Monday, February 15, 2010

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.

31 comments:

LawHawkSF said...

SORRY EVERYONE: During the fiasco with IntenseDebate, some features we missed got fouled up. The comments button accidentally got turned off on this post. Please feel free to start commenting now. LawhawkSF

BevfromNYC said...

This is off topic, but Evan Bayh (D/IN) announced he will not seek re-election.

Joel Farnham said...

As an aside, So, it is not proper for us to accuse Sotomayor of bias?

As for Dawn, please tell me she has NO offspring.

LawHawkSF said...

Bev: I just heard that as well. More good news in Indiana. They're dropping like flies.

AndrewPrice said...

Bev, That's actually fantastic news! Unlike Connecticut, Indiana is leaning right, so this will help us!

Writer X said...

LawHawk, I really appreciate your posts detailing these appointments. I really don't find them anywhere else--at least not so much information in one place.

I know this shouldn't turn into an abortion debate, but I'm always mystified by grown, educated women (especially those who've had children)who view a fetus as no more important than a glob of jello but who will fight tooth and nail to save a baby seal.

I think Joel makes an excellent point: It's okay to accuse Thomas of bias but hands-off Sotomayor?

Johnson sounds like she needs therapy.

LawHawkSF said...

Joel: The rule applies only to lawyers criticizing judges in a public forum. You're free to say anything you want about Sotomayor (and I hope you will). I'm a little freer than Andrew since I'm retired, but I'm still bound by certain rules. There is some question about what can be said on private blogs with a pubic following (free speech, and all that). It is permissible for a lawyer to point out a judge's decisions appear to have a bias, but the real issue is saying that a judge has such strong personal biases that he or she will be unable to render impartial future decisions. The latter is what Johnsen has said about Justice Thomas.

Joel Farnham said...

Interesting. I can understand that Lawyers shouldn't criticize sitting judges. It undermines the whole process of rule by law, but isn't there a formal way of accusing a judge of bias? A request for a judge to recuse? Or something?

LawHawkSF said...

WriterX: Thanks. I find it important to know not only that we oppose a nominee, but why. And after just writing an article about allowing presidents the deference to have their nominees confirmed, I thought it appropriate to point out why this particular nominee does not deserve that deference.

Like Becker's nomination at Labor (now a dead issue), Johnsen's radical views include making law by manipulating the legal system rather than by legislation. That is completely unacceptable, and for those like me who oppose abortion except under extreme circumstances early in the pregnancy, it's anathema.

I hope everyone reading this site feels free to say anything they want about justices, judges and nominees. As I mentioned to Joel, the rule doesn't apply to anyone outside the legal profession--so have at it! We all know that rules which apply to Republicans never apply to Democrats and liberals if they're doing it "for our own good."

StanH said...

Wow! These are the creatures that were promised so many years ago, and are now running this country. Our great land is in much peril and Dawn Johnsen is an example of the face of evil.

Watch out this Friday, for Barry and recess appointments?

LawHawkSF said...

Andrew: I really feel like doing a victory dance, or at least opening the Bay-facing windows and yelling "boom--we got another one!" The Republican candidate for the Senate seat in Indiana is himself a former Senator, with high recognition in the state. He was a moderate-conservative in a state that is by nature rather conservative.

LawHawkSF said...

Team: I should also add that Bayh cites as his reason for retiring the excessive partisanship in politics. Only he's not referring to the Republicans--he's referring to his own party, with whom he's been at extreme odds over the past few months. Dan Coates is the former Seantor from the Republican Party, by the way.

HamiltonsGhost said...

Lawhawk--With Bayh leaving at the end of the term, it looks like he might go along with a possible filibuster if it becomes necessary on the Johnsen nomination. That cloture super-majority is beginning to look like a nightmare from the past already.

DCAlleyKat said...

"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."

LOL...in that case lets hope this fantastic jewel of an expose help send Ms. Johnsen swiftly down the drain!

ps...have missed you all, my beloved Pop passed away and I've been busy taking care of Mums. Hopefully as time passes I can be here more often...this IS one of my favorite places!

LawHawkSF said...

StanH: I've been involved in politics for a long time, and I can't remember seeing a president from either party nominating such horrendously radical candidates for high office. And I've never seen a president so out-of-touch with the American people, and so defiant of their obvious rejection of his leftist nominees. It's almost as if he sat at the desk in the oval office and said to himself "Reject Becker, will you? Drive Van Jones from office? Well, now I'm gonna give you Johnsen!" It fits that adage that madness is repeating the same act over and over, expecting a different result.

I don't know if The One will do much on recess appointments, but he probably will. If he puts in a sufficient number of radicals, he'll only make his position even less tenable, and most of the appointments, even Johnsen, couldn't do that much damage before the next regular session of Congress (particularly the Senate).

LawHawkSF said...

HamiltonsGhost: Bayh has nothing to lose at this point by either joining the Republicans in opposing Johnsen (and other future leftist nominees), or at least allowing the Republicans to filibuster any more far-out candidates. It also empowers blue dog Democrats to feel free not to go along with the party line coming from Moscow on the Potomac.

DCAlleyKat said...

"I know this shouldn't turn into an abortion debate, but I'm always mystified by grown, educated women (especially those who've had children)who view a fetus as no more important than a glob of jello but who will fight tooth and nail to save a baby seal."

