Overruled


Profiles in Cowardice
May 15, 2009, 11:30 am
Filed under: Ian | Tags:

dawnRemember yesterday’s news that wealthy right-wing groups are lining up to fund attacks on GOP Senators who vote in favor of the President’s Supreme Court nominee—no matter who that nominee turns out to be?  Today brings news that two austensibly pro-choice Senators, Susan Collins and Olympia Snowe, both Republicans from Maine, are “undecided” on whether to break the filibuster blocking Dawn Johnsen’s nomination to head up OLC.

As I’ve written about before, some conservatives claim that Dawn must not be confirmed because she is pro-choice, even though OLC plays virtually no role in setting the Administration’s policy on abortion.  But this makes no sense as an explanation for why two Senators who claim to be pro-choice themselves would oppose her nomination.  Similarly, many conservatives oppose Dawn because of her unapologetic oppostion to torture, but neither Snowe nor Collins strike me as particular sympathetic to the Dick Cheney view regarding torture; and if Snowe and Collins lack the courage to publically disclose the fact that they are blocking Dawn because they support allowing U.S. officials to rape children in front of their parents, then they are both monsters and the worst kinds of cowards.

I suspect, however, that a different kind of cowardice is at play.  Snowe and Collins probably fear that the same kind of groups which demand scorched earth assaults on President Obama’s SCOTUS nominee will also come after them if they allow a qualified, anti-torture nominee to be confirmed to head OLC.  So they’ve become exactly like the Mitch McConnells of the world out of fear that someone, somewhere might say something mean about them.

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Lugar Does the Right Thing
April 28, 2009, 4:55 pm
Filed under: Ian | Tags: ,

Hopefully, Senator Lugar’s decision to support Dawn Johnsen will be the end of the very silly battle over her nomination.  Interestingly, Lugar also enthusiastically endorsed the nomination of Judge David Hamilton to the Seventh Circuit, so he may become a goto person to push back against right-wing attempts to obstruct Obama’s nominees.

It will be interesting to see how Lugar behaves when a nominee who is not from his home state is the subject of a filibuster threat.



It’s Still All About Torture
April 27, 2009, 9:07 pm
Filed under: Ian | Tags: , ,

dawn Senate Republicans have apparently decided to stop blocking Kathleen’s Sebelius’ nomination to head the Department of Health and Human Services, a nomination they previously objected to because Sebelius is pro-choice. Brian Beutler responds to this development with a really good question: why are they letting Sebelius through, but continuing to block Dawn Johnsen’s nomination to head OLC—a nomination they also claim to be blocking because Dawn is pro-choice.

This double standard makes no sense, particularly because it ignores the nature of the jobs which the two women have been nominated to.  As the nation’s highest-ranking health policymaker, Sebelius could play a significant role in setting federal policy on reproductive freedom.  Sebelius could seek to allow federal funds to be spent on abortions, or she could try to push through regulations that make an end run around the Hyde Amendment.  Indeed, Sebelius could play a greater role in setting Administration policy on reproductive health than any other Obama Administration official.

Dawn, on the other hand, has been nominated to give neutral, disinterested legal advice to the President.  The head of OLC serves no policymaking function, and is very unlikely to play any role whatsoever in shaping the Administation’s policy on reproductive freedom.

In other words, if the Republicans really cared about abortion, they would certainly want to keep a pro-choice official out of the Health and Human Services job; but they’d have no reason to care at all about the OLC job.

The only reasonable explanation is that their opposition to Dawn has nothing to do with abortion, and that the debate about Dawn’s pro-choice record is a red herring to distract from their real reason for opposing Dawn.  Given the GOP’s strident support of torture, and Dawn’s passionate opposition to it, I’m pretty sure I know what they are really worried about.



Mixed Messages on Torture
April 16, 2009, 9:42 pm
Filed under: Ian | Tags: ,

abu_ghraibI’m glad that President Obama decided to release four more of the infamous OLC torture memos.  As many people have already noted, the memos provide the kind of window into a sadist’s mind which make you question your own humanity.  I pray that I never become so broken that I could methodically ponder how to exploit a captive’s fear of stinging incects by locking him in a coffin with bugs, or that I would conclude that nearly drowning another human being makes me anything other than an abomination.  I also pray that Congress takes swift action to remove Judge Jay Bybee, the Ninth Circuit judge who signed many of these memos while he headed OLC.

