No Comment — April 27, 2010, 4:53 pm

Lessons from the Failed Nomination of Dawn Johnsen

Two weeks ago, the Obama Administration gave up its efforts to appoint Dawn Johnsen as Assistant Attorney General in charge of the Office of Legal Counsel. The story received only the most fleeting mention in the press, with brief references to a “controversial” nomination and the fact that Johnsen had “withdrawn” her candidacy. But this development tells us a great deal about how the Obama White House works, its attitude towards the Justice Department, and its intentions to make good on commitments surrounding legal policy in the war on terror.

Dawn Johnsen was the most highly qualified nominee for the post in recent memory. She was a long-time Justice Department lawyer who had served as deputy assistant at OLC and then as acting head of the office from 1997-98. She was therefore being appointed back to fill a slot she actually previously held. Many legal scholars even saw the move as something of a demotion. But Johnsen wanted the post largely because of her commitment to the Justice Department and her desire to undo some of the damage done to OLC during the Bush years. She had been outspoken in her criticism of OLC opinions that gave a green light to torture and other abuses. Unlike many critics, however, Johnsen had also been careful always to balance her criticism with a positive vision of OLC, its role, and the traditional posture of its opinion-making.

The Judiciary Committee voted in favor of the Johnsen nomination, but Majority Leader Harry Reid declined to bring her nomination to the floor of the Senate for a vote. He told Johnsen’s sponsors that they needed to show that they had sixty votes in support before he would do so. The nomination got no effective support from the Democratic Senate leadership and even less from the White House. Nevertheless, a vote-counter for Johnsen told me just before her nomination was withdrawn that he believed she did in fact have at least fifty-nine votes and possibly as many as sixty-one. She had secured the support of all Democrats with the likely exception only of Nebraska’s Ben Nelson, and she had secured the support of Republican Dick Lugar, while two other Repubican senators played coy and declined to state any opposition to her. Johnsen could, in other words, almost certainly have been confirmed. Moreover, President Obama could also simply have avoided the vote process and made a recess appointment, as he did on March 30 with a series of National Labor Relations Board picks.

Republicans opposed the nomination, citing Johnsen’s views about abortion—views that perfectly mirror those of President Obama and a large majority of Americans but allowed the G.O.P. to mobilize right-to-life advocates to oppose the nomination. Speaking with Republican staffers off the record, however, I heard a continuous refrain. Johnsen was opposed because of her analysis and criticism of Bush-era torture policy. She was “weak on national security,” they said. But their real concerns lay elsewhere: Johnsen could be a powerful voice for accountability inside the Department. And that had to be avoided at all costs.

Why did the Obama White House and Democratic Senate leadership allow the Johnsen nomination to die?

It seems to me that there are three explanations, each applicable to some extent.

  1. Obama has largely adopted Bush-era policies in the “War on Terror.” True, Obama has distanced himself from torture, extraordinary renditions, and a handful of other extreme projects. But the broad expanse of Obama policy can hardly be distinguished from that of its predecessor. Johnsen was one of the principal intellectual authors of the critical views on legal policy that Barack Obama embraced and articulated on the campaign trail. This has produced a sense of awkwardness within the White House about the Johnsen nomination, a sense that has grown more acute with the departure of prominent figures like Greg Craig and Phil Carter, who were strong exponents of the official campaign-era Obama viewpoint. How would Johnsen view the deal that Rahm Emanuel is working out with Lindsey Graham about trials before the Guantánamo military commissions, for instance? It would be hard to imagine her advocating horse trading surrounding criminal prosecutions, and indeed, it would be hard to imagine any career Justice Department lawyer who wouldn’t be sickened by the whole approach. Yet at this point, the White House seems close to embracing it.

  2. The Obama White House knows its priorities. Rahm Emanuel and David Axelrod settle on them. The agenda started with health care reform, moved on to arms control on the foreign policy side, and banking reform on the domestic. Immigration reform is lurking in the background. But those big legal policy issues that were the center of such a flurry in the Bush years? Barack Obama may be a lawyer and a law professor, but his staff doesn’t reflect much attention to legal issues. It even shows some contempt for them. The Bush White House viewed the Justice Department as a vital political tool—it would protect controversial policy choices by issuing secret opinions, silencing would-be whistleblowers, going after political opponents, and suppressing votes—but the Obama White House seems to view most of these matters as a distraction.

  3. But the Dawn Johnsen problem is not peculiar to Dawn Johnsen. Notwithstanding its historical majority in the Senate, the Obama team has been slow to push through nominees for appointed positions requiring confirmation, especially including senior posts at the Justice Department and judgeships. Normally, one would expect the push to come from the White House, well-coordinated with the Senate leadership. But Rahm Emanuel seems not to recognize that his job portfolio includes orchestrating the confirmation of nominees. They are apparently supposed to wade their way through the Senate on their own, and they are abandoned at any sign of resistance. The Bush team got its appointees in place, quickly, by hook or by crook. Indeed, whereas Johnsen had majority support in committee and perhaps 60 votes on the floor, her predecessor, Steven Bradbury, had a majority in opposition in committee and on the floor. But that didn’t stop the Bush team for a second. Bradbury was given an acting appointment and then kept in place through various acts of administrative legerdemain through the end of Bush’s term. Democratic attempts to obstruct other appointees were loudly opposed with appeals for an “up or down vote.” The era of Rahm Emanuel and Barack Obama seems surprisingly weak-willed and inept, on this score at least.

Each of these factors points to a White House staff with weak governance instincts balanced by a love for legislative intrigue. In both respects, it compares poorly with its predecessor in its understanding of the art of governance.

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