The White House was also dissatisfied with Craig’s handling of political appointments, believing that Craig should have spent more time working with the Justice Department and with Congress to force through some of the president’s most eagerly awaited principals, like Dawn Johnsen, whose nomination to be head of the Justice Department’s Office of Legal Counsel still languishes. The issue of nominations is especially sensitive for the president, a constitutional law lecturer in his former life.

My colleague Daphne Eviatar has reported extensively on the parliamentary machinations keeping Johnsen bottled up in the Senate.

As I reported earlier this week, Republicans have stalled Johnsen’s nomination with their ambivalence about supporting cloture and the leadership’s refusal to agree to a time limit for debate on the vote. Although Johnsen clearly has the 51 votes she needs to be confirmed and may have enough votes to support cloture, Republicans’ insistence on 30 hours of debate before the Senate can actually vote on the nomination has made it difficult for Reid to put the vote on the calendar.

Johnsen has angered Republicans by being openly critical of OLC policies under the Bush administration, and by supporting abortion rights 20 years ago as a lawyer for the National Abortion Rights Action League, or NARAL (now NARAL Pro-Choice America).

Johnsen may have more support now than she did at the time of her hearing, however, since Sen. Arlen Specter of Pennsylvania, then a Republican and one of her harshest questioners back in February, has switched parties. After saying he opposed Johnsen’s nomination back in April, Specter recently met with her a second time and said he is reconsidering his position.

Update: Here’s a copy of the letter pressing for Johnsen’s confirmation sent to Sen. Reid today by a coalition of civil and human rights groups.

With only three of 22 judicial nominees confirmed so far, it “seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president’s judicial nominees.”

The problem of judicial nominations parallels the obstruction of executive nominations, a problem I highlight in my piece today about the seven-month delay in confirming President Obama’s pick to head the Office of Legal Counsel, Dawn Johnsen.

In Kendall’s view, the “unprecedented and dangerous” obstruction, if it continues, “will worsen an already serious problem of vacancies on the federal courts” as well as “discourage from ever entering the confirmation process precisely the type of nominees both parties should want.”

Dawn Johnsen (Indiana University photo)

When the Senate Judiciary Committee held hearings on the nomination of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel in February, one of her harshest questioners was Sen. Arlen Specter, then a Republican from Pennsylvania facing a likely challenge from the conservative former Rep. Pat Toomey. Even then, though, Specter passed on the committee vote, and although in April he said he was considering supporting a filibuster against Johnsen, now he says he’s still considering her nomination.

That’s not going to get Johnsen any nearer to a vote, however. Seven months after her nomination was approved by the Senate Judiciary Committee, she still hasn’t gotten an up or down vote from the full Senate. Yet she’s been nominated for a critical position in the Justice Department — the senior lawyer to advise the president on the legality of his administration’s policies. Johnsen’s supporters are irate. When asked, Republican senators refuse to say where they stand on Johnsen, whether they would support a vote on her nomination, or if they plan to fillibuster.

Illustration by: Matt Mahurin

At her confirmation hearing, Johnsen was pressed on her views of executive power and the war on terror, both of which she’d written about as a law professor. But she also took heat from Republicans for a footnote in a brief she co-authored with ten other lawyers 20 years ago that suggested an analogy between depriving a woman of the right to have an abortion and slavery.

“When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery,” Specter chastised Johnsen at her confirmation hearing, “that seems to me candidly beyond the pale.”

Johnsen, a law professor at the University of Indiana who served in the Office of Legal Counsel under President Clinton, responded that, as far as she could remember, she hadn’t actually equated outlawing abortion with slavery, but was just making an analogy. And the point, which may have actually been drafted by any of the ten other lawyers listed on the brief, was tangential to the core of the brief’s argument. Republicans, however, continued to use it against her. Anti-abortion rights groups, meanwhile, repeated the argument that she “compared pregnancy to slavery” and urged Senators to vote against her nomination.

Despite the opposition, Johnson is widely believed to have the 51 votes she needs for confirmation, and possibly 60 for cloture. Even if she doesn’t ultimately win support from Specter or from Sen. Ben Nelson (D-Neb.), who has said he’ll oppose her, she does have the support of her home state Republican, Sen. Richard Lugar. And she could win votes from moderate republicans such as Sens. Olympia Snowe and Susan Collins of Maine. The problem seems to be not simply support for a vote, but also that if there is a vote, Republicans won’t agree to any time limits on the debate over her nomination, no matter how much support she has. That means her opponents could take up to 30 hours of precious floor time debating her nomination while Congress debates key legislation on health care, climate change and the economy.

