February 25, 2009

Dawn Johnsen, a Radical Exception

The Committee for Justice has said little about the series of controversial Department of Justice nominees – Eric Holder, David Ogden, Thomas Perrelli, and Elena Kagan – that have come before the Senate this year. Sure, they all have very liberal records, but that shouldn’t be surprising. We and others had long predicted that, no matter how bipartisan President Obama’s approach to economic and foreign policy issues might turn out to be, his Justice Department and judicial nominees would reflect his debt to the more radical elements of the Democratic base. Most importantly, we have held our tongue on DOJ nominees because a president deserves more deference on Executive Branch appointments than on judicial nominees. But Dawn Johnsen, who testifies before the Senate Judiciary Committee today, is an exception. Her radical views and the nature of the office she has been nominated to makes her a poor choice to head DOJ’s Office of Legal Counsel.

The Office of Legal Counsel bills itself as “provid[ing] authoritative legal advice to the President and all the Executive Branch agencies.” In other words, OLC’s mission is to interpret the law rather than to shape the law or otherwise pursue a policy-driven agenda. Thus OLC is a puzzling fit for a woman whose far-left views on the law (examples below) make her the most radical faculty member at Indiana University School of Law, and the most radical of Obama’s DOJ nominees. There is no doubt that Johnsen is a bright and energetic crusader for those views. However, asking her to put those views aside is like asking Sean Penn to refrain from injecting politics into his Oscars acceptance speech. It’s just not going to happen.

GOP senators are not the only ones that should be hesitant to confirm Dawn Johnsen. If Democratic senators are sincere in their loudly voiced protests about politicization of the Justice Department, Johnsen’s nomination should cause them great concern.

The obvious question is what’s behind President Obama’s curious selection of Johnsen for the OLC. The fact that Supreme Court Justices William Rehnquist and Antonin Scalia also headed the OLC makes us wonder if Obama is grooming Johnsen for the Court. It won’t be easy to stop any Obama nominee for the Supreme Court, but Johnsen would make the task easier than perhaps anyone else we can think of. Her declaration last year that the “progressive agenda” should “focus on the courts as the vehicles for desired change” is akin to wearing an “I Love Judicial Activism” t-shirt to her Supreme Court confirmation hearing.

Moreover, Johnsen is on record calling for the Senate to reject judicial nominees who believe in originalism, belong to the Federalist Society, or think that Roe v. Wade permits any restrictions on abortion. Thus she would be hard pressed to complain if her long list of far-left views and organizations threatened to block her confirmation to the Supreme Court.

Others have documented Johnsen’s many controversial positions (see, for example, this article by Andrew McCarthy), so we’ll just touch on a few more examples:

While serving as legal director of NARAL (the National Abortion Rights Action League), Johnsen argued in a Supreme Court brief that restrictions on abortion violate the Thirteenth Amendment’s prohibition against slavery because “the state has conscripted [the pregnant woman’s] body for its own ends.”

Contrary to settled law, Johnsen believes that “economic justice” requires the government to provide funding for the exercise of constitutional rights, especially abortion rights. She has called the Hyde Amendment’s prohibition on federal funding of abortions a “callous” and “discriminatory” policy.

Johnsen’s criticism of President Bush’s War on Terror policies has often been the type of anti-Bush bashing you would expect from MoveOn.org, rather than the sort of critical but scholarly legal analysis you’d expect from a liberal law professor. For example, she characterized the Bush Administration’s legal rationale for warrantless monitoring of suspected al-Qaeda communications, upheld by the courts, as “extreme and implausible.”

Following the confirmation of Supreme Court Justice Clarence Thomas, Johnsen violated the rule against accusing judges of bias when she said that “In any abortion or sexual harassment case, Judge Thomas’s ability to be unbiased or neutral is highly suspect.”

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