Twisting in the wind
The key Obama nominee that everyone has forgotten about
Twisting in the wind
Dick Polman, Inquirer National Political Columnist
Whatever happened to Dawn Johnsen? If you haven't heard of her, I rest my case.
For all the attention being paid to Sonia Sotomayor (who's going to the high court anyway, unless the GOP unearths a smoking gun somewhere), Dawn Johnsen's extended stint in limbo is arguably just as interesting. Indeed, the fact that Johnsen has been left to twist slowly in the wind tells us much about the current political landscape, particularly the reluctance of Democratic leaders - starting with Barack Obama - to go to the mattresses.
Way back in the winter, Obama nominated Johnsen for one of the most important jobs in the U.S. Justice Department. He wants her to run the Office of Legal Counsel - the office that's tasked with giving the White House crucial legal advice on whether its actions are constitutional. Put plainly, the OLC, in its advisory capacity, is supposed to warn away the commander-in-chief from doing anything illegal.
To get a fix on how crucial this office really is, just know this: The OLC is the place where John Yoo (now a law professor and part-time Philadelphia Inquirer columnist) and Jay Bybee (now a federal judge) wrote their notorious memos decreeing that George W. Bush could pretty much do whatever he wanted - such as torture detainees - without running afoul of the Constitution.
Johnsen, it would appear, is well qualified to run the OLC. Currently a law professor specializing in constitutional and separation-of-power issues, she worked in the OLC from 1993 to 1998, as deputy assistant attorney general and later as acting assistant attorney general. She was previously a federal appeals court clerk and a graduate of Yale Law School. She has already cleared the Senate Judiciary Committee (that was three months ago), and, by the latest rough count, 57 or 58 senators would vote to confirm her.
Yet she twists in limbo. See if you can guess what the biggest problem is.
Senate Republicans think she's a flaming radical - in the words of Texas Sen. John Cornyn, she lacks the "requisite seriousness" for the job - and therefore they're threatening to block her via filibuster if Democratic leaders bring her up for a confirmation vote.
And this is what the GOP defines as lack of seriousness: Johnsen has been a vehement critic of the Bush-era torture memos that emanated from the OLC. In congressional testimony, in panel discussions, and in her writings, she has said shocking things such as this:
"We must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power."
And this:
"OLC and the attorney general have to be prepared to tell the president 'no.' That's what the law requires."
And this (referring to Bush's domestic surveillance program, which violated federal law):
"This combination - the claimed authority not to comply with the law and to do so secretly - is a terrible abuse of power, without limits and without checks. It clearly is antithetical to our constitutional democracy."
Obviously, her views don't endear her to the minority Republicans, but part of her problem is stylistic. In Washington, it's simply bad form to state one's views so boldly. It's fine, of course, to craft justifications for torture in obsfucating legalese; it's not so fine to condemn those justifications in plain English. If you do the latter, you risk being accused of lacking the "requisite seriousness."
The Republicans are also citing another example of Johnsen's rhetorical boldness, this time on the topic of abortion. (Early in her career, Johnsen was legal counsel to an abortion rights group.) They've had to go back 20 years to one of her amicus briefs, and drill down to Footnote 23, but there it was: Johnsen suggested in passing that curtailing a woman's abortion choice, and forcing her to complete an unwanted pregnancy, was "disturbingly suggestive of involuntary servitude."
That footnote is catnip for most Senate Republicans - as well as for Democratic Sen Ben Nelson of Nebraska) - and apparently outweighs Johnsen's stated assurance, 20 years later, that she sees the OLC not as a hotbed for advocacy, but as a nonpartisan enclave where lawyers will provide "an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies." (That quote is a statement of principle authored by Johnsen, in collaboration with 19 former OLC attorneys from both political parties.)
The bottom line is that Democratic leaders haven't been able to lock down 60 Senate votes to stop a filibuster. There are 59 Democratic senators, but one of them - Arlen Specter, naturally - has stated that he would block her via filibuster. However, Republican Richard Lugar of Indiana has said he would not vote to block her. So that still leaves the Democrats one vote shy of clearing the way for passage.
