Obama Had 60 Votes For Dawn Johnsen's Confirmation Last Year; Johnsen Stalled Again This Year

3855The Obama Administration’s confounding unwillingness and/or inability to move the nomination of Dawn Johnsen as head of OLC has manifested itself yet again. The renomination of Johnsen was set to be voted out of the Senate Judiciary Committee Thursday, but somehow they just “ran out of time” before they could get to it, even though they found time to muse about a couple of far less significant district court judges and other lesser nominees.* It is a continuing and puzzling pattern of delay and diversion that has kept Dawn Johnsen’s nomination in limbo for better than a year.

I previously wrote about the failure of the Obama Administration to support the Dawn Johnsen nomination, a far less than good faith effort that finally resulted in Johnsen’s nomination being killed by operation of Senate Rule XXXI when they adjourned on Christmas Eve, December 24, 2009. It turns out what I wrote has been borne out and, as lawyers are wont to say, proved up pretty well.

As I will detail below, there is now crystal clear evidence that Barack Obama and Harry Reid had the sixty (60) votes for cloture on the confirmation of Dawn Johnsen all along last year, at least subsequent to July 7, the day Senator Al Franken was sworn in, and despite that fact refused to call a vote and get Johnsen installed in her critical post at OLC. Here is what I wrote immediately following the Christmas Eve death of her nomination:

Moreover, the bleating by Harry Reid and the Obama Administration that it is all the fault of mean old Republican obstructionism simply does not hold water. The Democrats hold a 60 seat caucus block, sufficient to overcome Republican obstruction. Of those, the Main Justice article is quite clear there were only two Democratic problem children, former Republican Arlen Specter and the ever whiny Ben Nelson, who never passes up an opportunity to betray his party. That means there were potentially only 58 Democratic votes for Johnsen’s nomination. But Republican Richard Lugar firmly supported Dawn Johnsen, so that makes 59 votes, only one shy of confirmation.

In addition to Lugar, both Republican Senators from Maine, Susan Collins and Olympia Snowe, have refused to rule out voting for Johnsen and were being lobbied hard by extremely influential women’s groups and liberal constituents. Both Collins and Snowe have a history of agreeing, when pressured, to allow up or down votes on Presidential nominees, even from Democrats.

Barack Obama and Rahm Emanuel had 59 votes in favor of Dawn Johnsen’s nomination, a distinct possibility of picking up Collins, Snowe or both, and are more than aware Arlen Specter needs big help in his reelection campaign in Pennsylvania and that Ben Nelson can always be bought. And despite all of the above, the Obama White House did not ever request Harry Reid to call a vote. The only rational conclusion from this is the Obama White House did not want Dawn Johnsen, their own nominee, to be confirmed.

My calculations on the 60 votes being available were confirmed upon Obama re-nominating Johnsen when it was immediately announced to much ballyhoo that Arlen Specter would be the 60th vote for cloture on the re-nomination; albeit apparently only after Johnsen has been again dragged through the committee process and other vagaries of prolonged confirmation procedure. The TPM report of Specter’s intention to support Johnsen’s confirmation confirms exactly what I stated, Specter was the 60th vote (there were always 58 Dems plus Richard Lugar) and was there all along; all Obama and Harry Reid had to do was call the vote. From TPM’s Brian Beutler:

Sen. Arlen Specter (D-PA) says he’s revisited his initial concerns over Obama Justice Department nominee Dawn Johnsen, and has decided to support her confirmation.

“After voting ‘pass’ (which means no position) in the Judiciary Committee, I had a second extensive meeting with Ms. Johnsen and have been prepared to support her nomination when it reaches the Senate floor,” reads a statement Specter sent to TPMDC. …… With Specter now in the ‘yes’ column, there are no obvious impediments to her confirmation. (emphasis added)

If Arlen Specter’s own statement is to be taken at face value, then he has been prepared to, at a minimum, support cloture on Dawn Johnsen since his second meeting with her. I have been personally informed by Senator Specter’s office that Specter’s second meeting with Dawn Johnsen took place on May 12, 2009; further, Specter’s office reaffirmed the accuracy of his reported statement on having been prepared to support her.

Unless Arlen Specter is just being disingenuous to curry votes in his primary battle, and to his credit there is no evidence of that (I have specifically given Specter the opportunity to retract or hedge his statement; he has affirmatively not done so), it means that with Specter’s availability, there were the necessary 60 votes for cloture on Dawn Johnsen’s confirmation as of July 7, 2009, the day Al Franken was sworn in as the junior Senator from Minnesota.

All President Obama had to do to get Dawn Johnsen confirmed was have Harry Reid call the vote. But the Obama White House obviously never requested a vote on their own nominee; if they had, Reid would have obliged, that is simply what Majority Leaders do for Presidents from their own party. By the same token, when such Presidents don’t want such a vote called, it is not; and that refusal by the White House is almost certainly the reason Dawn Johnsen was not confirmed, and is not in office serving the OLC and country right now.

