Dawn Johnsen

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Dawn Elizabeth Johnsen (born August 14, 1961) is an American lawyer and professor of Constitutional law, who is currently on the faculty at Maurer School of Law at Indiana University in Bloomington, Indiana. She worked at the Office of Legal Counsel in the United States Department of Justice from 1993 to 1998 and served as acting Assistant Attorney General from 1997 to 1998; she was twice nominated to the post in the Obama Administration.[1][2][3] Johnsen's first nomination was approved by the Senate Judiciary Committee in March 2009 in a party line vote, but was not acted on by the full Senate before it recessed at the end of 2009.[4] Obama then renominated her to the post on January 20, 2010 but on April 9, 2010, Johnsen withdrew her name from consideration.[4][5]

Early life and education[edit]

Born in Manhasset, New York, Johnsen attended Carle Place High School in Carle Place, New York, graduating in 1979 as its salutatorian.[6] She received her B.A. summa cum laude in economics and political science at Yale College in 1983 and her J.D. at Yale Law School in 1986, where she served as an Articles Editor of the Yale Law Journal.[6][7]

After graduating law school, Johnsen clerked for United States Appeals Court Judge Richard Dickson Cudahy of the United States Court of Appeals for the Seventh Circuit from September 1986 until August 1987.[6]

Professional career[edit]

Johnsen worked for the American Civil Liberties Union as a staff counsel fellow on a one-year fellowship from 1987 until 1988, and then worked for the National Abortion & Reproductive Rights Action League (currently NARAL Pro-Choice America) from 1988 until 1993. From 1993 to 1998, Johnsen worked in the Office of Legal Counsel. She was a Deputy Assistant Attorney General from 1993 until 1996, and served as Acting Assistant Attorney General heading the OLC from 1997 until 1998. Johnsen joined the Indiana University faculty in 1998 upon leaving government service.

Johnsen is a member of the national board of the American Constitution Society for Law and Policy.

Nomination to Office of Legal Counsel[edit]

As President-Elect, Obama announced his intention to nominate Johnsen to head the Office of Legal Counsel in the United States Department of Justice.[3] Her nomination was approved by the Judiciary Committee on a party-line vote and sent to the full Senate on March 19, 2009.[8]

In December 2009, Senator Patrick Leahy, the Chair of the Judiciary Committee, called on the Senate to approve Johnsen and several other nominees, and denounced the "unprecedented delays in the consideration of qualified and noncontroversial nominations".[9] The Washington Post agreed, editorializing that the treatment of Johnsen's nomination was a "travesty" and adding: "Ms. Johnsen is highly qualified and should be confirmed. At the very least, senators should have the decency to give her an up-or-down vote."[10] Nevertheless, the Senate did not act on the nomination before it ended its 2009 session. As a result, the nomination was sent back to the White House, leaving Obama to decide whether to renominate Johnsen.[11] Obama also had the option of making a recess appointment, which would have enabled Johnsen to fill the post until the end of the 2010 session of the Senate.

In early January 2010, White House officials began telling reporters that Obama was planning to renominate Johnsen to head the OLC.[12] On January 20, 2010, Obama renominated Johnsen to the post.[13]

Criticisms of Bush administration[edit]

The nomination encountered opposition from Republican Senators who cited Johnsen's criticisms of the OLC during the administration of President George W. Bush.[4][14] The New York Times reported that she had criticized OLC memoranda

that said the president could largely ignore international treaties and Congress in fighting terrorists and that critics have portrayed as allowing torture in interrogation, and criticized the legal theories behind the OLC's position in detail[15]

The broad reading of presidential authority was “outlandish,” and the constitutional arguments were “shockingly flawed,” Ms. Johnsen has written. While her language was harsh, the memos have largely been withdrawn, and among lawyers a consensus agreeing with her views has emerged.[16]

One Republican member of the Senate Judiciary Committee, Senator John Cornyn, said that Johnsen did not have the “requisite seriousness” for the post.[16] A Democratic member of the committee, Senator Sheldon Whitehouse, called such attacks hypocritical in light of Republicans' silence about the OLC during the Bush administration: "Where were you when those incompetent, ideological opinions were being issued?"[16]