The result is that President Obama is unable to have the person he’s chosen to lead a critical office in the Department of Justice in place. The Office of Legal Counsel advises the president on the legal implications of the policies he wants to implement. Although formerly a little-known office, the OLC came under intense scrutiny and criticism during the Bush administration after its lawyers, John Yoo, Jay Bybee and Stephen Bradbury, issued a series of memos that defined torture extremely narrowly to allow a range of physical and mental abuse of detainees during interrogations, including waterboarding, weeks of sleep deprivation, stress positions and sexual humiliation. The office also authorized warrantless wiretapping and said that the President can suspend the Bill of Rights on U.S. soil during wartime.

Supporters stress that Johnsen’s confirmation is important because she’d be the chief lawyer responsible for advising the president on the constitutionality of a range of government practices and policies. “We saw the potential importance of OLC during the Bush administration when it was misused and pressured into giving and parotting the kinds of answers that the White House wanted,” says Marcia Greenberger, co-President of the National Women’s Law Center. Indeed, the lawyers from that Office during the Bush administration were investigated by the Office of Professional Responsibility to determine if their legal advice to the president strayed so far beyond reasonable legal interpretations as to violate legal ethics rules. The report of that investigation, although reportedly drafted last year, has not yet been released.

Johnsen, in both scholarly articles and blog posts, has written that it’s critical for the Office of Legal Counsel to use independent legal judgment and to be willing to say “no” to the president when necessary.

“What is key is to have a person of Dawn Johnsen’s caliber and independence who also has the confidence and trust of the administration,” said Greenberger. “That she has no ax to grind and is truly giving its best views.” In addition to winning the support of civil rights groups, Johnsen has won bipartisan support from previous OLC leaders, including Walter Dellinger, a former acting solicitor general who led the OLC under  Clinton, and Douglas Kmiec, a professor of Constitutional Law at Pepperdine University and head of the OLC for Presidents Ronald Reagan and George H.W. Bush. Kmiec has said he admires her “independence of mind.”
Johnsen was one of many critics of that office’s legal opinions during the Bush presidency. And while that won her praise from many Bush critics, it also earned her the ire of many Republicans.

In voting against her nomination in the Senate Judiciary Committee, Sen. John Cornyn (R-Texas) accused Johnsen of making “numerous intemperate statements” and “ad hominem attacks” on Republicans in her popular writings. Cornyn also accused Johnsen of “retreating into the law-enforcement paradigm” in anti-terrorism policies by not supporting the view that the United States is at “war” with terrorism. “As I see it, Dawn Johnsen has not demonstrated the seriousness and necessary resolve to address the national security challenges we face,” Cornyn said.

“She’s being challenged because she had the temerity to question internally policies of the office supporting the administration’s position on torture, interrogation, and wiretapping,” said Wade Henderson, president of the Leadership Conference on Civil Rights, who says he’s “working aggressively” to get her confirmed. “All three of those are areas that spoke directly to the integrity and substance of the office.”

Johnsen was hardly the only law professor to criticize the office’s opinions. Former OLC leader under President George W. Bush and Harvard Law Professor Jack Goldsmith famously criticized some of the office’s opinions in his book, “The Terror Presidency,” writing that some were “deeply flawed: sloppily reasoned, overbroad and incautious in asserting extraordinary constitutional authorities on behalf of the president….I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.”

Goldsmith wrote that after he left the OLC in 2003, however, whereas Johnsen is now being forced to confront her criticisms during the highly politicized confirmation process to be allowed to run the office.

Johnsen’s supporters are angry. “Dawn is caught up in a much larger fight that goes beyond her individual nomination,” said Henderson. “Republican Senate leadership, determined in particular by Sen. McConnell, has chosen to raise the bar for the confirmation of key personnel in the Obama administration in what appears to be a concerted effort to frustrate the new president’s ability to staff key offices with people of his choice. It’s turned into a partisan tug of war over the most basic positions in federal government, with dire implications for the effectiveness of the president’s ability to achieve his goals.”

