Legal Experts Across Political Spectrum Support Dawn Johnsen

While it’s no surprise that President Clinton’s former Solicitor General Walter Dellinger and other traditionally Democratic high-caliber lawyers and scholars would speak out in favor of Dawn Johnsen, President Obama’s pick to head the Office of Legal Counsel, Johnsen is also winning high praise from some prominent Republican lawyers.

On a conference call this morning sponsored by a coalition of nonprofit legal groups, Douglas Kmiec, a professor of Constitutional Law at Pepperdine University and head of the Office of Legal Counsel for Presidents Ronald Reagan and George H.W. Bush, said that “Dawn and I come from different points on the policy spectrum, but one thing I’ve long admired about her is her independence of mind.”

“When performing her job as an advocate or a lawyer or counselor for the United States,” he continued, “in each case she has performed those functions with a level of care and precision but most importantly for the Office of Legal Counsel, objectivity. … This is what was missing in the torture memo context. This is what Dawn Johnsen so eloquently and appropriately challenged.”

Johnsen, as I’ve noted before, has been sharply criticized for publicly challenging some of the advice that’s come out of that office in recent years. Republicans have also criticized Johnsen because she was a lawyer for the National Abortion Rights Action League (NARAL) early in her career, and 20 years ago was one of 11 co-authors on a brief in which there was a footnote that some Republicans found objectionable.

As Dellinger, who was also on the call on Monday, explained: “This was a very mainstream brief that in one footnote made an allusion about government intrusion on the right to an abortion being akin to involuntary servitude. From that, they made the case that Dawn was some kind of radical on these issues.”

I doubt the abortion issue is really why anyone objects to Johnsen, since the OLC doesn’t set abortion policy, and in any event her views on the office’s role have been very clear — it exists to give the president advice on what the law is, not what it should be.

The real objection appears to be more about what it says to have Johnsen, an avid critic of the OLC memos that twisted the law to justify torture and other abusive and degrading treatment of detainees, at the helm of that office — as well what could happen when the report from the Justice Department’s Office of Professional Responsibility is finally released and if it shows, as reported, just how shoddy (and possibly criminal) the OLC lawyers’ work really was.

Johnsen has been a public advocate for releasing OLC legal opinions whenever possible; it may be that her Republican critics in the administration worry about what other information she might release. In any event, it seems very unlikely that the uproar is not really about her qualifications for the job. In addition to being a constitutional law professor, she was deputy head of the office for three and a half years under Clinton, and acting head for a year and a half.

“Sen. Kyl says he wants someone of requisite seriousness,” said Kmiec, referring to critical comments by Sen. Jon Kyl (R-Ariz.). “I think we’d be hard pressed to identify any other appointee for a Justice post to be as well suited,” said Kmiec. “The objections are incredible and aimed at producing a defeat on a partisan basis rather than an evaluation on a merits basis or consideration.”