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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Dawn Johnsen, who recently asked that her nomination to head the Justice Department’s Office of Legal Policy be withdrawn after it languished for more than a year, has an op-ed in today’s Washington Post highlighting the problems presented by the confirmations stalemate in the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the fact is that she had Republican support, and may well have had sixty votes or more at the time her nomination was withdrawn.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:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Freddie Gray’s relatives arrived for the trial in the afternoon, after the prep-school kids had left. By their dress, they seemed to have just gotten off work in the medical and clerical fields. The family did not appear at ease in the courtroom. They winced and dropped their heads as William Porter and his fellow officer Zachary Novak testified to opening the doors of their police van last April and finding Freddie paralyzed, unresponsive, with mucus pooling at his mouth and nose. Four women and one man mournfully listened as the officers described needing to get gloves before they could touch him.
The first of six Baltimore police officers to be brought before the court for their treatment of Freddie Gray, a black twenty-five-year-old whose death in their custody was the immediate cause of the city’s uprising last spring, William Porter is young, black, and on trial. Here in this courtroom, in this city, in this nation, race and the future seem so intertwined as to be the same thing.
Number of Turkish college students detained in the last year for requesting Kurdish-language classes:
Turkey was funding a search for Suleiman the Magnificent’s heart.
A former prison in Philadelphia that has served as a horror-movie set was being prepared as a detention center for protesters arrested at the upcoming Democratic National Convention, and presumptive Republican presidential nominee Donald Trump fired his campaign manager.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”