Former OLC head Douglas Kmiec argues in the Legal Times that Senate Republicans should not obstruct the confirmation of Dawn Johnsen to be head of the Office of Legal Counsel at the Justice Department. I agree. He writes:
UPDATE: In the comments below, a reader asks: "Do you think that Dawn Johnsen would make a good head of the OLC? Or do you just think that a president should generally get the people they want in their administration? (Assuming no criminality, et cetera.)" Taking the second question first, I certainly believe that a President should receive wide latitude in filling out his Administration. As for the first question, the short and honest answer is that I don't know, but I suspect that some Republicans have been too quick to attack her based upon her public comments critical of the Bush Administration. While she would not have been my choice, I don't think that's the relevant standard.Even as Johnsen, a professor of law at Indiana University-Bloomington, may be faulted on occasion for harsh language in her academic commentary on the missteps of the Bush Justice Department, it is that very spunk and independence of mind that make her the right tonic for a once proud, but recently tarnished, office.
Under proper supervision, the OLC is a vital internal check upon executive overreaching, a faithful defender of constitutional principle, and a reliable interpreter of congressional intent. Many notable legal figures have served as head of the office, including Nicholas Katzenbach, Malcolm Wilkey, Theodore Olson, Walter Dellinger III, Justice Antonin Scalia, and the late Chief Justice William Rehnquist.
Sen. John Cornyn (R-Texas) properly insists that the next OLC chief must be of the “requisite seriousness.” Johnsen is. She understands the fundamental difference between academic commentary and giving legal opinion on behalf of the United States. That she has sharply criticized some conservative policy is no more relevant to her ability than if she liked outré modern art and displayed it in her living room. Indeed, as a former OLC deputy (during the Clinton administration) and a respected scholar of the executive, she has a uniquely well-informed understanding of the OLC’s role as honest broker. For this reason alone, she merits the Senate’s approval.
The biggest knock on Johnsen seems to be that she was too critical of the Bush Administration and, in particular, seemingly dismissive of the national security concerns that prompted some Bush Administration decisions. But I hardly think a handful of blog postings or casual remarks are the best measure of a nominee. Just because Johnsen has made pointed and partisan comments in the past does not mean she she would be incapable of faithfully performing her responsibilities at OLC. Indeed, we've seen reasonably "partisan" figures (e.g. Ted Olson) perform quite admirably and independently within the Justice Department, their prior partisan affiliations or strong political views notwithstanding.
Given the extent to which Johnsen has written about the importance of distinguishing the advisory role of an OLC attorney from the advocacy role attorneys often play, I would expect her to be attentive to this distinction if/when she is confirmed. Might she reverse some Bush Administration positions? Of course, but so will any Obama nominee to OLC. I do not know Johnsen personally, but I have spoken with attorneys who are familiar with her work at OLC during the Clinton Administration who believe she understands the importance of maintaining OLC independence and resisting political pressures. So while I think it is perfectly reasonable for Republican Senators to ask her probing questions about her views of various issues and her understanding of OLC's responsibilities, I do not see any reason to oppose her confirmation.
SECOND UPDATE: Glenn Reynolds chimes in:
Some people don’t like Dawn Johnsen because she’s a liberal feminist. Okay, fine — if you’re President, you don’t have to name somebody like that to the Office of Legal Counsel. But the chance that Obama will name someone who’s to the right of Dawn Johnsen is relatively low, so if you succeed in knocking her off, you’ll still get a lefty. Just a different one.What kind of different one? Well, Johnsen has spent years arguing for openness and independence in the OLC. In that position, she’s likely to try to live up to those arguments, both because she believes them, and because she knows that people will be watching to see if she can live up to the standards she set out. This will probably constrain her, and by extension, Obama, to a degree that won’t apply if you succeed in knocking her off and she’s replaced by someone more in the mold of Eric Holder or Rahm Emanuel. This would seem to me to be a feature, not a bug. But hey, if you disagree, by all means oppose her confirmation. Just don’t complain when someone more pliable gets named instead.
But I still think the GOP shouldn't obstruct. Obama won, he gets who he wants. If the GOP wants someone it likes as head of OLC, try putting forth an effort in the next presidential election.
Not a surprise that Obama would want her ilk at all.
Executive branch appointments should proceed unimpeded unless there's political hay to be made. Johnsen may be a nincompoop, but ultimately executive branch officers do what Obama wants or they get fired. It doesn't really matter who's doing the bidding of The Won, or whether he or she does His bidding willingly.
Which approach to, say, writing negative academic commentary from the right (if you could actually find someone on the right in academia) on anything whatsoever about the Obama Justice Department, will quickly have you branded as a reactionary, troglyditic racist, and probably by the same people who love Johnsen.
"...spunk and independence of mind..." must be one of those terms of art that means whatever a leftie does is cool.
