More on Dawn Johnsen at OLC

By Neil Kinkopf

Last week, I published a post describing the flaws in the arguments that Dawn Johnsen’s critics have deployed against her. The critics have persisted in holding to baseless positions. One of the chief arguments is that Johnsen’s criticism of the Bush Administration’s “Terrorist Surveillance Program” shows that she is a ruthless partisan who cannot be trusted with in office.
Paul Mirengoff follows this line of argument in a recent post. He claims that Johnsen was not within the bi-partisan mainstream in criticizing the legality of the Program, because what Republican opposition existed was only to the failure of the Administration to disclose the existence of the Program and not to the legality of the Program itself. That is not the case. The Program was criticized as legally unauthorized by leading conservatives, including but by no means limited to Bob Barr (here) and by Richard Epstein, William Sessions, and William Van Alstyne (here). The fact that Johnsen has also criticized the legality of the Program can hardly be taken as evidence that she is a partisan or takes a dangerously narrow view of presidential power. As I pointed out in my earlier post, she has expressly condemned liberals who would overreact to the excesses of the Bush Administration by restricting the proper scope of presidential power.
Mirengoff also criticizes Johnsen for her advocacy. Johnsen has advocated that progressives work on formulating and articulating a theory of the Constitution’s meaning. As an academic, she has done archival research revealing the conscious effort of conservatives to re-shape the legal landscape. In other settings, she has urged progressives to do the same. This is but one component of her academic work. The main thrust of her academic agenda has been to draw a distinction between this sort of advocacy and the proper role of the Office of Legal Counsel, which she has in no uncertain terms identified as an Office that must operate as a neutral arbiter and not as an advocate or as a promoter of some as-yet-unrealized constitutional vision.

The fact that Dawn Johnsen recognizes that lawyers, including herself, properly act as advocates in some settings, and properly refrain from advocacy in others, refutes the idea that she plans to use OLC to promote some progressive vision of the Constitution. Previous heads of OLC – William Rehnquist, Ted Olson, and Walter Dellinger come to mind – have been advocates (in fact outstanding advocates) in political settings, yet that does not in any way demonstrate that any of them was unable to put aside their political views in order to do the job of leading OLC.

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