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The Senate should confirm Dawn Johnsen

Obama's choice to head the Office of Legal Counsel is more than qualified, and the GOP obstruction to her confirmation needs to end.

January 28, 2010

It has been 10 months since the Senate Judiciary Committee voted to recommend the confirmation of Indiana University law professor Dawn Johnsen, President Obama's well-qualified nominee to head the Justice Department's Office of Legal Counsel. With the announcement by Sen. Arlen Specter (D-Pa.), once a critic of Johnsen, that he will support her, the logjam over the nomination seems about to break and a successful filibuster seems unlikely.

Nevertheless, Republicans on the panel haven't given up; they now say they'll try to delay a second committee vote on Johnsen scheduled for today. Citing "several incidents affecting our national security" -- including the attempted destruction of an airliner on Christmas Day -- they're again raising questions about "her dedication to aggressive executive action in national security matters."

The Office of Legal Counsel, which interprets law for the executive branch, became notorious in the days of John Yoo, a George W. Bush appointee who provided his bosses with specious legal opinions giving cover to the use of torture in the interrogation of suspected terrorists. Johnsen was scathingly critical of the Bush-era office, asking in one blog post: "Where is the outrage, the public outcry?!" Republicans who had no problem with the office interpreting the law to accommodate the Bush administration's tactics in the war on terror now fault Johnsen for supposedly harboring a liberal agenda.

But Johnsen isn't simply a Yoo in reverse. She was among a group of former Office of Legal Counsel lawyers who published a thoughtful position paper about its mission. "When providing legal advice to guide contemplated executive branch action," the paper said, "OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."

That philosophy obviously is a rebuke of the way the Bush Justice Department operated. But it also could lead the office to take a more critical look at some dubious Obama administration initiatives, including the president's apparent intention to hold 50 Guantanamo detainees without trial.

Opposition to Johnsen isn't completely, or even primarily, about national security. Anti-abortion groups oppose the nomination because she served as legal director of the National Abortion and Reproductive Rights Action League from 1988 to 1993. But whether rooted in nostalgia for Bush terrorism policies or antipathy to her abortion-rights stance, the obstruction of this nomination is and always has been unjustified. The committee should promptly send it to the floor.

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