The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.
The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock
The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions
Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.
Question: When does a law saying "do not discriminate" really mean "discrimination is allowed"? Answer: Now, since Attorney General Holder yesterday refused to repudiate the Bush Administration’s seemingly deliberate misreading of federal law in the context of grants to faith-based organizations.
One of the gravest flaws of the Faith-Based Initiative that President Obama inherited and has since made his own is that it permits federally funded employment discrimination on the basis of religion. Numerous federal statutes creating grant programs specifically prohibit those receiving funds from engaging in employment discrimination. However, the Bush Administration’s Office of Legal Counsel (OLC) adopted a policy memo turning those provisions on their head.
According to the memo, requiring compliance with anti-discrimination laws as a condition of receiving federal funds can impose a substantial burden on the religious beliefs of faith-based grant recipients. Therefore, it reasoned, such a requirement may be impermissible under the 1993 Religious Freedom Restoration Act (RFRA), which prohibits the federal government from substantially burdening religious exercise unless that burden is the least restrictive means of furthering a compelling governmental interest. According to this harshly criticized legal memorandum, RFRA can be interpreted to let religious grantees ignore very specific nondiscrimination provisions within a federal grant program.
At a hearing before the House Oversight Committee yesterday, upon questioning by Rep. Bobby Scott, Attorney General Holder testified that the OLC memo is not being reconsidered. Even worse, when asked the Obama Administration has adopted that interpretation as its policy, Holder gave a meaningless and evasive answer. According to Congressional Quarterly (subscription required):
SCOTT: So if you're running a Head Start Program, they're running the Head Start Program they can discriminate, even though there's a statutory provision prohibiting discrimination? They can discriminate anyway?
HOLDER: What I'm saying is that in terms of -- with regard to that specific OLC opinion, we are not in the process of reconsidering it. That is not something that, as I understand ...
SCOTT: Well I'm not talking about the memo. I'm talking about the policy. Can they discriminate notwithstanding a specific statutory prohibition against discrimination; they can discriminate anyway based on that interpretation?
HOLDER: Obviously discrimination cannot occur, that is, that contravenes federal law.
Since whether an act of employment discrimination violates federal law is the focus of the debate, Holder’s response is not enlightening.
It is hard to believe that less than three years ago, candidate Barack Obama told an audience in Zanesville, Ohio that "if you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them—or against the people you hire—on the basis of their religion."
Usually when we talk about Republican obstruction, it’s to explain the immediate problems that need to be fixed, but can’t because Republican Senators won’t let the solutions come up for a vote—an understaffed Department of Justice, empty seats languishing on the federal judiciary, an impending budget deadline, etc.
Currently, for example, there are 34 judicial nominees pending on the Senate floor, the vast majority of which are to fill vacancies deemed “judicial emergencies.” 26 of those nominees have faced no Republican opposition; one received only one negative vote - but all of them are held up anyway, waiting endlessly to start their new jobs.
But perhaps the most damaging effect of this delay won’t become apparent for years. Delaying simple confirmation votes forces nominees to put their lives on hold for months or even years, for a job with longer hours and less pay than they could find elsewhere. The excruciatingly long confirmation process is making it harder and harder to recruit qualified candidates to fill critical government positions.
Already, some nominees have decided that they couldn’t, or didn’t want to, deal with the ugly process any longer.
Dawn Johnsen, President Obama’s pick to head the Office of Legal Counsel, eventually withdrew her name because Republican senators so politicized her nomination that they undermined her primary goal of depoliticizing the OLC itself. Mary Smith, nominated to head the Tax Division of the Justice Department, asked for her name to be withdrawn when she concluded GOP obstruction would drag on for months longer. And any number of judicial nominees have displayed borderline heroism by sitting by silently as their reputations are smeared by critics playing fast and loose with the truth.
After seeing the treatment that even exceedingly well qualified nominees receive from the Senate, should it be any surprise if well qualified individuals in the future just decide that they don’t want the trouble?
Of course, if you’re in the business of attacking the Obama Administration at all costs, maybe scaring off qualified government officials isn’t a problem, it’s the goal.
“The one thing you don’t want people saying at your funeral is, ‘She went to her grave with her options open.’” That’s Dawn Johnsen, in a recent speech at the American Constitution Society, proudly declaring that she has no regrets for standing on her principles throughout her legal career, even those principles were used by the GOP to attack and eventually defeat her nomination to head the Justice Department’s Office of Legal Counsel.
