ILNews

Johnsen to be reconsidered for controversial national position

Back to TopCommentsE-mailPrintBookmark and Share


After her nomination to head the Office of Legal Counsel was returned to the president at the end of 2009, an Indiana University Maurer School of Law - Bloomington professor is expected to be renominated by President Barack Obama.

While the president first announced he planned to nominate Dawn Johnsen Jan. 5, 2009, he formally nominated her Feb. 11, 2009, three weeks after his inauguration. She addressed the Senate Judiciary Committee Feb. 25, 2009, and the committee approved her nomination 11-7 along party lines March 19, 2009.

The Senate Judiciary Committee will once again need to approve her nomination before it could go to the full Senate. This has already caused controversy following reports the Republicans on that committee may ask to hold another hearing about Johnsen's qualifications and further delay the process.

This was likely brought up because Sen. Arlen Specter, D-Penn., publicly stated he would vote in Johnsen's favor in response to comments from another candidate for his position in the Senate. Specter's vote would give Johnsen at least 60 votes when counted with other Democratic senators who said they would vote for her, as well as a vote from Indiana's Republican Sen. Richard Lugar, who said in April 2009 he would vote for her. This would be enough for a cloture to stop a filibuster and for the nomination to be confirmed.

Why a renomination

Johnsen's nomination was returned to the president the last day the Senate met last year, Dec. 24, because of provisions of Senate Rule XXXI, paragraph 6 of the Standing Rules of the Senate, according to the Senate Judiciary Committee's Web site.

That paragraph states: "Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President."

On Dec. 24, almost three dozen nominees were confirmed, and Johnsen was among the seven nominees sent back to the president. She and five others are expected to be renominated; the seventh has a different process due to his position, but no reports have suggested he won't be renominated as well.

Hannah Buxbaum, executive associate dean for academic affairs and professor of law at the school, said she is confident Johnsen will be renominated and has "no reason to doubt the accuracy of those reports" from news media in early January.

Repeated requests for comment from the White House and Sen. Evan Bayh's office have not been returned, although an administration official told Indiana Lawyer in early January that the president plans to renominate Johnsen once Congress returns Jan. 20.

"We feel she's eminently qualified for the position," Buxbaum said. "She's a leading constitutional law scholar, particularly on the topic of separation of powers and other topics related to the position. More importantly, she already served in the position."

Johnsen worked for the Office of Legal Counsel during the Clinton Administration from 1993 to 1998, including one year as acting assistant attorney general, 1997 to 1998.

Why she's controversial

But conservative groups have focused more on her work before her position with the Office of Legal Counsel.

Pro-life advocates, particularly Catholic organizations, have been publicly against her because of her position as legal director of NARAL Pro-Choice America from 1988 to 1993. She was also a staff counsel fellow for the American Civil Liberties Union's Reproductive Freedom Project in New York City from 1987 to 1988.

"Dawn Johnsen is not someone who simply takes issue with the Catholic Church's pro-life position: she wants to punish the Church," Bill Donohue of the Catholic League said in a statement on that organization's Web site Jan. 8. "In the late 1980s, she joined a cadre of anti-Catholics to strip the Catholic Church of its tax exempt status. The charge? The Church was guilty of violating IRS strictures because it took a strong pro-life position. The lawsuit failed."

Other groups disagree with her strong positions regarding the Office of Legal Counsel's actions during the administration of President George W. Bush.

She, along with 18 others who formerly worked for the office, released the "Principles to Guide the Office of Legal Counsel" Dec. 21, 2004.

The first principle stated: "When providing legal advice to guide contemplated executive branch action, OLC should 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."

Who's supporting her


Johnsen has had support from civil rights organizations, women's rights organizations, law students and law professors, including a letter signed by 75 law school professors from Indiana sent to Lugar in April 2009.

There is also a Facebook page dedicated to her nomination process. "We Support OLC Nominee Dawn Johnsen" had 851 members as of Jan. 14. Conversely, the Facebook page "Stop Dawn Johnsen" had 20 members as of the same date.

Buxbaum said she doesn't expect the nomination process will be immediate this time around and that Johnsen, who taught classes at the school last semester, is scheduled to teach again this semester. Johnsen will commute from her home in Washington, D.C.

Regarding a class she taught during the fall 2009 semester, Thomas Cook, a law student and blogger for www.BlueIndiana.net posted Aug. 25, 2009, that "students began lining up at 5:30 a.m. yesterday for a chance to be added to Professor Dawn Johnsen's seminar at the Indiana University Maurer School of Law. ... I thought it was worth noting that despite the right-wing smears that attempt to portray Johnsen's teaching style as something out of a Roald Dahl piece, I have heard nothing but glowing reviews in recent weeks from both conservative and liberal students as to Prof. Johnsen's fairness in the classroom."

Roald Dahl is the author of a number of children's books in which students are poorly treated and sometimes abused by their teachers and headmasters.

Cook told Indiana Lawyer via e-mail that 5:30 a.m. was not an exaggeration, and he "personally was there over an hour before the recorder's door opened" to sign up for Johnsen's class.

About 10 students took the class, he said, and they were "acutely aware that this might be their last opportunity to benefit from Professor Johnsen's teaching before she left the school. The inperson portion of the class wrapped up within five weeks, but Professor Johnsen was continuously engaged throughout the semester, including both inperson paper workshops and electronic communication."

The class was originally scheduled to end before fall break in case Johnsen would be confirmed at that time.

While Johnsen has told Indiana Lawyer she can't talk about the nomination process while it is pending, Buxbaum said the two had been in touch about Johnsen's duties for the law school. "We are delighted to hear the president is planning to renominate her," Buxbaum said, "and we look forward to her confirmation."

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. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

ADVERTISEMENT