But wait, there is more evidence of the Obama Administration’s disinterest in Johnsen’s confirmation. It was not just Arlen Specter that was wrongly pegged with being the holdup on Dawn Johnsen, it appears the White House has falsely let Ben Nelson be pegged as a culprit, as well. Turns out that is not necessarily true, either, as Nelson has point blankedly stated the White House never even asked him to support Johnsen. From The Indianapolis Star:

Nelson said Wednesday that he doubted Johnsen’s nomination would be brought to a vote.

“We have to let the administration decide what they want to do,” Nelson said. Asked if he has told the administration whether he’d vote for Johnsen, Nelson said he hasn’t been asked.

And, of course, there is the fact that the Maine twin Senators, Collins and Snowe, have steadfastly refused to directly oppose cloture on Johnsen’s confirmation. Despite history that suggests they very well might not deprive Johnsen of an up or down vote, they too have not been put on the spot by the White House.

Which brings us back to why Obama never had Harry Reid call the vote last year. As I previously opined, there are hard policy grounds to explain the Administration’s failure to push Dawn Johnsen’s confirmation:

In the end, it is likely Barack Obama, Rahm Emanuel and the servants of the status quo simply did not really want a true advocate for governmental transparency, a critic who excoriated Bush/Cheney policies on warrantless wiretapping, torture, indefinite detention, ignoring international treaties and conventions, and concentration of power in a unitary executive; all policies the Obama Administration has substantially co-opted as its own.

If one needed any more confirmation of the stunts Obama and his Administration have been pulling without the strong and principled leadership at the OLC (and there really should be no question after the wholesale adoption of Bush policies on surveillance and torture that are at complete odds with Johnsen’s long-stated beliefs), it came like a ton of bricks with the recent revelation that Obama brazenly used the OLC to retroactively immunize serial and repetitive illegal and unconstitutional violation of Federal wiretapping laws by the FBI and telecom companies.

As Marcy previously noted, the stunning report comes from Ryan Singel at Wired/Threat Level:

The FBI and telecom companies collaborated to routinely violate federal wiretapping laws for four years, as agents got access to reporters’ and citizens’ phone records using fake emergency declarations or simply asking for them.


The Obama administration retroactively legalized the entire fiasco through a secret ruling from the Office of Legal Counsel nearly two weeks ago.

That’s the same office from which John Yoo blessed President George W. Bush’s torture techniques and warrantless wiretapping of Americans’ communications that crossed the border.

Yes, indeed, that is precisely the type of bastardization of the rule of law and accountability the Bush/Cheney administration would have cravenly used the Office of Legal Counsel for. Bush and Cheney used the OLC (also, notably, without a Senate confirmed leader at the time since Steve Bradbury served only in “acting” capacity) to shamelessly and retroactively give paper cover to illegal and immoral torture after the fact; I guess it is progress and “change” that Obama only does it to cover up illegal surveillance. But it is most certainly not consistent with the lifetime of work, opinions, statements and positions from Dawn Johnsen, who would be expected to have adhered to the law and OLC protocols.

The standard of conduct for OLC in this regard is specified by the OLC guidance for Best Practices for OLC Opinions (promulgated May 16, 2005):

OLC is authorized to provide legal advice only to the Executive Branch; we do not advise Congress, the Judiciary, foreign governments, private parties, or any other person or entity outside the Executive Branch.


As a prudential matter, OLC should avoid opining on questions likely to be at issue in pending or imminent litigation involving the United States as a party (except where there is a need to resolve a dispute within the Executive Branch over a position to be taken in litigation). Finally, the opinions of the Office should address legal questions prospectively; OLC avoids opining on the legality of past conduct (though from time to time we may issue prospective opinions that confirm or memorialize past advice or that necessarily bear on past conduct).

Pretty hard to figure exactly how retroactively giving paper cover to the FBI and telecom co-conspirators for patently illegal surveillance in violation of the Electronic Communications Protection Act and Fourth Amendment is a proper OLC function, especially when doing so is contra to their own stated protocols. It is hard to fathom Dawn Johnsen signing off on this legal perfidy by Obama; pixie dust does not seem her style.

The evidence is clear and convincing that it was not a lack of 60 votes behind Dawn Johnsen’s nomination withering and dying on the vine last year, it was the desire by the Obama Administration to not have a strong confirmed leader like Johnsen guiding the OLC. President Obama owes Dawn Johnsen and the nation an explanation for his disingenuous handling of her nomination, failure to install strong leadership in a rudderless OLC and for continuing the Bush/Cheney-like abuses of the OLC to cover up illegal acts.

Update: * I have been informed by Judiciary Committee staff that they truly did just run out of time today, that Chairman Leahy is committed to Johnsen’s nomination, and immediately noticed another Committee business meeting for next Thursday, in which Dawn Johnsen is listed as the first order of business.