I am also troubled, however, by the fact that the Obama Administration appears less committed to transparency than the President’s selection of Dawn Johnsen to head OLC implies.  Five years ago, Dawn co-authored a document entitled “Principles to Guide the Office of Legal Counsel,” in which she argued that “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.”  Dawn’s statement of principles is nuanced, but it begins with the presumption that disclosure should be the rule, never the exception:

OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive  claims of executive authority.  Transparency also promotes confidence in the lawfulness of governmental  action. Making executive branch law available to the public also adds an important voice to the   development of constitutional meaning–in the courts as well as among academics, other commentators, and the public more generally–and a particularly valuable perspective on legal issues regarding which the executive branch possesses relevant expertise. There nonetheless will exist some legal advice that properly should remain confidential, most notably, some advice regarding classified and some other national security matters. . . .  In all events, OLC should in each administration consider the  circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration. The values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law.

So Dawn would apply “a presumption in favor of publication” in all cases.  Though she also recognizes that some OLC advice regarding “national security matters” may overcome this presumption, the presumption itself is applied in all cases.

Compare Dawn’s statement with President Obama’s statement announcing the release of the torture memos, which applies the opposite presumption: Continue reading



The Unpersoning of Doug Kmiec
April 14, 2009, 8:24 pm
Filed under: Ian | Tags: ,

kmiecI had no illusions that Reagan OLC head Doug Kmiec’s endorsement of Dawn Johnsen to lead the same office would be met with civil and reasoned disagreement by Dawn’s opponents, but I’m somewhat taken aback by just how swift and vitroilic the National Review‘s reaction was.  Rather than engage Kmiec’s arguments on the merits, the NR‘s Ed Whelan goes personal:

I was surprised to see this description in his byline: “Douglas W. Kmiec served as head of and principal deputy in the Office of Legal Counsel from 1985 to 1989.” . . .

Kmiec never served as “principal deputy” in OLC. The formal designation of “principal deputy” appears not even to have existed when Kmiec was at OLC, and folks who were in OLC at the time tell me that Kmiec was never regarded as the lead deputy. . . .

Kmiec’s website bio is even more extravagant, as it asserts that Kmiec was the AAG heading OLC from 1985 to 1989: “Kmiec served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).”

Someone familiar with OLC at the time tells me that it’s unlikely that Kmiec ever met personally with Reagan to provide him legal advice (and that if any such meetings did occur, they would have been very few). Given that Bush 41 promptly replaced Kmiec, the same surely holds for Bush.

I really have no idea if Kmiec willfully engaged in the kind of superficial embellishments that Whelan accuses him of, and I really don’t care.  It’s not even clear to me how Kmiec couldn’t have “served Presidents Ronald Reagan and George Bush” even if he never actually had an inperson meeting with them.  Indeed, the only thing that strikes me as even vaguely interesting about Whelan’s attack on Kmiec is that, when faced with an article by Kmiec that he disagreed with, Whelan’s immediate instinct was to grope for someway—anyway—to impugn Kmiec’s character.

But I guess this is just how the conservative movement operates.  Not long ago, Doug Kmiec was a card carrying member of the movement, welcome at all their feasts and barbeques.  Hell, Kmiec was even a frequent contributor to Whelan’s own publication.  Once Kmiec went off the reservation, however—an event that admittedly occurred several months ago when Kmiec endorsed then-Candidate Obama—he was just as much the enemy as Michael Moore, and was subject to exactly the same vitriol.

Somewhere in the Heritage Foundation, hundreds of conservatives will gather tomorrow to scream at a two-minute video about Doug Kmiec.



