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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  | Category:  DEPT. OF JURISPRUDENCE
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I have no arguments with her differences with Bush......it is some of her other opinions that lead one to believe that she is flawed for this position......I would like to see non-political attorneys considered for a position such as this....ones who like judges make decisions that find middle ground.....from the sounds of some of her previous work, she is far from Middle ground on some of her views.......by the way, I consider it an insult to slander me with the Bush brush..........

Posted by: Tawodi | April 28, 2009 4:23 PM

@Tawodi: Just because Ms. Johnson has written positions that take the Bush Admin's legal reasoning to task does not make her an ideologue.

I, too, find their rationale flawed and in some instances, outside the scope of law. I would hold the same belief if these memos and legal justifications were written by a Democrat or a Libertarian. Bad legal reasoning is bad legal reasoning.

It is especially troubling when it appears the legal reasoning was put in place to forward nothing but policy that was already being conducted.

The OLC is supposed to serve the interests of law and justice and give SOUND legal advice to the President. Not just rubber-stamp their ideas and give cover. I know Republicans believe loyalty, personal and ideological, trump all, but that is not the case.

Being wrong is not a political issue, it is a moral one that should override any idea of party. You apparantly live in the zero sum world where nothing but politics matter.

However, I cant blame you, as so-called journalist have failed this simple test, even right here at the Post. (Go read Broder's piece from Saturday.) They get caught up in their "exclusive" sources and dinner/cocktail parties and wouldn't dare disrupt their social calendar. That would be too much to ask of Journalism!!

If they were real journalists, you would understand the problems with the legal memos and just how detrimental they are to the rule of law and the functioning of our so-called "Republic." For all their hand-wringing over what will become of us if we look into these crimes, I find it laughable. You can't become a banana republic after already being one for the last 8 years and cheering it on every step of the way.

Democracy calls for vigilance. It seems our political and journalist classes have found that call to be a nuisance. And just not to leave any ambiguity, that goes for Democrats, as well.

Posted by: danielburns | April 28, 2009 3:22 PM

This is a position that should always be filled with a non-ideologue. Ms. Johnsen does not seem to fit in that category. Her background suggests otherwise, and it might be helpful to see her in another position, and an attorney from somewhere in the Center used to fill this position.

Posted by: Tawodi | April 28, 2009 2:26 PM

Back on topic, however, if Dawn Johnsen (no relation to Miami Vice) is confirmed, look forward to criminal indictments being filed against her about some future policy dispute as well.

Posted by: JakeD | April 28, 2009 12:03 PM

"... to impugn his integrity especially when in your writings you have never expressed any integrity of your own is typical of the ethical depravity that dominates the Republican Party ..."

Posted by: Gator-ron | April 27, 2009 5:21 PM

Posted by: JakeD | April 28, 2009 12:01 PM

Gator-On, JakeD is displaying his remarkable integrity by once again implying that he is an unaffiliated voter.

He is not independent, he is a member of the American Independent Party, which is to the right of the Republican party (Alan Keyes for President!). In all essentials, you have his character down quite well, it being blindingly obvious to everyone who is forced to glance over his compulsive nattering.

He loves to quibble, don't egg him on.

Posted by: nodebris | April 28, 2009 10:37 AM

The Republican position? "No." "No." "No." They don't no nuthin else.

Posted by: frodot | April 28, 2009 6:29 AM

Jake D. I did not say your writing was typical of the Republican Party. What I said was they lack the ethical foundation that is typical of the leadership of the Republican Party. In your world what you said and I said are the same thing. In my world ideology is an impediment to personal integrity and only integrity counts.

Posted by: Gator-ron | April 27, 2009 10:42 PM

My "retort" was simply to point out I am not a Republican when you said my writings were "typical" of the Republican Party. Whether I am one-step removed and now "promote the moral depravity that the Republican Party currently represents" I will gladly leave that judgment to those above my pay grade.

God bless.

Posted by: JakeD | April 27, 2009 7:27 PM

Jake D

Whether you are a registered Republican or not you demonstrate the moral depravity that the Republicans in political control have demonstrated. I know of at least two registered Republicans who can not vote Republican because the party has lost its moral compass. Your registration as independent is hair splitting because you promote the moral depravity that the Republican Party currently represents and certainly puts you at odds with men like Kmeiec. It may have made you a fine lawyer, though I doubt it, but it makes you morally ambiguous at best as a human being. It is the content of one's character and not the appellations that you possess that make you who you are. You are blind to this thus you dwell on the petty and the frivolous as your retort demonstrates.

Posted by: Gator-ron | April 27, 2009 6:40 PM

P.S. to Gator-ron:

Did you see the White House scrambling today after their jets buzzed the Statue of Liberty and WTC site, causing mass evaculation?! LOL!

Posted by: JakeD | April 27, 2009 6:10 PM

Speaking of "ethical depravity" Professor Kmiec participated in the conference call that was organized by a coalition of liberal groups, including Alliance for Justice, NARAL Pro-Choice America (of which Johnsen was once the legal director), the National Women's Law Center, and People for the American Way.

For the record, I am not a Republican (I am actually registered Independent).

Posted by: JakeD | April 27, 2009 6:09 PM

Jake D

He has withstood shunning from his church. He is a devout catholic but with an independent mind. It is comprehensible to me to totally disagree with Mr Kmiec or to disagree with him on issues but to impugn his integrity especially when in your writings you have never expressed any integrity of your own is typical of the ethical depravity that dominates the Republican Party at this time.

Posted by: Gator-ron | April 27, 2009 5:21 PM

I no longer trust Pepperdine law professor Douglas Kmiec either.

Posted by: JakeD | April 27, 2009 5:02 PM

BUSH OLC MEMOS OK'ED RADIATION WEAPON USE -- ON AMERICANS, TOO

http://nowpublic.com/world/bush-torture-memos-oked-radiation-weapon-use-americans-too

OR (if link is corrupted):

http://NowPublic.com/scrivener

Posted by: scrivener50 | April 27, 2009 4:05 PM

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