Defense of abortion rights[edit]

At Johnsen's confirmation hearing, Senator Arlen Specter questioned her about a statement she had written suggesting that laws restricting abortion might violate of the Thirteenth Amendment, which prohibits "slavery [and] involuntary servitude." Specter's criticism focused on a footnote in an amicus curiae brief Johnsen had co-authored as a lawyer for the National Abortion Rights Action League in Webster v. Reproductive Health Services, which described restrictions on the right to abortion as "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." However, Johnsen asserted that she "hadn't actually equated outlawing abortion with slavery, but was just making an analogy".[17] Specter cited Andrew Koppelman, Professor of Law at Northwestern University School of Law, as a legal scholar who had interpreted Johnsen's brief in Webster as stating that restrictions on abortion violated the Thirteenth Amendment.[18] However, Koppelman responded by publishing a letter to Specter in which he said that the accusation against Johnsen was false and a distortion of his writing.[19] Specifically, Koppelman argues, of the reference to involuntary servitude in the above amicus brief, that "to say that one thing is 'disturbingly suggestive' of another is hardly the same as saying that it is identical to that other thing" [19]

Representative Steve King (R-Iowa) has repeatedly criticized several other portions of the amicus brief described above, including in a letter to President Barack Obama in which he claimed that Johnsen wrote that restrictive laws on abortion "reduce pregnant women to no more than fetal containers" [20][21] King also criticized one portion of another amicus brief coauthored by Johnsen in Bray v. Alexandria Women’s Health Clinic which King claims includes "the terrorist behavior of petitioners is remarkably similar to the conspiracy of violence and intimidation carried out by the Ku Klux Klan." [21]

Support and opposition[edit]

On April 16, 2009, Johnsen's nomination was endorsed by the Society of American Law Teachers, which described her as "an expert on Constitutional Law with an impressive resume of scholarship that illustrates the depth of her understanding of American jurisprudence."[22]

As of May 2009, there were believed to be 37 Republican Senators (out of 40) who would vote against confirming Johnsen.[23] Her nomination was endorsed by Senator Richard Lugar, a senior Republican from Johnsen's state of Indiana.[24] The remaining two Republicans, Senators Susan Collins and Olympia Snowe of Maine, have not announced their positions.[23] One other Democrat, Senator Ben Nelson of Nebraska, joined Specter in expressing opposition to the nomination, but neither Nelson nor Specter publicly stated whether he would vote for a cloture motion to end a threatened Republican filibuster.[23] Johnsen was supported by the remaining 57 Democrats as of May 2009.[23]

Specter change of position[edit]

After Specter switched to the Democratic Party, Representative Joe Sestak announced that he would challenge Specter in the Democratic primary in 2010. In January 2010, Sestak criticized Specter for his role in blocking Johnsen's nomination.[25] Shortly thereafter, Specter announced that he would vote to confirm Johnsen.[26] By some counts, therefore, Johnsen's nomination may have had the 60 votes needed to overcome the threatened Republican filibuster, although the special election of Republican Scott Brown to be Massachusetts' junior senator might have complicated that.[26]

Withdrawal from consideration[edit]

Johnsen's nomination was withdrawn on April 9, 2010.[5] In a statement, Johnsen mentioned that the delays and strong political opposition had threatened her ability to restore the non-partisanship and efficiency of the Office of Legal Counsel.[5]


Johnsen is a Methodist who teaches Sunday school.[27] She and her husband, community development finance executive John Mark Hamilton, have two children.[6] Hamilton sought the Democratic nomination for the U.S. House of Representatives from Indiana's 8th congressional district in 2000, but was defeated in the primary.[6]

Johnsen's brother-in-law is United States Court of Appeals for the Seventh Circuit Judge David Hamilton.


