STEVE INSKEEP, host:
President Obama's nominee to serve on the Supreme Court, Elena Kagan, is preparing for her confirmation hearing. But one of the White House's failed nominees is packing her bags. She's moving back to Indiana after a confirmation battle that lasted well over a year. NPR's Carrie Johnson reports on the effort to install Dawn Johnsen at the Justice Department and the lessons she learned from that experience.
CARRIE JOHNSON: These may be Dawn Johnsen's first and only words about withdrawing her nomination to lead the Justice Department's Office of Legal Counsel this year.
Ms. DAWN JOHNSEN (Former Office of Legal Counsel Nominee): For me, one of the greatest costs of confirmation limbo was the forced silence and inaction.
JOHNSON: Johnsen finally broke her silence recently before a friendly audience at the American Constitution Society. Johnsen looks back at months of delay, ugly rhetoric, and attacks on her positions on subjects like abortion rights and the interrogation of terrorism suspects.
The Senate Judiciary Committee approved Johnsen's nomination twice. But her nomination went nowhere on the Senate floor. She's got some lessons to share with other nominees, though, before she leaves town.
Ms. JOHNSEN: In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think because they can always find a footnote to twist and distort in a 20-year-old brief.
(Soundbite of applause)
JOHNSON: Johnsen is referring to a legal brief she wrote decades ago in a controversial abortion case that made its way to the Supreme Court. Some Republicans and pro-life groups seized on the brief as outside the mainstream. But the White House and Senate Democrats were reluctant to organize a counterattack.
Marge Baker questions that strategy. Baker runs People for the American Way, a group that supports Mr. Obama's nominees.
Ms. MARGE BAKER (People for the American Way): I think the lesson is learned is not to let a nominee hang out there. I think she hung out there for nearly a year and a half, being attacked for actions that she took and positions that she took that were just totally mainstream.
Mr. WALTER DELLINGER (Former Solicitor General): I think the lesson of the Dawn Johnsen nomination is that the administration simply needs to be much more aggressive about pushing its nominees forward and insisting on a prompt consideration by the Senate.
JOHNSON: That's Walter Dellinger. He counts himself as one of Dawn Johnsen's biggest supporters. She was his deputy at the Justice Department in the Clinton administration. Dellinger says that President Obama should consider recess appointments when the Senate fails to act.
In the Bush era, lawyers at the Office of Legal Counsel approved harsh interrogation tactics. Critics later compared them to torture. They also gave a green light to wire taps without a warrant. The decisions became public years later, and they came back to haunt the lawyers and the institution. Dellinger led the OLC before it became world famous.
Mr. DELLINGER: It is striking, indeed, almost shocking that since I left as the confirmed head of OLC 14 years ago, for fewer than three of those 14 years has there been a confirmed person the head of the Office of Legal Counsel.
JOHNSON: Two men who have been running the office during Johnsen's long and unsuccessful confirmation fight are on their way out the door. The White House is developing a short list of other candidates. They include several women lawyers with ties to Washington and less of a written record on controversial subjects than Johnsen.
Johnsen's now preparing to move home to Indiana with her husband and two sons. But, she says, she has no regrets.
Ms. JOHNSEN: The one thing you didn't want people saying at your funeral was she went to her grave with her options open.
(Soundbite of laughter)
JOHNSON: Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
