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Twisting in the wind

The key Obama nominee that everyone has forgotten about

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.