At her Senate judiciary committee hearing this afternoon, Dawn Johnsen must show why she is fit to be head of the Office of Legal Counsel, the supersecret government office tasked with advising the executive branch on the law. And professor Johnsen is repeatedly scolded for her tarnished history as an “advocate.” In the weeks since she was nominated for this job, she has been tarred on the far right as an abortion-loving, terrorist-coddling nut job, despite unimpeachable legal credentials and bipartisan support. The diminutive university professor, mother of two, and Methodist Sunday-school teacher speaks in tones just this side of “whispery.” And with armies of cousins, aunts, and preteen sons arrayed beyond her today, it’s tough to see her as anybody’s zealot. Still, Jeff Sessions, R-Ala., accuses her outright of “blogging, advocating, and speeching for the opposite side.”
In fact, Johnsen’s sternest reprimand of the day comes from Sen. Dianne Feinstein, D-Calif., who warns that the problems of the last eight years were caused because the OLC “went far to the right” and cautions that she does not want the office “to go that far left” on Johnsen’s watch. (Hard even to imagine what the left-leaning parallel to John Yoo’s OLC might look like. Daily yoga drills? Forced huggings for enemy combatants?)
“You have been an activist,” intones Feinstein. “You said when you go in that door you will give all that up. Can you do that?” And Johnsen, sounding like she’s an inpatient at some exclusive advocacy rehab center in Utah, is forced to repeat, again and again, that her mission at the OLC is to adhere to and promote the rule of law.
Part of the problem is that over the past eight years, Johnsen (whom I know a little and admire a lot) has burnished her academic and professional credentials with punditry, bloggery, and advocacy. This makes her an easy target for criticism. She has spoken out clearly! She has criticized openly! She has used language like “outrage” and “torture” to describe outrages and torture. Curiously enough, nobody on the committee disagrees with these legal conclusions today. They’re just mainly bothered that she said them aloud.
Luckily for Johnsen, her advocacy also took the form of spearheading a painstaking process by which 19 former OLC lawyers collaborated in 2004 to form the 10 “Principles To Guide the Office of Legal Counsel.” (She discussed it here). These principles are a neutral list of best practices for the office—they include such radical notions as providing legal advice as opposed to advocacy, compliance with the law, transparency, and respecting the views of courts and Congress. Virtually every question posed to Johnsen by the committee today can be answered by referencing one of the principles. As a result, Johnsen manages to look temperate and moderate while the committee looks like a pack of anti-advocacy advocates.
The low point comes when Sen. Arlen Specter, R-Pa., begins to question Johnsen on a position she has allegedly taken, declaring that abortion bans are a violation of the 13th Amendment ban on slavery. Johnsen responds that she was shocked to see this analysis in a piece in the National Review, which pulled a footnote out of a brief written 20 years ago, tore it out of context, then baldly misstated Johnsen’s position as concluding that “forced pregnancy” somehow “violates the Thirteenth Amendment, which prohibits slavery.” Johnsen clarifies today that she at no point argued that abortion bans violate the 13th Amendment and explains that the footnote in question merely noted that forced pregnancy is “disturbingly suggestive of involuntary servitude.” Some might call this radical lawyering. Others call it legal argument. Specter seems to understand the difference when he mutters, “I’ll take a look at footnote 23. I don’t have a lot of time.”
The only other advocacy Johnsen is scolded for today is something she said or wrote about Justices John Roberts and Samuel Alito and their failure to answer questions at their confirmation hearings. Specter is not clear about the source for the quote. Johnsen seems to think it was a blog post. I cannot find it anywhere, although she did say something about a “stealth attempt to remake constitutional law” at a panel discussion.
Johnsen ultimately proves herself to be somewhat less radical than many of the Democrats on the committee might have hoped. She tells Feinstein that she will release classified OLC memos unless there are “compelling national security reasons” not to. When Sen. Sheldon Whitehouse, D-R.I., asks how the process for reviewing the previous OLC’s flawed memos will unfold, she tells him she plans to “start with ones that may have ongoing application.” Whitehouse stops her to say she needs to focus both on the ongoing memos and also on a “lookback” at those that were withdrawn. But Johnsen, like her bosses, is clearly more interested in moving forward. Sen. Lindsey Graham, R-S.C., asks whether we are “at war” with al-Qaida, and she says, “Yes, we are” the way some of us recited our wedding vows. She tells him that under the laws of armed conflict, we can hold the enemy until the end of hostilities.
But for those of us who have become accustomed in the past weeks to being grateful for half a loaf, Johnsen offers up three-quarters. She says torture is illegal and water-boarding is torture. She clarifies that the president may not order torture if duly enacted laws prohibit him from doing so. She opposes presidential abuse of signing statements. She says the OLC should have a preference for transparency. She pledges not to halt or interfere with the release of the impending Office of Professional Responsibility report about the competence of previous OLC opinions. And when Sen. Whitehouse describes the previous administration’s OLC as “Dick Cheney’s Little Shop of Legal Horrors,” she cracks a grin.
David Kris, who is seeking confirmation as assistant attorney general for the National Security Division, gets off a good deal easier than Johnsen today. Particularly when Orrin Hatch, R-Utah, tells him, “I’m going to support you. You are extremely honest and extremely intelligent.” But the other guy who gets off easy is John Yoo, author of the OLC’s torture memo. Jeff Sessions concludes his questioning of Johnsen by noting sadly that Yoo really was the victim here. “He was asked something he shouldn’t have been asked: How much power does the executive have?”
Yoo’s answer to that query was, “Whatever it wants.” Johnsen’s is far more complicated. How she became tarred as the “radical activist” is a question nobody asks.