Conservative views on nominee for OLC Dawn Johnsen

Lawyer’s Lawyer, Radical’s Radical. By Andrew McCarthy
Meet Obama DOJ nominee Dawn Johnsen
NRO, Mar 3, 2009

Pregnancy provokes a welter of feelings, physical and emotional. But does anyone really think of pregnancy as slavery? Apparently so: Indiana University law professor Dawn Johnsen, Pres. Barack Obama’s nominee to head the Justice Department’s Office of Legal Counsel.

Yale-educated and ACLU-trained, Johnsen already has done one tour of duty at OLC. She spent nearly six years there during the Clinton administration (1993–98), the last two as acting chief. OLC, a critically important agency, is the administration’s lawyers’ lawyer. Staffed by graduates of top law schools who are then polished by elite judicial clerkships, it authoritatively interprets the law for the attorney general and, in doing so, drives administration legal policy. OLC’s credibility is derived from its reputation for apolitical, academic discipline — its commitment to informing policymakers of what the law is, rather than what staffers believe the law should be. Johnsen is, for that reason, a poor fit: She is an ideologue, and an unabashed one.

Her bizarre equation of pregnancy and slavery was not an off-the-cuff remark. It was her considered position in a 1989 brief filed in the Supreme Court. At the time, she was legal director of NARAL (then the National Abortion Rights Action League, since renamed NARAL Pro-Choice America). The case, Webster v. Reproductive Health Services, involved a Missouri law that did not ban abortion but restricted the use of state funds and resources for abortions. It’s an obvious distinction, but one without a difference — at least according to Johnsen. Any restriction that makes abortion less accessible is, in her view, tantamount to “involuntary servitude” because it “requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest [in the life of the unborn].” In effect, a woman “is constantly aware for nine months that her body is not her own: the state has conscripted her body for its own ends.” Such “forced pregnancy,” she contends, violates the Thirteenth Amendment, which prohibits slavery.

The Court rejected this farcical theory, just as it has rejected other instantiations of Johnsen’s extremism. On abortion and other issues dear to the Left, she is nothing short of a zealot. She insisted that, without government-provided abortion counseling, a large number of women would be left without “proper information about contraception.” This, she claimed, would mean they “cannot be said to have a meaningful opportunity to avoid pregnancy.” The usual rejoinder to such reasoning is that nobody is forcing these women to have sex. Johnsen sees it differently, writing that these “losers in the contraceptive lottery no more ‘consent’ to pregnancy than pedestrians ‘consent’ to being struck by drunk drivers.”

In reputable private law offices and U.S. attorney’s offices throughout the country, adult supervision would prevent such a lunatic analogy from finding its way into a letter to a lower-court judge, much less into a Supreme Court brief. Obama, however, is proposing that Johnsen be the adult supervision at Justice. He would fill a position calling for dispassionate rigor with a crusader for whom strident excess is habitual.

For Johnsen, no impediment to abortion-on-demand passes muster: She opposes 24-hour waiting periods, parental-consent requirements for minors, and laws against partial-birth abortion. In 2007, when it upheld the partial-birth ban in Gonzales v. Carhart, the Supreme Court clinically described the standard abortion procedure (i.e., the dismemberment and evacuation of the unborn child) to contrast it with the more barbaric partial-birth method. Johnsen’s reaction — voiced while proposing “A Progressive Agenda for Women’s Reproductive Health and Liberty” for the left-leaning American Constitution Society — was to complain that “every first-year law student’s constitutional law casebook” now contains “gruesome descriptions designed to make abortions sound like infanticide.” Moreover, as she declaimed in a 2006 op-ed opposing Samuel Alito’s confirmation, opposition to all restrictions on abortion — not just acceptance of Roe v. Wade — should be a litmus test for judicial nominees. “The notion of legal restrictions as some kind of reasonable ‘compromise’ — perhaps to help make abortion ‘safe, legal, and rare,’” she wrote, “proves nonsensical.”

