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 The White House formalized its defeat by announcing that Johnsen had withdrawn from consideration.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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