The Corner

I have “shocked” OLC nominee Dawn Johnsen

Indiana law professor Dawn Johnsen, President Obama’s nominee to head the Justice Department’s all-important Office of Legal Counsel, had her senate confirmation hearing yesterday.  During questioning by Sen. Arlen Specter, the professor professed to be “shocked” by my contention, here, that Johnsen had argued to the Supreme Court brief that pregnancy can be comparable to involuntary servitude, in violation of the Thirteenth Amendment’s prohibition of slavery.

I think I’m the one who ought to be shocked — first by the fact that the proposed head of OLC made such an argument, and second by the fact that she flatly denied doing so in yesterday’s hearing (“This is a brief that I filed arguing that the right to privacy protects, um, the right of women and their families to make these choices and that Roe v. Wade should be upheld, which is in 1989.  I made no Thirteenth Amendment argument.“) (Emphasis added.) 

I will have more to say about this in tomorrow’s column.  But for now, I leave you with two things.  First, here is footnote 23 of the brief she filed in the 1989 Webster case:

Statutes that curtail [a woman’s] abortion choice are disturbingly suggestive of involuntary servitude, prohibited by the Thirteenth Amendment, in that forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest.

This hyperbole, by the way, is consistent the rest of the brief.  See, e.g.,”[The woman] is constantly aware for nine months that her body is not wholly her own: the state has conscripted her body for its own ends.”  (Emphasis added.) Thus, abortion restrictions “reduce pregnant women to no more than fetal containers.”

Now contrast the exchange between Johnsen and Specter at yesterday’s hearing

(I have made this quick transcript of the relevant portion, but the recorded hearing is available on the Senate Judiciary Committee website, here – Sen. Specter’s questions on this topic begin at around 47:40 into the hearing):

Specter:  [Video 47:40] The position you take on pro-choice—I’m pro-choice, and I agree with that doctrine.  Some of the Supreme Court cases don’t please me, but that’s the law.  When I read in your writings that abortion bans go beyond the Thirteenth Amendment, which bars slavery, and that “forced pregnancy requires a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest”—it seems to me just candidly beyond the pale.  To say that that’s a violation of the Thirteenth Amendment against slavery—do you stand by that statement?

Johnson: [Video 48:35] Thank you, Senator, for that opportunity to clarify.  I was, I have to say, shocked when I saw that National Review article that made certain claims about what I had written yesterday.  I have never—

Specter: You did not write that?

Johnson: I did write the part that you quoted, absolutely.  Um, I have never argued that there’s a Thirteenth Amendment violation um, when, um, the government restricts abortion.  Uh, that—I was shocked when I saw that.  It took me a while to search and find what they were referring to.  They made other claims that were clearly false.  Uh—Here they—I did write a brief twenty years ago.  Uh—In footnote 23, I found, makes um, um, a suggestion that there may be an analogy, um, between, not what the article said, pregnancy, which I’ve been blessed with twice and have two wonderful sons, but forced childbirth.  This is a brief that I filed arguing that the right to privacy protects, um, the right of women and their families to make these choices and that Roe v. Wade should be upheld, which is in 1989.  I made no Thirteenth Amendment argument.  I can state categorically:  I do not believe the Thirteenth Amendment is relevant at all.  It was a straight Fourteenth Amendment argument.  [ACM note: the italics without bolding reflect emphasis by Johnsen which I believe is fairly inferred from the recording of the hearing.]

Specter: Well, my question was whether you wrote that.  I have listened to your answer, but I do not understand it.  But I’ll take a look at footnote 23.  I don’t have a whole lot of time [allotted for questioning in this hearing].

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