  1. geminorange says:

    The Obama Administration’s confounding inability to move the nomination of Dawn Johnsen as head of OLC has manifested itself yet again.

    Don’t you mean “unwillingness” rather than “inability”? It’s not like Obama has been pounding on doors or twisting arms to get-r-done.

  2. Jeff Kaye says:

    Bush and Cheney used the OLC (also, notably, without a Senate confirmed leader at the time since Steve Bradbury served only in “acting” capacity) to shamelessly and retroactively give paper cover to illegal and immoral torture after the fact; I guess it is progress and “change” that Obama only does it to cover up illegal surveillance.

    You’re assuming that it was only used for that.

    I believe Dawn Johnsen could contribute more at this point by withdrawing her name and calling out this administration for what it is doing. That would take courage. And perhaps that’s a cheap and easy thing for me to say. But she might do more for integrity in government that way than in any handicapped authority she might accrue by lasting out the ignominy to gain the coveted position.

    • quanto says:

      I agree, I would also like to see her come out publicly and denounce the Obama/Bush legacy. I also can see it as a career killer. When Obama first nominated her I thought he was headed in the right direction, now it looks like he was just trying to pacify the progressives. With the courts so one sided anymore she would just be fighting a loosing battle, and the first time she sided against Obama she would find herself resigning to “spend more time with the family”.

      • Jim White says:

        I would also like to see her come out publicly and denounce the Obama/Bush legacy. I also can see it as a career killer.

        Yes, I’ve also been calling for her to publicly refuse to join the lawlessness that Obama is continuing. Don’t overlook the fact that she has a tenured professorship at Indiana. She’d still have a career there and would be the world expert on the brand new field of Constitutional Ethics.

        • CTMET says:

          Professor from the University of Indiana denounces Obama/Bush legacy…. Yawn……

          Action taken to prosecute crimes of previous administration? Pass the popcorn!

            • CTMET says:

              Details !!!!

              But the point is if she writes a sternly worded letter, op ed or whatever it won’t even hit the radar screen for most Americans. I’m assuming there is some actual good she could do at OLC (if she gets there).

    • bmaz says:

      Well that is a decent point about the scope of what has occurred while she was in limbo. I will give Obama credit for certainly curtailing the torture program, even if he has not eliminated it. I guess I could have also gone into the permanent detention without due process and adjudication and the assassination scheme, but all that is not the point of the post so much as explaining that there is no reason she should not have been confirmed long ago. No reason, of course, but that the WH didn’t seem to really want her.

  3. koshembos says:

    Two things are beyond me. The first: why are Reid and Rahm mentioned as obstacles while Obama is clearly the leader, the responsible party and the obstacle. Reid will try hard to follow Obama while Rahm is Obama’s hired hand. I think we had a year long of worse than Carter Obama presidency to know that the fish stinks up the country from the head.

    Since everything is quite obvious, why spend too many and too long posts while we can use the time on what we can do constructively.

  4. dotsright says:

    It leaves me wondering if her nomination was’t first championed by the first White House Counsel who was shivved by Rahm. Greg Craig? Was that his name?

    He seemed to be more of a champion of the rule of law and con law than anyone else in the administration.

    I think they’re now hoping that she’ll get the clue and decide to step aside.

  5. freepatriot says:

    it’s easy to figure out

    first think of the Office of Legal Council as a can of worms

    then think that YOU HATE FISHING

    why open the can of worms

    people ain’t so hard to figure out

    just forget everything you know about morality, and remember anything you’ve heard about power and corruption

  6. 1boringoldman says:

    I suspect that Obama wanted the OLC damage undone, but didn’t want the contentiousness of prosecuting the evil-doers. It’s not what I wanted, but it’s not hard to see why he would’ve gone down that road. To his credit, he as much as told us that’s what he was going to do. The other thing is that Dawn has stuck in there with Obama in the limbo period. She wouldn’t have done that if there weren’t some kind of understanding between them.

    • bmaz says:

      So you think there is some kind of understanding between them to let all kinds of critical legal issues be jerked off by the Administration while Obama twiddles his fingers, when he could have confirmed her long ago? That is a pretty damning statement on the cravenness of Obama. Not very flattering of Johnsen either. Lovely.

  7. PJEvans says:

    Reid is now mumbling about recess appointments to get positions filled.
    I guess he’s tired of the crap too. (Took him long enough to figure it out, though.)

  8. quanto says:

    I know I’ve said it before but I’ll repeat myself, there is no reason what-so-ever to have to have a cloture vote on everything. Make the Repubs’ get up and filibuster for real. If Reid had some balls and the other congress critters were not so lazy to have to stay for one it would only take a couple for the R’s to figure out their bluff was called.

    As for Johnsen, she would do better in the private sector until we can get the lazy, corrupt, spineless politicians out of office. She might be pretty old by that time but she’ll be better off.

