The Senate Judiciary Committee voted along party lines Thursday to endorse Dawn Johnsen to lead the Justice Department's Office of Legal Counsel, sending her nomination to the full Senate for what is expected to be a contentious debate.
The 11-7 vote reflects sharp division over Johnsen's writings on abortion and national security. She was legal director of NARAL Pro-Choice America from 1988 to 1993, and, while a law professor at Indiana University at Bloomington, Johnsen has been a prominent critic of the Office of Legal Counsel's opinions on torture, executive power, and other issues related to the Bush administration's anti-terrorism policies.
Johnsen worked in the Office of Legal Counsel during the Clinton administration for five years, including a year as acting assistant attorney general in charge of the office.
Her nomination to return to the office that provides constitutional guidance to the executive branch has shaped up as a test for all parties involved, pitting Republicans' willingness to try to block her nomination against Democrats' ability to force a vote. She is the first of President Barack Obama's nominees for the Justice Department not to receive at least some Republican support in the Judiciary Committee.
A vote by the full Senate is not likely until next week at the earliest.
Sen. John Cornyn, R-Texas, said there are two reasons he could not support Johnsen. He accused her of making "numerous intemperate statements" and "ad hominem attacks" in her popular writings, including when she questioned Republicans' motives in supporting an Indiana law that requires an identification card to vote.
Cornyn also accused her of "retreating into the law-enforcement paradigm" in anti-terrorism policies because Johnsen does not support a broad view that the United States is at war with terrorism. She said in her confirmation hearing that the United States is at war with al-Qaeda. "As I see it, Dawn Johnsen has not demonstrated the seriousness and necessary resolve to address the national security challenges we face," Cornyn said.
In written answers to questions from senators, Johnsen has pushed back against that suggestion. For example, regarding the trial of detainees, she wrote that the Constitution does not limit Congress and the president to using either military courts or civilian courts. The Constitution allows other options, she wrote.
In response to Cornyn, Senate Democrats fired back that Republicans are holding Johnsen to a higher standard than other nominees for the office have faced. Sen. Ben Cardin, D-Md., said that Jay Bybee, who signed one of the most controversial OLC memos of the Bush administration, faced only six questions in 2001 during his confirmation hearing to lead the office.
Sen. Sheldon Whitehouse, D-R.I., called the Office of Legal Counsel the "most rotten place in the United States government during the Bush administration," and he said he would welcome a lengthy Senate floor debate with Republicans. "Where were you when the problem was really acute? Where were you when these incompetent, ideological opinions were being issued, one after another?" he asked.
The only committee member who did not vote on Johnsen's nomination was Sen. Arlen Specter, R-Pa., the ranking Republican on the committee. He passed and explained that he plans to meet with Johnsen again before deciding whether to support her.
Specter said he wants to hear more about Johnsen's brief for the 1989 abortion-rights case Webster v. Reproductive Health Services, in which Johnsen, in a footnote, suggested that restrictions on abortion could violate the 13th Amendment's prohibition of slavery because they put women at the service of a fetus. Johnsen echoed that argument in an interview with Glamour magazine that same year. In her written answers to senators, Johnsen said she does not believe the 13th Amendment is relevant to abortion litigation, and she said that the Webster brief resulted from the collaboration of many lawyers.
"This is a very important position, and I'm reserving judgment until I talk to her," Specter said Thursday, noting that the late Chief Justice William Rehnquist was among those who once led the Office of Legal Counsel.
This article first appeared on The BLT: The Blog of Legal Times.
