Last night, I argued, based on Dawn Johnsen’s own statements, that if confirmed as head of the Justice Department’s Office of Legal Counsel, she can be expected to use that office to advance the “progressive” ideas she has developed in order to be “prepared for political power.” Her statements on this subject have been so clear that even Diane Feinstein questioned whether she can “give up” her “activism” as head of the OLC.
In the same vein, another Democratic Senator (Kaufman of Delaware, I believe) asked Johnsen to provide an example of when, during her prior stint at OLC, she gave legal advice that went against her political leanings. The only instance she could cite was a case in which the Clinton administration apparently wanted to waive the statute of limitations so that the government could pay African-American farmers who alleged discrimination by the government. Johnsen says she advised the administration that it could not waive the limitations period and that a legislative fix would be required. Such a “fix” was then enacted.
Later, in her responses to Sen. Hatch’s written questions, this was still the only example Johnsen could come up with.
The most revealing thing about this example is that Johnsen would consider it a meaningful instance in which the law trumped her policy preferences. It is hardly reassuring that Johnsen’s ideological vision extends all the way down to waiving the statute of limitations in a one-off discrimination case. Resisting that result in favor of a legislative fix does not strike me as a “profile in courage.”
Johnsen should be taken at her word. She has worked diligently to “develop what it is we think the vision of the country should be” for the purpose of “prepar[ing] for political power.” It would be foolish to assume that, on the big questions, Johnsen will not do what she can to implement that vision once she obtains that power.