Footnote Filibuster? Obama Re-Nominates Johnsen for OLC

President Obama has renominated Indiana Law Professor Dawn Johnsen to head the Justice Department’s Office of Legal Counsel. She is opposed by Republicans over her views on subjects like abortion. Much of the criticism over Johnson focuses on a single footnote in a brief — a further example of how the confirmation process works to winnow out anyone how has ever uttered an interesting or provocative thought.

Johnson was the legal counsel for NARAL Pro-Choice America. While I have had some disagreements with NARAL in the past over things like parental rights, it is hardly a subversive or extremist organization. Certainly, it is hard to see how people like John Yoo (who supported torture) or other Bush officials were viewed as well-suited for confirmation. It appears that you can support the torture of individuals and war crimes, but the right to choose is simply too extreme.

Much of the controversy surrounds a single footnote in a law review 20 years ago in a U.S. Supreme Court brief, where she wrote that forcing a woman to continue a pregnancy against her will was “disturbingly suggestive of involuntary servitude.” Conservative commentators have piled on the footnote as a foundation for opposing her confirmation, here.

It is a footnote that any academic might have written to raise a provocative analogy for the Court. Such points are often relegated to footnotes in law reviews or briefs. For members who criticize the treatment of Bob Bork, this seems like a curious basis for opposition of a nominee. Yet, Republicans are considering a filibuster, here.

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