In addition to hurting the prospects for health care reform, there may be another casualty of the Democratic party's loss of Ted Kennedy's old Senate seat in Massachusetts last week -- the confirmation of Dawn Johnsen, one of President Obama's most controversial appointees to the Justice Department.
It is uncertain that the party has the 60 votes needed to get Johnsen confirmed to the post of Office of Legal Counsel. say aides.
On Thursday, the Senate Judiciary Committee will consider Johnsen's nomination for the second time in less than a year. The committee is expected to vote to send the confirmation to the Senate floor, though a Judiciary aide cautions that any member on the committee "can request that the nomination (or any other nomination or bill listed for the first time) be held over for one week."
What happens when it gets to the Senate floor is the subject of some political intrigue. Up until last week, it was widely assumed that Johnsen had the votes needed for passage. Sen. Arlen Specter (D-Penn) announced he would support the nomination despite months of skepticism. Sen. Richard Lugar (R-Ind.), who hails from Johnsen's home state, was also seen as a yes vote. That made 60, with the remaining Democratic holdout being Sen. Ben Nelson (D-Neb.).
The election of Sen. Scott Brown (R-Mass) to the Senate changes that calculation. The Massachusetts Republican ran on a decidedly pro-waterboarding platform -- putting him at odds with some of Johnson's legal positions. Johnsen's backers are concerned that he would ultimately be a no vote, putting her nomination back in peril.
Should Brown be a no vote, the attention shifts back again to Nelson, who has been coy about where exactly he stands on confirmation. The Nebraska Democrat told the Indianapolis Daily Star on Sunday that he doubted Johnsen's nomination would even be brought to the floor for a vote. He also insisted that the Obama White House had not contacted him about the issue.
An administration official, expressing confidence in Johnsen's nomination, disputed Nelson's account, noting that the White House's legislative affairs department set up a meeting between the senator and the OLC nominee "months ago."