The Contraception Lottery—Just in time for Fetal Containers Day on May 10, the Republican fringe comes unhinged over President Obama’s appointment of Dawn Johnsen to direct the Office of Legal Counsel—the Department of Justice office that advises the president on the law and the Constitution. Johnsen is a Yale Law School graduate who served five years in the Clinton administration OLC, for a time as its acting director. As a law professor at the University of Indiana, she criticized the Bush administration’s use of the OLC to expand the powers of the executive branch.

Johnsen also has suggested that crimes committed by the executive branch should be investigated. She was quoted in these pages on December 1, 2008, saying: “The attorney general has an obligation to investigate allegations of wrongdoing.” Not exactly the ranting of a Jacobin firebrand. But Johnsen raised the issue of legal culpability for acts committed in Bush’s “War on Terror.” It’s difficult to impeach the qualifications of a presidential appointment on philosophical grounds. But Johnsen once served as legal counsel for NARAL Pro-Choice America—a perfect wedge issue to animate the Christian extremists in Republican Party.

One day before Johnsen testified at the Senate Judiciary Committee in February, the conservativeWeekly Standard published an article quoting her work. Johnsen asserted in a 1989 Supreme Court case that when a state denies a woman an abortion it effectively “conscript[s] a woman’s body for its own ends.” The “conscription” line came from a footnote in an amicus brief that Johnsen submitted to the Court.

Senator Arlen Specter (R-PA) used the footnote to question Johnsen’s qualifications to serve as director of the OLC. According to Specter, Johnsen asserted that when a state denies women access to abortion it violates their Thirteenth Amendment protections against involuntary servitude. Specter also compared Johnsen’s twenty-year-old footnote to the memoranda that John Yoo and Jay Bybee wrote at the Bush-Cheney administration OLC, authorizing torture.

Send in the Clowns—A month later, the same argument was revived in the House. Steve King (R-IA) is best known for over-the-top statements that often go viral. (President Obama’s use of his middle name “Hussein” in the inauguration was “bizarre;” Senator Joe McCarthy was “a hero for America,” etc.) But King speaks to his party’s base. On March 26, looking into the C-SPAN camera in an empty House chamber, King seized on the words “fetal container,” “slavery,” and “loser” in Johnsen’s 1989 brief.

“That is a remark of contempt toward mothers and towards the cherished role that they have in bringing these young children to birth and nurturing them with all the love they possibly can,” King said. “It’s offensive to me to think that someone has called my mother a fetal container.”

King turned to a phrase in which Johnsen described women who became pregnant because they lack access to information about contraception as “losers in the contraception lottery…who no more consent to pregnancy than pedestrians consent to being struck by drunk drivers.”

“Pregnant mothers equivalent to being struck by drunk drivers when they become pregnant!” King said. “That reduces this thing down to an act of almost negligent violence if not willful violence. I think it’s an act of love.”

King’s oratory is hardly Ciceronian, but it resonates with Christian extremists and lights up the Senate switchboard.

Senatorial Courtesy—The opposition that King (and sixty-two other Republicans) engendered in the House works for John Cornyn in the Senate. The Texas senator described Johnsen as “a hardened partisan with apparent distain for her political opponents,” and he promised a filibuster.

If the Republicans filibuster, Senate Democrats threaten a floor debate focused on the torture and detention green-lighted by the Bush OLC. Johnsen’s nomination will test the resolve of the Democratic majority in the Senate and of the president. It is also a prelude to the confirmation hearings and vote on the first Supreme Court vacancy Barrack Obama is expected to fill sometime during his first term.
Why did Arlen Specter, the ranking Republican on the Senate Judiciary Committee, put the imprimatur of a mainstream Senate Republican on the sort of calumny usually found in the wackosphere? Facing a primary challenge from Rep. Pat Toomey on the right, in a state in which the population is older and more parochially Roman Catholic than in any other state in the Union, Specter had to rebrand to be reelected. The collateral damage to Dawn Johnsen’s integrity is part of that rebranding process.