Neil A. Lewis in today's New York Times reports that Republicans are threatening a filibuster to prevent the confirmation of Dawn Johnsen because, according to Senator John Cornyn of Texas, "Ms. Johnsen lacked the 'requisite seriousness' to head the Office of Legal Counsel."
As a law professor at Indiana University, Ms. Johnsen had criticized the memos of Bush Administration lawyers like John C. Yoo, William J. Haynes II, Jay S. Bybee, and David S. Addington who argued after 9-11 that the President could abrogate laws regarding torture and ignore international treaties he disagreed with.
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 While her language was harsh, the memos have largely been withdrawn, and among lawyers a consensus agreeing with her views has emerged.
So Senator Cornyn's attack is based on...what? Because she repudiated the Bush Administration's legal opinions, that proves she lacks "requisite seriousness."
This is truly down-the-rabbit-hole thinking. Ms. Johnsen stood up to protest illegal behavior so the Republicans argue she is unfit to head the Office of Legal Counsel. She stated her position in an article in Slate:
...we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power. Otherwise, our own deep cynicism, about the possibility for a President and presidential lawyers to respect legal constraints, itself will threaten the rule of law... OLC [Office of Legal Counsel] , the office entrusted with making sure the President obeys the law instead here told the President that in fighting the war on terror, he is not bound by the laws Congress has enacted.
It is because she was such an articulate defender of the law that she should take charge of the very office that Mr. Yoo and Mr. Bybee had undermined.
That is precisely the opinion of Democrats like Senator Sheldon Whitehouse of Rhode Island. Again from Neil A. Lewis' article:
After the 'long, dark days of degradation" of the office...it is hypocritical of Republicans who were then silent to complain now about partisanship... Where were [Repubicans] when those incompetent, ideological opinions were being issued?
What's truly criminal in the Senate Hearing is the abuse Ms. Johnsen has to endure because she defended the law when it was under severe attack by Bush Administration officials both in the White House and the Justice Department.
In these darkly partisan times we can expect that the Republican leadership will push their opposition because they need to sound tough, even if it makes them sound like the Mad Hatter.
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