- The Washington Times - Thursday, May 7, 2009

COMMENTARY:

Dawn Johnsen, President Obama’s nominee to lead the Justice Department’s Office of Legal Counsel, is reportedly under threat of filibuster from Republicans who believe she would use that powerful office as a platform for advancing a liberal political agenda.

These concerns stem not simply from Ms. Johnsen’s resume, which includes stints as the legal director for NARAL (abortion rights organization) and staff counsel fellow for the American Civil Liberties Union’s Reproductive Freedom Project, and from her strident blog posts attacking the Bush administration. They also stem from her exhortations that the progressive legal community be “prepared for power.”

At a 2006 conference organized by the liberal Center for American Progress, Ms. Johnsen credited conservatives with designing a blueprint for redesigning constitutional law and American policy and then implementing that blueprint when they achieved political power.

She stressed the need for progressives to do basically the same thing by formulating “a vision of what the country should be” and a “well-developed progressive vision of the whole range of constitutional issues” for use when political power arrives.

Ms. Johnsen’s fiery activism was enough to concern Sen. Dianne Feinstein, California Democrat and the liberal chairman of the Senate Judiciary Committee. Noting Ms. Johnsen has been “a real activist” with “such a pronounced, definitive record,” Mrs. Feinstein wondered if the nominee “can give all of that up” when she goes into government.

Recently, Doug Kmiec, once an official in the Ronald Reagan and George H.W. Bush Justice Department and now an ardent supporter of President Obama, tried to address this concern. He asserted that Ms. Johnsen possesses the “very spunk and independence of mind that make her the right tonic for a once proud, but recently tarnished, office.”

As proof of Ms. Johnsen’s spunky independence, Mr. Kmiec offers two instances from Ms. Johnsen’s tenure as a lawyer in the OLC when she chose to side with clear law rather than her personal views. In one instance, she adhered to a nonwaivable statute of limitations though she was “personally appalled by racial discrimination in certain federal loan programs.” In another instance, she did not “disregard a congressionally specified oath requirement” despite being “sympathetic to immigrants seeking naturalized status.”

Mr. Kmiec may find these examples comforting. Others may wonder why the nominee, who has also cited the discrimination case as demonstrating her independence, would find it worth mentioning that as a lawyer representing the United States, she did not flout the unambiguous language of the United States Code.

The two instances cited by Mr. Kmiec fail to demonstrate that Ms. Johnsen would refuse to put her political agenda ahead of the Constitution or national policy in cases where the issues are more difficult and the law less clearly defined. And these are precisely the cases in which the independence of an OLC chief is tested.

Consider OLC’s advice to Mr. Reagan concerning the constitutionality of the line-item veto, authority for which he desperately longed. In his 1986 State of the Union address, Mr. Reagan had implored Congress: “Give me a line-item veto this year. Give me the authority to veto waste, and I’ll take the responsibility, I’ll make the cuts, I’ll take the heat.” And Mr. Reagan had the support of opinion leaders and scholars who believed the president already possessed inherent item-veto power.

Yet when Mr. Reagan asked Charles J. Cooper, then head of OLC, to advise him on the constitutionality of the line-item veto, Mr. Cooper responded that the president could not attempt to exercise such a power. Mr. Cooper said, “I had no task less welcome than advising him against it.” And, unlike Ms. Johnsen in the examples Mr. Kmiec cites, Mr. Cooper lacked the easy out of citing an unambiguous statute or judicial opinion. The Supreme Court opinion on the matter did not come until a decade later.

Nothing in Mr. Kmiec’s thin defense of Ms. Johnsen offers any reason to believe she will act as Mr. Cooper did. Her pronouncements are strong evidence to the contrary.

Indeed, Ms. Johnsen could hardly have been more clear - the political vision she has been helping to craft since her days as an advocate of abortion rights in the 1980s is not an academic exercise; it’s a blueprint for the changes to be made when political power is obtained. Why would anyone be confident that, if she finally gains power, Ms. Johnsen will act impartially on legal issues that implicate her agenda?

The president is entitled to considerable deference is filling Cabinet and sub-Cabinet posts, and that deference has been accorded on a host of liberal nominees. However, Mr. Obama has nominated a legal and political activist to serve as the executive branch’s constitutional lawyer, a post that Democrats have been insisting requires independence from politics.

Story Continues →