Johnsen Opposition Mum on Possible Filibuster

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Monday, October 26, 2009 at 12:38 pm
Dawn Johnsen (Indiana University photo)

Dawn Johnsen (Indiana University photo)

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.

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

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.

Comments

16 Comments

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janinsanfran
Comment posted October 26, 2009 @ 5:45 pm

Leadership is going to have to bite the bullet and make Reps take up 30 hours of time filibustering a vote they will lose — and make sure every citizen knows what those cranks are doing. As is usual, we need a little fight out of the Dems.


oddjob
Comment posted October 26, 2009 @ 6:02 pm

The Party of No displays its true colors.


rekster
Comment posted October 26, 2009 @ 6:07 pm

It has been 279 days since the inauguration and there are still nominees awaiting confirmation. This has gone beyond ridiculous. It is time for the White House to demonstrate some leadership. It is time for the Senate Majority Leader to demonstrate some leadership. If the minority wants to filibuster each and every nominee then it is time for the nation to see this on CSPAN and every nightly news program.

We are in the throes of an influenza pandemic and we have no Surgeon General.

Ms. Johnsen has been waiting. Either bring her nomination up for confirmation or the Dems need to pack it up and go home. We deserve some representation. The people of this country voted for CHANGE. It is time for change.


johnclavis
Comment posted October 26, 2009 @ 9:29 pm

Republicans in Washington are ruthless tribalists who couldn't care less about America. They did this during Clinton, too, and were rewarded with hundreds of empty posts for Bush to fill with unqualified cronies and toadies. Now the Republicans want a repeat performance. That's what you get from people who put party before country. They will ruin this country with their mendacious scheming.


Up or down vote? Yeah right. The opposition to Dawn Johnsen continues « Yuvablog
Pingback posted October 26, 2009 @ 11:34 pm

[...] Nothing has changed: 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. [...] [...]


Up or down vote? Yeah right. The opposition to Dawn Johnsen continues | Yuvablog
Pingback posted October 26, 2009 @ 11:46 pm

[...] Nothing has changed: 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. [...] [...]


uponfurtherreview
Comment posted October 27, 2009 @ 12:18 pm

This is hilarious.

Liberals call Republicans “ruthless tribalists” for refusing to be yes-men to the Democratic Party's agenda … but amazingly, the same disparaging tag is never applied to Democrats who similarly stand in unison against Republican issues, such as the amendment requiring citizenship checks in the health care bill.

These critics have no tolerance for any viewpoint that doesn't march in lockstep with their own.

And why shouldn't Johnsen have to answer for what she wrote 20 years ago? Haven't Democrats held Bob McDonnell's feet to the fire for a thesis he wrote in 1989?

As the Obama administration has shown us, “freedom of speech” is defined as “the freedom to agree with our point of view.” Right, Humana?


ron
Comment posted October 27, 2009 @ 12:42 pm

There is no “University of Indiana.” It's “Indiana University” as any semi-well educated person should know.

The GOP's failure to give Dawn Johnsen an up or down vote is disgraceful. The president deserves this appointment and the nonsense about the footnote analogy on abortion and slavery is a cover for their real reason to oppose her: She had the gall to say that waterboarding is torture, which is evident to anyone remotely familiar with the history of waterboarding and the Geneva Convention.


KobukAlaska
Comment posted October 27, 2009 @ 11:32 pm

It is time for a public debate on the meaning of a “loyal opposition” in light of the GOP's tactics to prevent the current administration from moving forward on the many critical issues facing this nation. As stated recently by one of their leaders, the GOP defines democrats as “the enemy” and their stated goal is to prevent any and all successful democratic programs in order to regain control of congress and ultimately the White House. I do hope that all citizens of good will remember their traitorous stance for a long time to come. It is not enough that their party destroyed the world economy and thrust us into unending war. They want another chance to finish the job. It's time the voters finish them and send them into the political wilderness, where they belong.


KobukAlaska
Comment posted October 28, 2009 @ 3:32 am

It is time for a public debate on the meaning of a “loyal opposition” in light of the GOP's tactics to prevent the current administration from moving forward on the many critical issues facing this nation. As stated recently by one of their leaders, the GOP defines democrats as “the enemy” and their stated goal is to prevent any and all successful democratic programs in order to regain control of congress and ultimately the White House. I do hope that all citizens of good will remember their traitorous stance for a long time to come. It is not enough that their party destroyed the world economy and thrust us into unending war. They want another chance to finish the job. It's time the voters finish them and send them into the political wilderness, where they belong.


The Pressure’s on Reid to Call Vote on Dawn Johnsen | GSA Schedule Services
Pingback posted October 30, 2009 @ 2:10 pm

[...] I reported earlier this week, Republicans have stalled Johnsen’s nomination with their ambivalence about supporting [...]


The Pressure’s on Reid to Call Vote on Dawn Johnsen « Yuvablog
Pingback posted October 30, 2009 @ 2:51 pm

[...] I reported earlier this week, Republicans have stalled Johnsen’s nomination with their ambivalence about supporting [...]


Cutlem
Comment posted April 2, 2010 @ 11:15 am

Great Post! Thank You Very Much.


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Comment posted August 3, 2010 @ 5:09 pm

These critics have no tolerance for any viewpoint that doesn't march in lockstep with their own.


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