Today, NPR’s Morning Edition produced a great segment on Johnsen (including some commentary from People For’s Marge Baker).
You can listen to the whole thing on NPR’s website.
Johnsen withdrew her nomination in April after spending well over a year in nomination limbo, attacked from the right over her history of supporting a woman’s right to choose and opposing Bush Administration torture policies. She was, to say the least, highly qualified. It’s a testament to her integrity that she has refused to back down from any of her statements or principles—even those that didn’t prove to be politically expedient.
Last night, Dawn Johnsen spoke to the American Constitution Society, her first public appearance after a year and a half long battle over her confirmation to head the Office of Legal Counsel. Johnsen withdrew her nomination in April after an extended right-wing attack on her criticism of Bush administration torture policies and history of fighting for the right to choose.
In speaking about her nomination, she reminded us why she would have made a strong and honest defender of the law as the head of the OLC:
“As to whether I would have changed any of my positions or softened my stances or decided to just sit out a few issues, the message could not be more clear or more simple: I have no regrets,” Johnsen said.
A law professor at Indiana University, Bloomington, she said her biography “should hardly be used as an example of why we should not stand on principle or speak out in public.” Her willingness to speak out, she added, “has not hurt me professionally. Just the opposite.”
Johnsen recounted, for example, the opportunity she had three years out of law school to co-write an amicus brief to the U.S. Supreme Court in a 1989 case, Webster v. Reproductive Health Services, in which the justices upheld abortion rights. At the time, Johnsen was legal director for NARAL Pro-Choice America.
Republicans last year seized on a footnote from that brief, accusing Johnsen of equating pregnancy with slavery. But she noted Thursday that the brief was quoted in The New York Times at the time of the case and was published in full in two law reviews, and that the Supreme Court ruled 5-4 in favor of her side. “Whatever you think about that footnote, it was a damn good brief,” Johnsen said.
“Do you think for one moment that I wish I had sat that fight out, due to caution and calculation? Not a chance, not for a moment, not on your life,” she added. “One should not live one’s life deciding whether and how to write such briefs based on calculated judgments about possible future political payoffs.”
Dawn Johnsen, the law professor who was forced in April to withdraw her nomination to head the DOJ’s Office of Legal Counsel, has written a forceful op-ed in today’s Washington Post. Johnsen, an exceedingly qualified candidate who was the victim of a fifteen month Republican obstruction effort, writes that the President and Senate need to quickly install a new OLC head—and to pick someone who will lead the office in an honest and nonpartisan way:
In 2004, the leak of a controversial memo on the use of torture catapulted the Justice Department's Office of Legal Counsel into the spotlight. Fallout and debate continue, including in the context of my nomination -- withdrawn this spring -- to head this office. While attention understandably is focused on confirming the president's Supreme Court nominee, the OLC remains, after six years, without a confirmed leader.
It is long past time to halt the damage caused by the "torture memo" by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding.
There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo -- and my profoundly negative reaction to it -- was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.
Johnsen is right that the OLC should be led by a fierce advocate of the rule of law—someone like Johnsen herself. We hope that the debate over the next OLC nominee will, unlike the last debate, reflect the importance of this qualification.
On Tuesday, former Deputy Attorney General David Ogden spoke publicly for the first time since leaving the Justice Department.
Today, well over a year after she was originally nominated, the Senate Judiciary Committee once again approved the nomination of Dawn Johnsen to head the Office of Legal Counsel.
As with any Judiciary Committee meeting, there was the requisite huffing and puffing by Republican Senators who never met a nominee they didn't want to obstruct. But anyone willing to sit through their tirades was treated to an energetic showing by Democrats who seem to have had enough of the delay and the baseless attacks.
A personal favorite is the remarks by Senator Sheldon Whitehouse, who showcased the bipartisan support that Johnsen has received and thoroughly demolished the ridiculous claims that the recent OPR report somehow vindicated the Bush Administration OLC.
The good news is that the Senate Judiciary Committee voted this morning to approve - again - Dawn Johnsen's nomination to head the Office of Legal Counsel. The bad news is that this was yet another party-line vote where the Republicans opposed an unquestionably qualified candidate solely because she was nominated by President Obama.
