Prof. Kmiec Challenges Opposition to OLC Nominee Dawn Johnsen

April 14, 2009

Douglas W. Kmiec, a law professor at Pepperdine University and former head of the Office of Legal Counsel (OLC) under Presidents Ronald Reagan and George H.W. Bush, says opposition to President Obama’s nominee to head the OLC is unjustified.

In an article, “Let Dawn Do It,” for Legal Times, Kmiec writes that Dawn Johnsen, an Indiana University law professor and former OLC deputy has “a uniquely well-informed understanding of the OLC’s role as honest broker.” The OLC, as Kmiec writes, is a “vital internal check upon executive overreaching,” by providing sound legal advice on policy.

Johnsen, a former member of the ACS Board of Directors and frequent critic of some of the legal advice that the OLC offered President George W. Bush, should be confirmed by the Senate, Kmiec maintains. He writes:

Professor Johnsen takes a progressive stance on legal policy, as reflected in her work with the American Constitution Society, the liberal counterpart to the Federalist Society. With due respect to conservative critics, it is no more appropriate to automatically reject a nominee affiliated with the ACS than one from the Federalist Society.

Moreover, in her prior OLC work, Johnsen repeatedly separated policy preference from rendered opinion. For example, she was personally appalled by racial discrimination in certain federal loan programs, but as Congress had clearly limited liability under a nonwaivable statute of limitations, Johnsen observed the law. Likewise she was sympathetic to immigrants seeking naturalized status, but that did not prompt her to disregard a congressionally specified oath requirement. She no doubt received criticism for this formal adherence to the rule of law, but that did not undermine her adherence to dispassionate objectivity.