  1. ^ Dawn Johnsen Faculty Profile, Indiana University website bio
  2. ^ "Senate Judiciary Committee Johnsen Nomination Hearings". Senate Judiciary Committee. 2009-02-25. Retrieved 2009-04-29. [dead link]
  3. ^ a b "President-elect Obama announces key Department of Justice posts". Change.gov: The Obama-Biden Transition Team. 2009-01-05. 
  4. ^ a b c "AP Sources: Obama Pick for Justice Post Withdraws" AP via The New York Times, Friday, April 9, 2010 5:27 p.m. ET. Retrieved 2010-04-09.
  5. ^ a b c Charlie Savage (April 9, 2010). "Obama Nominee for Justice Post Withdraws". New York Times. 
  6. ^ a b c d e Dawn Johnsen (2009-02-25). "Senate Judiciary Committee Questionnaire" (PDF). Senate Judiciary Committee. Retrieved 2009-04-29. [dead link]
  7. ^ "The Yale Law Journal" (PDF). Yale University. 1986-03-01. 
  8. ^ "Judiciary Panel Clears Johnsen For OLC Post". National Journal. March 19, 2009. Retrieved 2009-12-27. 
  9. ^ Woodrow, Stephanie (December 9, 2009). "Leahy: Confirm Nominees Before Recess". Main Justice. Retrieved 2009-12-27. 
  10. ^ "A Senate vote for courtesy". The Washington Post. December 23, 2009. Retrieved 2009-12-28. 
  11. ^ Ed, O'Keefe; Butterworth, Scott (December 25, 2009). "Senate confirms more than 30 U.S. posts, sends six back". The Washington Post. Retrieved 2009-12-28. 
  12. ^ http://www.mainjustice.com/2010/01/07/obama-to-re-nominate-doj-nominees/
  13. ^ http://www.whitehouse.gov/the-press-office/presidential-nominations-sent-senate-2
  14. ^ http://motherjones.com/mojo/2009/04/republicans-filibuster-obama-justice-department-nominee-dawn-johnsen
  15. ^ http://motherjones.com/mojo/2009/01/obama-nominates-dawn-johnsen-anti-yoo-assistant-attorney-general-office-legal-counsel
  16. ^ a b c Lewis, Neil A. (April 1, 2009). "Storm Clouds Gather Over Obama Nominees". The New York Times. pp. A20. 
  17. ^ Eviatar, Daphne (October 22, 2009). "Specter Reconsidering His Position on OLC Nominee Dawn Johnsen". Washington Independent. Retrieved 2010-11-11. 
  18. ^ "SPECTER REMARKS ON QUALIFICATIONS OF NOMINEE TO HEAD DOJ OFFICE OF LEGAL COUNSEL". Congressional Documents and Publications. March 19, 2009. Retrieved 2009-05-24. 
  19. ^ a b Koppelman, Andrew (April 2, 2009). "Lying about Dawn Johnsen". Balkinization. Retrieved 2009-05-24. 
  20. ^ http://www.cnsnews.com/news/article/60398
  21. ^ a b http://townhall.com/columnists/steveking/2009/03/26/johnsens_radical_views_will_alienate_pro-life_americans
  22. ^ Barry, Margaret Martin; Deborah Waire Post (April 16, 2009). "Society of American Law Teachers—SALT-- Urges Confirmation of Professor Dawn Johnsen as Assistant Attorney General of the Department of Justice Office of Legal Counsel". Society of American Law Teachers. Retrieved 2009-05-24. 
  23. ^ a b c d Beutler, Brian (May 15, 2009). "In Limbo: Dawn Johnsen's Nomination Stalls Thanks to Democrats". Talking Points Memo. Retrieved 2009-05-25. 
  24. ^ Smith, Sylvia A. (April 28, 2009). "Lugar to support IU law professor's nomination". The Journal Gazette. 
  25. ^ Beutler, Brian (January 12, 2010). "Sestak To Specter: Don't Screw Over Dawn Johnsen Again". Talking Points Memo. Retrieved 2010-01-13. 
  26. ^ a b Beutler, Brian (January 12, 2010). "After Withholding Endorsement, Specter To Support Key Obama DOJ Nominee". Talking Points Memo. Retrieved 2010-01-13. 
  27. ^ Lithwick, Dahlia (February 25, 2009). "Thou Shalt Not Blog". Slate. 

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