More than a year since she was first nominated to head the Office of Legal Counsel, the U.S. Senate Judiciary Committee March 4 approved Indiana law professor Dawn Johnsen along party lines for the second time.
Johnsen, a professor at Indiana University Maurer School of Law -Bloomington and acting assistant attorney general in the OLC during the Clinton Administration, was first nominated by President Barack Obama in February 2009, three weeks after his inauguration.
The committee first approved her nomination March 19, 2009, 11-7 along party lines. Because the Senate had not voted on her nomination by the end of the year, it expired and the president renominated her in January.
With Republicans voicing strong opposition to her selection at the March 4 meeting, members voted 12-7 to allow the full Senate to consider her for the job. Members of both political parties went back and forth voicing support and opposition to Johnsen's nomination.
Johnsen has been a controversial nominee from the start. She has received opposition from pro-life organizations and conservative groups for her work with NARAL Pro-Choice America from 1988 to 1993. She has also been criticized for her open opposition to actions of the OLC under the George W. Bush Administration, including "Principles to Guide the Office of Legal Counsel," written in 2004 with nearly 20 other past OLC attorneys.
"The American people have seen the mounting evidence that OLC was converted during the Bush Administration into apologists for their desired prac- tices rather than the independent source of sound legal advice that it should have been," said Committee Chair Sen. Pat Leahy, D-Vt., when opening the discussion.
"The so-called legal advice from OLC to the last administration was intended to provide a golden shield to commit torture and get away with it. It was shoddy work that could not stand in the light of day," he added.
Leahy went on to say the legal opinions of OLC attorneys during the Bush Administration, John Yoo, Jay Bybee and Steven Bradbury, were not within the spirit of the office. This was also debated during the 2009 committee hearing for Johnsen.
Sen. Jeff Sessions, R-Ala., strongly objected to her nomination, saying that she was someone who during the 1990s created issues that should be a concern now as the country confronts wars on terrorism. He noted how Johnsen, as part of the DOJ during the 1990s, "frustrated" President Bill Clinton's efforts to hunt down and assassinate Osama Bin Laden, and as a result the terrorists were able to later carry out the Sept. 11, 2001, attacks.
Leahy countered Sessions' remarks, saying that Republicans were being hypocritical in that criticism. He noted how the former president had fired missiles into a camp during the 1990s where Bin Laden had been known to be residing, and Republicans criticized him for trying to distract everyone from impeachment proceedings which were going on at the time.
Sen. Dianne Feinstein, D-Calif., also remarked on Johnsen's frank and honest answers when the committee questioned her Feb. 25, 2009, about her views on torture and the role of the OLC. Feinstein added her answers were "entirely appropriate" to the position she has been nominated for.
Leahy and others on the committee also remarked that Johnsen at least deserved a vote after waiting as long as she has, which was uncharacteristic of others who'd been nominated for the position in the past.
Sen. John Cornyn, R-Texas, suggested the vote didn't happen in the full Senate last year because there wasn't enough support from the Democrats and they wanted to make it look like the Republicans were holding it up.
Marge Baker, executive vice president of People for the American Way, a progressive organization based in Washington, D.C., attended the March 4 hearing. Baker supports Johnsen and has been following her nomination.
"The reason we support her, and it was very apparent at the meeting ... is that she's eminently qualified," she told Indiana Lawyer. "She's brilliant, and her integrity is respected across the ideological spectrum. I think this was a brilliant choice and she should be confirmed."
Johnsen isn't the only candidate for a position with the Department of Justice who was nominated last year and has since been re-nominated, she said.
Christopher Schroeder was first nominated for the Office of Legal Policy June 4, 2009; the Judiciary Committee sent his nomination to the full Senate July 28, 2009. Mary Smith was first nominated to the Tax Division April 20, 2009; the committee sent her nomination to the full Senate June 11, 2009. Neither received a vote before the Dec. 24 deadline. Both were re-nominated Jan 20 and both passed through the Judiciary Committee to the full Senate Feb. 4.
In response to Cornyn's comment that Johnsen didn't have enough votes to be confirmed last year, Baker added, "I think the votes were there. ... But it was delayed. Health care has taken up a huge amount of time. The degree to which the Republicans have been slow-walking everything is making everything take more time. I think there's a growing sense of frustration, that enough is enough, among senators."