The confirmation of State Department Legal Advisor Harold Koh, formerly the Dean of Yale Law School, was held up for about four months. And Civil Rights Division legal director Thomas Perez waited six months for confirmation.

“It’s a timing issue,” said Marge Baker, Executive Vice President at People for the American Way, which has been pressing for Johnsen’s confirmation. “They’re about to take up a debate on health care issues.” Even if there are enough votes to support cloture, the rules allow up to 30 hours for post-cloture debate before there is a final vote. “That’s a huge chunk of time when you have a lot to move,” says Baker.

The assumption is that Republicans will insist on taking all of that time. Calls to Sens. McConnell and Jeff Sessions (R-S.C.), the ranking Republican leader on the judiciary committee, were not returned.

A spokesman for Sen. Susan Collins (R-Maine) said she still has not decided how she’ll vote on the Johnsen nomination. A call to Sen. Olympia Snowe’s office was not returned. Women’s groups have targeted both moderate Maine Republicans to urge them to support Johnsen.

The Senate Judiciary Committee voted 11-7 to support Johnsen’s nomination in a party-line vote in March. She’s been awaiting a full Senate vote ever since.

Earlier this week, Sen. Patrick Leahy (D-Vt.) lamented the difficulty of approving both judicial and executive nominations since January, noting that four Assistant Attorney General nominations, including Johnsen’s, remain pending without a vote. Meanwhile, the nomination of Federal Judge William Sessions of Vermont to be Chairman of the United States Sentencing Commission has been stalled for five months, even though he’d previously been confirmed twice as a member of the same Commission. Senate Majority Leader Harry Reid (D-Nev.) had to file a cloture motion to end the obstruction.

“During the 17 months I chaired the Judiciary Committee during President Bush’s first term, we confirmed 100 of his judicial nominees and 185 of his executive nominees referred to the Judiciary Committee,” said Leahy. “And yet, 10 months into President’s Obama’s first term, we have confirmed only two of his nominations for circuit and district courts and 40 of the executive nominees that have come through our Committee.”

With health care and other major legislation the filling up the Senate’s time these days, it’s not clear when the pace of those confirmations will pick up.

The OLC is the office that housed such Bush-era luminaries as John Yoo and Jay Bybee, and issued the infamous “torture memos” that defined torture so narrowly that even waterboarding — which had always been considered a form of torture before, even by the United States — now passed legal muster. Johnsen was one of many critics of that office’s legal opinions during the Bush presidency, earning her the lingering ire of many Republicans.

Among them was Specter, who, during her confirmation hearing in February, took the lead in painting her as a radical left-wing ideologue. In April, even after switching parties, he reaffirmed that he was still opposed to her nomination. As a result of the staunch opposition of Specter, Sen. Ben Nelson (D-Neb.), and most Republicans, the Office of Legal Counsel has gone without a confirmed leader to advise the president on critical legal issues, such as the use of warrantless wiretapping and the treatment and trials of suspected terrorists and “war on terror” detainees.

But now, it looks like Specter may be changing his mind. Specter’s press secretary, Kate Kelly, emailed me Thursday with this:

Senator Specter has several concerns about Ms. Johnsen’s nomination, including her views on executive power and abortion. Senator Specter is solidly pro-choice, but he disagrees with her position equating limitations with involuntary servitude. Senator Specter had a second meeting with her to get clarification on her positions and he is still considering her nomination.

As I pointed out during Johnsen’s confirmation hearing, Specter grilled her on a footnote buried in a friend-of-the-court brief she’d co-authored with 10 other lawyers representing 77 different public interest organizations, 20 years ago in an abortion rights case when she was a lawyer for the National Abortion Rights Action League. The footnote said that laws curtailing the right to an abortion “are disturbingly suggestive of involuntary servitude, prohibited by the 13th Amendment, in that forced pregnancy requires [a woman] to provide continuous physical service to the fetus in order to further the state’s asserted interest.”

“When I read in your writings that abortion bans are a violation of the 13th Amendment ban on slavery,” Specter chastised Johnsen at her confirmation hearing, “that seems to me candidly beyond the pale.”

