Is Barrack Obama now ready to fight partisan confirmation obstruction against his nominees? When Ben Bernanke's reappointment was jeopardized, the president fully engaged the fight. Obama worked the phones himself to help Senate leadership line up 60 cloture votes. But what about the additional 300 critical federal executive, regulatory and judicial positions that remain empty?
At his question session during the Senate Democrat retreat, Obama was adamant that if "government is going to work for the American people" Republican confirmation obstruction "has to end."
Senate Majority Leader Harry Reid recently detailed national security dangers resulting from Republican obstruction of defense, intelligence and homeland security appointments. And, Sen. Tom Harkin is prioritizing labor-related confirmation fights. Of equal concern should be the growing number of Department of Justice vacancies, especially in those offices charged with establishing legal policy and vetting scores of other federal nominees, including judges.
Deputy Attorney General David Ogden's resignation effective early this month leaves the Justice Department without a permanent number two executive official. And the three recently renominated Assistant A.G.s (Dawn Johnsen, Christopher Schroeder, and Mary Smith) will rejoin the long queue of other Obama nominees waiting for a Senate floor vote. It is past time for the Senate majority and the Administration to fight for Justice.
Soliciting Bipartisan Advice, Receiving Partisan Contempt
A year ago seemed like such a hopeful time. Barack Obama entered the White House sincerely wanting to end the partisan confirmation wars. Obama actively solicited bipartisan senatorial advice and, at first, received well-deserved praise for his genuinely diverse, exceptionally qualified, and experienced nominees.
But by late spring, "partisan payback" was revealed as the Senate minority's watchword from January 20, 2009. As presidential poll numbers declined, Republican obstruction increased. Extreme slow walking was Senate summer sport and the abuse of individual Senate holds (mini-filibusters), the regular order of business.
In fall 2009, partisan procedural delay tactics had proven effective; hundreds of executive and regulatory vacancies still existed and Obama had benched only a dozen judges. On December 24, 2009, Republicans claimed yet another tactical victory by forcing several key nominees back to the White House.
Republican leaders refused to allow the traditional courtesy permitting pending nominations to carry over to the second Senate session. For the Obama nominees, whose lives were on hold for up to a year awaiting confirmation, it was an especially insulting lump of Republican coal in their stockings.
Among the rudely returned were three DOJ Assistant A.G. nominees (Dawn Johnsen for the Office of Legal Counsel, Christopher Schroeder for the Office of Legal Policy, and Mary Smith for the Tax Division). Also rejected was Craig Becker, Obama's nominee to Chair the quorum-challenged National Labor Relations Board.
Commentators from the left and right prematurely blogged: "Senate Returns Nominees: White House Rolls Over." Wrong!
Obama Fights Back but Sessions Targets Dawn Johnsen
First-year confirmation lessons may have been learned. President Obama stood by his women and men -- at both Justice and the NLRB. The nominations were sent back to the Senate with White House expectations that the respective Senate committees (Judiciary and Labor) would quickly reapprove the renominations so they could proceed to a floor vote.
Obama's bold act spurred Sen. Arlen Specter to finally commit to Dawn Johnsen for the OLC. Indiana Republican Richard Luger also reaffirmed his pledge to support the Indiana University law professor. For a few days it appeared Johnsen finally had the 60 cloture votes to unblock her year-old nomination. This whip count did not include Sen. Ben Nelson, the lone Democrat yet undecided on Johnsen.
But Obama's assertive renomination resulted in Johnsen being targeted for more obstruction. Sen. Jeff Sessions, a ranking Judiciary Committee member, demanded a second round of hearings for Johnsen and other renominated DOJ officials. Republicans also invoked committee rules to game out an additional week's delay. The three renominated DOJ officials join other nominees, including several judicial nominees, on the Thursday, February 4th agenda of the Judiciary Committee's latest executive schedule.
Meanwhile, Scott Brown's election confused the cloture whip count. Regardless of when Senator-elect Brown takes Ted Kennedy's Senate seat, Johnsen and all re-nominated DOJ officials should be quickly reapproved by the Judiciary Committee. Also, Chair Patrick Leahy should take the nominations to the Senate floor as soon as possible.
The 60 votes needed for cloture can be found. On February 1, Sen. Tom Harkin mustered exactly the 60 votes needed for cloture when he broke the GOP filibuster of Obama's nominee for Labor Department Solicitor.
As the Administration did for Bernanke, Barack Obama, Joe Biden, and the entire White House political operation must lobby for the 60 cloture votes for Justice and NLRB officials. Particular attention should be focused on Dawn Johnsen's appointment.
Johnsen: A Superb OLC Fit
Democrats and Republicans know the importance of the Office of Legal Counsel to national justice and the rule of law (if only by the damage it inflicted during the Bush years).