    • selise says:

      there is no reason what-so-ever to have to have a cloture vote on everything. Make the Repubs’ get up and filibuster for real. If Reid had some balls and the other congress critters were not so lazy to have to stay for one it would only take a couple for the R’s to figure out their bluff was called.

      i’ll repeat it too. i don’t get it. why not call for the Ds to let the Rs pull a real filibuster if they really want to? are nominations different than passing legislation (where after the filibuster, the dems could, if they wanted to, pass their bills with a simple majority).

    • tejanarusa says:

      Can somebody here refresh my memory? Back in the Bush years, a Democrat had a hold on a nominee. After awhile, the Majority Leader (Hastert? McConnell? can’t remember) brought it to a vote and it was passed. He simply ignored the Democratic “hold.”

      I can’t remember who the nominee was or who the Democrat was….onlly that a supposedly sacred “hold” was simply ignored by the Republicans, and…nothing happened. In the way of consequences, I mean.

      So, why can’t our guys do that too? (Oh, yeah, I know the answer)

  9. tejanarusa says:

    I have been informed by Judiciary Committee staff that they truly did just run out of time today, and that Chairman Leahy is committed to Johnsen’s nomination, and immediately noticed another Committee business meeting for next Thursday, in which Dawn Johnsen is listed as the first order of business.

    I’ll believe that a week from tonight, IF she has been confirmed.

    • bmaz says:

      No, that is just to get out of committee. Then she will have to wait for a vote on cloture and then the actual floor vote after that.

      • Mason says:

        Then she will have to wait for a vote on cloture and then the actual floor vote after that.

        So, Obama says nice things about her “on the record” and reassuring things to her to get her to consent to another confirmation effort, renominates her, nudges Leahy to hold a committee vote and report her nomination out to the Senate, and . . . what?

        Dawn Johnsen waits another year while Obama and Holder abuse OLC some more?

        I agree, bmaz. I think she’s being used and I also believe she needs to stop Obama’s continuing abusive use of her good name and reputation as a form of cover for his continuing use of OLC as a form of rubber stamp approval for his criminal misconduct. She needs to call him out by withdrawing her name from consideration so that he no longer can credibly claim he nominated her in good faith.

        I hope she explains why, but I’ll respect her decision not to do so, if that’s the way she decides to handle it. Lots of people are jumping off Obama’s ship and all of them believe in due process, the Rule of Law, and the Constitution. That common thread tells us all we need to know about their real reason for resigning, given Obama’s decisions and actions since he was elected. Johnsen would do well to withdraw her name for the same reason.

  10. Loo Hoo. says:

    bmaz, I hoped maybe you were wrong about Obama’s sincerity when he sent Johnsen’s name back for renomination. Sadly, no.

  11. Peterr says:

    Update: * I have been informed by Judiciary Committee staff . . .

    Sounds like someone might be a little tired of fielding phone calls and other inquiries about Dawn’s status, and is trying to pre-empt the next round.

    • Peterr says:

      Per Justin Elliott at TPM, this is a procedural thing, and not anything new that was discovered:

      With prosecutors aiming to preempt problems that could arise from an expected Supreme Court decision, former Illinois Gov. Rod Blagojevich was re-indicted today on corruption charges including that he tried to sell his appointment of Barack Obama’s successor in the Senate, the AP reports.

      The new 24-count indictment does not include new allegations of wrongdoing.

      More at the link.

  12. JasonLeopold says:

    adding to bmaz’s update. This from Leahy’s office about “advancing” four nominations and released earlier today. Take note of the word “expected.”

    At its next meeting, the Committee is expected to consider the pending nominations held over Thursday, including the nomination of Dawn Johnsen to be the Assistant Attorney General for the Office of Legal Counsel at the Department of Justice. Johnsen was first nominated by the President last year, and the Committee reported the nomination in March. Like the nominations approved by the Committee Thursday, Johnsen’s nomination was returned to the President, and resubmitted on Jan. 20


  13. orionATL says:

    For what it’s worth,

    I got a call today from a dem fundraising organization- Howard dean’s old organization, they were quick to inform me.

    Howard dean is one of my very favorite dems,

    These guys wanted money.

    They gave me the usual bulls— about the urgent need to defeat republicans.

    I Listened,

    And Listened,

    And listened,

    ( to a new York accent)


    I Had listened enough,

    And Told the solicitor that I was extremely Unhappy with the leadership Obama had exhibited to date.

    The solicitor was, of course, prepared for this and cited problems that our
    Prez has had to overcome.

    The one that really stuck in my mind was the claim that Obama had stopped the rise in unemployment.

    this may be true in detail but misses the central point
    Of huge unemployment numbers.

    To shorten the story,

    I got tired of the fund raising blather, tired of the ny accent.

    we were not going To contribute to national dem organizations until Obama exhibited leadership.

    This finally stopped the torrent of Fund raising Sophistry.

    My wife and I had already discussed this issue,

    And had decided to put all our dem campaign money behind a most remarkable democrat,

    Our superb First-term congressman.

