SIGN IN to access Harper’s Magazine
1. Sign in to Customer Care using your account number or postal address.
2. Select Email/Password Information.
3. Enter your new information and click on Save My Changes.
Subscribers can find additional help here. Not a subscriber? Subscribe today!
Indiana law professor Dawn Johnsen, who recently asked that her nomination to head the Justice Department’s Office of Legal Policy be withdrawn after it languished for more than a year, has an op-ed in today’s Washington Post highlighting the problems presented by the confirmations stalemate in the Senate:
It is long past time to halt the damage caused by the “torture memo” by settling on a bipartisan understanding of the proper role of this critical office and confirming an assistant attorney general committed to that understanding. There is no simple answer to why my nomination failed. But I have no doubt that the OLC torture memo — and my profoundly negative reaction to it — was a critical factor behind the substantial Republican opposition that sustained a filibuster threat. Paradoxically, prominent Republicans earlier had offered criticisms strikingly similar to my own. A bipartisan acceptance of those criticisms is key to moving forward. The Senate should not confirm anyone who defends that memo as acceptable legal advice.
The Office of Legal Counsel advises the president and executive branch agencies on the legality of contemplated actions and policies. It ensures that the executive branch follows the law, thereby protecting individual liberty and the structure of our government. Since Sept. 11, 2001, and the subsequent security challenges facing our nation, the OLC’s work has become all the more important.
The experience of the Bush-Cheney era was a lesson for many who considered OLC an outpost for academic nerds. Legal policy is essential to the work of any administration. No government can credibly claim allegiance to the rule of law without a firm legal policy foundation. Many of the nightmares of the last decade had to do with an OLC dominated by right-wing ideologues and political hacks. Under Obama there may have been progress on some fronts, but the recent controversies over drone warfare and the Omar Khadr prosecution reveal that there are too many unresolved contradictions in the administration’s position.
I assessed the failure of Johnsen’s nomination here. I think Johnsen is right that disagreements over torture policy fueled G.O.P. opposition to her nomination. But the fact is that she had Republican support, and may well have had sixty votes or more at the time her nomination was withdrawn. So why wasn’t she confirmed? Harry Reid and Rahm Emanuel are the only people who can answer that question. Reid has proven inept generally in managing the confirmations process, and unwilling to push nominees through even when they had solid majority support. Unlike recent Republican chiefs-of-staff, Emanuel has taken a detached view of nominations, allowing candidates to languish and failing to provide White House support to push the process to a vote. Emanuel’s view also seems to be that any nominee who runs into trouble with the G.O.P. should just withdraw. This attitude empowers those in the G.O.P. who raise bad-faith objections to nominees and further clogs the system. It’s one reason why Emanuel doesn’t stack up well when compared with any of his recent Republican predecessors.
More from Scott Horton:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
Years it would take Jim Bakker to earn enough to pay his federal fine at his current job cleaning prison toilets:
Zoologists speculated that cannibalism among hippos might have led to an anthrax outbreak in Uganda that has killed at least 220 of the beasts. “I knew hippos were nasty,” said one anthrax expert, “but I didn’t know they went around eating each other.”
A white man in St. Louis was charged with punching a black man at a gas station after telling him to “go back to Ferguson.” “I’m going to let the authorities handle this,” said the victim, a former Major League baseball player, “but I’ve had enough of St. Louis.”
Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!
“He could be one of a million beach-bound, black-socked Florida retirees, not the man who, by some odd happenstance of life, possesses the brain of Albert Einstein — literally cut it out of the dead scientist's head.”