Who can put Johnsen over the top? Perhaps the two Republicans from Maine, Olympia Snowe and Susan Collins. But they've stayed mum for months, and there has been no indication that the Obama White House has worked hard to budge them. Indeed, Obama could have installed Johnsen already, simply by appointing her during a congressional recess; as you may recall, George W. Bush circumvented the Democrats by installing John Bolton at the United Nations via recess appointment. But Obama seems averse to stepping on congressional toes...particularly with so much meaty fare on the plate.
The key issue, in the Johnsen case, is whether a president deserves wide latitude to staff his administration with the qualified candidates of his choosing. Such was the standard when past Republican presidents chose their OLC directors; that roster included William Rehnquist and Antonin Scalia. But we live in a volatile political era, one in which a nominee's vocal concern for the rule of law can be spun as a symptom of unseriousness. The bottom line is that Barack Obama can't be considered fully in charge - particularly on the crucial issue of how we balance our warfighting with our core values - unless and until he is permitted to put his entire team in place.
Comment removed.
mad, while the things you say are true about the 'far, far right' of the GOP, they are way out of the mainstream! Just as the democratic 'far, far left' is out of the mainstream of America as well. To portray a majority of the GOP as believing those vile things is disingenuous, like if I said all Dems believe in abortion on demand up to birth (which is Pres. Obama's position)! The religious right has a right to champion their positions just as the 'unreligious left' does. That is what makes America great, all the positions being allowed to be advocated and the country meeting somewhere in the middle of each debate! I believe the United States is a slightly right of center country as a whole :)— NEPhilly- Comment removed.
- Comment removed.
- Comment removed.
- Comment removed.
- hey djoko, are you Mr. Polman or a relative of his? Your initials are the same and so are your points of view :) Just as tony from pa has outed cd/xi/etc. as the same person (over and over again), I am beginning to think you are Mr. Polman writing what you really want to say behind the djoko pritza screen name! If you are Mr. Polman, could you spice up the articles a little? You seem to be 'mailing it in' this summer, just sayin' :)— NEPhilly
- "You're getting left behind ..." Just give it time, Djoko; we're in no hurry. He's just now beginning to be judged by his actions, not his pre-scripted words. "Eroding confidence in President Barack Obama’s handling of the economy and ability to control spending has caused his approval ratings to wilt to their lowest levels since he took office, according to a spate of recent polls, a sign of political weakness that comes just as he most needs leverage on Capitol Hill." http://www.politico.com/news/stories/0609/24025.html#ixzz0JGBR9bdU&D -- If you can make an unsubstantiated, subjective statement about His Majesty's intelligence as it relates to the Republican Party, surely you don't object to my raising potential questions about that statement.— Vandy
- Phrossty: that was scary. You nicely summed up the position of many of us. I could have written that myself (especially that my opposition to the death penalty is not a moral one but a practical one - we seem to f**k it up too much to be allowed to perform it). Where I frequently get frustrated is that too many seem to KNOW that their positions are the RIGHT (and only acceptable) ones, often accompanied by a moral smugness. I fully admit that my positions can appear arbitrary, and are usually driven more by pragmatism than ethical purity.— still_independent
- Vandy, the college-transcript/2010 census thing ... kinda weak, don't you think? You're getting left behind ...— Djoko Pritza
- "Admit it, righties, this guy is smarter than anything you have ... or will have." Just waiting on that college transcript he won't release to reveal just how smart he is, though I don't doubt that Obama, like Jimmy Carter, is a naturally intelligent person. He obfuscates well, and he's tremendously talented at saying vague, empty things that sound important but lack substance. I'll admit that I don't have the ability to see into the future like you do, so I guess I'll have to reserve judgment on Republican chances in 2010 and 2012 (when the GOP will receive an electoral/congressional boost resulting from the 2010 census) until we have a chance to see how some of His Majesty's decisions/actions/inactions play themselves out.— Vandy
- She doesn't have to get the appointment in order to keep giving Obama constitutional advice (although I doubt she knows more than he does in the legal area). She can have another position and still advise him, which would be even better because then the Repugnants who oppose her would not be able to keep track of her actions.— atp2007