    Screw the national dem fund raiders and their sophistical calling scripts.

    We’re only giving Our money to INDIVIDUAL dems who have show they the courage to act like democrats.

    F— the democratic party and it’s coniving, endlessly unsated fund raising orgs,

    And the president they rode in on!!!




    Et al.

  14. earlofhuntingdon says:

    Ms. Johnsen’s advocacy would probably not be welcome by an administration bent on continuing to hide its foreign prisons and foreign prisoners. Such an administration would not welcome restraints placed on its ability to put Americans on a hit list and kill them because of their perceived threat to something, rather than wait until they’ve been arrested, tried, convicted, lose their appeal and are found guilty of a crime meriting capital punishment.

    That administration would not welcome restraints placed on its ability to keep secret what it chooses to keep secret rather than what the law allows. Most of all, that administration would find unwelcome a top leader at the OLC not being with their program of claiming to find constitutional bases for its legal excesses, so that it can institutionalize and continue the wrongs of George W. Bush and Richard Cheney.

    Mr. Obama seems to treat Ms. Johnsen’s nomination like fine make-up on a battlefield: useful when the cameras roll, but not a big help in getting the job done they imagine needs doing.

    In reality, hiring Ms. Johnsen could be a credible step in restoring the DoJ’s respect for the rule of law, but only if they respect and listen to her. If Mr. Obama uses her as a marketing rep, but ignores her advice because it conflicts with his obvious affinity for the legal excesses of Mr. Bush, he would do her, the rule of law, the Constitution and average Americans a major disservice.

  15. Jeff Kaye says:

    Hmmm… This can’t help, IMO, but feed into the Dawn Johnsen confirmation issue, from the Main Justice website, by Joe Palazzolo, dated 1/26. I know the quote is long, but it’s a very long article. I’m claiming fair use rights, due to the importance of the underlying issues, and the need to educate the public. Any bold emphases are mine, and are added for my own editorial punch:

    In deciding the fate of dozens of inmates at Guantanamo Bay, federal judges have been thrust into the position of crafting law that could end up governing U.S. detention of terror suspects around the world.

    With so much at stake, Attorney General Eric Holder has relied heavily on the Justice Department unit that contemplates the executive branch’s thorniest legal questions, the Office of Legal Counsel, giving way to an unusual system where advisers are editing the work of the advocates.

    OLC is enmeshed in more than 100 cases initiated by Guantanamo Bay detainees who are challenging their confinement in federal court in Washington. OLC lawyers review and revise virtually every brief filed in the cases, a break with tradition that has created some friction between the office and lawyers who defend the government’s positions in court, said several current and former Justice Department officials….

    The office worked closely with the task force that recently completed a yearlong review of the Guantanamo Bay detainees. The task force determined that of the 198 detainees at the military-run prison, about 50 are unprosecutable but thought to be too dangerous to transfer, underscoring the importance of the habeas corpus cases — the chief means for testing the Obama administration’s detention regime….

    OLC’s influence over Guantanamo Bay issues dates back to the Bush administration. The office worked closely with the National Security Division and the Pentagon on the military commissions….

    OLC in the Obama administration has been more active in Guantanamo Bay matters. [Acting OLC Chief David] Barron and Martin Lederman, an OLC Deputy Assistant Attorney General, were part of Obama’s Justice Department transition team, and they were heavily involved in detainee issues before they were appointed to lead the office, said one lawyer who worked on the transition….

    n a new study, co-authors Benjamin Wittes and Rabea Benhalim of the Brookings Institution and Robert Chesney of the University of Texas Law School appeared to make an argument for OLC’s involvement in describing the significance of the cases:

    They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force….

    The issue — whether federal judges have the power to release in the U.S. detainees no longer deemed a threat — is before the Supreme Court. Arguments in the case, Kiyemba v. Obama, are scheduled for March 23.

    So, who thinks Obama is going to put Johnsen in charge of this? Now that I’ve seen the report above, I’d have to say that the nomination of Johnsen appears more and more like a classic misdirection. An administration utilizing OLC as above has zero intention of ever nomination Johnsen. I suppose the ruling elite know this. My other question is… what the hell happened to Marty Lederman? Wasn’t he against indefinite detention?

    • Jim White says:

      That’s a great find, Jeff. I echo your question about Lederman. The article certainly makes it look like he’s gone over to the dark side. At this point, I almost wonder if it would have been good if the Republicans had forced a new hearing for Johnsen. She could make the rest of the Obamites excrete masonry by discussing her intention to end the practices described in the passage above. I agree with you that given this view of what appears to be happening at OLC, there is zero chance that a Dawn Johnsen with the views she claimed in 2008 will ever see the inside of Obama’s OLC. If they manage to “turn” her as effectively as they seem to have done with Lederman, more of the Constitution goes through the shredder.

