A standard question of the Senate Judiciary Committee’s background questionnaire asks nominees for the Department of Justice to describe the 10 most significant litigated matters they have personally handled. For lawyers in private practice, including most of President Barack Obama’s nominees for the Justice Department, the question is straightforward. For those in academia, it’s a little more difficult.
Elena Kagan, nominee for solicitor general, had to reach back to her time as a Williams & Connolly associate from 1989 to 1991 because her positions since then have not involved litigation. The dean of Harvard Law School has been a professor, counsel to the Senate Judiciary Committee, and associate counsel and deputy assistant to President Bill Clinton.
Dawn Johnsen, nominee for assistant attorney general for the Office of Legal Counsel, has spent the last decade as a law professor at Indiana University at Bloomington and previously served five years in the Office of Legal Counsel. Neither position involves much litigation, so she answered the committee’s questionnaire (pdf) with 10 cases from her time at the center of abortion-related legal battles.
Johnsen was a fellow with the American Civil Liberties Union’s Reproductive Freedom Project from 1987 to 1988 and then spent five years as legal director for NARAL Pro-Choice America. She authored amicus briefs in Webster v. Reproductive Health Services, a 1989 case regarding state restrictions on abortion, and in Bray v. Alexandria Women’s Health Clinic, a 1993 case involving anti-abortion protests. She helped in other cases nationwide, usually at the appellate level.
Senators did not bring up Kagan’s decades-old litigation at her confirmation hearing last week. They will have to decide whether to do the same with Johnsen’s more-controversial work when she goes before the Judiciary Committee Feb. 25, along with David Kris, nominee for assistant attorney general for national security.
Lawyers in the Office of Legal Counsel generally stay out of litigation, providing advice to the president and executive branch agencies. Johnsen led the office for one year on an acting basis.
Her recent work, like her abortion litigation, has focused on issues that stir strong passions. She’s written on politicization at the Justice Department, military commissions for enemy combatants, and the limits of executive power, among other issues. She has given speeches, been quoted widely in the media, and written for Slate magazine and several blogs.
In the questionnaire, she discloses her 2008 salary as $164,418 and her household net worth as $951,048. She and her husband, John Hamilton, president of a D.C. community development organization, have two children. She teaches Sunday school at a First United Methodist Church and owns a 1998 Plymouth Voyager minivan.
Kris, senior vice president and deputy general counsel at Time Warner, spent 11 years with the Justice Department. He was a lawyer in the Criminal Division for eight years, working in trial and appellate courts and helping with almost 100 briefs requesting or opposing certiorari before the Supreme Court. He was associate deputy attorney general his last three years, focusing on national security.
He is teaching a class in national security investigations and litigation at Georgetown University Law Center, and he has recruited two co-teachers in case he is confirmed, according to his questionnaire (pdf). He and his wife, Jody Kris, a partner at Wilmer Cutler Pickering Hale and Dorr, have two children. He lists a household net worth of $4.3 million, including a $1.3 million interest in Martha's Vineyard real estate held in trust.
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