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Johnsen bows out out 15-month partisan battle

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Indiana has lost a chance at having one of its own law professors be chosen to lead a top Department of Justice post, where she would have helped advise the president and executive branch on questions about the Constitution and interpretation of the law.

Instead, the woman chosen by President Barack Obama for that key legal advisory job will continue with what she's been doing since 1998: teaching constitutional law at Indiana University Maurer School of Law - Bloomington and shaping the state and country's future lawyers.

Fifteen months after being tapped to lead the Office of Legal Counsel, professor Dawn Johnsen withdrew her long-delayed nomination April 9, saying the move was made in order to protect the fundamental duty that office fulfills.

The president first nominated her in February 2009, but she became a trigger for Republican opposition who opposed her pro-abortion rights stance and disagreement with the Bush administration's national security policies. She won Senate Judiciary Committee approval in March 2009 along party lines, but that strong opposition killed her nomination at year's end and forced the president to try again this year.

After being nominated a second time in January, Johnsen again got committee approval in early March, but partisan opposition prevented her from getting a vote before the full Senate. After a two-week congressional recess, those pushing to advance her nomination weren't any closer to that goal.

In the past few months, more opposition has mounted because of concerns that Johnsen had already been doing work for the OLC despite not being confirmed. Attorney General Eric Holder told senators March 22 that Johnsen has done what other nominees have done: forwarded resumes for attorney positions to the acting assistant AG in that office and occasionally offered views on those candidates and general staffing issues.

For most of the past year, the Senate's makeup of a supermajority of Democrats likely would have given the Democrats a fighting chance to defeat any filibuster offered by Republicans. But with the recent congressional changes chipping away at the needed 60 votes, the White House lost its chance to circumvent a likely filibuster either with a full vote or with a recess appointment that would've kept her in office for less than two years. The White House said it didn't make her a recess appointment because that would have undermined the effort to make the OLC'c work stand above partisan politics.

She submitted her withdrawal on the Friday before Congress returned April 12.

In the end, the political opposition trumped her 1986 J.D. from Yale Law School, past service as the acting OLC leader during the Clinton administration, constitutional law teaching in Bloomington since 1998, and various other leadership roles in the legal world.

White House spokesman Ben LaBolt issued a statement that praised Johnsen's law professor credentials and past service, but said it was "clear that Senate Republicans will not allow her to be confirmed." The president is now working to identify a replacement who can provide impartial legal advice and constitutional analysis to the executive branch and hopes the U.S. Senate will move beyond politics to swiftly confirm that nominee.

Reached by e-mail, Johnsen told Indiana Lawyer that she was not speaking publicly about the nomination at this time, but she echoed her written statement submitted with her withdrawal:

"I am deeply honored that President Obama, the Attorney General and a strong majority of the U.S. Senate have demonstrated faith and confidence in my ability to lead the Office of Legal Counsel. OLC plays a critical role in upholding the rule of law and must provide advice unvarnished by politics or partisan ambition. That was my guiding principle when I had the privilege to lead OLC in a past administration. Restoring OLC to its best nonpartisan traditions was my primary objective for my anticipated service in this administration. Unfortunately, my nomination has met with lengthy delays and political opposition that threaten that objective and prevent OLC from functioning at full strength. I hope that the withdrawal of my nomination will allow this important office to be filled promptly."

With her nomination now ended, Johnsen plans to continue teaching at the Bloomington law school where she's been teaching constitutional law courses on presidential powers, reproductive rights, and First Amendment law for more than a decade. Her current schedule for this semester has her teaching three courses, causing her to fly back and forth from the family's home in Washington, D.C., to teach.

Dean Lauren Robel said the withdrawal is disappointing not only for Johnsen but also for the entire law school.

"Professor Johnsen's credentials and her demonstrated commitment to the rule of law make her eminently qualified to the lead the OLC, and it is unfortunate for the country that she will not have the opportunity to do so," Robel wrote in a statement. "I applaud Dawn for the integrity she has shown by putting the importance of an Office of Legal Counsel that can operate at full strength, free from a lengthy and difficult confirmation process, ahead of her own interests."

A decade ago, Johnsen likely wouldn't have had this kind of opposition. The OLC has traditionally been a little-known legal office, but it became a political hot potato as anti-terrorism questions became more common after 9/11, and past holders of that position were involved in both the approval of the torture memos and DOJ political hirings and firings.

Marge Baker, who attended the March 4 Senate Judiciary Committee hearing, is executive vice president of People for the American Way, a progressive organization based in Washington, D.C., that supported Johnsen. Baker told Indiana Lawyer that she found the news to be disappointing, particularly why Johnsen likely withdrew her name.

"I think it's a profound loss to the nation. I think she'd serve the country extremely well as she did before. ... She had a strong support from Democrats when she was taken up again in committee. I thought they made an extremely powerful case for her," Baker said.

"What happened here was the other side was permitted to characterize her as controversial for views that are very mainstream. She was pilloried for her strong and cogent and mainstream views that torture was illegal, and was castigated for the fact she was pro-choice, which is a very mainstream position. ... Hopefully next time around the administration will not permit their nominee to get labeled by the other side as controversial when they're not."

Now, some liberal and progressive groups wonder if Johnsen's withdrawal will impact the upcoming confirmation battle involving the Supreme Court of the United States, after Justice John Paul Stevens announced his retirement. With Republican opposition effectively forcing the delays that led to her withdrawal, some wonder if that could cause prolonged opposition designed to delay a judicial nominee's approval before the court starts a new term in October.

Those within Indiana's legal community had gotten word about Johnsen's withdrawal early in the day on April 9 before it became publicly reported. Many of Johnsen's family members attended a formal swearing-in ceremony for her husband's brother, U.S. Judge David F. Hamilton, who received his robe for the 7th Circuit Court of Appeals that day. During his remarks, Judge Hamilton briefly mentioned his sister-in-law by saying she deserved the nomination. News hadn't yet become public and only after the ceremony did it begin making news.

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