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By State Reps. Cynthia Dill and Dawn Hill
May 4, 2009
Dawn Johnsen has been nominated to lead the Office of Legal Counsel (OLC) in the United States Department of Justice. This important office, which provides legal advice to the President and all the executive agencies, functioned in relative anonymity until a few years ago. Few Americans were familiar with OLC until we learned that this office, during the Bush Administration, wrote legal memos that concluded that torturing U.S. detainees did not violate federal law. Now we know what OLC should not be doing. And we know that it’s going to take an eminently qualified individual dedicated to the rule of law to get OLC back on track.
Dawn Johnsen is that person. She has impeccable legal credentials, not least of which are the past ten years that she has spent as a professor of constitutional law at Indiana University School of Law-Bloomington. She has the highly relevant prior experience of working at OLC for five years during the Clinton Administration, including a year as acting Assistant Attorney General. She has shown that she understands and cares deeply about OLC’s unique role of providing objective, unbiased legal advice to the Administration. For all of these reasons, her nomination has been supported by an impressive bipartisan group of former Administration officials. It’s hard to think of a more qualified nominee for this position.
Earlier this month, the Senate Judiciary Committee voted to endorse Dawn Johnsen and move her nomination to the full Senate. Unfortunately, the vote went along party lines, with Senator Arlen Specter passing – neither voting for her nor against her. Now, her opponents are threatening not just to vote against her confirmation, but to resort to a filibuster to keep her nomination from moving forward.
A filibuster is serious business. When it came to filibustering judges, fourteen members of the U.S. Senate, including Maine Senators Susan Collins and Olympia Snowe, declared in 2005 that judicial nominees should only be filibustered under “extraordinary circumstances.” There is no reason why filibusters should even be considered for Executive Branch nominees, who serve at the pleasure of the President rather than for a lifetime position on the federal bench. To justify taking such a serious step against an Assistant Attorney General, opponents of her nomination are trying to paint her as a radical.
Much of the current opposition to Dawn Johnsen stems from her criticism of the Bush Administration’s willingness to act contrary to federal statutes, in secret, and without notifying Congress. In particular, she took a public stand against the approval of illegal wiretapping of U.S. citizens and the torture of U.S. detainees. But Republicans and Democrats alike spoke out in disapproval when this information became public, and the Bush Administration actually rescinded one of the OLC opinions that Professor Johnsen criticized. These are hardly the actions of an outlier.
Dawn Johnsen also acted in a bipartisan manner to restore the integrity of OLC. She organized a group of nineteen former OLC attorneys who had served under both Democratic and Republican administrations, and led them in formulating a statement of principles to guide the office, based on longstanding nonpartisan best practices. She also worked across party lines to help draft legislation to bring more transparency to OLC’s work. In this as well, Dawn Johnsen was no partisan extremist.
Another baseless charge against Dawn Johnsen is premised on her active support for Roe v. Wade. We in Maine know that our Senators support the constitutional right protected under Roe v. Wade, and we would not expect them to consider Professor Johnsen’s work to ensure that Roe was not overturned as disqualifying for this position. Neither should it be grounds for a filibuster.
After years of betraying the trust of the American people during the Bush Administration, OLC is urgently in need of new direction – and it would be hard to think of anyone better qualified than Dawn Johnsen to lead such an undertaking. Senators Collins and Snowe should not be distracted by unfounded attempts to smear Professor Johnsen as an extremist, and let Professor Johnsen’s record speak for itself. If they do, we can look forward to Dawn Johnsen soon beginning the long-overdue task of righting the course of OLC.
Cynthia Dill represents part of Cape Elizabeth in House District 121 and Dawn Hill represents Ogunquit, part of Kittery, part of Wells and part of York in House District 149. They are both attorneys and serve on the Legislature’s Judiciary Committee.