Judiciary Committee Reports Johnsen Nomination

WASHINGTON (Thursday, March 19, 2009) – The Senate Judiciary Committee Thursday ordered the nomination of Dawn Johnsen to be the Assistant Attorney General for the Office of Legal Counsel to be reported to the full Senate for consideration.  Johnsen testified before the Committee on February 25

Johnsen’s nomination is now one of three Department of Justice nominations pending on the Senate’s executive calendar.  Also awaiting votes in the Senate are the nominations of Elena Kagan to be the Solicitor General of the United States, and David Kris to be the Assistant Attorney General for the National Security Division.  The Senate is expected to debate Kagan’s nomination later today.

Chairman Patrick Leahy (D-Vt.) gave the following statement during the Judiciary Committee’s consideration of Johnsen’s nomination.  Materials related to the nomination are available online.


Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
On The Nomination Of Dawn Johnsen
To Be Assistant Attorney General For The Office Of Legal Counsel
Executive Business Meeting
March 19, 2009

Today, the Committee will turn to President Obama’s nomination of Dawn Johnsen to lead the Department of Justice’s Office of Legal Counsel.  If confirmed, she will be the first woman to be confirmed by the Senate and appointed by the President to head this important component of the Justice Department.   It is Women’s History Month.  Let’s help the President make history by sending this nomination to the floor.  Let’s not take a step backward to the days when women were not allowed to be lawyers or hold the top jobs, when Sandra Day O’Connor was only offered secretarial jobs after she graduated from Stanford Law School.  It is my hope that we will not see another double standard applied today as we consider this nomination. 

Dawn Johnsen’s nomination has a good deal of well-deserved support.  I recommend to all Senators the letter I received yesterday from Walter Dellinger, a former head of the office and will include a copy in the record.  It serves to recommend the nominee in an extraordinarily comprehensive manner.  Mr. Dellinger supervised Professor Johnsen when she began her work in that office and knows her and her work well.  He rightly points to her experience as a strong qualification:  “Because of her exemplary resume, her extraordinary legal credentials, her extensive body of scholarship exploring issues of separation of powers, and her substantial prior experience in the Office of Legal Counsel, Dawn comes to the leadership of OLC as the most highly qualified nominee in memory.”  He concludes: “I believe that Dawn Johnsen will be the best head of OLC in the history of the office.” 

Professor Johnsen has been open about her writings as a professor, the causes she has advocated, and her personal beliefs.  Senators on this Committee have read her writings and asked her questions in an open, public hearing.  In addition, Professor Johnsen has answered more than 165 written follow-up questions.  She has responded to questions about terrorism, detainee treatment, the war on terror, executive power, warrantless wiretapping and electronic surveillance, the use of military force and CIA operations against al Qaeda, extraordinary rendition, guidelines for the proper operation of OLC,  reproductive rights, the judicial nominations process, a “progressive agenda”, voter ID laws, the Supreme Court’s decision in Bush v. Gore, enforcing and defending the Constitution, obscenity and child pornography, and the list goes on and on. 

On one hand we hear complaints from some Republican Senators that President Obama’s nominees are not providing sufficient information for Senate consideration, on the other hand, Professor Johnsen is being criticized because she has been too forthcoming with the Committee.  Professor Johnsen’s candor should not be now used against her. 

As Mr. Dellinger explains in his letter, to suggest that Professor Johnsen would not be able to set aside her personal views if confirmed is false.  She has done the job and has already demonstrated her ability to do it without regard to her personal views.   A five-year veteran of the office she has been nominated to lead, Professor Johnsen has a deep understanding of what the responsibilities of the Office of Legal Counsel.  

Indeed, when the excesses of the Bush administration’s legal policies and its misuse of the Office of Legal Counsel were emerging in 2004, Professor Johnsen tried to protect OLC’s integrity and processes.  She brought together 19 former OLC attorneys and led them in the formulation of 10 “Principles to Guide the Office of Legal Counsel,” based on longstanding practices of OLC under both Democratic and Republican administrations. 

When Senator Specter pressed for an answer about whether she was involved in legal opinions on extraordinary rendition and detainee policy when she served in the Office of Legal Counsel during the Clinton administration, she answered his question. 

I wish that other nominees to that office had been as forthcoming.  When I asked Jay Bybee about his work in that office when President Bush nominated him to a lifetime appointment, he refused to answer.  When we asked questions of Stephen Bradbury, he refused to answer.  It was not until Professor Jack Goldsmith left the office and published his book The Terror Presidency that we learned of his work.  None of the Bush nominees were as forthcoming during their confirmations as Professor Johnsen has been.  Again, I trust that a double standard will not be applied to her.

I believe that Professor Johnsen understands that we must ensure that the rule of law is restored as the guiding light for the work of the Department of Justice.  I urge all Members of the Committee to join in supporting her nomination.

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