Dawn Johnsen's nomination to head the Office of Legal Counsel fell apart on Friday, but it's actually quite late for an autopsy. President Obama first tapped Johnsen to fill the influential post, which literally defines the legal limits on executive power, in January 2009. One year later, he renominated her. But by then it was already over.
The Senate had refused to even give Johnsen a floor vote, despite approval from the Judiciary Committee and her sterling credentials. Obama had refused to give her a recess appointment, despite a wasted year and few signs of life for her in the Senate chamber. When he renominated her in January, it was surrender masquerading as the middle ground.
Friday's news only revealed that subterfuge. The White House formalized its defeat by announcing that Johnsen had withdrawn from consideration. The three months between renomination and withdrawal now look gratuitous: There was no big push for cloture and a floor vote (even though she had the backing of Democrats in the high 50s and bipartisan sheen from Republicans like Dick Lugar); there was no presidential speech on partisan obstruction hindering the Justice Department. And while the news of Justice Stevens' retirement took most of the media and legal attention on Friday, the next Supreme Court battle is not really a distraction from Dawn Johnsen's fate. Both standoffs reveal the profound ambivalence in Obama's emphatic pledges to swiftly restore the rule of law.
In surveying the slow, confounding death of Johnsen's nomination, attorney Glenn Greenwald proposes something akin to Nominator's Remorse. Obama cooled on his own choice, Greenwald suggests, as his administration began adopting several sweeping theories of executive power that Johnsen had long opposed. "I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges," he writes, citing recent assertions by administration lawyers. And while Greenwald does not claim to know exactly "why her nomination was left to die," he contends that Johnsen's "beliefs are quite antithetical to what this administration is doing."
Others do claim to know the inside story. One "Senate Democratic leadership source" told ABC News that fear was a bigger issue than remorse. Obama "didn't have the stomach" for a close fight on Johnsen, the source said, so the show was over after Scott Brown's election.
For its part, the White House released a statement that could have been penned by Frank Luntz himself. Since the goal of restoring "nonpartisan traditions" to the Justice Department was threatened by "lengthy delays and political opposition," the statement explained, Johnsen's withdrawal would actually help restore nonpartisanship and finally get the post filled. See, having her do the job was going to restore nonpartisan leadership, but since the Republicans won't allow it, now having her not do the job will produce the same result. As if that argument doesn't rankle enough, the White House sent out the statement under Johnsen's name. As the Times reported:
Johnsen said she had come to realize that the strong Republican opposition to her nomination had undermined her own goal for the office, which was to restore its reputation for providing legal advice "unvarnished by politics or partisan ambition."
Of all the potentially legitimate arguments available, it is odd to see the White House (and Johnsen) endorse the idea that surrendering to a partisan, unaccountable campaign to sink a nominee without a vote will actually advance nonpartisanship in government. Do we really have to go through the reasons that is patently untrue? As the campaign saying goes...
Yes we do.
The test for whether a government official acts nonpartisan in office is whether the official acts nonpartisan in office. It is not whether the official faces partisan attacks, or whether Senators oppose the nomination on partisan grounds. Jay Bybee, President Bush's first OLC director, was confirmed without any opposing votes -- but no one would seriously judge his tenure according to that bipartisan confirmation, rather than his actual performance. Obviously, Johnsen could have led the OLC sans partisanship, even after facing partisan opposition.
Beyond the metrics, there is the precedent. Obama's choice to allow a one-party bloc of Senators to unilaterally scuttle nominees without a vote risks inviting more partisanship. After all, it rewards partisan obstruction with political leverage. ("Weakness is provocative," as Donald Rumsfeld likes to say.) Now to be fair, the White House is not alone -- or even an outlier -- on this front. Many Washington liberal interest groups still quail in the face of partisan filibusters. People for the American Way, which bills itself as a progressive powerhouse focused on justice issues, sent out a bulletin this weekend lamenting Johnsen's withdrawal as a "defeat for the rule of law." "Make no mistake about it," intoned executive vice president Marge Baker, "this is the result of the unchecked, reckless obstruction of the GOP." But when I asked a spokesman if the group backed a recess appointment for Johnsen, the tone shifted. "We don't have a position on that," said the spokesman. A pressure group afraid of applying pressure -- only in Washington.
Finally, these standoffs also have a constitutional character, which brings us back to Justice Stevens' retirement. On Sunday, the A.P. headlined a story about G.O.P. threats to filibuster the next Supreme Court nominee, sight unseen. It was the constant threat of a filibuster, of course, that prevented Johnsen from getting a vote. And with abuse by both parties, the filibuster is fast becoming an extra-constitutional hurdle that requires super-majorities for a vast array of nominations and legislation. Simply checking this abuse would help Obama work towards his pledge of restoring the rule of the law. But to do that, the President would have to stand by his nominees, demand accountable votes and reorder his priorities in one crucial way: Forget about the means of bipartisanship by opponents, and emphasize the ends of nonpartisan leadership within his administration. (One goal is under his control, the other is not.)
