Remember, it was Dems, not R's, who were responsible for the failure of Dawn Johnsen's nomination to head the OLC

For once, it appears, the Obama people found the absolute best person for a job they had to fill. Which no doubt explains why the administration fought so hard for Dawn Johnsen's nomination to head the OLC. (That's a joke. Not funny, but then, neither is the administration.)

"Put plainly, the OLC must be willing to say no to the president under any circumstances. The office does the president no favors by allowing its legal analysis to be twisted by policy or partisan preferences, even in the midst of crisis, as the months after Sept. 11 undoubtedly were.

"With rare exceptions, in administrations of both parties, the OLC has adhered to this essential principle. The torture memo and related advice are one of the unfortunate exceptions. The office undermined the rule of law, its own traditions, and the reputation and goals of the administration it advised . . ."

-- Dawn Johnsen, who had her stalled nomination to head the Office of Legal Counsel withdrawn, in a Washington Post op-ed today, "Restoring leadership and integrity to the Office of Legal Counsel"

by Ken

Maybe the simplest way to put it is that Dawn Johnsen's op-ed in today's Washington Post demonstrates why she was such an outstanding choice to head the Justice Dept.s Office of Legal Counsel (OLC), a nomination she asked to have withdrawn when, a year and change later, it appeared that she could still command "only" some 57 Senate votes.

Johnsen says she has no doubt that her "profoundly negative reaction" to the leaked OLC torture memo "was a critical factor behind the substantial Republican opposition that sustained a filibuster threat." She points out, though, that "prominent Republicans earlier had offered criticisms strikingly similar to my own, and insists: "A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice."

After the torture memo came to light, I led 19 former OLC lawyers in developing 10 "Principles to Guide the Office of Legal Counsel." We called for a return to long-standing, nonpartisan practice. The results were not flashy proposals for change but the carefully considered consensus of experience. The first principle, from which the others follow: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."

THE TEN PRINCIPLES

Is anybody else curious what exactly those ten principles are that Johnsen's group of former OLC lawyers developed, the principles that presumably disqualified her -- in the "minds" (for want of a better word) of the senators of both parties who opposed her nomination -- from serving as head of the office? In her Indiana Law Journal article (here's the link again) she offers glosses of varying lengths for each, but here are the principles:

1. When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

2. OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government—the courts and Congress—and constitutional limits on the exercise of governmental power.

3. OLC’s obligation to counsel compliance with the law, and the insufficiency of the advocacy model, pertain with special force in circumstances where OLC’s advice is unlikely to be subject to review by the courts.

4. OLC’s legal analyses, and its processes for reaching legal determinations, should not simply mirror those of the federal courts, but also should reflect the institutional traditions and competencies of the executive branch as well as the views of the President who currently holds office.

5. OLC advice should reflect due respect for the constitutional views of the courts and Congress (as well as the President). On the very rare occasion when the executive branch -- usually on the advice of OLC -- declines fully to follow a federal statutory requirement, it typically should publicly disclose its justification.

6. OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.

7. OLC should maintain internal systems and practices to help ensure that OLC’s legal advice is of the highest possible quality and represents the best possible view of the law.

8. Whenever time and circumstances permit, OLC should seek the views of all affected agencies and components of the Department of Justice before rendering final advice.

9. OLC should strive to maintain good working relationships with its client agencies, and especially the White House Counsel’s Office, to help ensure that OLC is consulted, before the fact, regarding any and all substantial executive branch action of questionable legality.

10. OLC should be clear whenever it intends its advice to fall outside of OLC’s typical role as the source of legal determinations that are binding within the executive branch.

(Taking these as Johnsen's credentials for the OLC job, can anyone think of a reason why the senators who opposed her shouldn't buy lots and lots of guns and blow their tiny brains out?)

