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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Dawn Johnsen, who recently asked that her nomination to head the Justice Department’s Office of Legal Policy be withdrawn after it languished for more than a year, has an op-ed in today’s Washington Post highlighting the problems presented by the confirmations stalemate in the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the fact is that she had Republican support, and may well have had sixty votes or more at the time her nomination was withdrawn.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:
Six Questions — October 18, 2014, 8:00 pm
Nathaniel Raymond on CIA interrogation techniques.
I recently spent a semester teaching writing at an elite liberal-arts college. At strategic points around the campus, in shades of yellow and green, banners displayed the following pair of texts. The first was attributed to the college’s founder, which dates it to the 1920s. The second was extracted from the latest version of the institution’s mission statement:
The paramount obligation of a college is to develop in its students the ability to think clearly and independently, and the ability to live confidently, courageously, and hopefully.
Let us take a moment to compare these texts. The first thing to observe about the older one is that it is a sentence. It expresses an idea by placing concepts in relation to one another within the kind of structure that we call a syntax. It is, moreover, highly wrought: a parallel structure underscored by repetition, five adverbs balanced two against three.
Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:
An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.
A naked man believed to be under the influence of LSD rammed his pickup truck into two police cars.
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“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”