Following a month of delays, the Senate Judiciary Committee voted Thursday to send Dawn Johnsen, President Barack Obama's nominee to head the Justice Department's powerful Office of Legal Counsel (OLC), to the Senate floor. The OLC advises presidents on the limits of their power.
The Senate panel voted 12-7 to report Johnsen out of committee, and some Republicans were vocal in their opposition.
"Her advocacy and policy work with liberal organizations suggests she is a progressive partisan, who will work to uphold her political views through the Office of Legal Counsel," said Sen. Chuck Grassley (R-Iowa).
Obama initially nominated Johnsen last February to head the OLC, which gained notoriety under President George W. Bush for generating the "torture memos," in which Bush administration lawyers developed legal arguments to circumvent international and domestic law against the mistreatment and torture of detainees.
"The President's renomination of Professor Johnsen in January indicates that he has confidence in her," said Senate Judiciary Committee Chairman Patrick Leahy (D-Vermont). "As a veteran and former acting head of the office she has been nominated to run, Professor Johnsen is well qualified for the job. She understands the need to ensure a strong legal foundation for our national security and for advice to the Government."
Johnsen made it through committee on a party line vote last March, but her nomination stalled on the Senate floor. Following Senate procedure, it was sent back to the president on Christmas Eve. She currently works as a law professor at Indiana University-Bloomington and is teaching this semester.
"The Obama administration's attempts to repair [OLC] and ensure that its lawyers are providing the Government with principled advice have been hamstrung by Senate Republicans who continue to delay appointment of the President's nominee to head the OLC," Leahy said. "Even though this Committee favorably reported Professor Johnsen's nomination last March, it has been obstructed and delayed."
Leahy has been outspoken in his support of Johnsen's confirmation. On February 15, he co-wrote an editorial with Sen. Sheldon Whitehouse (D-Rhode Island), in which they said Johnsen "has demonstrated her resolve in national security matters, her seriousness, and her commitment to the rule of law and should be confirmed."
"Senators who disagree can vote against her nomination, and make clear their reasons," they added.
Johnsen has also found widespread support from her peers. In a letter to Sen. Harry Reid (D-Nevada), over 400 law professors from around the country urged the Senate to confirm Johnsen at the "earliest possible date."
"This level of obstruction is simply unacceptable," they wrote. "It frustrates the ability of executive branch agencies and departments to serve critical public needs. And it defies the deference traditionally provided Presidents in shaping their Administrations, particularly with respect to sub-Cabinet level positions."
Nan Aron, president of the Alliance for Justice, said Thursday "Republicans in the Senate must stop playing politics and confirm this exemplary nominee."
Republican senators and a few Democrats, including Arlen Specter (D-Pennsylvania) and Ben Nelson (D-Nebraska), raised questions about Johnsen's positions on abortion and national security. Specter voted Thursday in support of Johnsen's confirmation.
Johnsen also has the support of Sen. Richard Lugar (R-Indiana), who has said that he will vote to confirm her. But the election of Sen. Scott Brown (R-Massachusetts) might mean that Johnsen's confirmation cannot overcome a filibuster.
Johnsen worked for the OLC for five years under the Clinton administration, first as deputy assistant attorney general - the same post torture memo author John Yoo held - and then as acting assistant attorney general in charge of the OLC from 1997-1998.
Republicans, for the most part, have focused on her time at the National Abortion & Reproductive Rights Action League (NARAL), a pro-choice lobbying organization, where Johnsen worked during the late 80s and early 90s.
Outspoken and Critical
During George W. Bush's tenure in office, Johnsen spoke out against what she perceived as the abuse of OLC's power. In an editorial published in Slate on Yoo's and Bybee's torture memo, Johnsen wrote, "the shockingly flawed content of this memo, the deficient processes that led to its issuance, the horrific acts it encouraged, the fact that it was kept secret for years and that the Bush administration continues to withhold other memos like it - all demand our outrage."
In a 2006 Indiana Law Journal article, she said the function of OLC should be to "provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."
"The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the President's constitutional obligation to ensure the legality of executive action," said Johnsen, who served in the OLC under President Bill Clinton. "In short, OLC must be prepared to say no to the president.
"For OLC instead to distort its legal analysis to support preferred policy outcomes undermines the rule of law and our democratic system of government. Perhaps most essential to avoiding a culture in which OLC becomes merely an advocate of the Administration's policy preferences is transparency in the specific legal interpretations that inform executive action, as well as in the general governing processes and standards followed in formulating that legal advice."
In a 2007 UCLA Law Review article, Johnsen said Yoo's and Bybee's August 1, 2002, torture memo is "unmistakably" an "advocacy piece."
"OLC abandoned fundamental practices of principled and balanced legal interpretation," Johnsen wrote. "The Torture Opinion relentlessly seeks to circumvent all legal limits on the CIA's ability to engage in torture, and it simply ignores arguments to the contrary.
"The Opinion fails, for example, to cite highly relevant precedent, regulations, and even constitutional provisions, and it misuses sources upon which it does rely. Yoo remains almost alone in continuing to assert that the Torture Opinion was 'entirely accurate' and not outcome driven."
That was a conclusion also shared by the Justice Department's ethics watchdog, the Office of Professional Responsibility (OPR). Two weeks ago, OPR released a voluminous report on the legal work that went into preparing the torture memos. OPR investigators concluded that Yoo and Bybee fixed the law around the Bush administration's torture policy.
The report concluded that Yoo "committed intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in five legal memoranda he prepared for the Bush administration.
Bybee was found to have "committed professional misconduct when he acted in reckless disregard of his duty to exercise independent legal judgment and render thorough, objective, and candid legal advice" in two legal memoranda he signed.
A career prosecutor, however, declined to uphold a recommendation by the ethics watchdog to refer Yoo and Bybee to their state bars association for possible disbarment.
Leahy, who held a brief hearing last week on the report's findings, said Thursday the Bush administration "converted" OLC "into apologists for their desired practices rather than the independent source of sound legal advice that it should have been."
"The so-called legal advice from OLC to the last administration was intended to provide a 'golden shield' to commit torture and get away with it. It was shoddy work that could not stand in the light of day."
"Professor Johnsen is immensely qualified for this position," Leahy added. "Those who defend John Yoo and proclaim that the nation should be grateful to him for what he did, ought not to be questioning the seriousness and qualifications of this woman of principle."