There is, Johnsen notes in the WaPo op-ed, contention on only one point, "the degree to which OLC legal advice and analysis should be made public" (no. 6). She notes, "A critical factor is the risk of chilling executive branch clients in seeking legal advice," but argues --

The example of the torture memo argues heavily for greater transparency so that lawmakers and the American people may better understand and respond to the actions of their government. Of course, public explanations must safeguard national security, including sources and methods. But the memo's conclusion that the president's constitutional authorities entitled him to override the federal torture law is a clear example of legal analysis the government should make public. That's how democracies work

And she relates this to a point that hasn't received much attention, the extent to which OLC is "the last word on legal issues that may never get to court" (no. 3): "In such cases, public scrutiny and debate provide the most effective check against unduly expansive theories of presidential power. The stability of the rule of law must not depend on leaks."

Johnsen says the OLD under current acting head David Barron, who was on the committee that produced the ten principles, "has performed admirably since President Obama took office." But this "critical office," she insists needs the stability of a properly appointed and confirmed head, which she notes it hasn't had in six years. "It is time," she says, "for the swift confirmation of an assistant attorney general and a renewed bipartisan commitment to the integrity of the OLC's work."


WHY THE NOMINATION FAILED: THE R'S DIDN'T
HELP, BUT WE CAN'T LAY IT OFF ON THEM

It's easy to blame Senate Republicans, and indeed those who aren't hopeless troglodytes should be profoundly ashamed. (The many Senate Republicans who are hopeless troglodytes should also be profoundly ashamed, but they've made it abundantly clear that they're galaxies removed from any capacity for shame.) However, let's remind ourselves that the fate of the nomination lay in Democratic, not Republican, hands.

I don't know that there were ever hard numbers on the looming filibuster. The number I heard most often was "only 57 votes" in favor of the nomination, as in: Dawn Johnsen's nomination failed because she had only 57 votes. (I'm sorry, that still sounds pretty grotesque to me.) The names you always heard were Ben Nelson (the Democratic Joe Lieberman) and Arlen Specter (whose position at any particular moment was as hard to pin down as his party affiliation), but remember, since Indiana's Dick Lugar -- to his credit -- had announced his support of the nomination, there have to have been other recalcitrant Dems, especially once the defection of Old Arlen gave the Dems their theoretically "veto-proof 60-vote majority."

Conspicuously absent was any perceptible effort by the administration to back up its nominee. Emptywheel's bmaz targeted the blame explicitly:

[T]he failure of the Johnsen nomination is NOT and NEVER WAS about a lack of votes. No, it is completely and unequivocally about the failure of Barack Obama and his Administration to support their own nominee and stand up for the values she proffered which led them to select her in the first place. This is about Obama, not the Senate, not Republicans and not about obstruction. From an earlier post:

If one needed any more confirmation of the stunts Obama and his Administration have been pulling without the strong and principled leadership at the OLC (and there really should be no question after the wholesale adoption of Bush policies on surveillance and torture that are at complete odds with Johnsen’s long-stated beliefs), it came like a ton of bricks with the recent revelation that Obama brazenly used the OLC to retroactively immunize serial and repetitive illegal and unconstitutional violation of Federal wiretapping laws by the FBI and telecom companies.

Here's another way of looking at it. Glance quickly again at those ten principles advocated by Johnsen and her OLC alumni group. Is there anything there you can imagine Master Rahm going to bat for? Me neither.


SPEAKING OF THE FECKLESSNESS OF THE OBAMA
ADMINISTRATION -- AND, OH YES, CHUCKY SCHUMER

Reverberations continue from the stunning White House display of petulance in the wake of Madame Blanche of Arkansas's Tuesday primary survival. (Here's Howie's post from Wednesday, and here's mine.) Glenn Greenwald ("The Democratic Party and Blanche Lincoln") and Digby ("Where Did Their Love Go?") had terrific posts, and even the NYT sends the White House a sharp editorial rebuke, concluding:

Clearly, many of the voters who complained that Democratic officials had lost their phone number after being elected were also referring to President Obama. Many Democrats don’t understand why the administration and Congressional leaders are giving in to trumped-up Republican fears about the deficit and not doing more to revive the economy. Rather than dismissing such concerns and ridiculing efforts at change, the White House should consider just how powerful they have become. There are virtues to pragmatism, but it should be in the service of an underlying principle.

"What's going on here," Glenn wrote yesterday, "What's going on here couldn't be clearer if the DNC produced neon signs explaining it."

Blanche Lincoln and her corporatist/centrist Senate-friends aren't some unfortunate outliers in the Democratic Party. They are the Democratic Party. The outliers are the progressives. The reason the Obama White House did nothing when Lincoln sabotaged the public option isn't because they had no leverage to punish her if she was doing things they disliked. It was because she was doing exactly what the White House and the Party wanted. The same is true when she voted for Bush/Cheney Terrorism policies, serves every corporate interest around, and impedes progressive legislation. Lincoln doesn't prevent the Democratic Party from doing and being what it wishes it could do and be. She enables the Party to do and be exactly what it is, what it wants to be, what serves its interests most. That's why they support her so vigorously and ensured her victory: the Blanche Lincolns of the world are the heart, soul and face of the national Democratic Party.

Meanwhile, Digby, taking note of "more pouting" from the White House, now directed toward uppity progressive speakers at the Campaign for America's Future conference in progress in D.C., asked, "Is the ghost of Richard Nixon working in this administration or what? "

Honestly, this is beneath the White house and they need to put a muzzle on it. Primaries are a legitimate part of the democratic process and no president (or his men) should ever, ever dismiss them publicly or imply in any way that members of the rank and file shouldn't have a voice in these decisions. It's truly embarrassing and offensive to see the Republicans responding with more class to their crazed teaparties than the White House does to its labor union and netroots allies.

Two years ago, she pointed out, the CAP conference --

was the most giddy gathering of Obama worshippers you were likely to see anywhere. I think he took something like 90% in the primary straw poll, far more than in the real primary electorate. The administration should be asking itself not why all these dirty hippies are so unruly and unpleasant, but what happened to all that love? I don't get the sense that anyone's interested in the answer to that question.

To top it off, my senior senator, Chucky Schumer, the man who would be Senate majority leader, has entered the fray, pumping his fists in celebration of Madame Blanche's survival -- at least until she's tossed out of the Senate on her can in the general election in November.

The flap seems to have begun with a report by WaPo's Dana Milbank of the "bipartisan hugs, kisses, handshakes and even a fist bump" with which Madame Blanche returned to the Senate as a conquering hero, including this note: "Sen. Chuck Schumer (N.Y.) held up two fists and said of her primary campaign: 'Fighting Wall Street with one hand, unions with the other.'"

Greg Sargent subsequently "clarified" this on his washingtonpost.com Plum Line blog. A Chucky flack, writes Greg, "says it was just a reference to this recent ad, in which she said: '"I won't back down to the Washington unions or the Wall Street banks that don't care about Arkansas.'" I'm obviously missing something here. Greg writes: "Seems fair enough. Still not crazy about the fist-pumping bit, though." But I don't see what the alleged clarification clarifies. Chucky was still cheering on the union-bashing bitch's union-bashing, wasn't he? What has changed?

My favorite suggestion is that the White House, which so disapproves of union campaign spending, get to work having checks cut for the return of the $15M or so they've shelled out in recent years to Democratic candidates plodding enough to pass muster even with the likes of Master Rahm.


GLENN G PAYS TRIBUTE TO THE WASHINGTON
"CULTURE OF COWARDICE"

And today Glenn, paying tribute to what he calls the Washington culture, not just of corruption and dishonest, but of cowardice ("Don't forget about Beltway cowardice"), takes a closer look at an aspect of the unnamed White House official's performance Tuesday night which hasn't gotten much attention: his (or presumably her, though there aren't a lot of hers in the White House) anonymity.

The White House official, you'll recall, called Politico's Ben Smith to get his obnoxious blithering on the record, only without his name being attached to it. Here's Glenn:

That there is no remote journalistic justification for granting anonymity for these kinds of catty comments is self-evident, but that's not worth discussing, since the Drudgeified Politico has long ago established that they operate without any ethical constraints of any kind when it comes to such matters. The only anonymity standard Politico has is this: we grant it automatically the minute someone in power wants it (though on some level, in a warped sort of way, that's almost more admirable than what the NYT and Post do: pretend that they have strict anonymity standards while basically handing it out as promiscuously as Politico does). But what is striking is how often top White House officials -- who are among the most politically powerful people in the country -- are willing to inject views into the public discourse only if they can be assured that they will never be accountable for what they say. That is just unadulterated cowardice.

*

The president shows those bullies! If they won't confirm his nominees, why, he'll just have to throw his people under the bus!

Dawn Johnsen is probably relieved to have the gutless

wimps of the Obama administration out of her life.

""After years of politicization of the Office during the previous administration, the President believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to - to provide impartial legal advice and constitutional analysis to the executive branch. He will work now to identify a replacement and call on the Senate to move swiftly to confirm that nominee in order to achieve those goals."

-- White House spokesman Ben LaBolt,

on the withdrawal of Dawn Johnsen to head the OLC

by Ken

Just to be clear, President Obama believes that the way to "move beyond politics" is to succumb to the blackmail, not just of Republicans, but of a slime-besodden member of his own party? (His initials are Ben Nelson.) Um, okay, gotcha.

The obvious objection is the terrible precedent it sets with regard to all the president's future nominations. Except that the precedent is already in place regarding all of the president's past and present nominations. The message is: "If you refuse to allow me to have the people I want in my administration, I'll . . . well, I won't do much of anything, never mind thank you for your time."

And so the withdrawal of Dawn Johnsen to head the Justice Department's Office of Legal Counsel -- even as spokesman LaBolt allows that her credentials are "exemplary" and "her commitment to the rule of law has been proven time and again" -- is totally understandable, even inevitable, given the dynamics in place, and at least allows her to get on with her life, knowing that she couldn't be confirmed because she had "only" 57 or 58 or maybe 59 votes.

Nonel of which makes it any less shocking. In case you're just coming in at this point, Sam Stein reported last night on HuffPost:

Dawn Johnsen, Key Obama Justice Nominee, Withdraws Her Nomination

Dawn Johnsen, the president's appointment to the Office of Legal Counsel whose nomination has lingered in Congressional limbo for more than a year, has officially withdrawn her candidacy for the post, according to a statement sent over from the White House.

"I am deeply honored that President Obama, the Attorney General and a strong majority of the U.S. Senate have demonstrated faith and confidence in my ability to lead the Office of Legal Counsel," Johnsen said in a statement asking for the withdrawal. "OLC plays a critical role in upholding the rule of law and must provide advice unvarnished by politics or partisan ambition. That was my guiding principle when I had the privilege to lead OLC in a past administration. Restoring OLC to its best nonpartisan traditions was my primary objective for my anticipated service in this administration. Unfortunately, my nomination has met with lengthy delays and political opposition that threaten that objective and prevent OLC from functioning at full strength. I hope that the withdrawal of my nomination will allow this important office to be filled promptly."

The withdrawal represents a major blow to progressive groups and civil liberties advocates who had pushed for Johnsen to end up in the office that previously housed, among others, John Yoo, the author of the infamous torture memos under George W. Bush.

But the votes, apparently, weren't there. Johnsen had the support of Sen Richard Lugar (R-Ind.) but was regarded skeptically by Sen. Ben Nelson (D-Neb.) -- primarily for her positions on torture and the investigation of previous administration actions. A filibuster, in the end, was likely sustainable. Faced with this calculus, the White House chose not to appoint Johnsen during Senate recess, which would have circumvented a likely filibuster but would have kept her in the position for less than two years.

In a statement accompanying Johnsen's letter, White House spokesman Ben LaBolt said her credentials were "exemplary and her commitment to the rule of law has been proven time and again."

"After years of politicization of the Office during the previous administration, the President believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to - to provide impartial legal advice and constitutional analysis to the executive branch," LaBolt added. "He will work now to identify a replacement and call on the Senate to move swiftly to confirm that nominee in order to achieve those goals."

Well, this administration has more or less built an automatic ejection dock from which it can throw its nominees under the bus whenever the occasion arises, meaning anytime conservatives complain that one of his nominees is "too liberal."

Does the administration really believe that it has accomplished anything by captulating to the obstructionists? As often as the president has done so since taking office, can anyone think of a single instance in which he has reaped any reward? Certainly not from the opponents, who smack their lips in triumph at each additional indication that they can get this fellow to roll over just by looking at him crossly. You can see them mouthing gleefully, "We own him!"

The shame might have been lessened if this announcement had been accompanied by another: that Ben Nelson has been ejected from the Senate Democratic caucus, stripped of all seniority (including in his committee assignments), and had his men's room key confiscated. I understand that that would require a vote to that effect by the Senate Democratic caucus, but isn't this exactly what Mr. Political Hardball, Master Rahm, is supposed to be good for?

Wouldn't this have been a jolly time to make any recalcitrant senators understand that this is the way things are going to work now, and they had better all understand that or they can be next? But of course Master Rahm only plays hardball with people to his left, which means most everyone with a working brain who hasn't been bought by the megacorporate thugs who own him.

And of course this president doesn't work that way. He's "postpartisan." Meaning he'll concede just about anything to Republicans and ConservaDems.

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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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Obstructionism In Action-- Obama Nominations Failing To Get Senate Approval

Wait... The Democrats won the Senate, right? Even with Republicans preventing Al Franken from being seated-- and even with Ted Kennedy incapacitated-- there are still 58 of 'em and only 40 Republicans. So what happened to President Obama's nomination of David Hayes as the #2 guy at the Interior Department? Obeying directives from Limbaugh and Cheney and the rest of the obstructionist hard core, the Republican Senate caucus decided on a de facto filibuster. When Reid moved to shut down debate-- for which he needs 60 votes-- he wound up with a 57-39 outcome, 3 short. I hate to say it but clearly, it's time for Kennedy to give up his seat. (Kerry was attending a military funeral in Massachusetts, which is why he missed the vote and Mikulski has been out for a few days.) Reid and Kyl traded votes so that, under the arcane Senate rules, Reid can bring it up again, and Olympia Snowe crossed the aisle and voted with the Democrats. (With Kerry, Mikulski and either Kennedy or Franken voting, the cloture would have-- or, more important-- will in the future, be successful.)

Hayes, the first of Obama's nominees to be rejected by the Senate, is an environmental lawyer and he was targeted by GOP hack Bob Bennett (R-UT) because Interior Secretary Ken Salazar canceled oil and gas leases. Salazar right after the vote:  "It may be uncomfortable for some to watch us have to clean up mess after mess-- from corruption to lawbreaking-- that is the previous administration’s legacy at Interior, but to cast a vote against such a qualified and fine person is the height of cynicism."

So why does Bennett have his panties all in a tangle? Ahh... glad you asked. Back in March we looked at a little intra-party political problem Senator Bennett is having back in the theocratic homeland of the Mormon Cult. If you're an avid twitterer, you may be aware that what we warned about back then was revealed-- by another klutzy Republican troglodyte-- this morning. Bennett is viewed as a something of mainstream conservative and the Utah Republican Party is cleaning house and moving way to the right. Last year they ousted another mainstream conservative, Chris Cannon, and replaced him with a hard right fanatic, Jason Chaffetz, a confirmed bigot and someone way out of the mainstream of American political thought-- just the way most of the Mormon hierarchy likes 'em. Next up on the chopping block is Bennett, who was, until today's twittery slip, hoping to avoid a vicious primary with Utah's neo-fascist Attorney General, Mark Shurtleff. Like most Republican politicians, Shurtleff is clueless about how to use technology but knows he has to make himself look like he's one of the cool kids. So, forgetting it's a public communication system, the hapless AG sent out a series of tweets-- now removed, 1984 Ministry of Truth style-- giving away his hand. (Someone who knows what a slimy character Shurtleff is, photographed the evidence.)

Following a Twitter announcement from former congressional candidate Tim Bridgewater (R) that he would challenge Bennett, Shurtleff fired off a series of Twitter messages that he thought were private.

The writing is strange and hard to decipher, but the message is clear: Shurtleff is in.

“I'm announcing I'm running at 12," he wrote in one.

“it will also be against Bennett and I’ll pick up his delegates when he drops off the first ballot,” Shurtleff writes, apparently referring to the multi-ballot nominating process at the Utah GOP’s state convention.

He says in another that he will have “all of the legislative conservative causcus [sic] and other senators and representatives there endorsing me. Time to rock and roll!"

Anyway, Bennett has been on a lunatic fringe rampage all year trying to prove that he isn't a mainstream conservative but a neo-fascist obstructionist maniac. Uncharacteristically, this year he's one of the deadly zeroes, a group of 25 far right obstructionists who have voted against every single proposal President Obama has put forward. His score is zero; Orrin Hatch's is 6.06. Hatch isn't up for re-election.

There are two unrelated matters each related to today's vote that I want to point out. First is that, despite an hysterical and bloody uproar from the nutroots, the GOP Establishment is determined to destroy far right Florida fringe candidate Marco Rubio's primary campaign so they can get relatively moderate (and electable) Charlie Crist into the Senate. Yesterday Red State's Erik Erickson warned after the NRSC endorsed Crist that they would be sorry when all the "salacious stuff" started coming out about him.

Even more important is another vote coming up to confirm Dawn Johnsen to run the Department of Justice’s Office of Legal Counsel. Normally the Senate just gives nominees a pro forma look and then confirms them with a voice vote. That's how a scumbag and torturer like Jay Bybee got the job. But the Republicans have decided Johnsen is too liberal for the job, regardless of what the president thinks. And yesterday Harry Reid confirmed that he doesn't have the votes to prevent them from their de facto filibuster maneuver. Odd how one of Bush's most controversial nominees, Michael Mukasey, was confirmed as Attorney General with 53 votes while Johnsen needs 60 votes to be confirmed. Pseudo-Democrats Arlen Specter and Ben Nelson have vowed to oppose her nomination, although at one time it looked like Nelson had agreed to vote for cloture, which would allow an up or down vote that Johnsen would easily win. Reid actually only needs one more GOP vote (since Lugar favors the nomination) and both Maine senators say they are still deciding how to vote.

A few days ago an L.A. Times editorial urged her confirmation and pointed to the horrifying hypocrisy of the Republicans' tactics: "The irony is overwhelming: Republicans in the Senate are opposing-- and may try to filibuster-- President Obama's choice to head the Justice Department agency that during the Bush administration provided legal cover for the torture of suspected terrorists. Their argument: Indiana University law professor Dawn Johnsen is a partisan activist who would politicize the Office of Legal Counsel, which is charged with providing the executive branch with an objective analysis of existing law."
That hate her because she's so outspoken about her opposition to torture and because she's a powerful voice for pro-choice positions.

The Republicans' opposition to Johnsen is hypocritical, given their acquiescence in the rank politicization of the Office of Legal Counsel in the Bush years. But even Sen. Dianne Feinstein (D-Calif.) has noted that the nominee has not been a cloistered academic. Feinstein said she voted for Johnsen in the Judiciary Committee after the nominee assured her "in no uncertain terms" that she would leave her views as an activist behind when she returned to the office, where she served during the Clinton administration. Feinstein added: "I take her at her word."

So do we, and only partly because Johnsen has broad support from the legal community. Her most impressive qualification for the position, in addition to her prior service, is a detailed position paper she and 18 other former Office of Legal Counsel lawyers published after the release of the first torture memo. It offers a mirror image of the way the office behaved during the Bush administration: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients' desired actions, inadequately promotes the president's constitutional obligation to ensure the legality of executive action."

She's probably one of the half dozen best nominations Obama has made so far. Pennsylvania progressives should watch carefully to see how the Senate's newest "Democrat" votes on this one. And anyone know what ever happened to Harry Reid's public promise to seat Al Franken by the beginning of April?

Employee Free Choice is extremely important if we're going to turn the economic tide and go back towards middle-class friendly policies. But it isn't the only reason to look askance at Biden's lame deal to make Specter a Democrat:

Dealing With War Crime Investigations Would Be Uncomfortable And... Icky

I guess disbarment is somewhere between a slap on the wrist and a poke in the eye with a sharp stick. But it certainly isn't the thorough investigation of the three Bush Regime shills from the DOJ’s Office of Professional Responsibility. Remember when the far right was shrieking about the martyrdom of Scooter Libby? This would be at least as ugly and it makes the cowardly, self-serving Democrats cringe and cower. All the carefully orchestrated headlines yesterday were along the lines of the NY Times' Inquiry Suggests No Charges and the Wall Street Journal's Justice Likely To Urge No Prosections: nothing to see here; move along please.

It looks like the Justice Department will recommend turning the cases over to The Hague's International War Crimes Tribunal local bar associations for possible disciplinary actions-- meaning anything from going to bed without dinner to, if the general public screams loudly enough, disbarment for John Yoo, Steven Bradbury and Jay Bybee, now a federal appeals court judge. All three wrote and signed memos justifying torture and encouraging others to think that criminal activities were legal.

But there's more. Bradbury was kind of in charge of the Bush Regime DOJ "investigation" and was almost certainly tampering with it, as was Yoo. In yesterday's Washington Post Carrie Johnson didn't even mention that when she reported how ex-members the former criminal outfit ironically known as the Bush Department of Justice were rallying around their colleagues, at the incitement of Yoo's and Bybee's attorneys, and urging gold stars on their permanent records instead of wrist slaps.

Former Bush administration officials have launched a behind-the-scenes campaign to urge Justice Department leaders to soften an ethics report criticizing lawyers who blessed harsh detainee interrogation tactics, according to two sources familiar with the efforts.

And in today's Washington Post the same Ms. Johnson breaks the good news: that even ersatz justice is dead and none of these outrageous criminals would get even a slap on the wrist. Yes, despite how serious the findings are against Yoo, Bybee and Bradbury, the system has been neatly fixed so that none will face any kind of retribution whatsoever, unless being vilified by Jonathan Turley (see below), Rachel Maddow, Firedoglake and possibly even Stephen Colbert is the kind of retribution that fits their crimes.

Of course Jay "The Torture Guy" Bybee needs to be removed from the bench, but he probably won't be, because Americans LIKE torture

Judge Jay "The Torture Guy" didn't get where he is today by being either decent or honorable, any more than Sunshine Desserts baron C.J. (the ineffable John Barron) did. Here Reggie Perrin (the great Leonard Rossiter), well on his way to a nervous breakdown, sets out to demand a holiday from his boss. Instead, C.J. offers an afternoon off, from which he assures Reggie he'll "return a different man." "That's what Mrs. C.J. and I do," he says, "and we return different men."

by Ken

I may have been unfair to Pat Leahy. I noted that the Senate Judiciary Committee chairman on Tuesday said to reporters, about Judge Jay "The Torture Guy" Bybee (as Ryan Grim reported on Huffpost):

The decent and honorable thing for him to do would be to resign. And if he is a decent and honorable person, he will resign.

As much as I admire Senator Pat, so often he talks the talk, the good talk, the exactly right talk, but then somehow vaporizes when it comes to fighting the fight. And so my first thought was: Oh Pat, you dreamer! In this lost world of decency and honor with which you're apparently in telepathic contact, of course Judge Jay would resign. However, we live in the real world, where the Jayman knows that he didn't get on the bench by doing anything that could be called by the most charitable stretch either decent or honorable, and so why on earth would he be tempted to commit a decent or honorable act that would get him off the bench?

And all I could think of was C.J., Reggie's old boss at Sunshine Desserts in the immortal Britcom The Fall and Rise of Reginald Perrin. Why, if anyone had had the temerity to mention decency or honor in C.J.'s hearing, you just know he would have responded, "I didn't get where I am today by being decent or honorable."

In fairness to Senator Leahy, though, it turns out that he wasn't being quite so spontaneously dreamy in making his appeal to Judge Jay's decency and honor. He was in fact responding to Sen. Orrin Hatch's Monday rejection of the idea of impeachment, declaring that Jay the Torture Guy is "one of the most honorable people you'll ever meet."

Say what? One of the most honorable people I'll ever meet???

Um, no, Senator Hatch. It may well be that "Honk If You Love Torture" Jay is one of the most honorable people you've ever met. I've watched your all-too-public career for a long time now, and it wouldn't surprise me to learn that the sleazily opportunistic Torture Guy is a class act by the standard of the peeps you hang with. But that's not much of a standard.

What we are learning about Judge Jay's record heading the Justice Dept.'s Office of Legal Counsel (OLC) -- and by this I mean his willingness, or rather eagerness, to give the war criminals and Constitution-shredders of the Bush regime whatever legal cover they craved on torture or anything else -- is about as far from "honorable" as you can get. The word that pops to mind is nauseating.

IRONIC SIDEBAR: SPEAKING OF THE OLC

Along with defenses of the absolutely indefensible Jay the Torture Guy, what we're hearing from the Loony Right now is continued character assassination of President Obama's nominee to head the incredibly important OLC, whose charter is to provide the administration with the most accurate and authoritative legal opinions obtainable by the best legal minds, in other words the exact opposite of what the Bush regime sought, and got, from the fraudulent, craven, ideological-hack, butt-licking-careerist shysters it stocked the OLC with.

By all accounts (from non-insane people, that is), Obama designee Dawn Johnsen really is one of the most honorable people you'll ever meet, and she possesses one of the finest legal minds. (And by this I don't mean the kind of "fine legal mind" we've always been told Supreme Court Justice Nino Scalia possesses, which -- as anybody who reads his whacked-out opinions knows -- is in fact a cesspool of ultra-right-wing bigotry and prejudices underlying a borderline, if not across-the-border, sociopathic contempt for anyone who isn't rich and powerful.) And yet the Right, as currently personified by one of the truly nuttiest and vilest hacks to befoul the Senate, the loathsome James Inhofe, and scum-sucking Iowa Rep. Steve King, without acknowledging the role played by the Bush regimista OLC in laying waste to the Constitution and overturning our system of laws, continues to vilify Johnsen.

But I digress. Should Judge Jay be gotten the hell off the bench? Of course! And as more behind-the-scenes muck from the slime-filled Bush DoJ oozes out, there's certainly a chance that the scumbag will reach his humiliation threshold and slither off behind whatever rock he originally emerged from.

My only reservation about the impeachment process as applied to Judge Jay is that we're talking now about something the judge did before he was put on the bench. That's all supposed to be handled in his confirmation hearings. Can it qualify now as "an impeachable offense"?

Senator Leahy may have answered this question, even though he wasn't addressing it directly, when he said in the same chinwag with reporters Tuesday:

The fact is, the Bush administration and Mr. Bybee did not tell the truth. If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed.

The guy can hardly earn a free pass for having concealed this crucial information. Former Nazi concentration-camp guards who failed to disclose this activity when they applied for entry to the U.S. were nevertheless subject to deportation.

The case against Judge Jay is already pretty damning, and I suspect it's only going to get worse. Nevertheless, I think there's a good chance he's going to beat the rap. Why? Because, as a wise listserv colleague reminded us the other day, the American public by and large isn't at all offended by the idea of torture, and in fact to a large degree thinks it's a fine idea for when we need life-saving information immediately from bad guys. They don't know how heavily the odds are stacked against torture yielding any information of value.

We are talking, yes, about the 24 model, the 24 mentality, and the 24 audience. Don't get me started on that! But when people of the supposed intelligence of "Holy Joe" Lieberman subscribe to this wacko crock (and you owe it to yourself to read David Neiwert's Tuesday Crooks and Liars post "Holy Joe still loves him some torture"), is it surprising that people who watch that unmitigated pile of crap -- the dumbest scripts in TV history backed up by the worst acting and direction (Reginald Perrin is not only way funnier but way more realistic, a veritable slice of life by comparison) -- have not the slightest sympathy when we lefties froth about torture?

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