Legal Counsel limbo

Dawn Johnsen, who withdrew last week as President Obama’s nominee to head the Office of Legal Counsel, has a legitimate grievance against her fair-weather sponsors in the White House.

She was nominated more than a year ago, almost immediately after Obama was inaugurated. An Indiana University law professor and former acting head of the office, she was eminently qualified for the job of apprising the White House and federal agencies of the legal validity of contemplated actions. Yet Obama and Senate Majority Leader Harry Reid (D-Nev.) never rallied forcefully to her defense, instead allowing themselves to be intimidated by Republican (and some Democratic) opposition.

The administration’s unwillingness to fight back against efforts to portray Johnsen as “outside the mainstream” is not just a shame for her and the office; it augurs ominously for nominees who may be similarly smeared -- including Goodwin Liu, the Berkeley law professor Obama has nominated to the U.S. 9th Circuit Court of Appeals, as well as the yet-to-be-named nominee to replace Supreme Court Justice John Paul Stevens.

Johnsen was targeted by Republicans for denouncing -- in appropriate if unlawyerly language -- the perversion of the office by Bush administration officials who provided legal cover for the torture of suspected terrorists. (“Where is the outrage, the public outcry?!” she wrote.) After the attempted destruction of an airliner last Christmas, Republicans on the Senate Judiciary Committee cynically questioned Johnsen’s “dedication to aggressive executive action in national security matters.”

That criticism implies that the head of the Office of Legal Counsel should tell a president what he wants to hear. But the real mandate of the office was ably identified by Johnsen and several colleagues in a 2004 position paper: “OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies.”

Johnsen also was savaged for her past position as legal director of the National Abortion and Reproductive Rights Action League, and for a 1989 brief in which she suggested vividly that forcing a woman to carry an unwanted pregnancy to term was comparable to “involuntary servitude.” Indeed, abortion politics, however irrelevant, may have been as much of a factor in Johnsen’s withdrawal as her views about the office she would have headed.

With important decisions coming on the treatment of suspected terrorists, among other issues, it’s vital that Obama promptly nominate someone who shares Johnsen’s views about the importance of unbiased legal advice. And this time the administration should stand by its candidate.