In their latest push to confirm Dawn Johnsen to lead the Office of Legal Counsel, Democrats are charging Republicans with hypocrisy, saying the GOP is simultaneously stressing the importance of the position while refusing to allow it to be filled.
Republicans seeking to quash the nomination have cited a Justice Department report released last month that underscores how crucial the OLC position is to the war on terror.
“Those issues indicate the importance of the OLC position and the need to have someone of innate experience in that position,” Senate Judiciary ranking member Jeff Sessions (R-Ala.) said.
Added Sen. Orrin Hatch (R-Utah): “In this day and age, someone is always going to say you’re a hypocrite, but [Johnsen’s] positions are off the wall.”
But the argument is a tricky one for Republicans, who in making their case against Johnsen open themselves up to criticism for actions taken during the Bush years. The same report they cite in support of their effort to block Johnsen, one of President Barack Obama’s most controversial nominees, was critical of the office during the Bush administration.
“It’s a remarkable exercise in backwards logic,” Sen. Sheldon Whitehouse (D-R.I.) said. “Their argument states that because our party went and wrecked the place, we don’t want your party going in there.”
Specifically, the Office of Professional Responsibility report found that Justice Department officials serving under President George W. Bush slanted their legal writings to approve controversial interrogation methods, including waterboarding. However, the report did not suggest any formal punishments for the officials singled out for criticism, including Steven Bradbury, John Yoo and former OLC head Jay Bybee.
“Those who defend John Yoo and proclaim that the nation should be grateful to him for what he did, ought not to be questioning the seriousness and qualifications of this woman of principle,” Senate Judiciary Chairman Patrick Leahy (D-Vt.) said during last week’s markup. “I believe that Professor Johnsen has demonstrated her resolve in national security matters, her seriousness and her commitment to the rule of law. She should be confirmed.”
But Hatch praised Bush officials and asserted that Johnsen is unfit for the office.
“There is a difference between someone who is bright and who has wacko opinions, and in some ways, she does,” Hatch said. “I don’t mind that in other positions, but I do in this position.”
Sessions noted that Bybee was confirmed just after Sept. 11, 2001, and that his work from 2001 to 2003, when he left his OLC position to become a judge on the 9th Circuit Court of Appeals, shows he took seriously the war on terror.
But Johnsen, Sessions said, “is a leading critic of the war on terror and questions whether we’re at war.”
“That’s a problem” he said.
The Judiciary Committee approved Johnsen’s nomination, 12-7, along partisan lines March 4, marking the second time the committee considered the selection. Johnsen’s nomination was the subject of numerous holds last year, and in accordance with Senate rules her nomination was returned to the White House at the end of the first session of the 111th Congress. Obama renominated her in a move hailed by liberal advocates and despised by conservatives.
Johnsen, an Indiana University law professor who served in a deputy role at the OLC under President Bill Clinton, has been widely criticized by Republicans for her views on abortion and the war on terror.
Sessions promised that Johnsen’s nomination “will be one of the few that I think will be contested with the Senate’s full procedural rules,” a practice that has drawn the ire of Leahy.
“Unfortunately, the Obama administration’s attempts to repair this office and ensure that its lawyers are providing the government with principled advice have been hamstrung by Senate Republicans who continue to delay appointment of the president’s nominee to head the OLC,” Leahy said during the markup.
Senate Majority Leader Harry Reid (D-Nev.) will likely have to file for cloture to steer Johnsen’s nomination, requiring him to pick off a handful of Republicans to reach the 60 votes needed. Sen. Dick Lugar (R-Ind.) supports Johnsen’s nomination, although Sen. Ben Nelson (D-Neb.) has repeatedly said he would not vote for cloture.
With the midterm election season heating up, it is unclear whether Reid would want to pick a floor fight over such a controversial figure.