Meet Dawn Johnsen--If You Dare

After posting two articles on the presidential prerogative to appoint those he chooses to major federal positions of authority, and have them confirmed, it has become necessary to discuss one of his very important nominations which occurred after my original posts. As I said, Senators have a duty to actively oppose nominees who are too radical or have agendas which bypass the proper functions of government.

Dawn Johnsen (pictured) is a radical, leftist lawyer with her roots at the National Abortion Rights Action League, which wisely shortened its name to NARAL. She has demonstrated on many occasions her unlawyerlike manners, violating the rule against accusing seated judges of bias when she commented publicly after Justice Clarence Thomas's confirmation: "In any abortion or sexual harassment case, Judge Thomas's ability to be unbiased or neutral is highly suspect." It's acceptable to challenge a justice's reasoning in a particular case, but not to accuse him of bias.

First, for a little recent history. Johnsen got her first real legal experience working for the American Civil Liberties Union after clerking for Judge Richard Dickson Cudahy at the U.S. Seventh District Court of Appeals. She worked in the Office of Legal Counsel from 1993 to 1998, and was a Deputy Assistant Attorney General from 1993 to 1996. She was briefly moved up to Acting Assistant Attorney General, heading the OLC before leaving to teach law at Indiana University. She has plenty of experience, but nobody taught her to separate the law from her personal agenda.

Johnsen was first trotted out by Obama for the top position at OLC in March of last year. It brought immediate and vocal criticism from several conservatives, and after much wrangling, and without a vote, Congress recessed and her nomination would have to start again. Johnsen was again proposed by Obama for the position at OLC on January 20 of this year. This came after she had spent months attacking the Bush administration Office of Legal Counsel, particularly John Yoo. Regardless of any evidence or facts produced for her, she continued to say: "The President was told he could largely ignore international treaties and Congress in fighting terrorists and that critics have portrayed as allowing torture in interrogation."

Ignore that Wikipedia entry that says that there is a consensus among lawyers that agrees with her position. There is no such consensus, and when Eric Holder tried to bully Yoo and the other Bush OLC lawyers, they pushed right back, and Holder dropped the whole thing like a hot potato. She continued her streams of invective against all things Bush throughout 2009, and hasn't settled into any reasonable stance in 2010.

Let's take a look at some of her political/legal positions. Johnsen is not satisfied with merely being pro-abortion. She opposes twenty-four hour waiting periods for those seeking abortions, vigorously opposes parental notification to parents of minor pregnant girls, and worst of all, strongly supports partial-birth abortion. She came unglued over the partial-birth decision in Gonzales v Carhart in which the court felt compelled to describe the barbarity of this form of abortion. Her indignant comment was: "Every first-year students' constitutional casebook now contains gruesome descriptions designed to make abortions sound like infanticide." If those delicate flowers can't handle reading about it, maybe they should consider what it's like to see it or experience it. It sounds like infanticide to me, and I don't mean a gentle infanticide.

Her position on the Constitution is that "the progressive agenda should focus on the courts as the vehicles for desired change." Beside the fact that this is not even close to the proper role of the courts, my question is "whose desired change?" Hers and those of her fellow radicals, obviously, since the vast majority of citizens don't want their laws written by courts or their babies murdered at the moment of birth.

She went berserk as she watched the early Obamacare plans go kaput. Removing abortion, particularly partial-birth abortion from the plans was anathema to Johnsen. When it slipped itself back into a couple of other proposals, she bristled at the idea that anyone would oppose having the federal government pay for abortions. She conducted a vicious campaign against the original Hyde Amendment forbidding federal funds from being used to pay for abortions. She referred to it as "callous and discriminatory policy." While in the Clinton administration's OLC, she drafted the Executive Orders, that Clinton signed, to promote easier, paid access to abortion. This came after Clinton had campaigned on making abortion "safe, legal and rare." She also drafted the orders which nullified Reagan's Mexico City Doctrine preventing federal funds from going to Planned Parenthood.

She managed to upset many of her African-American supporters by comparing abortion restrictions to slavery. When she was called on it, she switched the topic, denied the claim, and referred to a totally different case (Webster v Reproductive Health Services) where a footnote said "forced pregnancy is disturbingly suggestive of involuntary servitude because of the physical demands involved." Beside being just plain lame as a defense, it didn't fool anyone. She originally said "slavery" and that's exactly what she meant.

She has said that she firmly believes that it is the role of the courts, not the president or Congress, "to determine which detainees should be released and which transferred to secure facilities in the United States." She's ahead of Obama himself on that one. She's ahead of her potential future superior, Eric Holder, in firmly believing that all foreign terrorists captured should immediately be read their Miranda rights, taken into custody with no further questioning, and granted civilian trials in nearly every case. She described the previous OLC legal rationale for warrantless monitoring of suspected al-Qaeda communications as "extreme and implausible." Never mind that this rationale has been upheld by every court that has reviewed it, and caused Holder himself to back off on his witch hunt for John Yoo.

She has also said that if she gets the job, she will undo the "politicization of the department under Bush, and will give 'special consideration' to any applicant who was rejected by the Bush administration for having extreme leftist views." I don't know about Bush politicizing, but I don't know how else you would characterize Johnsen's statement on how to "correct" it.

And how about this jewel? In 1997, Johnsen wrote for the OLC "Several statutes (including privacy provisions in the federal wiretap law) could not bind the president, and presidents are above consumer-credit disclosure laws. In that case, statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with the constitutional prerogatives." In other words, this rule covering up presidential possible wrongdoing applied then to Clinton and now to Obama, but not to Bush. In the law, we call that "selective enforcement." In her case, it's also politicized law, which must be impossible since she opposes it, doesn't she?

Johnsen is so devoted to her unfettered abortion stand that in order to advance it, she worked very hard for eight years at the OLC to force ways for the IRS to tax the Catholic Church, the National Association of Evangelicals, The Southern Baptist Convention, and the Lutheran Church--Missouri Synod (the second largest Lutheran denominaton), all of which have taken strong religious stands on abortion, and have come down on the side of the pro-life agenda. She refuses to accept the concept that religious views trump political considerations so long as the First Amendment remains in place.

She has a host of other disqualifying attributes, but the ones listed should be enough to create a vigorous opposition to her nomination in the Senate. What should be really interesting is that Arlen Specter opposed her original nomination for all the reasons stated, plus the catch-all "insufficient seriousness." I wonder what he'll do now that he's an Obama Democrat.

Once again, I believe that presidents should be allowed to get their nominees confirmed unless . . . . This one is a big time "unless." Johnsen's appointment calls for a full-fledged donnybrook in the Senate, and I would love to see Scott Brown lead it. It is important to understand that the Office of Legal Counsel is so vital that many lawyers consider it to be even more important than the position of Attorney General. OLC essentially establishes all policy to be followed by the president. And it is one of the most common stepping-stones to the federal appellate courts, and frequently to the Supreme Court (ask Justice Alito and Justice Scalia, though it's too late to ask Chief Justice Rehnquist).

If that doesn't convince you, I will point out that Salon.com, which recently called us "a sleazy, right-wing fringe site" thinks Dawn Johnsen is the greatest thing since flush toilets.