Former Reagan OLC Head Endorses Dawn Johnsen
April 13, 2009, 2:12 pm
Filed under: Ian | Tags:

Doug Kmiec:

Dawn Johnsen’s nomination to head the Justice Department’s Office of Legal Counsel is caught up in an unjustified effort to hand President Barack Obama his first major loss. Some Senate Republicans seek to filibuster Johnsen into effective defeat. This would be a mistake. Even as Johnsen, a professor of law at Indiana University-Bloomington, may be faulted on occasion for harsh language in her academic commentary on the missteps of the Bush Justice Department, it is that very spunk and independence of mind that make her the right tonic for a once proud, but recently tarnished, office.

Read the whole thing, as they say.



Anti-Choice Groups Demand Veto Power Over Obama’s Nominees
April 10, 2009, 9:50 am
Filed under: Ian | Tags: ,

koh_haroldI written before about the absurd claim by some opponents of reproductive freedom that Dawn Johnsen should not be confirmed to lead OLC because of her pro-choice views, even though her duties at OLC have virtually nothing to do with abortion.  When I wrote that post, I though that the anti-choice attacks on Dawn were in bad faith because they couldn’t possibly think that she would play a significant role in setting Administration policy on reproductive choice from her perch in OLC.

Having now seen this anti-choice attack on Dean Harold Hongju Koh’s suitablity to be the State Department’s Legal Advisor, I’m not longer so sure.  The anti-choice view of Koh, if I can make any sense of it at all, appears to be that Dean Koh is pro-choice, and he also believes that international norms are relevant in considering what the scope of human rights should be under U.S. law.  So it somehow follows that Koh “could urge the Secretary of State and other officials to press for a new standard beyond the so-called privacy basis to justify keeping Roe and its ruling that unlimited abortions should be legal throughout pregnancy for any reason.”

It’s hard to know where to begin in explaining why this fear is absurd.  For starters, the body of the U.S. Government which has authority to decide whether or not what is left of Roe will remain good law is called the “Supreme Court,” not the “Department of State.”  While I normally do not read lifenews.com for their nuanced and insightful grasp of difficult legal concepts, I thought that they were aware of this fairly basic concept.  Moreover, while it is the case that an Administration’s view does often influence the Supreme Court’s decisions, this is much less true on hot button issues such as abortion where the Justices views are fairly entrenched—and even if the Justices were inclined to be swayed by the Adminsitration’s views of reproductive health, the body of the U.S. Government which presents arguments to the Supreme Court is known as the “Department of Justice” not the “Department of State.”

Of course, DOJ does consult with other agencies regarding its positions before the Supreme Court—although it is unclear why it would consult with the department responsible for setting foreign policy when it was litigating on our domestic policy regarding abortion—so it is theoretically possible that Dean Koh could, at some point in his career receive a call from Solicitor General Kagan asking his views on abortion, but the likelihood of such a call occurring is small, and the likelihood of it actually affecting U.S. law governing abortion is virtually non-existant.

Which brings me to one final point: if you try hard enough, I suppose you can imagine a way that any Administration official could theoretically influence federal abortion policy.  The Department of Labor could, theoretically, push to have abortions covered by employer-provided health plans.  The Department of Energy could attempt to regulate the amount of electricity which must flow to Planned Parenthood clinics.  The Department of Transportation could try to ban billboards protesting Roe from federal highways.  Given sufficient imagination, I’m sure you could dream up a way that any one of the President’s appointments could someday be relevant to the abortion debate—so the only way to be absolutely sure that a pro-choice appointee does not someday push to expand reproductive freedom is to ban the 53% of Americans who identify as pro-choice from government service altogether.

Judging from their tenuously-justified opposition to Dean Koh, I can only assume that this is what the anti-choice groups hope to accomplish.

(note: a reader wrote me noting my tendancy to refer to Professor Dawn Johnsen as “Dawn,” and while I refer to some other prominent individuals (such as Dean Harold Hongju Koh or Solicitor General Elena Kagan) by their last name or title.  My reason for doing so is because I know Dawn personally, but I do not know Dean Koh or General Kagan (although I met Koh once at the ACS Convention in 2004).  My use of the familiar in refering to Dawn Johnsen is not meant to indicate anything other than the fact that I am already on a first name basis with her.)