- OK, for you slow learners out there (tom, listen up), Obama isn't going to do anything about Dawn Johnsen till this health-debate thing is worked out. The guy will win on this issue. And he'll win because he won't do what most of you want him to do -- to make issues of Dawn, Iran, gay whatever, or fill in your favorite distraction (ACORN for tom). Admit it, righties, this guy is smarter than anything you have ... or will have.— Djoko Pritza
- Phrossty, get some principles, then get back to me:)— Djoko Pritza
- Obama "can't be considered fully in charge" because he hasn't insisted on it. In his obvious view only budget/economy and health care are worthy, he refuses the rock the Congressional boat on ANY other issue including major flaws in the acceptance of illegal Bush terror/secrecy policies.— justabit outside
- @Djoko - Ok, I admit it. I have ideology but not principles. I favor capital punishment for guilty parties who commit the most heinous of crimes. I'm against the way it is administered in the US legal system, so I think it should be banned. I'm against abortion as it terminates an innocent life. I simply recognize it's the law of our land and I don't want sharia law imposed on me, so I've got no business imposing my belief that a fetus is an unborn baby on people who believe it's a clump of cells with no humanity whatsoever. How's that for twisting (in the wind)?— Phrossty
- tom says, stamping his feet, "being pro-life for the unborn has nothing to do with capital punishment. they are mutually exclusive." it's called sanctity of life, tom; that is the basis of the opposition to abortion. it's not the sanctity of SOME life. I love watching the righties contort themselves to justify conflicting positions. just admit it, you have ideology, not principles.— Djoko Pritza
- ole tom says, "we really have to be careful about the expansion of presidential powers in contradiction to our constitution." wow! tom must have missed the Cheney/Bush presidency.— Djoko Pritza
- "how is being pro-life when is comes to abortion mutually exclusive with capital punishment - other than it removes the obvious paradox and ethical dilemna for you?" One can turn this around and ask why those who vehemently protest against capital punishment for persons who commit particularly heinous crimes simultaneously have no problem terminating the life of society's most innocent beings.— Vandy
- What is with the pro-life = anti everything else. Many are opposed to capital punishment in line with the belief in keepng governmnet out of the death deciding arena. The same people are NOT opposed to gay rights or in favor of heterosexual affairs. The murderers are loons - they exist at every corner of politics. Let's give it a rest - it's garbage.— JimR
- tom: how is being pro-life when is comes to abortion mutually exclusive with capital punishment - other than it removes the obvious paradox and ethical dilemna for you? Also, most states do regulate abortion, so what are you talking about there?— still_independent
- tom: as usual, I'll keep askin' till you start answerin' - I'm not looking for you to find analysis for me. I'm sure that someone of your intellect can realize that when you cite a SPECIFIC number from a SPECIFIC organization and provide no link, others may question its validity. ... And after following your link, I ask for the 4th time. When YOU wrote "Besides, the CBO already said a government run option will cause 22 million people to lose their current health care and be forced into the gov't plan" - where did the 22 million number come from? This blog entry certainly doesn't have it. I will defer to your computer acumen as you wrote it and provided the link.— still_independent
- Republicans put themselves and religion into the same bed, Tom. The aspirin example is a narrow-minded, ignorant example as well because it is due to allergy concerns. I'm also glad that Tom (or is it Rush) has told us that they were not torture memos. Now my conscience is clear.— HandNik
- Being Republican has nothing to do with religion, so why do peole continue to equate religion and the Republican party? Second, being pro-life for the unborn has nothing to do with capital punishment..they are mutually exclusive. Even if a person is in favor of capital punishment, it is usually only under certain parameters...meaning it is regulated through legislation. Also, capital punishment is decided by state, through the legislative and electoral process, not through a blanket judicial fiat. It is just something the left uses to try and show hypocrisy. How about the hypocrisy of being pro-choice but not allowing states to choose, by popular vote of either its citizens or legislature, whether to allow or regulate abortion? Why are pro-abortion groups against allowing a vote on any such legislation? Why are supposed "pro-choice" advocates against allowing parents of minors to be notified if their child wants an abortion, but these same children cannot be given an aspirin in school without parental consent?— tom - wilmington, de
- I see a lot of parallels between the reformist movement in Iran and the reformers in the GOP. Iran is a great example of why religion and politics should not mix.— chasing history
- bill-a, I guess that explains why the GOP is trying not to let her have a government job.— SteveMG
- Comment removed.