The OLC is the in-house lawyer for the Attorney General and the Justice Department. When an official needs high-level constitutional advice, the OLC can be consulted. An OLC opinion carries great persuasive authority but it also effectively insulates federal officials relying on the advice, from liability. When government factions disagree, the OLC is an important arbiter.
Doug Kmiec, OLC head for Ronald Reagan and George H.W. Bush, describes the OLC as the Justice Department's "conscience." Kmiec, who endured harsh party and church criticism for his 2008 support of Barack Obama, is well aware of the cost of conscientious conviction. Prior to his appointment as Ambassador to Malta, Doug Kmiec joined other legal stars of both parties in praising Dawn Johnsen.
He judged Johnsen's "spunk and independence of mind" as "just the right tonic for a once proud, but recently tarnished, office." Kmiec referenced her constitutional scholarship and past public service: "[W]e would be hard-pressed to identify any other comparable appointee for a Justice post who would be as well suited." (Authors' note: Doug Kmiec was our Dean at Catholic University of America's Columbus School of Law from 2001-2003.)
Most importantly, the OLC has a proud tradition of offering independent and tempered advice to the President and the White House. In Dawn Johnsen's words, "saying no" to the president is "the OLC's core job description."
Walter Dellinger, former OLC head, worked with Johnsen and went on to serve as U.S. Solicitor General, heralds Johnsen's "keen intellect and extraordinarily good judgment." Dellinger, a reported Obama Supreme Court short- lister, recommends Johnsen because of her "deep dedication to the rule of law."
By any measure, Johnsen is a superb choice for the job. She served in the OLC for five Clinton years; indeed, Johnsen was acting head of the OLC from 1997-1998. For over the past dozen years, she has been a leading scholar on Justice Department issues. Prof. Johnsen is certainly patient. She patiently waited a year for Senate confirmation for her to fulfill exactly the same role she did for over a year in the Clinton Justice Department.
Speaking Truth to Power, Too Often
Dawn Johnsen is a distinguished academic and advocate, championing privacy, reproductive choice, the rule of law, separation of powers, and DOJ integrity. So why have Republicans, like Sen. John Cornyn, blocked her appointment for over a year? Perhaps the scholar dared to speak truth to power once too often.
In her 2008, Slate commentary, Johnsen dissected the flawed reasoning of the infamous torture memos and other legal opinions written by then OLC attorney John Yoo. She dared connect the bloody dots from Yoo's poison pen directly to George W. Bush's oval office: "President Bush asked for this kind of distorted legal advice. Remember, from day one, the President sent his lawyers the express message that they were NOT to interpret the law impartially and straight up."
Time to Get Serious
Sen. John Cornyn represents the obstructionist wing of the Republican Party well in defaming Johnsen (using perhaps unintentionally sexist language) by claiming she lacks the "requisite seriousness" for the OLC job. Truth be told, Cornyn's real issue with Johnsen may be that the woman is just too serious a scholar and too smart a lawyer.
Were it not for his Senate power to individually block a nominee, it would be hard to take Cornyn's criticism seriously. Consider his recent Senate campaign ad featuring "Big John, Big Bad John" sporting an oversized cowboy hat, riding on a too pretty horse. The reelection ad's Zane Grey Theatre voice-over describes Senator "Big Johnnie" being thanked by a grateful populace for "doing the Lord's work for Texas," in an undisclosed location: "For that place out yonder needs more men like you, Who shoot straight, And talk straight, And enjoy a good brew. "
Perhaps most threatening to the junior senator from Texas, Johnsen has been too consistent in her principles. If Senate memory serves, it was long-time "up-or-down confirmation vote" advocate John Cornyn who stated: "What the American people want and expect is that we...will not degenerate into partisan finger-pointing or name-calling, nor obstruction." Sen. Cornyn also complained in a 2005 letter to the New York Times: "Senate practice and even the Constitution contemplate deference to the president and a presumption in favor of confirmation."
Are there at least two or three Republican senators who will join Democrats in a series of confirmation cloture votes for Justice's sake? Are none in the minority embarrassed by the blatant GOP hypocrisy in blocking Obama nominations, when such procedural tactics were so uniformly (even elegantly) criticized by the Republicans during the George W. Bush years?
Dawn Johnsen's appointment is a litmus test for the Senate confirmation process and for the recharged Obama political operation. If she does not receive a full Senate vote, Democrats must implement the Constitutional Option to return to the Framer's design of a simple majority confirmation vote.
And, independently, as I've argued before for presidents of both parties, President Obama should fully utilize the alternative recess appointment process to fully staff our national government. If Obama finds the will, Clause 3 of Article II, Section 2 will provide the constitutional way. All recess commissions signed over the President's Day Senate break would last until "the End of their next Session" -- late 2011.
One appointment way or the other, the government must be fully staffed.
Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law; Nicola Sanchez is an attorney with the U.S. Nuclear Regulatory Commission. The views expressed are the authors' alone and do not reflect those of CUA, the NRC or the federal government.