Former OLC Nominee Would Have Accepted Recess Appointment
By Andrew Ramonas | November 22, 2021 4:29 pm

This story has a clarification.

The former nominee to lead the Justice Department Office of Legal Counsel said on Friday she would have been content with a recess appointment, which would have let her hold the post temporarily, The Herald-Times of Bloomington, Ind., reported Friday.

Dawn Johnsen (American Constitution Society)

Dawn Johnsen, an Indiana University law professor, said she would have liked the Barack Obama administration to call for a full Senate vote on her nomination, which was stalled for months before she withdrew in April. But she said a recess appointment would have been fine.

“I would have welcomed a recess appointment,” Johnsen said, according to the newspaper. “I believe it would be in our nation’s best interest for the president to be able to use that authority in the future when there is unwarranted obstruction by senators who are trying to not even have a vote on a nominee. I do regret that wasn’t a possibility for me, because I would have accepted that, and I’m hopeful in the coming years the president will use his recess appointment power.”

Johnsen didn’t explain why a recess appointment wasn’t an option for her. She and the White House didn’t return requests for comment from the Blog of Legal Times.

A presidential appointee hasn’t led the OLC since Jack Goldsmith resigned in 2004. Principal Deputy Assistant Attorney General Jonathan Cedarbaum currently heads the office.

The former nominee faced stiff opposition from Republicans because of her aversion to the George W. Bush administration’s national security policies and her pro-abortion rights views. But Johnsen said there were times she and others received word that a vote on her confirmation was close to happening. Though she said Obama’s agenda seemed to put her nomination on the backburner.

Johnsen wasn’t the only DOJ nominee blocked in the Senate. Former Tax Division nominee Mary L. Smith asked for her nomination not to be resubmitted to the Senate for consideration after the body returned it twice to the president. The former nominee faced opposition from Republicans who expressed concerns about her dearth of tax law experience.

“I do think the obstructionism we’ve seen in the last two years is unprecedented,” Johnsen said, according to The Herald-Times. “I think it’s inexcusable and reflects a fundamental lack of caring about the impact on government.

Clarification: an earlier version of this story said the White House decided not to further pursue the confirmation of former Tax Division nominee Mary L. Smith. Smith told Main Justice that she asked the White House not to resubmit her nomination to the Senate for consideration after the body returned it twice to the president.


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