The Headless Office of Legal Counsel

March 31, 2010

President Obama’s nominee to head the Office of Legal Counsel (OLC), Dawn Johnsen, has been held up in the Senate for as long as Barack Obama has been president. On January 20 of this year, a full year into his presidency, Obama re-nominated her for the position he’d first named her for before he even took office.

Democrats have been unable to muster 60 votes to get the nomination past a filibuster. Among the opponents of Johnsen’s nomination have been, on the Democratic side, Arlen Specter and Ben Nelson. And on the Republican side, you know, the Republicans. The issue spurring the opposition? Abortion.

The OLC is charged with formulating legal opinions for the president and the entire executive branch. It is the constitutional brain of the presidency. Its head is an Assistant Attorney General, and anyone who holds the post becomes a likely candidate for appointment to the federal appellate courts thereafter. William Rehnquist and Antonin Scalia each ran the OLC for several years before being nominated for the Supreme Court. But the importance of OLC is not that it is a springboard to bigger things. Rather, it is itself arguably the most important active body of experts in constitutional law. Unlike the courts, which are inherently reactive, the OLC participates in the events that make constitutional law and executive precedents while they are happening. And in the gaping areas of constitutional law that are considered non-justiciable political questions by the courts, and in the ever-growing areas  of deference to the executive, the OLC is probably the biggest game in town.

Dawn Johnsen was a strong critic of the Bush administration OLC, which is widely considered to have given substandard—”outrageous,” in Johnsen’s words—legal advice to the president, particularly on the issue of the treatment of suspected terrorists. She also has some of the best credentials one could have for the job: she’s already done it. She was Acting AAG in charge of OLC from 1996-98. Since then she has become a leading academic expert on the OLC.

But apparently she is just too controversial, having worked for NARAL from 1988-1993. Because, of course, nothing illustrates an uncontrollable legal bias like a record of advocating for women’s constitutional rights.

Many observers are disappointed that Johnsen was not among the 15 recess appointments announced last Saturday. Chris Geidner thinks the administration didn’t push Johnsen through with a recess appointment because it doesn’t want to subject the office to further politicization, having been so damaged by abuses in the Bush years. Sounds plausible to me. I only wonder how far the president and his justice department must go to restore OLC’s stature. Because at some point, avoiding the appearance of executive-branch politicization begins to allow legislative-branch politicization to prevent that restoration from ever happening.

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One Response to “The Headless Office of Legal Counsel”

  1. Lee on March 31st, 2010 8:26 pm

    Sorry to play into the hands of Republicans and turn this into a conversation about abortion, but I was curious for your take on the issue of reproductive choice as a Constitutional right… Is it something you’ve given much thought? It occurs to me that I really have not myself, and I guess thats because even if its just some BS to get to the right outcome, I’m actually totally ok with that. I respect the philosophy of judicial restraint, but I see the appeal as mainly political. (i.e. it plays better over the long term not to strain credibility.) But I have no philosophical problem with “judicial activism.”

    Of course maybe this is the kind of thing I should keep to myself, haha.

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