Dawn Johnsen will be questioned today by the Senate Judiciary Committee with respect to her nomination as head of the Office of Legal Counsel, along with David Kris, who has been nominated to head the National Security Division. The Office of Legal Counsel is the key Justice Department office advising the President on issues of executive authority. As a friend and colleague of Professor Johnsen for years — including a colleague when we both worked at OLC in the 1990s — I am completely confident that the Constitution will be in excellent hands with her as head of the Office, and that President Obama has chosen well. That’s my opinion, as well as my disclosure of bias for what follows.
Andrew McCarthy, writing for the National Review, has attacked Professor Johnsen and her legal views. Much of his article recalls positions she took in legal filings for NARAL when she was its chief counsel, 1988-93. During a period in which a woman’s right to choose seemed as vulnerable as it has at any time since Roe v. Wade, NARAL’s legal positions were those of a staunch protector of the right, and their legal papers advanced multiple arguments for that right. All of Professor Johnsen’s NARAL work falls well within the boundaries of honest representation of an employer or client. The Judiciary Committee regularly considers nominations of practicing lawyers to positions in the executive branch and also to the judiciary and it understands that lawyers who represent controversial clients sometimes advance controversial arguments on their behalf. Just as importantly, they understand that this fact is not disqualifying. When the shoe was on the other foot, and the pro-life community was defending someone they supported when that person had filed a brief urging that Roe v. Wade be overturned, Shannen W. Coffin, another contributor to the National Review wrote that this nominee, “like the other lawyers on the brief, was simply representing his client .. so it tells next to nothing about his personal views.” That nominee was Chief Justice John Roberts. The Senate overwhelmingly accepted that distinction in his case, and it will do the same here. All of that said, the NARAL brief that McCarthy derides for saying that restrictions on abortion violate the Thirteenth Amendment says no such thing. A footnote in that brief (n. 23) says that statutes curtailing a woman’s choice are “disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment,” but it never argues that they are. Instead the body of the brief is exclusively devoted to mainstream arguments based on Roe and the 14th Amendment.
But these issues are a side-show, apparently designed to inflame the pro-life community. They have vanishingly little to do with Professor Johnsen’s work at OLC. That Office does not evaluate judicial nominees, despite the innuendo that it does. Nor does the head of the Office have a policy agenda beyond giving the President the very best legal advice of which it is capable. What should matter to people concerned about this Office functioning well are the nominee’s integrity as well as her professional and intellectual qualifications. The quality of the advice given on questions of executive authority is of critical importance, as the eight years of the Bush administration have demonstrated so vividly. Here McCarthy’s diatribe goes further off the rails, attacking Johnsen for her criticisms of Bush-era legal positions. He says that such criticism demonstrates that she will politicize the Office. Nothing could be further from the truth. Johnsen has been a vocal criticism of Bush-era legal positions, but her consternation at many of those positions rests precisely on her view that there must always be a firm distinction between law and politics, and that many of the Bush positions established no boundaries at all around what President Bush wanted to do as commander-in-chief. That included detaining people indefinitely solely on the President’s say-so. It included ignoring laws of Congress prohibiting torture and other laws prohibiting surveillance without warrants. It included denying detainees any ability to see their legal counsel, or their families or to obtain independent review of the factual basis under which they were being jailed. And it may include other questionable actions which remain shrouded in secrecy. When the Supreme Court has been presented with an appropriate case, the Supreme Court has rejected every such claim to absolute power. According to the Court, the Bush administration was wrong when it denied the right to file a writ of habeas corpus to Guantanamo detainees and it was wrong in trying to hold Yaser Hamdi indefinitely without a trial. The Supreme Court has not yet reviewed a case involving the warrantless surveillance program or torture or extraordinary renditions, and it may not: the state secrets privilege may mean that cases requiring the disclosure of military or intelligence information that would endanger the national security cannot be tried by the Article III courts. That only makes the position of the head of OLC more significant, because that Office will often be called upon to advise the President on the legality of actions that will not ever be reviewed by the courts of law.
On such questions of executive authority, Professor Johnsen has the right orientation, which comes from understanding that the Constitution’s structure aims at minimizing areas in which any branch of government has absolute power and at maximizing the incentives for Congress and the President to work together if they want to get things done. Of course, “minimal” does not mean “none,” and there are core areas of presidential autonomy that the Constitution puts out of bounds from congressional interference in order to maintain the independence of the office. (Just as there are areas of congressional autonomy.) Congress could not pass a statute prohibiting the president from asserting executive privilege to protect confidential communications with key advisers, for instance. Congress could not pass a statute giving someone else final command decisions over the armed forces, either. The legal theories of Bush’s OLC went well beyond such limitations, however, by pretending that presidential autonomy extended into areas that have no support in the text and structure of the Constitution, in judicial decisions or in settled past practice. Those theories were — and are — wrong because they are not faithful to the Constitution. So the fact that Professor Johnsen sometimes voiced concern about congressional actions that might encroach on presidential power while at the same time criticized the Bush administration’s legal positions has absolutely no hypocrisy in it, per contra McCarthy. It shows instead that she thought that Bush’s legal advisors were mis-interpreting the Constitution by extending presidential autonomy too far. Jeff Rosen writing, the New Republic, has more details on some of her views, here. Professor Johnsen’s prior track record at OLC shows that she will stand against unconstitutional encroachments on presidential power — just as she will stand against unconstitutional assertions on presidential power. The Bush administration erred in figuring out which is which. We need to get back to a sound understanding of executive authority and its limits. Dawn Johnsen can and will lead the way.
Tags: johnsen, kris, preclusive power
