WASHINGTON — President Barack Obama's nomination of an Indiana University law professor to head the Justice Department's Office of Legal Counsel is meeting stiff resistance in the Senate, stalled for a month by Republicans who say she's a polarizing figure because she aggressively criticized the Bush administration's legal rationale on torturing terrorism suspects and radical in her views on abortion rights.
Dawn Johnsen's nomination made it through the Senate Judiciary Committee on a party-line vote, but the Senate's Democratic leadership has yet to schedule a final floor vote on her confirmation.
"I think she's in real trouble," said Sen. George Voinovich, R-Ohio. "From what I'm picking up from consensus, she's got a problem."
Her confirmation status has become magnified in the wake of Obama's release of Office of Legal Counsel memos that justified the Bush administration's use of harsh interrogation techniques on terrorism suspects.
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"I wish it would go to the floor today," said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee. "More importantly, not only is she extraordinarily well qualified, but what is most important, we've just in the release of these papers from the OLC, we've seen what's happened. We've had unqualified people ... people who are not going to follow the law at OLC."
The Office of Legal Counsel provides authoritative legal advice to the White House and the entire executive branch of government.
Senate Republicans contend that Johnsen, who served as an attorney 20 years ago for the National Abortion Rights Action League, is a hardened partisan who relished bashing the Bush White House and would use the OLC to advocate radical opinions on abortion.
"I just don't think she's qualified for the job," Sen. John Cornyn, R-Texas. "First of all, she's an ideologue ... she has actually questioned whether we are actually at war against terrorists. She questioned whether the wartime paradigm that the president is the commander-in-chief was the appropriate framework of analysis for determining what the president's powers are during a time of war."
In congressional testimony and in blogs, Johnsen accused the Bush Office of Legal Counsel of overreaching in its assessment of presidential authority. Appearing before a Senate subcommittee last May, she said the OLC was "terribly wrong" to withhold the content of much of its legal advice to Bush from public view, especially when it said that the executive branch could disregard federal law.
She took the administration to task for its domestic surveillance program and its use of secret prisons overseas to detain and interrogate alleged terrorists.
"This combination -- the claimed authority not to comply with the law and to do so secretly -- is a terrible abuse of power, without limits and without checks," she told the subcommittee. "It clearly is antithetical to our constitutional democracy."
Senior Senate aides say there is no single senator holding up Johnsen's nomination. But they acknowledge that efforts to bring her up for a vote now would likely be blocked procedurally.
Johnsen and her supporters are trying to change that. She's met with Sen. Arlen Specter of Pennsylvania, the Senate Judiciary Committee's ranking Republican. Specter passed on voting for or against moving her nomination out of committee. He said Wednesday that he hasn't decided yet how he would vote if her nomination goes to the floor.
People for the American Way, a liberal group, launched automated calls this week in Alaska, Arizona, Maine, Missouri, New Hampshire, Ohio, Pennsylvania, Tennessee and Utah with actress Kathleen Turner urging people to get behind Johnsen.
"George Bush used this office to provide the legal justifications for torture and illegal spying," Turner says in the calls. "Because of Dawn's courageous opposition to these policies, the Right Wing wants to block her confirmation. But we can't let them."
But Republicans and right-wing conservatives aren't the only ones who have reservations about Johnsen. At least one Democrat, Sen. Ben Nelson of Nebraska, said he'd vote against her because of her writings on abortion.
When Johnsen worked at NARAL, she filed a brief with a footnote that said forcing a woman to bear a child when she didn't want to was "disturbingly suggestive of involuntary servitude."
Conservative bloggers and commentators seized upon the footnote, asserting that Johnsen equated pregnancy to slavery. Johnsen addressed the footnote during her confirmation hearing in February, but her explanation wasn't enough to satisfy Nelson.
"I don't know of any circumstances where I can support her," he said.
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