Johnsen, flustered, responded that, as far as she could remember, she hadn’t actually equated outlawing abortion with slavery, but was just making an analogy. Anyway, the point, while creative, was pretty tangential to the core of the brief’s argument. It was, after all, relegated to footnote 23. But that clearly did not satisfy Specter, who remained firmly opposed to her nomination.

Until Thursday.

The change is consistent with Specter’s overall transformation, captured well by Nate Silver’s Specterometer at FiveThirtyEight.com. According to Silver’s analysis, after switching parties on April 28th, Specter started out voting with the Democrats on “contentious votes” about two-thirds of the time. But since Rep. Joe Sestak (D-Pa.) announced on May 27 that he plans to challenge Specter in the 2010 Democratic primary, Specter has become a far more loyal party member, voting with the party on “contentious votes” 97 percent of the time.

That was Silver’s count in July, and I don’t have the count to date, but it does give some indication as to why Specter decided to meet with Johnsen a second time, and is now “reconsidering” which way he’ll vote on her nomination.

Take the nomination of Dawn Johnsen, Obama’s pick to the head the Office of Legal Counsel, which provides critical legal advice to the president. The OLC, of course, is the same office that got into all sorts of trouble under the Bush administration, and several of its former lawyers are the subject of a much-awaited report from the Justice Department’s Office of Professional Responsibility, which reportedly has concluded that the lawyers violated legal ethics in recommending President George W. Bush permit the abuse of detainees and other suspensions of constitutional rights in the so-called “war on terror.” That report, although reportedly drafted last year, is apparently still being reviewed by the very lawyers it apparently censures, and is likely being edited and potentially watered-down as a result.

But even as President Obama says he wants to look forward, not back, he’s not exactly pushing very hard to get a new director for that Office of Legal Counsel confirmed so she can lead his legal department on its forward march. The nomination of Johnsen, a highly-respected law professor who was second-in-command at OLC under President Clinton, was voted out of the Senate Judiciary Committee with full Democratic support in March. She has yet to get a full Senate vote — though back in May, Attorney General Eric Holder called her confirmation “probably my top priority.”

Republicans have made clear that they’ll fight the Johnsen nomination and slow the voting process down, even though it seems clear Democrats have enough votes to confirm her. GOP lawmakers have painted Johnsen as a radical for publicly challenging some of the advice given by the Office of Legal Counsel during the Bush years. And during her confirmation hearings, some Republicans seized on the fact that Johnsen was a lawyer for the National Abortion Rights Action League (NARAL) early in her career, and 20 years ago was one of ten co-authors on a brief in which there was a footnote that some Republicans found objectionable.

With the health care debate ongoing and the president staking much of the success of his first term on its outcome, the Obama administration may not have much interest in pushing the Johnsen nomination just now, since Republicans will likely insist on cloture — and the 30 hours of debate that comes with it — which would detract from the president’s current mission.

As a result, according to the White House and Senate staffers, a vote on the Johnsen nomination isn’t even on the calendar yet.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said, “There are no questions about the qualifications of Tom Perez. During his confirmation hearing, Mr. Perez made clear his commitment that the Justice Department would enforce the law. In the arena of civil rights, living up to those assurances is particularly important. Given that Tom Perez has a distinguished record of public service and a long career advancing civil rights, I have full confidence that he is the right person to restore the Civil Rights Division to its finest traditions of independent law enforcement.”

Perez’s confirmation is the first to a senior position at the Justice Department since April. Four assistant attorney general nominations remain pending on the Senate calendar: Dawn Johnsen to be the assistant attorney general for the Office of Legal Counsel, reported by the Committee on March 19; Mary Smith to be the assistant attorney general for the Tax Division, reported on June 11; Christopher Schroeder to be the assistant attorney general for the Office of Legal Policy, reported on July 28; and Ignacia Moreno to be assistant attorney general for the Environment and Natural Resources Division.

I respectfully urge you to disclose as much information as you can about these policy advisors and “czars.”  Specifically, I ask that you identify these individuals’ roles and responsibilities, and provide the judgment(s) of your legal advisors as to whether and how these positions are consistent with the Appointments Clause.