People For the American Way has carefully documented the unprecedented behavior of Congressional Republicans, as they have done everything in their power to stymie President Obama's nominations and administration-supported initiatives even if they have overwhelming support within their own caucus. Just this week, for instance, Republicans filibustered the nomination of Judge Barbara Keenan to the Fourth Circuit U.S. Court of Appeals, after every Republican on the Senate Judiciary Committee had voted in support of her nomination. When the filibuster was broken, she was confirmed 99-0. 99-0!
How do you explain a party whose position on more and more issues is determined simply on whether they can hurt President Obama, even when they agree with him?
If you consider today's GOP as a traditional political party in the mold of other political parties throughout American history, their behavior is surprising. But this is the party that impeached President Clinton, shut down the 2000 Florida recount, and launched vast voter disenfranchisement campaigns around the country.
So just what is today's GOP? Just six weeks after President Obama's inauguration, our affiliate People For the American Way Foundation foresaw the next step in the party's devolution in a powerful and prescient Right Wing Watch In Focus report: Dragged along by its most extreme base, today's Republican Party does not see itself as the minority party in a democracy. Instead, they increasingly see themselves as a resistance movement, a mindset appropriate for fighting a dictatorship, but not for working with a democracy's freely elected government.
No one who read that report has been at all surprised by the GOP efforts to sabotage the workings of the federal government. They made it clear over a year ago how they envision themselves in a nation that rejected them at the ballot box. Their behavior since has been consistent.
It's sad that the party of Abraham Lincoln has sunk so low.
And it's outrageous that qualified nominees are being blocked by the GOP's obstructionist tactics. Help put a stop to it here.
On Friday, the Senate Judiciary Committee held hearings on the recently-released report by the Justice Department’s Office of Professional Responsibility (OPR). The Office had been tasked with assessing whether lawyers in the Bush Office of Legal Counsel had acted unethically in crafting legal memoranda justifying torture.
Although the OPR report concluded that John Yoo and Jay Bybee had demonstrated “professional misconduct,” their recommendation for sanctions was overruled by Associate Deputy Attorney General David Margolis, who acknowledged that it was a close question but concluded that the two had exercised “poor judgment.
As we pointed out, regardless of the final recommendation, the detailed reports absolutely affirm that embattled nominee Dawn Johnsen, who has been waiting for more than a year to be confirmed to head OLC under Attorney General Eric Holder, was correct in her criticisms of the “torture memos” issued by the Bush OLC.
Rather than being pilloried for her legitimate criticisms of the Bush OLC’s failure to respect the rule of law, Johnsen should be celebrated for extraordinarily valuable process she led with 19 former OLC lawyers in fashioning principles to guide OLC’s work going forward.
Those principles, by the way, have garnered support across the political spectrum, including former Attorney General Alberto Gonzales, Timothy Elliott Flanigan (nominated by Bush to be Deputy Attorney General), and former OLC head Steven Bradbury.
At the hearings, Senator Leahy noted that Attorney General Holder has been hampered in fully reforming OLC as Johnsen’s confirmation continues to be obstructed by Republicans. She should be confirmed without further delay.
In what can only be taken as good news for the rule of law, Senator Arlen Specter said today that he’ll support Dawn Johnsen’s nomination to head the Office of Legal Counsel.
UPDATE (3:48 p.m.): A statement from Specter's office: “After voting 'pass' (which means no position) in the Judiciary Committee, I had a second extensive meeting with Ms. Johnsen and have been prepared to support her nomination when it reaches the Senate floor.”
Johnsen has received support from across the political spectrum, but her nomination has so far been blocked in the unprecedented obstruction that we’ve seen from Senate Republicans. Today’s announcement from Senator Specter is a major step forward.
January 5th might not be circled in red on your calendar (unless, of course, you’re celebrating Twelfth Night) but for some of us it’s become a noteworthy, if not entirely happy, anniversary.
One year ago today, then-President-elect Obama announced that he would nominate Indiana University law professor Dawn Johnsen to head the Justice Department’s Office of Legal Counsel.
OLC doesn’t traditionally grab headlines, but under the Bush Administration leadership of lawyers like John Yoo and Jay Bybee, it was ground zero for creating slipshod legal justifications for torture, rendition and abuses of executive power. So it was a breath of fresh air to hear that Obama had chosen a woman with impeccable qualifications and unimpeachable integrity to restore the reputation of the office.
