DEPT. OF JURISPRUDENCE
Scholars Urge Confirmation of Johnsen to OLC
Updated 5:25 p.m.
By Carrie Johnson
A bipartisan coalition of scholars this afternoon pressed the Senate to move ahead with a vote on the nomination of Dawn Johnsen to lead a critical Justice Department unit that provided a rationale for waterboarding and other harsh interrogation practices during the Bush years.
Johnsen won a party line 11 to 7 vote from the Senate Judiciary Committee last month. But while other department nominees easily advanced to the full Senate, her bid to lead the Office of Legal Counsel has languished.
The debate, unusual for an executive branch nomination below the Cabinet level, only intensified over the past week as critics on both the left and the right challenged President Obama for his handling of Bush OLC memos blessing harsh detainee interrogation tactics, such as sleep- and food deprivation or slamming a prisoner against a wall.
Obama publicly released the documents but has refused to endorse the possible criminal prosecution of members of the Bush administration and frowned upon the idea of a congressional investigation into the detainee practices.
Republicans have attacked Johnsen's early legal work for an abortion rights group and questioned her temperament in the face of essays she wrote criticizing the OLC's conclusions in the Bush administration. To support their position, GOP lawmakers pointed to a footnote in an abortion-related legal brief she co-signed about two decades ago and pounded her with questions about her position on counterterrorism. One Senate Democrat, Nebraska's Ben Nelson, recently said he would not support Johnsen's bid.
This afternoon the left-leaning interest group People for the American Way exhorted lawmakers to step up their pace, highlighting the importance of the post. The Office of Legal Counsel offers binding legal advice to the executive branch and its positions on such things as the constitutionality of D.C. voting rights and national security issues are closely watched.
Senate aides say there is no formal "hold" on Johnsen's nomination but Majority Leader Harry Reid (D-Nev.) has not yet scheduled a vote to end debate on the bid. Jim Manley, a spokesman for Reid, said this afternoon that "she is extremely well qualified and deserves to be confirmed as quickly as possible for this important post."
The White House has not interjected itself into the debate. "The president nominated Dawn Johnsen because of her proven commitment to ensuring that the Office of Legal Counsel conducts a nonideological analysis of the law and offers objective legal guidance to the administration," said White House spokesman Ben LaBolt. "We look forward to working with members of the Senate to see her confirmation through."
Walter Dellinger, a former leader of the office in the Clinton years, today called Johnsen "one of the country's leading scholars on executive power" and said that her tenure as a deputy and acting OLC chief in the late 1990s demonstrated that she had the skills and judgment to do the job.
"Dawn and I are people who come from different points on the policy spectrum but one of the things I've admired about her is her independence of mind," said Pepperdine University law professor Douglas Kmiec. "This is what was missing in the torture memo context."
Aviva Orenstein, one of Johnsen's colleagues at the Indiana University School of Law, told reporters that 70 law professors there from "all stripes" had recently urged Sen. Richard Lugar (R-Ind.) to support the nomination. Thus far Lugar has been silent as to his intentions.
The issue of who will lead the Justice Department office remains unclear even as an investigation into former officials there is reaching a climax. Three Bush lawyers are the subjects of an ongoing probe by the department's internal ethics watchdogs into whether their conclusions on detainee interrogation practices conformed with professional standards. The report, an earlier draft of which had recommended disciplinary referrals for John C. Yoo and Jay S. Bybee, has not yet been publicly released.
For now, former Harvard Law professor David Barron, who was appointed by President Obama after his January inauguration, is serving as acting chief of the OLC.
Posted at 3:41 PM ET on Apr 27, 2009
DEPT. OF JURISPRUDENCE
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