were not returned.
A spokesman for Sen. Susan Collins (R-Maine) said she still has not decided how she’ll vote on the Johnsen nomination. A call to Sen. Olympia Snowe’s office was not returned. Women’s groups have targeted both moderate Maine Republicans to urge them to support Johnsen.
The Senate Judiciary Committee voted 11-7 to support Johnsen’s nomination in a party-line vote in March. She’s been awaiting a full Senate vote ever since.
Earlier this week, Sen. Patrick Leahy (D-Vt.) lamented the difficulty of approving both judicial and executive nominations since January, noting that four Assistant Attorney General nominations, including Johnsen’s, remain pending without a vote. Meanwhile, the nomination of Federal Judge William Sessions of Vermont to be Chairman of the United States Sentencing Commission has been stalled for five months, even though he’d previously been confirmed twice as a member of the same Commission. Senate Majority Leader Harry Reid (D-Nev.) had to file a cloture motion to end the obstruction.
“During the 17 months I chaired the Judiciary Committee during President Bush’s first term, we confirmed 100 of his judicial nominees and 185 of his executive nominees referred to the Judiciary Committee,” said Leahy. “And yet, 10 months into President’s Obama’s first term, we have confirmed only two of his nominations for circuit and district courts and 40 of the executive nominees that have come through our Committee.”
With health care and other major legislation the filling up the Senate’s time these days, it’s not clear when the pace of those confirmations will pick up.
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