The death of Dawn Johnsen's nomination to head the Office of Legal Counsel was more than the defeat of a single nominee. It was a blow to a liberal legal community that is already struggling to counter the conservative legal message. Johnsen's downfall wasn't being unqualified--she had run OLC in the past--her problem was that she was too strident in speaking out against the lawlessness of the previous administration.
Referring to the footnote in an abortion related brief that was the pretext for Republicans opposed to her nomination in a speech in front of the American Constitution Society last night, Johnsen said, "do you think for one moment I wish I had sat that fight out, due to caution and calculation? Not a chance, not for a moment, not on your life."
For liberals, it's hard not to contrast the death of Johnsen's nomination to head OLC or Goodwin Liu's stalled nomination to the Ninth Circuit with the lukewarm resistance to Elena Kagan's potential elevation to the Supreme Court. Kagan, in contrast to Johnsen, rarely spoke out against the Bush administration's abuses, and unlike Liu, doesn't have a long record of legal scholarship defending liberal constitutional values. As a result, she is practically sailing to confirmation, with Republicans reduced to the weakest of scurrilous arguments against her confirmation. Yet the liberal reception to Kagan has been tepid, precisely because unlike Johnsen or Liu, she hasn't been a champion of liberal constitutional values but a partisan player behind the scenes.
It might be easy to take the lesson from Johnsen's experience that as a liberal lawyer with career aspirations, one should simply keep your mouth shut. And that was precisely the conclusion that Johnsen sought to dissuade liberals from coming to during her speech in front of ACS last night:
