Sen. Ben Nelson's opposition to President Obama's choice to head the Justice Department Office of Legal Counsel appears to be the key obstacle to her confirmation. Democrats say Dawn Johnsen, an Indiana University law professor, has 59 backers in the Senate -- just one vote shy of cloture. Nelson, a Nebraska Democrat, is standing firmly against her appointment, pointing to Johnsen's job 15 years ago as a counsel to the abortion rights group NARAL.
All of which has left Nelson's critics furious. Where was the principled opposition from the Senator during the Bush years? Why is he refusing to show Obama the same deference that he offered the previous administration?
The votes, they argue tell the story. Nelson supported cloture or confirmation for some of Bush's most controversial judges and political nominees, including several who were never able to be confirmed even under a GOP-controlled Senate. Moreover, Nelson often defended his positions by citing presidential prerogative.
"The president's nominees, especially to the Supreme Court, deserve an up-or-down vote," he said of the nominating process, "even if the nominee isn't popular with the special-interest groups in Washington."
Indeed, Nelson voted for cloture twice on former U.N. Ambassador John Bolton and once for former EPA Administrator Stephen Johnson.
He backed the nominations of Samuel Alito and John Roberts to the Supreme Court, as well as John Ashcroft and Alberto Gonzales to the Attorney General post.
He supported cloture for the nomination of Miguel Estrada to the United States Court of Appeals for the D.C. Circuit on seven separate occasions.
He did the same three times for the nomination of then Alabama Attorney General Bill Pryor to the 11th U.S. Circuit Court of Appeals, before ultimately supporting confirmation as well.
In one of the very few cases where Nelson voted against a Bush nominee -- Priscilla Owen (whose nomination nearly led to the "nuclear option" in the Senate) -- he did so only after backing cloture first, though this was part of the deal struck by the Gang of 14. Nelson even voted against cloture on one of the judges excluded from that bipartisan deal: Henry Saad, whose nomination to the United States Court of Appeals for the Sixth Circuit was ultimately defeated.
Nelson's history of support for Bush appointees is enough to produce heavy cynicism from his own party members when he discusses his opposition to Johnsen now. And in conversations with several Democratic strategists, a few theories were put forward. The first: that Nelson is likely waiting on some sort of quid-pro-quo from the Obama White House in exchange for his vote. After all, during the stimulus debate he was one of the last remaining hold outs, securing in the process some changes to the overall package. The second: that this is payback. As reported by Ryan Grim, the White House has bucked Nelson on one of his top legislative priorities, maintaining government support for the large student lending firms based in his state.
Nelson's office did not immediately return a request for comment.
UPDATE: Clay Westrope, Nelson's press secretary, responds:
"Dawn Johnsen has not been nominated for a judicial position, so the [names] you cite are not relevant. Senator Nelson exercises his judgment on a case-by-case basis to determine which nominations to support."