ILNews

Johnsen bows out out 15-month partisan battle

Back to TopCommentsE-mailPrintBookmark and Share


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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT