Defending Dawn Johnsen

The irony is overwhelming: Republicans in the Senate are opposing -- and may try to filibuster -- President Obama’s choice to head the Justice Department agency that during the Bush administration provided legal cover for the torture of suspected terrorists. Their argument: Indiana University law professor Dawn Johnsen is a partisan activist who would politicize the Office of Legal Counsel, which is charged with providing the executive branch with an objective analysis of existing law.

As proof, Johnsen’s critics cite her caustic criticism of torture memos prepared by the office in the Bush era. (“Where is the outrage, the public outcry?!” she blogged on Slate last year.) For good measure, she is accused of being an abortion-rights zealot because of her role as legal director of the National Abortion and Reproductive Rights Action League from 1988 to 1993.

The Republicans’ opposition to Johnsen is hypocritical, given their acquiescence in the rank politicization of the Office of Legal Counsel in the Bush years. But even Sen. Dianne Feinstein (D-Calif.) has noted that the nominee has not been a cloistered academic. Feinstein said she voted for Johnsen in the Judiciary Committee after the nominee assured her “in no uncertain terms” that she would leave her views as an activist behind when she returned to the office, where she served during the Clinton administration. Feinstein added: “I take her at her word.”

So do we, and only partly because Johnsen has broad support from the legal community. Her most impressive qualification for the position, in addition to her prior service, is a detailed position paper she and 18 other former Office of Legal Counsel lawyers published after the release of the first torture memo. It offers a mirror image of the way the office behaved during the Bush administration: “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.”


By choosing Johnsen instead of a lower-key candidate who confined her criticism to law reviews, the president guaranteed that Republicans would accuse him of replacing one ideology at the office with another. But Obama has made his choice, she is eminently qualified, and Feinstein isn’t the only one who will hold Johnsen to the professional standards dishonored by the last administration. She should be confirmed.