    • Mary says:

      If the OLC has been running that much of the show, it’s only that much more interesting that everyone was comfortable defying Judge Sullivan’s orders on what they needed to make available on witnesses (like the fact that their Yemeni Marvel was mentally disturbed) and affirmatively hid that info in ALL the cases involving that witness and no one would know, even today, but for the defense lawyers in one case getting one extra piece of paper and having sharp eyes.

      The main think about Lederman is that he has always backed the concept of the OLC as a get out of jail free card.

  16. TarheelDem says:

    So who besides Richard Shelby has the hold on this nomination? And what multi-billion earmarks do they want? Which Senate Democrat (no, not Lieberman, a Democrat) is a torture apologist?

    • Peterr says:

      The two big issues that her opponents have pointed to are her views on executive power in the “war on terror” and abortion rights. The latter is why Ben Nelson is opposed to her.

      • bmaz says:

        Nelson has said he has questions about her; not that he is definitely opposed to her as to cloture, which is all that counts.

        • Peterr says:

          The anti-choice folks think he’s a definite No on cloture. Their rundown on the count (on Jan 12, 2010):

          Specter, a life-long Republican who switched over to the Democratic Party, announced today that he is caving in to lobbying from his Democratic Senate primary opponent, Rep. Joe Sestak, to back down and support Johnsen.

          Sestak had slammed Specter claiming his opposition to Johnsen’s nomination was causing problems for the Obama administration and the nation. According to the Washington Post, Specter said he had met with Johnsen for a second time and that she assuaged the concerns he had about her nomination.

          Senator Dick Lugar, an Indiana Republican who mostly votes pro-life, is also supporting Johnsen while Sen. Ben Nelson, a Nebraska Democrat, is opposing her.

          They paint Specter as the 60th vote in the opening.

          • bmaz says:

            Nelson has never, that I can find, said he would refuse cloture on Johnsen, just that he did not support her ideologically. In fact, Nelson has said the White House has never even asked him to support cloture (and he has a history of allowing cloture on Dem nominees even if he does not like them). Remember they have been calling Specter an obstructor all this time when, in fact, he was willing to support the nomination. The Maine girls, I am told are decent shots to allow cloture if they were the swing votes too from what I have been told by some rather connected people in Maine. This whole deal on Johnsen not being able to get cloture has been nothing but a lie from the outset.

            • Peterr says:

              Early on in the process, I think you’re right — Nelson was opposed on a final vote, but not necessarily on cloture. I think things changed, though, with the whole Stupak amendment fight in the health care debates. It breathed some spine into Nelson when it comes to anti-choice stuff, and he hopes it will bolster him with the wingnuts back home.

              I haven’t seen anything definitive from Nelson one way or another in the last two months, but given the way the anti-choicers are talking about him, either they’ve gotten word from him that he’ll oppose cloture or they will be VERY unhappy if he turns out not to be in the 60th vote for it.

              • bmaz says:

                That is simply not consistent with what I have been told, nor what he was saying in the latter part of January; i.e. less than two weeks ago. He definitely does not support her as to up or down, but there is no evidence I have found that he would definitively prevent cloture. None.

                  • bmaz says:

                    Well, that is what I have gained from talking to a lot of people. Since the White House has never actually cared enough to even ask, we don’t know for certain. If what I was told by Leahy’s office is correct, Dawn will be out of committee next Thursday; then we will see what is done. The cloture vote can be scheduled forthwith or diddled out ad infinitum, we shall see what transpires. If I had to bet, my money would go on more slow rolling by a White House that just does not give a rat’s ass about getting Johnsen confirmed.

  17. Adams says:

    Great post and comments. The Dawn Johnsen nomination is a bellwether for what’s coming next from the perpetually pre-compromised Orahma administration and the Senate Dem castrata.

    ORahma seems to think he can have it both ways on everything. Sell out to the corporate health care interests, and claim transformative healthcare reform. Agonize over competing views on Afghanistan and then give the military exactly what they wanted in the first place. Talk about restoring the Constitution and the rule of law, but expand the state secrets privilege, ramp up sovereign immunity, keep Gitmo open, continue rendition and black sites, expand domestic surveillance, and even dabble in assassination of American citizens. Why not?

    Dragging out the nomination tantalizes the left, while the process of flipping OLC staff on critical issues continues. Apparently, only a Democratic administration can convince some people that torture is righteous.

    I have great respect for Ms Johnsen’s stated views, her competence, and commitment, but she’ll never be confirmed without assurances of her workability and “moderation.” Even as head, she can’t lift and turn the whole office.

    This battle has become symbolic. The National Security State wins either way. Again.

  18. Mary says:

    Lugar didn’t just refuse to rule out voting for her, his office flat out said he was supporting her nomination. I contacted them way way back and they sent me an unequivocal statement that he would vote for her and for cloture to move her vote forward.

  19. Mary says:

    If Obama could get Holder through, he could get Johnsen through. I know we were discussing that in comments even a long time before you did your post on it bmaz.

