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Dawn Johnsen leaves DOJ nomination limbo

Dawn Johnsen, eminently qualified to head the Justice Department's Office of Legal Counsel, withdrew her bid for the post after the Senate dallied in voting on her nomination for over a year. She should have been confirmed.

April 13, 2010

The New York Times recently reported that Dawn Johnsen, President Obama’s nominee to head the Justice Department’s Office of Legal Counsel, has withdrawn her bid for confirmation. Her candidacy languished for more than a year as senators refused to bring her nomination to a vote. (The Times also lamented her withdrawal today.)

Johnsen’s withdrawal represents a blow to the rule of law. Congressional opposition to her confirmation is based on the very same attributes that make Johnsen the right person for the job—her concerns about the role the Office of Legal Counsel played in developing the Bush administration’s detainee interrogation policies and her commitment to ensuring that the Justice Department provide the executive branch with nothing but accurate, impartial legal advice.

Small and—at least until recently—relatively anonymous, the Office of Legal Counsel in the Department of Justice is one of the most important offices in government.  It guides the executive branch in interpreting and applying the law, guidance that can have a profound impact on executive policies and, as a consequence, on the actions our government takes. 

In performing its task, OLC is responsible for producing accurate assessments of the law. And it has had a proud history of doing just that with integrity and independence. But by all accounts, OLC abandoned this tradition at times under the previous administration. Operating more as a political arm of the White House, the office provided a legal justification for the administration’s policies regardless of what the law actually required. A recent investigation in the Justice Department highlighted flaws in the work the OLC attorneys under President Bush who authored the so-called Torture Memos, ultimately concluding that these attorneys displayed poor judgment and a lack of balanced analysis—not the high professional standards that historically define the office’s work. 

Recognizing the need to repair the damage done to OLC, President Obama nominated Johnsen, a superbly qualified lawyer and scholar, to head the office. As a law professor, Johnsen’s writings focus on the core constitutional issues addressed by OLC. An OLC attorney herself for several years, she even ran the office for a two-year period under President Clinton. Johnsen’s stewardship won her wide respect inside and outside the Justice Department, and former colleagues have come forward in droves to sing her praises.

Johnsen is also a voice for implementing the reforms necessary to restore OLC’s commitment to careful, balanced analysis. Along with several other former OLC officials, she co-authored a statement of principles to guide the office, including such basic notions as “OLC should provide an accurate and honest appraisal of applicable law” and “OLC advice should reflect due respect for the constitutional views of the courts and Congress (as well as the President).” Johnsen lamented OLC’s transformation into a rubber stamp and the shoddy quality of some of its work. She strongly criticized OLC lawyers for manipulating the law to condone torture.

A few Senators pointed to Johnsen’s outrage as a ground for opposing her nomination. They argued that her condemnation of the torture memos and other OLC missteps betrays a lack of “requisite seriousness” for the position (to use the odd phrasing of Texas Senator John Cornyn) and a lack of commitment to fighting terrorism. And they objected to her defense of a woman’s right to choose. 

But these reasons did not justify derailing Johnsen’s nomination. OLC’s mission is to ensure that the government adheres to the rule of law and Johnsen’s strong commitment to that mission was evidence of her fitness for the job. Moreover, the rule of law is not at odds with fighting terrorism but rather is among our nation’s strongest weapons in that fight. The battle for the hearts and minds of potential extremist recruits turns on the vitality of our values and on the vision of a country that will adhere to the rule of law in its letter and its spirit. We need a leader who understands this principle to restore OLC to the high standards that the office requires and deserves.

Obstructing the President’s nomination and leaving OLC without a confirmed leader for over a year has weakened the government in all the endeavors that require OLC’s involvement—including the fight against terrorism. Dawn Johnsen deserved an up or down vote in the Senate. 

President Obama is unlikely to find another nominee as perfectly suited to this particular position, at this particular time in history. But now that Johnsen has withdrawn her name from contention, President Obama should move quickly to nominate someone who shares Johnsen’s commitment to the rule of law and to the integrity of OLC.