Or Obama could let filibuster threats censor the next list of nominees. As a former President once noted, "Fool me once, shame on you. Fool me [twice], you can't get fooled again."
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Ari Melber writes for The Nation, where this column first appeared.
Follow Ari Melber on Twitter: www.twitter.com/AriMelber
....except for those who may be shall we say Moderate Republicans!
Obama did not create the division, and one could argue that any previous efforts came at an EXTREMELY HIGH COST.
IE. Failing to educate a PROFOUNDLY (by the Republicans and the 99% of the Media they
control) ABOUT EXACTLY HOW THE RADICAL RIGHT WING TOTALLITARIAN REPUBLICAN
Treasury theives PUSHED OUR COUNTRY DOWN THE CLIFF AND ARE NOW BLAMING DEMOCRATS FOR **PRECISELY WHAT THEY HAVE DONE" And are fomenting violent
revolution 24 hours a day by lying liars to the people these Republicans have most hurt that:
Democrats are giving their jobs to illegal aliens, accusing those who have been working
like hell to repair the Republican damage of precisely what they have done.
Surely there are priorities like the Supreme Court nomination.
Ancient, World or U.S. History are not subjects very familiar to the general U.S. population which explains why the American people are so easily misled by that Orwellian Word of misinformation. If one took a poll and asked the people what kind of government they have, how many branches of government they have and what are they???!!! The results of such a poll would shock anyone.
A quick history lesson of the Supreme Court:
A decade ago 5 Supreme Court Justices selected Bush and Cheney to be President and Vice President even though these Justices knew that the Florida election was rigged and fraud ridden and Gore was about to win the recount.
In other words these 5 Supreme Court Justices committed the worst crime they could have by ignoring the will of the people.
If the rule of law prevailed in this nation then these 5 Supreme Court Justices would have been prosecuted and been sent to jail for life but the rule of law in this country is only a myth and that day America's Supreme Court lost any right to expect the respect of the American people in the future.
Today, because Bush selected two more justices the court is now run by the neocon, extreme right wing, fascist, corporate, catholic lawyers who recently decided that the Robber Barons could bribe as many representatives as they wanted to and this decision was the final nail in the coffin of the republic.
This may be permanent, the supreme Court has shown its colors by its activist ruling in the favor of corporations wishing to fund candidates in elections and the Congress has become too dysfunctional to operate as more than a media circus.
Your analysis becomes useless with such hyperbole, unless this is just extreme sarcasm.
www.adduonline.org/articles/elitism.htm
That our president refused to appoint a person during recess when he quickly did appoint others is a slap in the face to Johnsen. She was wise to withdraw. I hate to say this, but what is with the president? Here was an incredibly well qualified individual who also seems to look after her health, weight, etc. But it's a no go. Yet, he appoints people who look like they will drop dead from poor dietary habits, or they seem to lack either the confidence or the ability to handle the position to which they are appointed. No offense everyone, just some observations.
Plus you're accusing him of doing things the GOP has done repeatedly. Do you ever even open a history book?
As for Obama sitting on Dawn Johnsen's nomination to head the Office of Legal Counsel you can put that down to wanting to get a floor vote of approval instead of ramming it through.
Considering the sheer obstructionism of the GOP since he took office, I think they can expect him to start doing some actual ramming. As the GOP still has its "my way or the highway attitude". If he doesn't then I will definitely fault him on it.
http://thefiresidepost.com/2010/04/12/obama-to-appoint-tina-fey-to-supreme-court/
This is not the Bush administration. Which international prion for holding people indefinitely without trial did Obama open? Which figures has he suggested assassinating?
I find it amazing that the moment Republicans are out of office they immediately accuse their Democratic replacements of doing the very dirty things they themselves invented and perfected. Is Alberto Gonzales available??
Quoting from Greenwald, 4/7/10: "Today, both The New York Times and The Washington Post confirm that the Obama White House has now expressly authorized the CIA to kill al-Alwaki no matter where he is found, no matter his distance from a battlefield. " He refers here to the American-born Islamic cleric Anwar al-Awlaki, who has advocated for attacks on America, but has not been proven in any court of law to have taken part in any particular plot.
I voted for Obama. He has done some very good things, and most of what he has done is far better than McCain would have done. But his record on these issues is abominable, if you ask me.
Hope that helps.
Obama cooled on his own choice, Greenwald suggests, as his administration began adopting several sweeping theories of executive power that Johnsen had long opposed. "I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges," he writes, citing recent assertions by administration lawyers.
Obama, change you can believe in.
Who ever expected that after his election and "ordination" this is what we would get? A whole herd of rampaging cephalopods headed up by Obama himself.
He is a mere puppet of the military and Wall Street. It's truly the great American tragedy.
Obama appointed his "advisors." Reagan is his hero.