Until recently, the Justice Department’s Office of Legal Counsel, often considered the “brains” of the department, has been known mostly to legal experts. But for the past eight years, it was the epicenter of allegations of political manipulation and, worse, the source of infamous memoranda on torture. In tapping Eric Holder as attorney general, President Obama has promised to restore standards of professionalism to the department. For Republicans, this is tantamount to a declaration of partisan war.
The real reason for their vehement opposition is that Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance that would clip the wings of the imperial presidency.
On March 19, the nomination of Indiana University law professor Dawn Johnsen to head the OLC was endorsed by the Judiciary Committee with every Republican voting against her and Sen. Arlen Spector (R-PA) abstaining. The nomination was to have been brought to the Senate floor for a vote on Monday and then again on Wednesday, but it has been held back. Republican leaders, it appears, are playing with the notion of making Johnsen the target of their first filibuster.
The highly credentialed Johnsen is an improbable target, and OLC was long viewed as an obscure post. But Johnsen served as a lawyer for the American Civil Liberties Union and the National Abortion & Reproductive Rights Action League. Antiabortion groups have targeted Johnsen over the last three weeks with a massive telephone, email, and letter-writing campaign, demanding that senators oppose her nomination. Johnsen is labeled a “radical, pro-abortion activist,” although her views on the abortion issue line up very closely with the mainstream. While the noise surrounding the Johnsen nomination appears on the surface to be about the abortion issue—over which her position at OLC would have very little influence—discussions with Republican stalwarts reveal that their main concerns lie elsewhere.
The real reason for their vehement opposition is that Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance, which would clip the wings of the imperial presidency. Even more menacingly (from their perspective), she is committed to shining a light on some of the darkest skeletons of the Bush years. Already, publication of OLC memoranda authorizing torture, approving warrantless surveillance, and pronouncing the First and Fourth Amendments a dead letter in connection with domestic military operations has rocked the public. More memos, potentially even more disturbing, I have learned, are about to be made public soon. Yet these are difficult issues on which to attack Johnsen, other than through vague suggestions that she is “weak on national security.” Hence the steady stream of accusations linked to her largely irrelevant views about abortion rights.
Will the Republicans attempt to filibuster the Johnsen nomination? The threat is sufficiently serious to have provoked the editors of the New York Times to editorialize in support of Johnsen on Thursday. Calling the operation of OLC in the Bush era “lawless,” the editors wrote, “Ms. Johnsen is superbly qualified and has fought for just the sort of change the office needs.”
The controversy surrounding Johnsen provides a flashpoint for President Obama’s nominees for administration legal posts. Unsurprisingly, they look an awful lot like Barack Obama—strong legal credentials, an academic bent, and liberal attitudes balanced by a strong commitment to political pragmatism.
Obama’s top picks start with a couple of well-known Washington names. Eric Holder, the nation’s first black attorney general, was a career Justice Department attorney who spent his formative years as a prosecutor in the department’s Public Integrity Section (much-criticized for abuse under Bush). He spent time as a U.S. attorney, a judge, and ran the Justice Department for a while as deputy attorney general in the Clinton years. Obama’s White House counsel, Greg Craig, is a Washington fixture at the powerhouse Williams & Connolly law firm. The former foreign-policy aide to Sen. Edward Kennedy and State Department official has handled high-profile cases from Clinton’s impeachment defense to representing the father of Elian Gonzales. In the way of Washington, he is also has ties to powerful Republicans, including Karl Rove and Alabama Sen. Richard Shelby, whom he successfully represented in a sensitive FBI investigation into the leaking of classified data.
But delving deeper into the list, the names are less known for pragmatic politics and inside-the-Beltway experience than for pure intellectual firepower. Nearly a quarter of all Obama nominees have a Harvard degree. No fewer than 11 Harvard Law School faculty members drew appointments in the Obama team, including the dean, Elena Kagan, who was also deputy domestic-policy adviser to President Clinton. He also tapped Yale’s law-school dean, Harold Koh, widely thought to be a possible Supreme Court appointment, to serve as the principal lawyer at the State Department. Obama has mined the University of Chicago, the University of Michigan, and Georgetown. All these schools are being forced to scramble as professors announce the cancellation of classes and prepare to depart for Washington.
A scan of the names involved makes clear that Obama is not looking for any particular ideological line—the candidates tapped range from centrist conservatives to traditional liberals. But he clearly is seeking individuals highly regarded by their peers who are on top of the issues for which they will have responsibility.
