The Right’s Attack on Dawn Johnsen

by David H. Gans, Director of the Human & Civil Rights Program, Constitutional Accountability Center

Indiana University Law Professor Dawn Johnsen, President Obama’s nominee to head the Justice Department’s Office of Legal Counsel (OLC), should be sailing through her confirmation hearings. Not only is she an immensely talented lawyer and scholar, but she also served for six years in the Office of Legal Counsel during the Clinton Administration, including two years as acting chief of the office. It is difficult to imagine a more qualified nominee, and indeed Johnsen has drawn support from many great lawyers who have served at OLC under Republican and Democratic presidents.

Nonetheless, Republican Senators are contemplating a filibuster to block her nomination, fed by the claims of conservative activists that she will rewrite the law to suit her political views.

This is the line we have come to expect of the Right (i.e. liberals don’t care about the Constitution’s text and history) but it is particularly outrageous in the case of Professor Johnsen. In her published writings, Johnsen goes out of her way to emphasize the importance of “fidelity to constitutional text and structure,” making clear that “[c]onstitutional interpretation should be grounded in text.” Far from being an activist willing to bend the law for the sake of politics, Johnsen takes the Constitution’s text and structure seriously, as her record shows.

Johnsen’s critique of the work of the OLC under President George W. Bush is a case in point. Johnsen rightly criticized her predecessors for their extravagant view of presidential powers. While the Constitution gives the President the title “Commander in Chief,” it also demands that the President “take Care that the Laws be faithfully executed,” and gives broad lawmaking power to Congress to “declare War,” “make Rules concerning captures on Land and Water,” and “make Rules for the government and Regulation of the land and naval forces.” John Yoo and other members of the Bush OLC team over-read one portion of the Constitution’s text (the Commander in Chief Clause) and ignored the rest to give President Bush a blank check to disregard Congress in the conduct of the “war on terror.”

Like anyone who sits as the head of OLC, Johnsen will be an advocate for presidential power. But Johnsen can also be trusted to comply with the distribution of powers set forth in the Constitution. All Americans should be grateful for this return to constitutional fidelity.

Much of the conservative attack on Johnsen centers around her years as an advocate for a woman’s right to reproductive choice. Given how rarely OLC addresses the issue of abortion rights, this is plainly an effort to manufacture controversy to distract attention from Johnsen’s unquestionably stellar credentials. But even here – where conservatives are fond of bashing supporters of Roe v. Wade – we see Johnsen’s dedication to the Constitution. Professor Johnsen roots the right to choose abortion directly in the text of the Constitution. She recognizes that the Fourteenth Amendment guarantees liberty substantively (primarily in the Privileges or Immunities Clause), and assures the equal protection of the laws for all, women as well as men. She argues that these textual protections of substantive liberty and equality should be read to include the right to choose abortion, lest we return to a time long ago – now discredited by the Constitution – when women’s primary role was to bear and raise children. Conservative critics of Johnsen don’t even have the courage to take on these arguments; instead, their attack has focused on blowing out of proportion a footnote in an amicus brief that Johnsen filed in a case two decades ago, which suggested that forced childbearing was “disturbingly suggestive” of the involuntary servitude prohibited by the Thirteenth Amendment. Rather than have a real debate about the Constitution’s protection of substantive liberty, conservatives are resorting to irrelevant distractions in an effort to tarnish Johnsen’s distinguished record and obvious qualifications.

President Obama needs a lawyer’s lawyer to run OLC: someone who will give him the advice he needs about what the Constitution demands, even when it might not be the advice he wants to hear. Johnsen’s record, and the testimonials of those who know her work as lawyer and a scholar, show her to be just that kind of lawyer. Johnsen has staked her career on fidelity to the Constitution and she should be confirmed to head OLC for precisely that reason.

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