I see; insufficient voters of the more valuable skin-color classifications to have "won, period."
So what? When was the last time the GOP received 35% of the black vote?
To claim that preferring liberal (exceedingly liberal, from what I hear) policies is no more relevant to her qualifications for OLC head than her artistic preferences is profoundly stupid, even for Kmiec. That may not be good reason to not confirm her, but it is certainly relevant to the discussion.
One question to try to answer is whether she's ever issued a legal opinion which said that her client could not follow a policy position which both she and the client would have preferred to follow, because the law simply did not allow it. In other words, has she ever been intellectually honest enough to admit that the law did not allow her to follow some preferred policy she advocated?
If Johnsen has a sharp tongue in her writing, that is quite relevant to the job she has been nominated for.
Of course, I think OLC should be abolished. Waste of taxpayer $$$.
I think Johnson should be confirmed for the same reason I thought Estrada should have been confirmed - the president's picks may not be my own but unless they are unfit, the senate's job is to confirm, not to manipulate.
And if my grandmother had wheels, she'd be a bus.
Cheers,
"Constantin: Obama won, sort of. Consider: Whites favored McCain 55 to 43%, Latinos for Obama 67 to 31%, Asians for Obama 62 to 35% and Blacks for Obama 95 to 4%. If Blacks had voted 65% for Obama as did the Latinos and Asians, McCain would be President (Source CNN.com). The payoff for the Black support is H. R. 40: Reparations for African-Americans."
Hmmm. Where do I start? How about if McCain received 50.01% of the electoral college he would have won the election.
Why would that happen? Even if Clinton were the nominee that would have been highly unlikely.
wsj
So there you go. Obama got the percentage as LBJ.
Cheers,
If Kmiec has an example of Johnsen putting fidelity to legal principles above partisanship or ideology, now would be a good time to produce it. Particularly useful would be an example of Johnsen, in her former role at OLC, issuing a legal opinion that contravened the administration's policy preferences (as the acting head of OLC has just done with regard to the DC Voting Rights Act).
Otherwise the sum and substance of the argument for Johnsen appears to be that she is a respected legal scholar. So was John Yoo.
But why would you cite Kmiec as an opinion worth listening to?
You know who tarnished the office?
Democrat-infatuated line prosecutors and prosecution supervisors who were using their power to railroad Republicans.
Let's try and keep this straight, shall we?
The three-fifths clause in the Constitution is now inoperative. They count like everybody else now. Maybe you regret it, but that's the way it is.
US attys who serve at the pleasure of the president? A US Atty also railroaded Don Siegelman, Dem gov.
There are as yet no indicators of competence or circumspection in this administration generally and Holder's DOJ in particular. Until Team Obama possesses these qualities, the benefit of doubt which was never extended to the Bush admin cannot be given to Obama in the absence of any reason to do so beyond partisan politics.
"Under proper supervision" thats the kicker. There ISNT any proper supervision in the Obama DOJ at this time and more than there was under the hapless Al Gonzalez.
Because he used to be a conservative and a practicing Catholic who opposed abortion before he saw the light, kind of like how Andy Sullivan had a Road-to-Damascus moment. So Kmiec's (and Sullivan's) opinions were worthless right wing drivel before, but now they are are super duper extra trenchant, and function like intellectual kryptonite when wielded against conservatives.
The three-fifths clause in the Constitution is now inoperative. They count like everybody else now. Maybe you regret it, but that's the way it is.
I didn't write that asinine post about Obama "not really winning" because of his voters' racial makeup. Someone else did in response to my assertion that Obama won and should get to have whomever he wants serve in his administration.
Apologies to Constantin.
I find it hard to believe that someone who serves at the discretion of said executive is going to be any kind of check on that executive, regardless of party or individual disposition.
Even if they wanted to, they'd be able to pull it off only as long as it took the executive to find someone more compliant.
But I am waiting for more press accounts to remind readers that Democrats opposed both AG Ashcroft and SG Olson, on near-party-line votes.
So I urge every GOP Senator to vote to confirm, and precede the vote with a speech reminding the Ds across the aisle that they did not provide the same standard, and I'd urge every GOP speaker to openly say those words: "I am voting this way to be less blindingly partisan than you all were in the first months of 2001, long before Pres. Bush did anything to allegedly alienate you. I challenge you to come around and do the same when the sides switch again."
It won't do a lick of good, but truth should be told for it's own sake.
Your comments are worthless as long as you remain anonymous. If you had any respect for your alma mater or for yourself, you would engage in more thoughtful discourse about the merits a person possesses for a position, instead of resorting to a petty personal attack.
I did not know Professor Johnsen personally, but her reputation as a scholar was very well known within the community at Indiana Law.
-Conor Granahan, IU Law '05
Seems to me that just based on the DC Voting Rights example, the current political deputies, Barron and Lederman, would be better choices.