The trio of appointments Obama announced for the OLC underscores this point. In addition to Johnsen, Obama chose Harvard law professor David Barron and Georgetown law professor Marty Lederman as her two deputies. The three nominees have similar histories. Each served in the OLC in prior administrations before departing for academia. And over the last eight years, each spent a good deal of time and energy studying and criticizing the conduct of the OLC in the Bush years. Barron and Lederman co-authored a highly regarded two-part historical study of presidential powers, which demolished the underpinnings of the most significant OLC memoranda authored by John Yoo, including the famous torture memorandum. The three may well have been the Bush OLC’s most vocal critics, highlighting its departure from traditions and practices of earlier administrations. All three were also sharply critical of the Bush team’s devotion to secrecy in the formation of legal policy. It is therefore unsurprising that the Obama team has moved very quickly to publish the previously secret opinions that their Bush predecessors issued and to overturn those decisions. It would be hard to identify three lawyers more knowledgeable about the subject than Johnsen, Barron, and Lederman.
In the coming two weeks, their push for transparency will result in the publication of more Bush-era OLC memos, including the specific approvals granted for waterboarding, extended isolation, and other torture techniques—memos that the Bush administration has sought to keep secret. Former CIA Director Michael Hayden and Obama adviser John Brennan are said to have “gone to the mat” to keep the opinions secret, but Obama sided with his designated OLC team and upheld the decision to declassify and publish them.
Harvard law professor Laurence Tribe, one of the nation’s leading constitutional scholars and Supreme Court advocates, and Obama’s former teacher, is often mentioned as an adviser in the background, a gray eminence, counseling Obama on appointments and policy choices. He is widely believed to covet an appointment to the Supreme Court, though, at 67 years old, he might be passed over for a younger person. While Tribe is a regular target of the right and closely connected to an array of liberal causes, those familiar with his role in the recent appointments process say that he has steadily advised Obama to avoid ideological confrontations and stressed pragmatism as an important quality for appointees.
Another legal academic said to figure in Obama’s inner circle is Harvard law professor Cass Sunstein, who until recently was a colleague of Obama’s at the University of Chicago Law School. Sunstein has been appointed to head the White House Office of Information and Regulatory Affairs, while his wife Samantha Power, a Pulitzer Prize-winning author, serves as chief on the National Security Council as head of international organizations. Sunstein is associated with the notion of judicial minimalism, arguing that decisions should be taken on the narrowest possible case-specific grounds so as to preserve a broader range of options in future cases. The executive orders that Obama issued in his first two days in office were widely seen as following Sunstein’s minimalist approach in confronting a range of national-security issues on which Obama has pledged changes.
Unlike Obama, a professor of law, George W. Bush was noted for a sharp disdain for lawyers. He liked to make disparaging jokes about attorneys in pinstripes and tasseled loafers. “I don’t care what the international lawyers say, we are going to kick some ass,” he barked as the war on terror got under way, according to former counterterrorism chief Richard Clarke. Through the Bush administration, appointment to high-level legal positions was usually a reward for faithful service—as personified by Alberto Gonzales, who as counsel to the president and attorney general arguably held the two most powerful legal posts. Gonzales’ entire career, as a partner at the prestigious Houston firm of Vinson & Elkins, in Texas state government, and finally in Washington, was marked by service to a single client: George W. Bush.
The Bush administration’s overriding concern was for political loyalty. It demanded individuals who would unquestioningly implement the White House’s directives. The notion of independent professional judgment was derided as counterproductive at best and a cloak for liberal activism at worst. To that end, selecting the best and the brightest was not advisable. Where prior administrations looked for the top graduates from the nation’s elite law schools, the Bush team scoured schools not found in a list of the top-100 law schools (and sometimes not even ABA-accredited), but with strong ties to the religious right and the Republican Party. Justice Department officials openly asked job candidates whether they had worked for the Bush-Cheney campaign and contributed money and quickly rejected those whose offense was support for John McCain in the 2000 Republican primaries. Membership in the movement's conservative legal organization, the Federalist Society, was also a plus if not essential—in recently disclosed emails, former Bush-era U.S. attorney and Civil Rights Division Director Bradley Schlozman (whose case is now under review for the possible filing of criminal charges) called them “ideological comrades.” The result was a Justice Department filled with political hacks in appointed positions and a historically unprecedented level of politicization in its decision-making process.
The Obama nominees, presenting the sharpest possible contrast, have drawn sputtering fire from Republicans in Congress and have come under broad attack from religious-right leaders who previously had strong influence in Justice Department picks. Dawn Johnsen is an interesting test case. If the Republicans opt for a filibuster or move to line up a unanimous GOP vote in opposition, it will be a shot across the bow of the Obama Justice Department.
Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and the American Lawyer, among other publications.