Defending Dawn Johnsen, if you can call it that

The Washington Post editorial board calls on the Senate to confirm Dawn Johnsen as head of the Department of Justice’s Office of Legal Counsel. The editorial is almost entirely content free. The Post complains about some of those who headed OLC during the Bush administration, and it labels the objections to Johnsen (which centrist Arlen Specter found persuasive) “petty politics.” But the only argument the Post advances is that Johnsen showed she can put aside her leftist ideology when she worked in the Clinton Justice Department.

The Post relies here on instances supplied by Douglas Kmiec in which Johnsen “observed the law even though it was at odds with her personal beliefs.”

The Post wisely declines to describe Kmiec’s two examples. In fact, they could hardly be less compelling. In one, Johnsen adhered to a non-waivable statute of limitations in a discrimination case despite the fact that she was “personally appalled by racial discrimination in certain federal loan programs.” In the other, she did not “disregard a congressionally specified oath requirement” despite being “sympathetic to immigrants seeking naturalized status.”

The Post may be impressed that, as a lawyer representing the United States, Johnsen did not ignore the unambiguous language of the United States Code. But as OLC chief, Johnsen will not be dealing with these kinds of no-brainers. The real question is whether Johnsen will put her left-wing policy preferences to one side in cases where the applicable provisions are not air-tight.

As I have argued in prior posts, her pre-nomination statements strongly suggest that she will not. Neither Johnsen, Kmiec, nor the Washington Post has provided any reason to believe that she will.


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