The normal rule is that the Senate should give tremendous deference to any president when it comes to whom that president wants to assist him in the executive branch. Such appointees serve only at the pleasure of the president, they are there solely to carry out the president’s directions in steering the government, and they go out the door the instant the president does, if not before.
But even tremendous deference is not unlimited deference. The Senate defers, but they do not give a blank slate. Otherwise there would be no Senate confirmation process; the Constitution would instead just empower the president to appoint anyone he wants to all executive-branch departments and offices.
And for low-ranking officers, called “inferior officers,” the Constitution does allow for the president to directly appoint without the Senate. But for senior executive officials, called “principal officers,” the Appointments Clause of Article Two of the Constitution requires Senate confirmation as a check on the president’s power.
This is one of those extraordinary circumstances where the Senate should reject a nominee. Comparing being pro-life to supporting slavery is a grossly offensive statement, especially to African-Americans, and her other extremist views are so radical that she is a textbook example of someone who must be denied confirmation.
What’s so important about the head of OLC is that it’s also a stepping-stone to top judicial positions, including the Supreme Court. Antonin Scalia was the head of OLC before he was appointed to the U.S. Court of Appeals for the D.C. Circuit, and then on to the Supreme Court. Samuel Alito was the deputy chief at OLC, before he went on to be U.S. attorney, then a judge on the Third Circuit, and now serves on the Supreme Court.
But former Chief Justice William Rehnquist is the best example. He was the head of OLC in the early 1970s, and then was nominated directly to the Supreme Court. The assistant attorney general at OLC is prestigious enough that a person can go straight from that position to our highest court.
That may be Obama’s plan for Johnsen. She’s a dream judge for the Radical Left. Although she likely wouldn’t go straight to the High Court, she looks like someone being groomed for our nation’s second-highest court, the D.C. Circuit, from which she would be on the top of the short-list for a Supreme Court vacancy.
And even if she never makes it to the Supreme Court, she could do terrible damage to national security and other issues as a judge on the D.C. Circuit. Several former OLC chiefs serve on our nation’s appellate circuit courts.
To the extent that she can be exposed now, she may become too much of a liability for a lifetime judicial appointment. And if she can be stopped now, then she’ll likely never wear a black robe.
Senator Orrin Hatch, who as a principled statesman is consistently deferential on executive-branch presidential nominations, is one of the senators leading the charge against Johnsen. Hatch, the former chairman of the Senate Judiciary Committee, knows all too well how OLC is a springboard to our top federal courts, and this is doubtless driving part of his opposition to Johnsen.
Finally, it’s poetic justice to note that this is also Johnsen reaping what she has sown. Johnsen has called on the Senate to refuse confirmation to any judicial nominee who believes in the slightest restriction to abortion, or even to any person who belongs to the legal debating group called The Federalist Society, a mainstream conservative/libertarian legal studies organization. Having taken such a rabid and militant stand against others being confirmed, she can hardly cry foul that the Senate is now applying an even less-severe standard in opposing her.
Dawn Johnsen is a radical who has no business heading OLC. The Senate should stop her from being confirmed to this vitally-important office.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
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