    Obama’s plenty happy with Barron (who happily chirruped through his affidavits on losing and not being able to identify all kind of so-called “classified” documents as if DOJ and the Exec branch didn’t really have any concerns or problems when it disappeared evidence under court orders of production and preservation).

    And Holder’s DOJ has moved from soliciting toture to soliciting assassinations of Americans, so that does give them a bit of hesitation when it comes to torture investigations. And now we know that all these horrific filings in the GITMO cases – including the outright allegations that they should be able to hold someone in depravity as an enemy combatant if that someone had been – – – held by the Taliban as a prisoner before being sold off to the US, we know that those came from and through people like Barron and Lederman.

    If and when Johnsen gets in, now, things are way too compromised. Notice how little has been heard from Koh, even while revelations of the Afghan military “black sites” i.e. “temporary detention” sites away from ICRC eyes has come out, even while revelations of killings targeting killings in Yemen and Pakistan have come out, even while Obama has claimed and apparently been exercising the right to continue ktt (kidnap to torture) activities and call them “rendition”

    From the time the CIA got a free pass on the bombing of the American missionary family (and who knows how many other “oops” *targets* in So America) there’s been nothing but a freeforall slide with nothing to ever act as a brake or a check. There hasn’t even been anyone in the media willing to tell the truth on anything. I watched the bit last night on Kirakou’s book and his second to last page reneg on everything he has formerly said (and been widely quoted and relied upon by the MSM) about waterboarding. That’s the most and best someone will ever do about the outright lies. I hope he comfortably milks the WOT for money with his book – you wouldn’t want the inner rot of the nation he helped foster or the deaths and wars his crew helped cheerlead for and create to get in the way of a buck or two.

  20. hazmaq says:

    Add Martha Johnson, nominated to head the GSA, to the list of Reid rejects. While Bond has the hold now- was he encouraged to by Reid?

    “…multiple Democratic and Republican staffers say Reid himself slowed action on one of the highest-ranking nominees awaiting confirmation, Martha Johnson. She is President Obama’s pick to head the General Services Administration.” (http://www.govtrack.us/congress/record.xpd?id=111-s20091029-21)

    It would be extremely interesting to make public how many good intentions died at the hands of Democratic insider maneuvering.

    Whether it’s people or policies a certain part of the Democrat body’s leaders repeatedly cannibalize the party out of it’s key supportive structures, leaving the public to believe we’re weak and worthless.

    Feingold, Tester, Dorgan, Hackett and Lamont are more past victims of devious back room deals made by the Reid/DSCC/Emanuel/DCCC cabal of ultra-Moderates. With back room fear-mongering they’ve wielded their power and donors money to force though not good policies like HC and Insurance Reform, but legislation like the Patriot Acts and the BK Act; not good candidates like Hackett and Lamont, but the black hole that is Joe Lieberman.

    When they deliberately act and scheme in a manner to keep a Lieberman in and dump a Dorgan, to keep Johnson out but fight to keep Emanuel, Summers, Geithner, Alito, Roberts and Bernanke, we have to fight them from the inside by (a), beefing up our coalition of Congressional Progressives and, (b)start lobbying for a new strong and solid Dem Majority Leader. (Udall of New Mexico, and many others will fight to change the filibuster rules in the new 112th. 2011 can be a good year.)

  21. hijean831 says:

    The Obama Administration’s confounding unwillingness and/or inability to move the nomination of Dawn Johnsen

    Nelson has point blankedly stated the White House never even asked him to support Johnsen.

    Obama never had Harry Reid call the vote last year.

    I know I’m hopelessly naive about people doing their jobs, but – once a nomination is made, is it not in the workbasket of the Senate to move forward on confirmation or rejection?

    As has been documented here, she could have been confirmed any time after Franken was seated, and most probably much sooner. Doesn’t the fact that she wasn’t indicate a specific request to Reid NOT to call a vote? It’s not like the WH should have had to do anything special to make it happen, other than maybe calls to the Maine delegation last spring.

    Nelson claiming he wasn’t asked to support her, or anyone pointing to that as an oopsie is disingenuous at best. Does not her nomination indicate an expectation of support? Or is this euphemism for ‘he wasn’t paid off, so piss off’?

  22. CarlyCorday says:

    Leaderless…kinda like the country.

    Maybe she needs to appeal to Leiberman, so she can get the word to git on home. You pass Joe Lieberman, or you don’t pass. That’s Obama policy, as proven by Obama’s kind and constant support for “Joe.” Obama and Reid gave us this disease and told us to live with it. Leadership? Haha.

