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Editorial: Quit stalling nominations

Editorial Indiana Lawyer
January 6, 2010
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Indiana Lawyer Editorial


After languishing in the U.S. Senate for about 10 months, the nomination of Dawn Johnsen to lead the Office of Legal Counsel finally got some action.

We suppose "action" is in the eye of the beholder, because ultimately the Senate refused to take a final vote on the nomination of the Indiana University Maurer School of Law - Bloomington professor to hold the job as head of the Department of Justice's OLC. It's an office she worked for during the Clinton administration and led on an interim basis during that stint.

According to the Senate's rules, nominations must be acted upon by the end of the year of the legislative session. If that doesn't happen, nominations can be carried over into the next year's session by a unanimous agreement or sent back to the president for him to think over. This happened right before the Christmas holidays.

Now President Barack Obama must decide whether to renominate Johnsen and the other nominees the Senate refused to consider. Whether the president sticks with his original candidates or chooses new ones, the nomination process begins from square one.

We sincerely hope that the president sticks with this nominee, and we'd like to see him flex some political muscle in getting her confirmed. She's proven to be a tough and fearlessly outspoken critic of things that are unjust and unfair. Such behavior appears to have earned her some political enemies, but we find tough and outspoken to be admirable qualities.

Johnsen is not without controversy. She incites the ire of abortion opponents because of her previous work as legal director for National Abortion Rights Action League, now known as NARAL Pro-Choice America.

Others are against Johnsen because of her criticism of the legal reasoning given to the George W. Bush administration by its OLC that cleared the way for changes in the way detainees suspected of terrorist connections were interrogated. Johnsen also criticized that office during the Bush administration for what some say undermined privacy and due process rights.

Opposition to her leading the office appears to depend in large part on what side of the aisle a politician happens to be on. Yet our U.S. Sens. Richard Lugar, a Republican, and Evan Bayh, a Democrat, have said publicly that they will vote for her confirmation. Perhaps these two gentlemen could give lessons to their fellow senators in how to have differences of opinion and get work done all at the same time.

We understand that the odds of President Obama reading this newspaper are small - after all, he's not an Indiana lawyer - but we're calling on him to renominate Dawn Johnsen to lead the OLC, and we'd like to see him forcefully get behind this nomination and the others that need to be made across the country.

Indiana has one vacancy on the U.S. District Court for the Northern District of Indiana, and two in the Southern District. We were happy to see David Capp get the nomination for U.S. Attorney for the Northern District of Indiana, but action needs to be taken on the Southern District job, which is being capably led on an interim basis by Tim Morrison.

It's time to nominate, confirm, and get some work done.*

 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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