Johnsen’s other bête noire is national security — at least to the extent it involves detaining terrorists and enemy combatants as military opponents rather trying them as civilian criminal defendants. Her 2008 academic article “What’s a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses” gathers the Left’s full array of anti-war tropes and disguises them as legal analysis. There is the determination to ignore the terrorist attacks of the 1990s, such that the War on Terror is presented as something President Bush started after 9/11 rather than a years-long jihadist provocation to which the United States finally responded after 9/11. This framework would make it impossible to prosecute as war crimes such pre-9/11 atrocities as the bombings of the USS Cole and the embassies in East Africa. Johnsen further denigrates as an “extreme and implausible Commander-in-Chief theory” Bush’s rationale for warrantless surveillance of suspected al-Qaeda communications into and out of the United States. In fact, the practice was strongly supported by federal court precedent and has since been reaffirmed by the appellate court Congress created specifically to consider such issues. And Johnsen has recently written that the new administration “should order an immediate review to determine which detainees should be released and which transferred to secure facilities in the United States” for civilian trials.

It is especially galling to consider Johnsen’s smearing of John Yoo, the Cal-Berkeley law professor who, as a Bush OLC staffer, principally authored DOJ’s so-called torture memo. In contrast to Johnsen’s perversion of anti-slavery law to suit her abortion agenda, Yoo was not twisting the law to advocate torture. He was soberly attempting to construe a legal term, “severe . . . pain or suffering,” part of the statutory definition of torture that had not yet been interpreted by the courts. This is what OLC does: It struggles to understand the state of the law, irrespective of staffers’ predilections, so that policymakers can act in full awareness of their options. For this, Johnsen impugns not merely Yoo’s scholarship (“irresponsibly and dangerously false”) but also his good faith. She upbraids the Bush administration for its use of waterboarding to interrogate top al-Qaeda detainees, blithely presuming its illegality despite the complex questions surrounding that claim (including the fact that that Congress has declined to make waterboarding a war crime). Indifferent to the fact that our enemies train to resist known interrogation methods, Johnsen wants all tactics spelled out explicitly in advance.

Particularly rich is Johnsen’s diatribe against Bush’s purportedly outlandish claim of power to ignore statutes that encroach on executive authority. When Johnsen served in the Clinton administration (which invented extraordinary rendition, detained Cuban refugees without trial at Guantanamo Bay, conducted warrantless national-security searches, and attacked a foreign country without congressional authorization), OLC’s official position was that “the President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.” The office opined that several statutes (including privacy provisions in the federal wiretap law) could not bind the president, and Johnsen herself authored a 1997 OLC opinion concluding that presidents were above consumer-credit-disclosure laws. In that case, she broadly asserted that “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 his constitutional prerogatives.”

A parallel hypocrisy is illustrated by Johnsen’s rants about how the Bush administration “politicized” the Justice Department. Her solution to this problem: Politicize the Justice Department. She argues that job applicants who may have been passed over by the Bush administration for holding leftist political views should get “special consideration” in DOJ hiring but, at the same time, maintains that nominees for the federal judiciary should be rejected out of hand if they embrace constitutional originalism or are members of the judicially conservative Federalist Society. Johnsen would also press the DOJ to advance the leftist agenda by having its Environment and Natural Resource Division “pursue innovative litigation and policy initiatives, such as the pressing issue of climate change.”

Johnsen’s attraction for Obama is obvious. The principal target of her Webster brief was the settled principle that the Constitution’s recognition of various fundamental rights (and the judicial invention of such “rights” as abortion) does not confer an entitlement to governmental aid to exercise those rights. For Johnsen, this is anathema, the denial of “economic justice” and thus of equal protection. “Economic justice,” a favorite Obama phrase, is the Left’s euphemism for the “redistributive change” Obama criticized the radical Warren Court for failing to embrace. Rather than the hoary construction of the Constitution as “a charter of negative liberties,” one that says only what government “can’t do to you,” Obama urges a new bill of rights defining what government “must do on your behalf.”

In Dawn Johnsen’s dizzying jurisprudence, government has no business invading individual privacy and regulating abortion but is obliged to coerce taxpayers into underwriting abortions as a first step in what she unapologetically calls “the progressive agenda” of “universal health care, public funding for childcare, paid family leave, and . . . the full range of economic justice issues, from the minimum wage to taxation policy to financial support for struggling families.”

If Johnsen is confirmed, OLC will be transformed from a source of non-ideological legal analysis to a culture-war agitator. And its value to the Department of Justice may be lost.