Cheers,
Cheers,
Cheers,
You're right. I goofed. I apologize. As for Claude Hopper, the point stands.
Interesting if true.
The fact that its a bad precedent is not sufficient reason to oppose it?
1. Ashcroft actually got a fair amount of Democratic support (8 of 50); Olson only got 2 votes.
2. Democrats did not filibuster either of those nominations and knew by not doing so that they would pass. That's not as partisan as filibustering the nomination to kill it.
So, I'm sure that when you're waiting on the press to report Democrats opposition to Ashcroft and Olson, you're also rooting for them to tell the full story.
Do you think that Dawn Johnsen would make a good head of the OLC?
Or do you just think that a president should generally get the people they want in their administration? (Assuming no criminality, et cetera.)
From what little I have read about Johnsen, I would find it far easier to answer yes to the second than the first. And if she is as awful a choice as she appears, senators (and not just Republican senators) have an obligation to point that out -- even if they vote to confirm her.
Yes, I acknowledge that the Democrats voted mostly against but did not filibuster. I would be thrilled if the press reported the mostly-opposed votes at all, and do not mind at all if they add the "full story" by noting the lack of filibuster. I think it's a sad comment on how partisan the standards and expectations are that one can hold up "but they didn't filibuster!" as a point in someone's favor. In my book, the underlying vote is an embarassing display of partisanship. I note again that I said the GOP should not just stop filibustering, but should actually vote YES on the confirmation, and stop the declining cycle that both sides are engaging in.
Also, while Ashcroft's 8 Democratic votes are huge compares to Olson's mere 2, I disagree with calling it a "fair amount." Eight is only 16% (8/50). It's only a "fair amount" if you start with a baseline expectation of party line, so that "look! 8 whole votes!" is a deviation from zero. If you naively start, as I do, with the idea of executive deference unless there's a big problem, then having 84% vote against is still the problem.
I am not praising the GOP here, and I criticized them for opposing here. Their mostly-party-line vote against Kagan for SG is not a good sign. I don't expect them to do what I suggest on Johnsen, either.
I just didn't like the idea that some critics of the GOP obstruction were giving the Democrats a free pass on their own partisan obstruction in this area. The attempts by some to read all comments as stealthily covering for full-throated partisanship, and parrying and thrusting in kind, just confirms my pessimism.
On October 5, 2005, Cornyn was one of the Nine reprehensible US Senators who voted against John McCain's anti-torture amendment to the Department Of Defense Appropriations Act, FY 2006. Now he frets that the Obama DOJ might be too aggressive in its attempt to publicly expose the previous administration's acts of torture? LOL!
On February 7, 2008, Sen. Cornyn issued the following press release:
What is Cornyn's definition of "an up or down vote"?
Jay Bybee, George W. Bush's first nominee to head OLC, was confirmed by voice vote 10/23/2001 without debate on the Senate floor. IIRC, he was asked a total of six questions at his confirmation hearing.
Sorry if I misapprehended your original comment as engaging in partisanship. But, you did write:
Your urging does not seem particularly post-partisan to me.
What's the point of putting drapes over Ms. Justice? While Ashcroft was pretty bad, the rest of the Dubya contingent managed to make him look relatively good....
Cheers,
Nick
It is different than advocating, and my druthers didn't come into play at all - and it was one of the most satisfactory jobs I've had.
Do you think a distinction should be made, in this respect, between Executive Branch appointments (including watchdog roles) and Judiciary (including Supreme Court) positions? Does the Senate have more latitude to impose its views of the country's appropriate direction when deciding on appointments for a competing branch, as opposed to positions nominally reporting to the president him/herself?
Err, no, it is. Because Kmiec, although an Obama supporter, was (and reputedly still is) a vocal pro-lifer, and because Ms Johnsen considers pro-lifers to be not only the moral but the constitutional and legal equivalent of slave-owners. That's why this is a "man bites dog" story.
Sad that someone who says he is pro-life will pimp for the most pro-abortion president ever.
That's because he's no longer pro-life. He's lying.
Now we have Dawn Johnsen, who by all accounts is also an extreme partisan who took partisan pot shots at the Bush Administration for allegedly not being open enough.
Here's a reality check: partisan sniping at the other side does NOT show a real, deep commitment to whatever principle on which the partisan sniping was based. More likely it just means she's a partisan hack.
Prof. Reynolds' faith that the liberal media will keep Dawn Johnsen honest by accurately reporting whether or not she keeps her promises about open government looks especially naive.
Balkinization link
The Constitution gives all the executive power to one person who gets assistants to help him. These assistants, including the head of OLC, do not head independent fiefdoms.
OLC exists to help the President. If a director can't do that, he or she should resign, not be "independent".
Johnsen should be confirmed because O appointed her, not to act as a check on O.
I'm very sympathetic to this argument, but it does make me think that Myers v. United States was wrongly decided.
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