Happy(?) Anniversary, Dawn Johnsen!

by Mary Jean Collins

Today marked a little known but important anniversary for the Obama Administration. One year ago today, President-elect Obama announced that he would nominate Dawn Johnsen to head the Office of Legal Counsel.  

Johnsen’s resume is impeccable and she’s earned a reputation as a lawyer who puts the rule of law above policy preferences-- good qualifications for a job whose main duty is to tell the President what the law does and does not allow him to do.
  
But now, a year after her name was announced, Johnsen is still sitting in nomination purgatory, and the GOP is plumbing new depths in their pettiness and obstruction. 
 
There’s no question that Johnsen is qualified for the job. She already served as acting head of the OLC during the Clinton administration, and former OLC heads from both parties have supported her nomination. In 2004, after Bush administration torture memos came to light, she organized an impressive panel of former OLC lawyers to craft a widely praised statement of principles to guide the Office going forward. 
 
Despite the fact that Johnsen was voted out of the Judiciary committee in March, she’s still waiting for an up or down vote on her nomination (a vote she would certainly win.) Before Christmas, when the Congressional term ended, the GOP even refused to allow her name to stay on the docket of Senate business. Instead, they forced the Senate to send her nomination back to the President who will renominate her later this month. The maneuver doesn’t mean that Johnsen is less likely to be confirmed (despite the gleeful spinning of right wing commentators and the concerns of some worried progressives) but it does illustrate the treatment Johnsen has received from Senate Republicans.
  
Of course, no one should be surprised that the GOP is working overtime to block her nomination. First of all she has the temerity to be both pro-choice (she used to work for NARAL) and anti-torture (she criticized the disgraceful torture memos which laid out the flawed legal justification for torturing for torturing prisoners, points on which even former Bush Administration officials and Republican Senator Lindsey Graham agree). And second, as People For the American Way pointed out last month, Senate Republicans have been busy setting new records for obstructionism wherever they can. 
 
But, as usual, there’s plenty of blame to go around. Both Senate Democrats and President Obama have been slow to stand up for Johnsen and against partisan obstruction. Republican Senator Richard Lugar has already said that he’ll vote to confirm her and it should be out of the question for any Democrats to support the filibuster of an executive branch nominee from a president of their own party. 
  
Later this month, President Obama will send Johnsen’s name back to the Senate. Instead of letting the nomination languish, Democratic leaders-- and the President-- need to make clear that they’re in charge and call the GOP’s bluff. The votes are there. Once they decide that Dawn Johnsen and the rule of law are worth fighting for, they’ll probably discover something quite useful. 
  
They’ll win. 


UPDATE: Obama's Efforts At Justice Department Seem To Be Going Nowhere

David Ingram wrote at the National Law Journal today that only 3 circuit and 9 district judges have been confirmed in Obama's first year and that new leadership at his legal shop-- Robert Bauer-- needs to "reinvigorate the administration's efforts to shape the federal judiciary."

The U.S. Senate ended the year having confirmed three nominees to federal circuit courts, half as many as were confirmed during President George W. Bush's first year. Among nominees for district court judgeships, the difference is even more stark-- nine won confirmation during 2009 compared with 22 during 2001. Six circuit nominees and four district nominees have passed through committee but not received a vote in the full Senate.

At the U.S. Department of Justice, Obama has filled 12 of the top 15 positions while Bush had people in all the department's top positions by this time. Three nominees have stalled. One is Duke Law School professor Christopher Schroeder, who would head up the Office of Legal Policy, a key slot for vetting nominees for the judiciary. A fourth vacancy will open up when Deputy Attorney General David Ogden returns to private practice in February.

Two primary factors have contributed to gridlock in the Senate. Republicans have used the Senate's quirky rules-- including a requirement for unanimity before a vote can be scheduled-- to delay confirmation votes, while Democrats have chosen to spend their time on other issues, such as health care, rather than use their 60-member caucus to force votes. Sen. Sheldon Whitehouse, a Democrat and member of the Judiciary Committee, said moving nominees just hasn't been a priority and there's no indication when that will change.

...In a possible sign that their confirmations are not imminent, DOJ nominees Schroeder and Indiana University Maurer School of Law-- Bloomington professor Dawn Johnsen are scheduled to teach classes next semester. Johnsen, picked for the Office of Legal Counsel, has been criticized by Republicans for her advocacy on behalf of abortion rights and civil liberties. Schroeder has taken heat for agreeing with Obama on the role of empathy in judging, among other views.

Attorney General Eric Holder Jr. told reporters in October that Johnsen's nomination has been pending "far too long." Her one-year anniversary of being named is Jan. 5. Schroeder was nominated June 4. Schroeder declined to comment for this story, and Johnsen did not return a call requesting comment.