Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
My colleague Daphne Eviatar reports that Sen. Arlen Specter is reconsidering his position on Dawn Johnsen, nominated by Obama to be the head of the Office of Legal Counsel in the DOJ. Specter started out as an opponent of her nomination before he switched parties and has not changed his position as a Democrat.
Earlier this year when Arlen Specter was still a Republican, the Pennsylvania senator was among the harshest critics of Dawn Johnsen, the Indiana University law professor who is President Obama's pick to head the Justice Department's Office of Legal Counsel.
The reasons were absurd:
Among them was Specter, who, during her confirmation hearing in February, took the lead in painting her as a radical left-wing ideologue. In April, even after switching parties, he reaffirmed that he was still opposed to her nomination. As a result of the staunch opposition of Specter, Sen. Ben Nelson (D-Neb.), and most Republicans, the Office of Legal Counsel has gone without a confirmed leader to advise the president on critical legal issues, such as the use of warrantless wiretapping and the treatment and trials of suspected terrorists and "war on terror" detainees...As I pointed out during Johnsen's confirmation hearing, Specter grilled her on a footnote buried in a friend-of-the-court brief she'd co-authored with 10 other lawyers representing 77 different public interest organizations, 20 years ago in an abortion rights case when she was a lawyer for the National Abortion Rights Action League. The footnote said that laws curtailing the right to an abortion "are disturbingly suggestive of involuntary servitude, prohibited by the 13th Amendment, in that forced pregnancy requires [a woman] to provide continuous physical service to the fetus in order to further the state's asserted interest."
"When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery," Specter chastised Johnsen at her confirmation hearing, "that seems to me candidly beyond the pale."
This is ridiculous nitpicking and it isn't relevant to her job at all. Her job will be to give advice to the president on the constitutional limits of his own power. We've already seen from the debacle of the Bush administration how important that job is. And abortion is almost certain not to come up.
Dawn Johnsen is the ideal choice to lead the OLC. She will fight to keep the executive branch within its constitutional limits, something this administration needs nearly as badly as the last one did. The Senate needs to confirm her, immediately.
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She wrote that it seems "disturbingly suggestive of." That is reasoning by analogy, drawing out interesting or thought-provoking parallels between different topics or ideas.
It is the kind of line that invites debate and discussion, it was written with a literary flair for simile and metaphor, and it was a unique and interesting contribution to a group project that stood out among the rest of the written work for its clarity, "punch," and attention-grabbing qualities.
Good (and great) lawyers do this kind of thing all the time - and that is Specter's problem. He is not particularly good at anything that I am aware of, other than switching parties and opinions whenever convenient, and throwing roadblocks in the path of political opponents.
One could easily figure out that Obama's choices of advisors would seem to be more politically liberal than Bush's; that is one of the perks of winning a national election - you get to make choices that suit your tastes and viewpoints.
Johnson is the President's choice for the job and should have been confirmed long ago. The political grandstanding over an important advisory position is meaningless obstructionism; the President is entitled to the advisors of his choice so long as they are minimally qualified for the position.
And there is nothing "minimal" about Johnson's credentials. She is a very articulate law professor from a well-known "Top Tier" law-school. She has written extensively, speaks often, has a long and impressive body of work, and will execute the duties of her post with care and attention to detail.
Maybe Specter should learn to be silent in the presence of his betters.
Posted by: threetorches | October 26, 2009 10:14 AM
Johnsen's qualifications to head OLC are beyond reproach. That her nomination has been held up this long, and that the Administration has not made an issue of it, is baffling. The importance of this appointment ranks with appointment of the AG and the SG, and given the disaster that was OLC during the past 8 years, there is no time to waste. Yet another disappointment from the Obama Administration.
Posted by: Dan | October 26, 2009 10:44 AM
the Office of Legal Counsel has gone without a confirmed leader to advise the president on critical legal issues, such as the use of warrantless wiretapping and the treatment and trials of suspected terrorists and "war on terror" detainees...
This is a bit of a tangent, but holy crap, how much more ridiculous can you get? The president needs to be advised as to whether or not it's cool to spy on American citizens without a warrant, torture people and refuse detainees their day in court? The president, who was a Con Law professor for twelve freaking years?
Just tell the truth: Barack Obama, like his predecessor and pretty much every American president since forever, has repeatedly demonstrated that he has no respect whatsoever for the rule of law as it pertains to his own power, so it's important to get somebody in there who's willing to push back, however ineffectual such pressure is bound to be in the end.
There's no need to invent imaginary and frankly a priori absurd legal controversies to lend false urgency to the appointment process. Obama for the most part knows perfectly well what he is and isn't supposed to be able to do. There's no "there" there.
This is why I hate political rhetoric. Ludicrous posturing to the last syllable.
Posted by: Nobody Important | October 26, 2009 12:34 PM
Ed has said exactly this, quite a few times. It is much lamented in these parts.
Posted by: Scott Hanley | October 26, 2009 4:39 PM
And, this is yet another example of how the Obama administration thinks "bipartisanship" means distancing themselves from support of reproductive choice.
Posted by: MomTFH | October 26, 2009 5:14 PM
Posted by: llewelly | October 27, 2009 4:08 PM