Johnsen to be reconsidered for controversial national position

After her nomination to head the Office of Legal Counsel was returned to the president at the end of 2009, an Indiana University Maurer School of Law – Bloomington professor is expected to be renominated by President Barack Obama.

While the president first announced he planned to nominate Dawn Johnsen Jan. 5, 2009, he formally nominated her Feb. 11, 2009, three weeks after his inauguration. She addressed the Senate Judiciary Committee Feb. 25, 2009, and the committee approved her nomination 11-7 along party lines March 19, 2009.

The Senate Judiciary Committee will once again need to approve her nomination before it could go to the full Senate. This has already caused controversy following reports the Republicans on that committee may ask to hold another hearing about Johnsen's qualifications and further delay the process.

This was likely brought up because Sen. Arlen Specter, D-Penn., publicly stated he would vote in Johnsen's favor in response to comments from another candidate for his position in the Senate. Specter's vote would give Johnsen at least 60 votes when counted with other Democratic senators who said they would vote for her, as well as a vote from Indiana's Republican Sen. Richard Lugar, who said in April 2009 he would vote for her. This would be enough for a cloture to stop a filibuster and for the nomination to be confirmed.

Why a renomination

Johnsen's nomination was returned to the president the last day the Senate met last year, Dec. 24, because of provisions of Senate Rule XXXI, paragraph 6 of the Standing Rules of the Senate, according to the Senate Judiciary Committee's Web site.

That paragraph states: "Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President."

On Dec. 24, almost three dozen nominees were confirmed, and Johnsen was among the seven nominees sent back to the president. She and five others are expected to be renominated; the seventh has a different process due to his position, but no reports have suggested he won't be renominated as well.

Hannah Buxbaum, executive associate dean for academic affairs and professor of law at the school, said she is confident Johnsen will be renominated and has "no reason to doubt the accuracy of those reports" from news media in early January.

Repeated requests for comment from the White House and Sen. Evan Bayh's office have not been returned, although an administration official told Indiana Lawyer in early January that the president plans to renominate Johnsen once Congress returns Jan. 20.

"We feel she's eminently qualified for the position," Buxbaum said. "She's a leading constitutional law scholar, particularly on the topic of separation of powers and other topics related to the position. More importantly, she already served in the position."

Johnsen worked for the Office of Legal Counsel during the Clinton Administration from 1993 to 1998, including one year as acting assistant attorney general, 1997 to 1998.

Why she's controversial

But conservative groups have focused more on her work before her position with the Office of Legal Counsel.

Pro-life advocates, particularly Catholic organizations, have been publicly against her because of her position as legal director of NARAL Pro-Choice America from 1988 to 1993. She was also a staff counsel fellow for the American Civil Liberties Union's Reproductive Freedom Project in New York City from 1987 to 1988.

"Dawn Johnsen is not someone who simply takes issue with the Catholic Church's pro-life position: she wants to punish the Church," Bill Donohue of the Catholic League said in a statement on that organization's Web site Jan. 8. "In the late 1980s, she joined a cadre of anti-Catholics to strip the Catholic Church of its tax exempt status. The charge? The Church was guilty of violating IRS strictures because it took a strong pro-life position. The lawsuit failed."

Other groups disagree with her strong positions regarding the Office of Legal Counsel's actions during the administration of President George W. Bush.

She, along with 18 others who formerly worked for the office, released the "Principles to Guide the Office of Legal Counsel" Dec. 21, 2004.

The first principle stated: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the President's constitutional obligation to ensure the legality of executive action."

Who's supporting her

Johnsen has had support from civil rights organizations, women's rights organizations, law students and law professors, including a letter signed by 75 law school professors from Indiana sent to Lugar in April 2009.

There is also a Facebook page dedicated to her nomination process. "We Support OLC Nominee Dawn Johnsen" had 851 members as of Jan. 14. Conversely, the Facebook page "Stop Dawn Johnsen" had 20 members as of the same date.

Buxbaum said she doesn't expect the nomination process will be immediate this time around and that Johnsen, who taught classes at the school last semester, is scheduled to teach again this semester. Johnsen will commute from her home in Washington, D.C.

Regarding a class she taught during the fall 2009 semester, Thomas Cook, a law student and blogger for www.BlueIndiana.net posted Aug. 25, 2009, that "students began lining up at 5:30 a.m. yesterday for a chance to be added to Professor Dawn Johnsen's seminar at the Indiana University Maurer School of Law. … I thought it was worth noting that despite the right-wing smears that attempt to portray Johnsen's teaching style as something out of a Roald Dahl piece, I have heard nothing but glowing reviews in recent weeks from both conservative and liberal students as to Prof. Johnsen's fairness in the classroom."

Roald Dahl is the author of a number of children's books in which students are poorly treated and sometimes abused by their teachers and headmasters.

Cook told Indiana Lawyer via e-mail that 5:30 a.m. was not an exaggeration, and he "personally was there over an hour before the recorder's door opened" to sign up for Johnsen's class.

About 10 students took the class, he said, and they were "acutely aware that this might be their last opportunity to benefit from Professor Johnsen's teaching before she left the school. The inperson portion of the class wrapped up within five weeks, but Professor Johnsen was continuously engaged throughout the semester, including both inperson paper workshops and electronic communication."

The class was originally scheduled to end before fall break in case Johnsen would be confirmed at that time.

While Johnsen has told Indiana Lawyer she can't talk about the nomination process while it is pending, Buxbaum said the two had been in touch about Johnsen's duties for the law school. "We are delighted to hear the president is planning to renominate her," Buxbaum said, "and we look forward to her confirmation."