Prof. Dawn Johnsen, still waiting for confirmation to head the DoJ's OLC, goes back to Indiana University to teach

Back to school for I.U. Professor Johnsen

"Dawn Johnsen, whose nomination to head the Justice Department's Office of Legal Counsel has stalled, reportedly has gone back to Indiana University's law school to teach a class there while Senate Democrats count and recount noses to see if they might be able to muster 60 votes for cloture. Gonna be a tough vote next month, though."

-- Al Kamen, in today's Washington Post "In the Loop" column

by Ken

You may recall that I have been more than usually curious about the progress (or should I say "fate"?) of the president's nomination of Dawn Johnsen to be head of the Justice Department's Office of Legal Counsel, partly because the OLC, as the legal fact-finding shop that determines for the Executive Branch what exactly the law is, is of incalculable importance to the rule of law by an administration and Johnsen is by all counts superbly qualified (one of the rare instances in this or any other administration in which a president may actually have found something like, literally the most qualified person available for a job, but also partly because the OLC was one of the entities most severely compromised by the Bush regime's relentless politicization of the federal justice system.

You'll recall that the infamous memos declaring torture peachy-keen, to suit the views of that torturin' fool VP "Big Dick" Cheney, were written by the unspeakable John Yoo in his capacity as an OLC lawyer.

Presumably because of the extreme contentiousness of the minority members, the Senate Judiciary Committee's work on judicial appointments has been glacially slow, with an additional two-month holdup attributable to the stop-everything confirmation process for Supreme Court Justice Sonia Sotomayor. Well, at least they got that done. Now, according to Roll Call, "There are 13 judicial and 19 executive nominations pending before the committee," a backlog that chairman Pat Leahy hopes to attack after the August recess.

However, a number of appointments that have been approved by the Judiciary Committee still await confirmation votes by the Senate itself. Some ten were left pending when the senators went on recess, including Dawn Johnsen's, which was approved in March by an 11-7 party-line vote, with then-Republican Sen. Arlen Specter not voting because he hadn't finished polishing his lie about a 20-year-old amicus brief she filed regarding Webster v. Reproductive Health Services.

Since then the now-Democratic Senator Specter has fleshed out his lie about Johnsen and declared his opposition to the nomination, citing Northwestern University Law Prof. Andrew Koppelman (according to a disputed citation in Wikipeda) "as a legal scholar who had interpreted Johnsen's brief in Webster as stating that restrictions on abortion violated the Thirteenth Amendment," as a result of which the professor "published a letter to Specter in which he said that the accusation against Johnsen was false and a distortion of his writing."

If the Snarlin' Man should somehow lose his reelection bid, he has a future with traveling circuses: "Watch the Man Whom Principle Forgot Bend the Truth With Just the Laserlike Force of His Beady Eyes!"

You may already guess that anti-abortion maniacs have something to do with the opposition to the Johnsen nomination. Her prospects with the Dismal Party weren't improved when she made stinging public criticisms of the Bush regime OLC, which in a sane world would be one of her qualifications for the job. Of course, for modern-day Republicans "the law" is what we twist to our ideological psychosis when we have the power to and take a really smelly dump on when we don't have that power and we don't like what the law says.

No less an authority than Sen. John Cornyn has announced his opposition to the nomination on the ground that Johnsen lacks the "requisite seriousness." I mean, really -- John Cornyn as the arbiter of "seriousness"? Has the whole friggin' world gone nuts? (Answer: What do you mean by "whole"?)

If about now you feel the need for relief from the Flight from Sanity of the Far Right Wackos, Glenn Greenwald wrote a swell Salon.com post in May titled "Dawn Johnsen's belief in the rule of law disqualifies her from Senate confirmation."

Now the reason that Senate Majority Leader Harry Reid hasn't yet brought the Johnsen nomination to the floor is that he doesn't think it has the votes to pass. But what this means, and what makes the Johnsen nomination so fascinating (to me, anyway), is that by not having the votes, what's meant in this case is that the nomination may garner "only" 57 or so votes. The exact numbers are hard to call. On the one hand, Al Franken gets to vote now; on the other, the votes of the ailing Senators Kennedy and Byrd may be hard to register. Republican Richard Lugar has shown some class by endorsing the nomination, but Republican "Democrat" Ben Nelson has shown his customary class by opposing it. (Last May Howie wrote a post called "Will Fake Democrats Ben Nelson & Arlen Specter Doom Dawn Johnsen Nomination?") Those famously "independent" gutless Gussies from Maine, Olympia Snowe and Susie "My Name Is Olympia Two" Collins, have been famously mum about their intentions.

But say for the sake of argument that the pro-Johnsen total sticks at 57. What have we come to when a presidential nomination fails because it musters "only" 57 Senate votes. Because of course we're not talking about carrying the nomination; we're talking about a cloture vote to enable the Senate to reach a vote, something that Senate Republicans used to insist was a sacred principle, the right to an up-or-down vote, back when Chimpy the Prez was searching swamps and caves for the lowest life forms he could find to appoint to the federal judiciary.

The hope now is that certain, er, "Democrats" (sorry, the quotation marks just typed themselves) may be prevailed on to vote for cloture, thereby allowing the vote to proceed to confirmation, just on the sort of principle of the thing. Well, stranger things have happened. (No, don't ask me for a list.)

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