I'm mystified WriterX as to why if it's all so great they aren't showing our kids in school an actual video of the process, so that they can see abortion reality, beings it's so non-violent and all!

patti said...

salon.com = delusion personified. please wear their sad swipe as a badge of honor. oooh, maybe we should design an actual site badge that conservatives can proudly display when the left tries, but FAILs, to intimidate.

dawn sickens me on her stand FOR partial-birth abortion alone, yet bitches the text students have to read make it "sound" gruesome. she is like so many others: she wants things her way, truth be damned.

patti said...

dcalleycat: i am so sorry to read of your loss. be well.

LawHawkSF said...

DCAlleyKat: Please accept our sincere condolences on your loss, and let your mom know our prayers are with you.

Unlike the giant sucking sound that Ross Perot described when he ran against Clinton, the current giant sucking sound is the golden toilet in D.C. being prepared for Obama's nominees and eventually, Obama himself.

Writer X said...

DCAlleyKat, I'm so sorry to hear about your father. My condolences to you and your family.

And I'm with on the school videos. That is a great point.

LawHawkSF said...

Patti: It's unbelievable to me as well. It isn't propaganda to tell the truth, and any adult who isn't prepared to hear the gruesome details of what a partial-birth abortion entails should not be practicing law, let alone voicing opinions on the subject. What's really disgusting and contemptible is that Johnsen does know, but doesn't care. She's not just a radical, she's a ghoul.

LawHawkSF said...

WriterX and DCAlleyKat: I should remind everyone that the OLC involves advising the president on what the law is (and in her case, what it should be), and establishing administration legal policy on all kinds of issues.

She is to the left of Holder on terrorist interrogation, and would not have backed off on the Yoo persecution. She is a death-penalty opponent and could also have a major effect on the national issue of capital punishment. She has supported every case which found executions to be cruel or unusual punishment. A needle in the arm of a violent murderer is apparently more shocking to the conscience than the cold-blooded murder of a live baby emerging from the womb.

CalFederalist said...

Lawhawk. I know I don't have to remind you of Rose Bird, disgraced former Chief Justice of the California Supreme Court, and what she did on capital punishment.

LawHawkSF said...

CalFed: Indeed, my fellow Californian, I need no reminder. It's a perfect example of what happens when you nominate a radical to a position on the state's highest court. She took the oath of office, and swore that even though she was opposed to the death penalty, she would faithfully follow the California law providing for the death penalty. Then, in every single case that came to her court, she reversed the death penalty from the courts below. Not one single death penalty case passed muster for her.

The case that did her in was when a death penalty case came before her court in which the victim was tied to a chair and the murderer shot him seven times in the back of the head. Bird held that the prosecutor had not proved "intent to kill," a required element in a death penalty case. What did she think he was doing? Air conditioning the victim on a hot day?

We recalled her and two of her fellow-travelers on the court and replaced them with real judges. That procedure is not available at the national level, and only impeachment can remove a US Supreme Court justice. God forbid that Johnsen should get the current position she's been nominated for and then be nominated for the Supreme Court.

Unlike the Bird appointment, California justices are not lifetime appointments--but federal judges are. And for Californians, I remind them that when they vote for Jerry Brown in the upcoming gubernatorial election, they are voting for the man who put Rose Bird on the California Supreme Court.

AndrewPrice said...

DCAlleyKat, I'm sorry to hear about your loss.

LawHawkSF said...

Joel: A lawyer asks a judge to recuse himself at his own peril. It's not a big deal if the issue is past legal connections to one of the parties, or a direct connection to a case in which the judge was still a lawyer which has now come before the court. An honorable judge will often recuse himself or herself without even being asked.

But challenging a judge on grounds of bias requires a high order of proof that is nearly impossible to fulfill. At the Circuit Court of Appeals and Supreme Court level, charges of bias are based largely on the Canon of Ethics, and are rules rather than opinions. These are almost always handled behind closed doors, and the judge's or justice's public reputation is not called into question. Justices have often heard the arguments in chambers, recognized the conflict of interest or incompatibility of office, and recused themselves without rancor or retaliation. A public airing of political or social philosophy differences alleging "bias" is highly destructive of the process of the court.

LawHawkSF said...

I should probably add that Obama's attack on the Supreme Court during the State of the Union address was made by a lawyer who is also the president. But even though Obama was dead wrong about the issue, he was attacking the decision, not the judges, so he didn't violate the rule. However rightly Justice Alito took it personally, as he should have, it was still not a direct attack on his "bias," nor that of the other four justices who voted with him.

LawHawkSF said...

I just watched Bayh's speech. He said he wants to help Obama out in Washington, but I would have preferred he wants to help Obama out of Washington. He also said that he is "an executive at heart," which leaves the road to the Indiana governorship or a run at the presidency open. It appears that the straw that broke the camel's back was Harry Reid unilaterally gutting a bipartisan jobs bill without speaking either to the Republicans or members of his own party.

I hear that after Bayh made the decision, he contacted the president, but pointedly did not contact the majority leader. His contempt for Reid is very apparent.

BevfromNYC said...

DCAlleyCat: I too would like to extend my condolences to you and your family.

LawHawk: So, what, Bayh's taking his dolly and dishes and going home? Did he ever consider that maybe they could get rid of Reid? Or that you can change the system from within?

LawHawkSF said...

Bev: Yep, and he took his jacket and bonnet, too. Actually, I think he is genuinely fed up with the Congress and doesn't want to continue the fight in the leglislative arena. It's likely he really does consider himself an executive rather than a legislator. The question now becomes, where does he go next? As he said of Congress, "too much arguing, not enough problem-solving."

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