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Specter on Dawn Johnsen’s nomination for the Office of Legal Counsel

Professor Dawn Johnsen

Professor Dawn Johnsen

Several previous posts have noted with consternation, the inability of the Senate to move forward with the confirmation of Professor Dawn Johnsen to be Assistant Attorney General for the Office of Legal Counsel. With a Hat Tip to Neal Sonnett, I am happy to see that there is now evidence that Senator Arlen Specter may be moving to support her nomination. Daphne Eviatar writes in the Washington Independent:

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 OLC is the office that housed such Bush-era luminaries as John Yoo and Jay Bybee, and issued the infamous “torture memos” that defined torture so narrowly that even waterboarding — which had always been considered a form of torture before, even by the United States — now passed legal muster. Johnsen was one of many critics of that office’s legal opinions during the Bush presidency, earning her the lingering ire of many Republicans.

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.

But now, it looks like Specter may be changing his mind. Specter’s press secretary, Kate Kelly, emailed me Thursday with this:

Senator Specter has several concerns about Ms. Johnsen’s nomination, including her views on executive power and abortion. Senator Specter is solidly pro-choice, but he disagrees with her position equating limitations with involuntary servitude. Senator Specter had a second meeting with her to get clarification on her positions and he is still considering her nomination.

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.”

Johnsen, flustered, responded that, as far as she could remember, she hadn’t actually equated outlawing abortion with slavery, but was just making an analogy. Anyway, the point, while creative, was pretty tangential to the core of the brief’s argument. It was, after all, relegated to footnote 23. But that clearly did not satisfy Specter, who remained firmly opposed to her nomination.

Until Thursday.

The change is consistent with Specter’s overall transformation, captured well by Nate Silver’s Specterometer at FiveThirtyEight.com. According to Silver’s analysis, after switching parties on April 28th, Specter started out voting with the Democrats on “contentious votes” about two-thirds of the time. But since Rep. Joe Sestak (D-Pa.) announced on May 27 that he plans to challenge Specter in the 2010 Democratic primary, Specter has become a far more loyal party member, voting with the party on “contentious votes” 97 percent of the time.

That was Silver’s count in July, and I don’t have the count to date, but it does give some indication as to why Specter decided to meet with Johnsen a second time, and is now “reconsidering” which way he’ll vote on her nomination.

Much like the vacancies at the State Department, this vacancy is a very bad thing for the United States.  I hope Specter does end up supporting Johnsen and will help move the nomination to a vote in the Senate.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.