- Comment removed.
- @Master Dreamz - It's a reason to filibuster her because neo-conservatives are actively trying to overturn Roe v. Wade (or so they say to raise money and/or garner votes). Thus, anyone -- like say Obama -- who comes out in the uber-pro-NARAL camp will get villified and obstructed at best and murdered by a pro-life loon at worst.— Phrossty
- President Jellyfish would never (and has never) throw anyone under the bus to save his hide.— CD75
- I can see the point. What with the government takeover of the auto industry, threatened takeover of the banking industry, appointment of czars to run things with no Congressional confirmation, no Congressional oversight, and no ability for Congress to even compel them to testify, and other planned government takeovers, we really have to be careful about the expansion of presidential powers in contradiction to our constitution. Maybe that is why Obama did not give her a recess appointment....maybe she would have told him some, most or all of what he is doing is unconstitutional. Boy, thank goodness Bush is out of the White House. By the way....they were not torture memos, and the NSA program was not against federal law.— tom - wilmington, de
- I kind of agree. Put her up for a vote and if the GOP fillibusters just run soundbites 24/7 of the "up or down" vote clips from these same folks. They will relent. The GOP is dying.— chasing history
- Why is that a reason to filibuster her? Dont we want people that have passion for their ideals working in Washington? Or, do we just want people that can be swayed by the lobbyist with the most money?— Master Dreamz
- Obama has taken this bi-partisan Mr. Nice Guy approach about as far as it will go. He needs to get down and start cracking some heads (in both parties) to make things happen.— Yersinia Pestis
- OK... I followed the link in the piece. It quickly became clear (to me) why the Right-Wing would filibuster her nomination. I presume this snippet from her bio would do the trick. "From 1988-1993, she was the Legal Director of the National Abortion and Reproductive Rights Action League (now NARAL Pro-Choice America). She also worked at the American Civil Liberties Union Reproductive Freedom Project..."— Phrossty
- Al Franken will be coming to the rescue shortly.— AHiredGun
- I've never heard of Dawn Johnsen. I've heard of Russell Johnson and Dawn Wells, but not Dawn Johnsen. As one could tell from those references, my life seems to lack the "requisite seriousness" for political activism. This Dawn Johnsen seems to be far too qualified and non-partisan to work in DC. Hey, maybe if Coleman stopped obstructing the election results in MN?? Nahhhh....— Phrossty
Cited by the Columbia Journalism Review as one of the nation's top political reporters, and lauded by the ABC News political website as "one of the finest political journalists of his generation," Dick Polman is a national political columnist at the Philadelphia Inquirer. He is on the full-time faculty at the University of Pennsylvania, as "writer in residence." Dick has been a frequent guest on C-Span, MSNBC, CNN, NPR and the BBC. He covered the 1992, 1996, 2000, and 2004 presidential campaigns.
ARCHIVES
All commentaries posted before April 18, 2008, can be accessed at www.dickpolman.blogspot.com.
- American Spectator
- David Limbaugh
- Free Republic
- Glenn Reynolds
- Hugh Hewitt
- Human Events
- John Hawkins
- Matt Lewis
- Michelle Malkin
- National Review
- Opinion Journal
- Power Line
- Red State
- The Brody File
- The Daily Caller
- Town Hall
- Weekly Standard
- Center for American Progress
- Crooks and Liars
- Daily Kos
- David Corn
- Huffington Post
- Media Matters
- Mojoblog (Mother Jones)
- Open Left
- Political Animal
- Salon's War Room
- Talking Points Memo
- Tapped
- The Democratic Strategist
- The Grey Matter
- Unclaimed Territory
- Andrew Sullivan
- Attytood
- Chi Tribune's The Swamp
- CJR's Campaign Desk
- CNN's Political Ticker
- CQ Politics
- FactCheck.org
- Gail Collins
- Howard Kurtz
- Mickey Kaus
- NBC's First Read
- Obit
- Political Wire
- Politico
- Politics Daily
- Pollster.com
- Real Clear Politics
- The Atlantic Wire
- The Fix
- The Moderate Voice
- The Plank
- USA Today On Politics
- Wonkette
