Dawn Johnsen

The nomination encountered opposition from Republican Senators who cited Johnsen's criticisms of the OLC during the administration of President George W. Bush.[4][15] The New York Times reported that she had criticized OLC memoranda

that said the president could largely ignore international treaties and Congress in fighting terrorists and that critics have portrayed as allowing torture in interrogation, and criticized the legal theories behind the OLC's position in detail[16] The broad reading of presidential authority was “outlandish,” and the constitutional arguments were “shockingly flawed,” Ms. Johnsen has written. While her language was harsh, it was also accurate, as the memos have largely been withdrawn, and among lawyers a consensus agreeing with her views has emerged.[17]

One Republican member of the Senate Judiciary Committee, Senator John Cornyn, said that Johnsen did not have the “requisite seriousness” for the post.[17] A Democratic member of the committee, Senator Sheldon Whitehouse, called such attacks hypocritical in light of Republicans' silence about the OLC during the Bush administration: "Where were you when those incompetent, ideological opinions were being issued?"[17]

On April 16, 2009, Johnsen's nomination was endorsed by the Society of American Law Teachers, which described her as "an expert on Constitutional Law with an impressive resume of scholarship that illustrates the depth of her understanding of American jurisprudence."[18]

As of May 2009, there were believed to be 37 Republican Senators (out of 40) who would vote against confirming Johnsen.[19] Her nomination was endorsed by Senator Richard Lugar, a senior Republican from Johnsen's state of Indiana.[20] The remaining two Republicans, Senators Susan Collins and Olympia Snowe of Maine, have not announced their positions.[19] One other Democrat, Senator Ben Nelson of Nebraska, joined Specter in expressing opposition to the nomination, but neither Nelson nor Specter publicly stated whether he would vote for a cloture motion to end a threatened Republican filibuster.[19] Johnsen was supported by the remaining 57 Democrats as of May 2009.[19]

After Specter switched to the Democratic Party, Representative Joe Sestak announced that he would challenge Specter in the Democratic primary in 2010. In January 2010, Sestak criticized Specter for his role in blocking Johnsen's nomination.[21] Shortly thereafter, Specter announced that he would vote to confirm Johnsen.[22] By some counts, therefore, Johnsen's nomination may have had the 60 votes needed to overcome the threatened Republican filibuster, although the special election of Republican Scott Brown to be Massachusetts' junior senator might have complicated that.[22]

Johnsen's nomination was withdrawn on April 9, 2010.[5] In a statement, Johnsen mentioned that the delays and strong political opposition had threatened her ability to restore the non-partisanship and efficiency of the Office of Legal Counsel.[5]

In January 2017, in an article for Slate.com, Johnsen described the "personal toll" of the Senate's refusal to vote on her nomination to head the Department of Justice’s Office of Legal Counsel in 2009 and 2010. (She posited that Merrick Garland should be appointed to the US Supreme Court and then any future vacancy should be filled in proper order, claiming that the vacancy caused by the death of Anton Scalia "exists only as the result of the wrongful denial of the legitimacy of Obama's presidency. It is a breakdown of the very functioning of our democracy and a slap in the face to constitutional norms. It is an attempted theft that, if permitted, would bring longstanding consequences.") [23]