Too qualified for the Beltway

WE SAY Continue supporting Dawn Johnsen.

As he began to address the stack of executive nominations, Senate Majority Leader Harry Reid, D-Nev., said May 12 that he didn’t have enough votes to confirm President Obama’s nominee for United States Assistant Attorney General and head of the Office of Legal Counsel, IU law professor Dawn Johnsen.

Legal counsels advise the president on whether a policy is unconstitutional. Because the interpretation of the Constitution is somewhat subjective, heads of the Office of Legal Counsel necessarily bring their interpretation, and ideology, into their legal advice. Johnsen’s previous public criticisms and her pro-choice stance have Republicans in the Senate saying they will reject her confirmation.

In fact, because of her pro-choice stance, 31 Republican Indiana state congressmen addressed a letter to both of Indiana’s senators pleading for them not to support her nomination if it comes up. However, both senators Evan Bayh and Richard Lugar have said they would not oppose her nomination.  

The outrage over her personal beliefs is ill-informed.

Her personal stances on issues like abortion are not relevant to her duties. According to an article written earlier this week in the IDS, Walter Dellinger, a former assistant attorney general and head of the Office of Legal Counsel, said that the Office of Legal Counsel is concerned with presidential authority and the separation of powers, a field in which he said Johnsen is a legal scholar.

Overall, Johnsen is not extremist or partisan.  

Going back and looking at her record, she is actually quite moderate, and many of the criticisms of her are based on misinterpretations. That is, people don’t bother to look at her rationale for objecting, only that she objected. This is the problem with partisan politics. Executive Watch, a blog by the Duke Law Program in Public Law, correctly pointed it out: “Johnsen has urged critics of the Bush Administration to be careful and focused, cautioning them not to let their disagreement with administration policies lead them to a weak view of executive authority.” Is this not someone who is concerned with presidential authority and the separation of powers?

Nonetheless, Sen. Reid has said he will not bring up Johnsen for confirmation because he does not think he has the 60 of 100 possible Senate votes necessary to do so. Although 60 votes are not required to confirm her – Michael Mukasey was confirmed as Bush’s attorney general with only 53 Senate votes – this time, 60 is the magical number because it is needed to circumvent an expected Republican filibuster.

It’s doubtful, however, that in a Senate consisting of 56 Democrats – not including Sen. Arlen Specter of Pennsylvania, who recently switched to Democrat but will vote against Johnson – Reid cannot find four more senators who don’t want to waste time filibustering this nomination. More likely, his reluctance stems from the Democrats’ general uneasiness right now over national security policy, especially over how to deal with Guantanamo, and would rather defer the decision until a more convenient political climate arises.

White House spokesperson Amy Brundage summed up our position when she said Johnsen “will bring unquestioned integrity and a commitment to non-partisan interpretation of the law to the Office of Legal Counsel, and we’re pleased that both of Indiana’s senators have expressed support for her nomination.”