  23. JasonLeopold says:

    If there was any doubt that Rahm Emanuel is politicizing DOJ here’s some more proof. Think it makes Holder sound weak and pathetic, but it’s clear, to me at least, there is WH involvement. Just out in the latest issue of the New Yorker. Mayer’s story on Holder (my emphasis in bold)

    Emanuel adamantly opposed a number of Holder’s decisions, including one that widened the scope of a special counsel who had begun investigating the C.I.A.’s interrogation program. Bush had appointed the special counsel, John Durham, to assess whether the C.I.A. had obstructed justice when it destroyed videotapes documenting waterboarding sessions. Holder authorized Durham to determine whether the agency’s abuse of detainees had itself violated laws. Emanuel worried that such investigations would alienate the intelligence community. But Holder, who had studied law at Columbia with Telford Taylor, the chief American prosecutor in the Nuremberg trials, was profoundly upset after seeing classified documents explicitly describing C.I.A. prisoner abuse. The United Nations Convention Against Torture requires the U.S. to investigate credible torture allegations. Holder felt that, as the top law-enforcement officer in the U.S., he had to do something.

    Emanuel couldn’t complain directly to Holder without violating strictures against political interference in prosecutorial decisions. But he conveyed his unhappiness to Holder indirectly, two sources said. Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

    • hijean831 says:

      Emanuel demanded, “Didn’t he get the memo that we’re not re-litigating the past?”

      ‘Re-litigate’ implies a ‘litigate’. Didn’t he notice that never happened?

      • JasonLeopold says:

        ha! That’s so true and a good point. In Rahm’s world this was already dealt with. But let’s face it. That limited scope investigation Holder authorized is a joke to begin with.

    • bobschacht says:

      This is exactly the kind of thing that Gary Wills writes about in his new book, Bomb Power. I don’t mean that Wills has Emanuel quotes, but rather what Emanuel is doing is characteristic of the type of influence that has been exhibited since the Manhattan project.

      I say that those in the CIA who have committed war crimes *ought* to be demoralized. If they’re not demoralized, I’m demoralized. So I don’t give a rats ass about demoralization in the CIA, if those being demoralized are those who have been involved in illegal acts.

      In fact, I’m more concerned about the demoralization of CIA people who have NOT done anything illegal. They probably feel demoralized by the corruption they see all around them.

      Bob in AZ

    • Mary says:

      Thanks – to you for the link and Jane Mayer for the piece.

      Obama could have been the game changer on all this, long ago, if he’d ever had a sit-down and told the American people the truth about the detentions – how often we got the “wrong” person and what the cost has been because of that and how we need to return to the rule of law, not as a talking point but because that is how you get the best information, inform your citizenry, and make the best decisions.

  24. gnomedigest says:

    I have a hard time seeing a future where Dawn Johnson is ever confirmed.

    Her selection made sense when one wanted someone to reverse or rectify lawless Bush era practices.

    Since Obama has embraced the far majority of those practices and even expanded them, I have a hard time understanding why the Whitehouse wouldnt just let her nomination rot. Not only does someone who opposes your current direction not get confirmed, but the post even stays empty. Seems like a win win if you want to continue Bush era abuses.

    Heck the Whitehouse can even use it as ammo against the republicans for blocking their nominations. Make that a win win win.

  25. sporkovat says:

    why, it is almost as if there was some sort of Ratchet Effect in operation in American politics!

    The electoral ratchet permits movement only in the rightward direction. The Republican role is fairly clear; the Republicans apply the torque that rotates the thing rightward.
    The Democrats’ role is a little less obvious. The Democrats are the pawl. They don’t resist the rightward movement — they let it happen — but whenever the rightward force slackens momentarily, for whatever reason, the Democrats click into place and keep the machine from rotating back to the left.

    of course, no one could have predicted…

    including this discomfiting passage:

    there is nothing so dangerous as the illusion of opposition, when in fact no such opposition exists. Many of us have seen movies or read books which, in broad outline, tell the following story: a cruel villain inflicts terrible misery and suffering on innocent victims. A brave, fearless defender of the victims unexpectedly appears. The victims rally behind their defender, and they increasingly come to view him as their savior. The battle between the villain and his forces on one hand, and the victims and their defender on the other, rages fiercely. One side seems destined for victory, and then the other. It takes a very long time before victory is assured for either side; the toll of battle is awful for everyone. Finally, the villain defeats the victims and their brave defender, and the villain emerges as more powerful than he had ever been.

    In the final scene, we learn the truth: the victims’ defender had been working for the villain all the time. The defender had never been on the side of the victims: instead, at every critical juncture, he made sure to misdirect the victims’ efforts just enough to make certain that the villain was never seriously threatened. The defender had to do this subtly; he had to lie on every matter of moment, and he had to do so repeatedly. He did all this expertly, and the victims never suspected his actual goal. The defender is handsomely rewarded for his work, for he delivered the victims into the villain’s power, making certain that the victims would never again be a genuine threat. And the illusion is complete: even after they had lost and their lives had been destroyed forever, the victims never doubted their hero or the fact that he had fought for them so bravely.

    to many, this pattern vis-a-vis the Democrats and whoever they nominate has been “proved-up” a long time ago.