But now, a year later, Dawn Johnsen is still waiting for a vote in the Senate, and Republicans (who can’t seem to find a nomination they don’t want to obstruct) have gone so far as to use the end of the term to send her nomination back to the White House. She’ll be renominated later this month, but then she’ll have to make yet another trip through the Judiciary Committee.
Dawn Johnsen certainly isn’t the only nominee who’s been caught up in GOP delay, but she’s spent more time in confirmation purgatory than anyone else.
The votes are there to confirm Johnsen and have been for some time. Any more delay is inexcusable. President Obama deserves to have his team in place—especially in an office as important as the OLC.
Take a minute to sign our petition calling on the Senate to confirm Dawn Johnsen.
As you may have seen reported, in a perfect exclamation point to the obstruction we've seen all year, when the Senate adjourned last week, the Republicans objected to what is ordinarily a routine request to waive Senate rules and permit pending nominations to remain in the Senate confirmation pipeline. Without what's called "unanimous consent," under Senate rules, pending nominations must be returned to the President, who then has to re-nominate in the next session. In what has become a far too typical exercise by the "Just Say No" party, Republicans objected to three DOJ nominees who have been on the Senate’s calendar awaiting consideration for months: Dawn Johnsen, for the Office of Legal Counsel; Chris Schroeder for the Office of Legal Policy; and Mary Smith, for the Tax Division. They also objected to two pending federal District Court nominees (Edward Chen, for a seat on the Northern District of California and Louis B. Butler for a seat on the Western District of Wisconsin) and to Craig Becker for reappointment as a member of the National Labor Relations Board.
This is just more of the same unconscionable obstruction by the Republicans that is interfering with the President's ability to assemble the team he needs to serve the American public. And the obstruction is pointless. All the Republicans are doing is slowing down the inevitable -- but as we've seen with any number of issues, anything they can do to gum up the works they treat as a victory. So much for the Republicans' past claims about how elections matter and about the deference owed to the President in filling out his cabinet.
Right now, three of eleven Assistant Attorney General slots in the Justice Department -- more than one quarter of the key leadership slots at DOJ -- are filled by individuals in interim "acting" capacities because the Republicans are playing politics and tying up the nominees. It's nearly one year since Dawn Johnsen's nomination was announced; her nomination has been pending on the Senate calendar for nine months.
We fully expect the President and the Senate to work through this latest round of irresponsible Republican obstruction. The nominees will be sent back to the Senate; the Judiciary Committee will consider them promptly; they'll go back on the Senate Calendar; and, unless cooler and more responsible heads prevail, Senator Reid, unfortunately, will have to file cloture on each and every one of them to put an end to the obstruction. These are exceptionally talented nominees -- and the American people will be well-served when they are finally confirmed.
Tom Perez, assistant attorney general in charge of the Justice Department’s Civil Rights Division, has celebrated the imminent passage of legislation that will allow the Justice Department to prosecute discrimination against the LGBT community.
Pending legislation includes hate crimes legislation that passed the House last week and the Employment Non-Discrimination Act.
In a speech to his colleagues, Perez said, "We must fight for fairness and basic equality for our LGBT brothers and sisters who so frequently are being left in the shadows [and to] ensure that there's a level playing field in which our LGBT brothers and sisters are judged by the content of their character."
Perez’s announcement is a welcome step forward for ending discrimination against the LGBT community in a division that has traditionally focused little attention on LGBT equality issues.
Perez began his position in the Civil Rights Division only last week after failed attempts by Senate Republicans to block his confirmation. Senate Republicans have continued to block well-qualified nominees like Perez from being confirmed to important offices, especially Dawn Johnsen’s nomination to head the Office of Legal Counsel.
Sign the PFAW petition to confirm Dawn Johnson so that she too can restore justice at the Justice Department.
Don't miss today's New York Times article on the steps Attorney General Eric Holder is taking to restore the Civil Rights Division's historic focus on high-impact enforcement against policies that have a discriminatory impact on minorities. Also underway are plans to beef up hiring of career attorneys and an administration-wide effort to enforce regulations that bar those who receive public funds from advancing policies that have a disparate impact on minorities.
Now all the Attorney General needs is for an end to the Republican obstruction that has prevented the confirmation of Tom Perez to head the Civil Rights Division, not to mention Dawn Johnsen to head the Office of Legal Counsel and Chris Schroeder to head the Office of Legal Policy. By the time the Senate returns from its August recess, these nominees will have waited nearly 8 months, more than three months, and nearly one and a half months, respectively, for a vote by the full Senate following approval of their nominations by the Senate Judiciary Committee.
