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Kmiec on Dawn Johnsen:

Former OLC head Douglas Kmiec argues in the Legal Times that Senate Republicans should not obstruct the confirmation of Dawn Johnsen to be head of the Office of Legal Counsel at the Justice Department. I agree. He writes:

Even as Johnsen, a professor of law at Indiana University-Bloomington, may be faulted on occasion for harsh language in her academic commentary on the missteps of the Bush Justice Department, it is that very spunk and independence of mind that make her the right tonic for a once proud, but recently tarnished, office.

Under proper supervision, the OLC is a vital internal check upon executive overreaching, a faithful defender of constitutional principle, and a reliable interpreter of congressional intent. Many notable legal figures have served as head of the office, including Nicholas Katzenbach, Malcolm Wilkey, Theodore Olson, Walter Dellinger III, Justice Antonin Scalia, and the late Chief Justice William Rehnquist.

Sen. John Cornyn (R-Texas) properly insists that the next OLC chief must be of the “requisite seriousness.” Johnsen is. She understands the fundamental difference between academic commentary and giving legal opinion on behalf of the United States. That she has sharply criticized some conservative policy is no more relevant to her ability than if she liked outré modern art and displayed it in her living room. Indeed, as a former OLC deputy (during the Clinton administration) and a respected scholar of the executive, she has a uniquely well-informed understanding of the OLC’s role as honest broker. For this reason alone, she merits the Senate’s approval.

UPDATE: In the comments below, a reader asks: "Do you think that Dawn Johnsen would make a good head of the OLC? Or do you just think that a president should generally get the people they want in their administration? (Assuming no criminality, et cetera.)" Taking the second question first, I certainly believe that a President should receive wide latitude in filling out his Administration. As for the first question, the short and honest answer is that I don't know, but I suspect that some Republicans have been too quick to attack her based upon her public comments critical of the Bush Administration. While she would not have been my choice, I don't think that's the relevant standard.

The biggest knock on Johnsen seems to be that she was too critical of the Bush Administration and, in particular, seemingly dismissive of the national security concerns that prompted some Bush Administration decisions. But I hardly think a handful of blog postings or casual remarks are the best measure of a nominee. Just because Johnsen has made pointed and partisan comments in the past does not mean she she would be incapable of faithfully performing her responsibilities at OLC. Indeed, we've seen reasonably "partisan" figures (e.g. Ted Olson) perform quite admirably and independently within the Justice Department, their prior partisan affiliations or strong political views notwithstanding.

Given the extent to which Johnsen has written about the importance of distinguishing the advisory role of an OLC attorney from the advocacy role attorneys often play, I would expect her to be attentive to this distinction if/when she is confirmed. Might she reverse some Bush Administration positions? Of course, but so will any Obama nominee to OLC. I do not know Johnsen personally, but I have spoken with attorneys who are familiar with her work at OLC during the Clinton Administration who believe she understands the importance of maintaining OLC independence and resisting political pressures. So while I think it is perfectly reasonable for Republican Senators to ask her probing questions about her views of various issues and her understanding of OLC's responsibilities, I do not see any reason to oppose her confirmation.

SECOND UPDATE: Glenn Reynolds chimes in:

Some people don’t like Dawn Johnsen because she’s a liberal feminist. Okay, fine — if you’re President, you don’t have to name somebody like that to the Office of Legal Counsel. But the chance that Obama will name someone who’s to the right of Dawn Johnsen is relatively low, so if you succeed in knocking her off, you’ll still get a lefty. Just a different one.

What kind of different one? Well, Johnsen has spent years arguing for openness and independence in the OLC. In that position, she’s likely to try to live up to those arguments, both because she believes them, and because she knows that people will be watching to see if she can live up to the standards she set out. This will probably constrain her, and by extension, Obama, to a degree that won’t apply if you succeed in knocking her off and she’s replaced by someone more in the mold of Eric Holder or Rahm Emanuel. This would seem to me to be a feature, not a bug. But hey, if you disagree, by all means oppose her confirmation. Just don’t complain when someone more pliable gets named instead.

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