Will Dawn Johnsen Get an Up-or-Down Vote Now That Specter Is Changing His Party Affiliation?

A BUZZFLASH NEWS ANALYSIS
by Christine Bowman

Dawn Johnsen remains in limbo as President Obama's nominee to serve as Assistant Attorney General for the Office of Legal Counsel (OLC) in the Justice Department (DOJ). Senator Arlen Specter's decision today to switch to the Democratic column may remove one obstacle for her, since as ranking minority member on the Judiciary Committee, he had said Monday that a filibuster of Johnsen's nomination was "under consideration" and indicated that he had not yet made up his mind on her nomination even after meeting privately with Johnsen, as CQ Politics reported.

The OLC was the source of the recently released "torture memos" that green-lighted waterboarding under the Bush Administration. The office's role is to clarify points of law for the President. For much of the Bush Administration as well as currently, that critical office has been led only by an acting head.

On a conference call with reporters Monday, former OLC chiefs and others who know Johnsen, have worked with her, and who support her nomination pointed out that acting chiefs would tend to be more subject to political pressure and potentially less able to tell a president where the legal boundaries are. They described the vital function of the OLC chief as being able to say no to the president when no needs to be said.

Douglas Kmiec, who headed the OLC for Presidents Reagan and George H.W. Bush, commented on the vital need for objectivity in the office, saying "This is what was missing in the torture debate." He also lauded Johnsen for having "appropriately challenged" the opinions issued by the the George W. Bush OLC on torture and described objections to her appointment as "incredible," "partisan, and not on a merit basis," and as "rank politics."

Anti-abortion activists have highlighted Johnsen's pro-choice views, making it difficult for some senators facing reelection in conservative states to back her. Conservative Democrat Ben Nelson of Nebraska has expressed concerns, and it remains unclear how he will vote on cloture to either move forward or block her confirmation vote by the full Senate.

Walter Dellinger, Solicitor General and head of the Office of Legal Counsel under President Clinton, said Johnsen has a reputation among her colleagues as "being right before others" when analyzing complex legal issues and added "she was right early" in her critical response to the department's "enhanced interrogation"-authorizing memos. He also called Johnsen "one of the country's leading scholars on executive power."

Aviva Orenstein, an Indiana University law professor and longtime colleague, described Johnsen as "one of the most gentle and fair-minded people I know" -- a Sunday school teacher and mother of two. Seventy of Johnsen's university colleagues -- "of all stripes" politically -- have signed a letter supporting her confirmation to the job, Orenstein pointed out.

Kmiec noted that the OLC is itself the subject of the investigation of a report that the Justice Department's Office of Professional Responsibility is expected to release soon. That report is widely expected to be another bombshell that could further discredit the work of the highly politicized DOJ during the Bush era.

Before voting on Johnsen, Kmiec urged senators to investigate for themselves Johnsen's long record and "what she has done," rather than being swayed by opposition reports portraying "a false image" with the political goal of embarrassing the President as he approaches the "First 100 Days" marker.

BuzzFlash has previously commented on the politics of the nomination war over Johnsen and on the irony that some of the Senators most ideologically opposed to her appointment have also been the most vocal proponents of giving all nominees their "up-or-down" vote rather than stalling nominations in committee battles over cloture.

Meanwhile, the full Senate is expected to vote today, Tuesday, on the confirmation of Kansas Gov. Kathleen Sebelius as Secretary of Health and Human Services. As in the case of Johnsen's nomination, anti-choice activists have worked to block the Sebelius appointment.

UPDATE: Another positive development Tuesday, April 28, vis a vis Johnsen's nomination to OLC:

Lugar to support IU law professor's nomination -- First in GOP to back Obama's pick to head internal law office

A BUZZFLASH NEWS ANALYSIS