It's time to stop the obstruction and to give the Attorney General the assistance he needs in returning justice to the Justice Department.
Patrick Leahy is fed up and he should be.
Dawn Johnsen, President Obama's nominee to head the all important Office of Legal Counsel at the Justice Department, has been awaiting action by the full Senate since mid-March.
David Hamilton, President Obama's first judicial nomination, has been waiting since the beginning of June.
Marisa Demeo, nominated to be an Associate Judge of the Superior Court of the District of Columbia has been waiting since the end of May.
These are just three of the 15 Justice Department and Judicial nominees that Republicans have been stalling for months! "The Senate has to do better," says
Judiciary Chairman Leahy — and we couldn't agree more.
And take action by signing onto our petition urging the Senate to confirm Dawn Johnsen.
Noting the need to clarify a number of questions surrounding the legal advice provided by the Office of Legal Counsel under Jay Bybee’s leadership, Senator Patrick Leahy, Chair of the Senate Judiciary Committee sent a letter today to Bybee inviting him to testify before the committee. In particular, the letter points out press accounts that White House Counsel Alberto Gonzales asked Bybee, who was interested in the seat on the Ninth Circuit Court of Appeals which he now holds, if he would first serve as head of OLC. Leahy offers Bybee the opportunity to “come forward and set the record straight with respect to whether and, if so, how your judicial ambitions related to your participation at OLC.”
Further, noting the contrast between a Washington Post story over the weekend suggesting that Bybee has regrets over the memoranda issued while he headed the Office of Legal Counsel and today’s New York Times story quoting Bybee as saying that he ‘believed at the time, and continue to believe today, that the conclusions were legally correct,’ Leahy offers Bybee the opportunity to clarify what he meant in his public discussion of these issues. Leahy concludes: “There is significant concern about the legal advice provided by OLC while you were in charge, how that advice came to be generated, the considerations that went into it, and the role played by the White House.”
These are excellent questions. The American public deserves to have the answers.
Two August 1, 2002 OLC memos signed by Bybee have been released. One, released in 2004, concludes that to violate U.S. law against torture, conduct must cause pain equivalent to “the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” The second, released earlier this month, authorizes the use of coercive interrogation techniques on Abu Zubaydah, including extended sleep deprivation and waterboarding.
People For the American Way co-hosted a press call on 4/27 concerning the nomination of Dawn Johnsen to head the Office of Legal Counsel.
We were joined by Walter Dellinger, Solicitor General and head of the Office of Legal Counsel under President Clinton, Douglas Kmiec, head of the Office of Legal Counsel for Presidents Reagan and George H.W. Bush, and Aviva Orenstein, an Indiana University law professor and longtime colleague of Dawn Johnsen.
All three vouched for Johnsen's legal acumen and commitment to the rule of law and expressed disbelief that Senate Republicans were attempting to block her nomination.
You can listen here:
The Washington Post reported on the call -- "Scholars Urge Confirmation of Johnsen to OLC" -- along with progressive bloggers like Christy Hardin Smith and Armando LLorens who have reported extensively on the Johnsen nomination: "The War Against Dawn Johnsen" and "Kmiec Calls Out “Rank Politics” Against Dawn Johnsen’s OLC Nod."
The call was co-hosted by the Alliance for Justice, National Women's Law Center, and NARAL Pro-Choice America.
Today I had the opportunity to moderate a discussion with Senator Sheldon Whitehouse on a conference call with PFAW members and activists.
As we’ve mentioned before, Senator Whitehouse has been one of the leading voices in the push to restore the integrity of the Department of Justice and confirm Dawn Johnsen to the Office of Legal Counsel.
Before the conversation, we solicited questions from our participants and got an enthusiastic response. Many of those questions focused on similar themes: What exactly happened at OLC? How can we fix it? And what can individuals do to help move the process forward?
Senator Whitehouse repeatedly emphasized the importance of OLC in providing honest legal advice, and he called on citizens in red and blue states alike to urge their senators to support Dawn Johnsen’s confirmation (and although he didn’t mention it, I’m sure he’d be happy to have you sign our petition as well.)
If you weren’t able to join our call, you can get a taste of what Senator Whitehouse shared with us from his appearance on Rachel Maddow’s show earlier this week.
UPDATED: You can listen to the conference call using the player below, or read the transcript here.