Would You Believe an OLC That Can Say 'Maybe'?

As Jesse Walker noted this morning, Indiana University law professor Dawn Johnsen, President Obama's choice to head the Justice Department's Office of Legal Counsel (OLC), withdrew her nomination on Friday, citing Republican opposition that has blocked a confirmation vote for more than a year. Johnsen, whose nomination was approved by a party-line vote of the Senate Judiciary Committee in March 2009, angered Republicans with her strong criticism of the Bush administration's lawless anti-terrorism policies. But as I argued in a January 2009 column, her condemnation of presidential overreach and of the OLC lawyers who eagerly approved it made her nomination "perhaps the most encouraging sign" that Obama would "take a more modest view of executive power" than his predecessor did. So much for that. It's too bad we will not get the chance to see whether Johnsen's commitment to honestly interpret the law, rather than bending it to the president's needs, would have survived her service in the current administration, especially since Obama's anti-terrorism policies have turned out to be quite similar to Bush's. He could use an OLC that, as in Johnsen's vision, is "prepared to say no to the President."