Politico’s take here is — shockingly! — a bit misleading and over-wrought. In addition to Feingold’s letter, there’s Sen. Byron Dorgan (D-N.D.) saying that “you need to have confirmation” for powerful advisers. There’s Sen. Dianne Feinstein (D-Calif.), who wants more oversight but avers that the way “czars” are defined in the press is wildly misleading: “I don’t think it’s quite fair to call, for example, David Hayes at the Department of Interior a czar.” Somewhat surprisingly, conservative-leaning Sen. Ben Nelson (D-Neb.) dismisses the “czar” panic as “something that some talk show hosts have made a great deal out of.” And there’s an eight-month old letter about “czars” from Sen. Robert Byrd (D-W.Va.). Politico packages this as evidence of Democrats “joining the czar wars.”

It’s hard to overstate what a fantastic issue this is for Republicans if it’s covered hysterically. The 40 Republican members of the Senate have filibustered or put holds on many of the president’s nominees, including Dawn Johnsen for the Office of Legal Counsel and Tom Perez at the Civil Rights Division of the Justice Department. They subjected Cass Sunstein to an eight-month series of holds and filibusters which ended only last week — and they continue to include Sunstein in the roll calls of “unaccountable czars.”

Thanks to lazy and sensationalized journalism, Republicans are able to put the breaks on the president’s nominees while complaining, as Sen. Lamar Alexander (R-Tenn.) did yesterday, that President Obama’s appointees are “unaccountable to the American people through their elected representatives.” The fact that Republicans, instead of asking questions, are quietly placing “holds” on qualified nominees who have been submitted to the Senate, goes utterly unmentioned.

Feingold’s letter:

Dear Mr. President:

From the beginning of your administration, you have made an admirable commitment to transparency and open government.  You showed the strength of your commitment by sending a memorandum to the heads of executive departments and agencies within a week of your inauguration, stating: “My administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use.”

As you know, there has been much discussion about your decisions to create and assign apparently significant policy-making responsibilities to White House and other executive positions; many of the persons filling these positions have come to be referred to in the media and even within your administration as policy “czars.”  I heard firsthand about this issue on several occasions from my constituents in recent town hall meetings in Wisconsin.

The Constitution gives the Senate the duty to oversee the appointment of Executive officers through the Appointments Clause in Article II, section 2.  The Appointments Clause states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise proved for, and which shall be established by law.”  (Emphasis added.)   This clause is an important part of the constitutional scheme of separation of powers, empowering the Senate to weigh in on the appropriateness of significant appointments and assisting in its oversight of the Executive Branch.

As a member of the Senate with the duty to oversee executive appointments and as the Chairman of the Senate Constitution Subcommittee, I respectfully urge you to disclose as much information as you can about these policy advisors and “czars.”  Specifically, I ask that you identify these individuals’ roles and responsibilities, and provide the judgment(s) of your legal advisors as to whether and how these positions are consistent with the Appointments Clause.  I hope that this information will help address some of the concerns that have been raised about new positions in the White House and elsewhere in the Executive Branch, and will inform any hearing that the Subcommittee holds on this topic.

Thank you for considering my views on this important matter.  I very much appreciate your commitment to transparency and open government and look forward to your prompt response.

Sincerely,

Russell D. Feingold

United States Senator

–

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From the report itself, John Yoo’s Office of Legal Counsel memo — and the lightning-fast reporting of Spencer Ackerman, Marc Ambinder and others on Friday — we now know that President George W. Bush and Vice President Dick Cheney, aware that ignoring the Foreign Intelligence Surveillance Act and the Fourth Amendment to the U.S. Constitution might come back to bite them later, sought the drafting of a legal opinion that would approve the president’s secret surveillance program and shield them from later attack.

The fact that the White House sought the assistance of Deputy Assistant Attorney General John Yoo in the OLC, though is itself evidence that the White House was trying to get around, rather than comply with, the law.

As I’ve noted before, legal memos justifying an unreasonable or inaccurate legal position don’t necessarily provide a “golden shield” for the executive.

Yoo, after all, was known when he was hired as the Berkeley law professor and staunch Federalist Society member who held theories on executive power that were far outside the legal mainstream. And the memos and academic analyses he then proceeded to write were so extreme and so mischaracterized law and history in an effort to reconcile conservative “originalist” principles with his own aggressive view of an all-powerful president as Commander-in-Chief that they’ve been characterized as an “outrageous theory of presidental dictatorship” by Yale University law professor Jack Balkin and as “simply hooey” by Marty Lederman at Georgetown (now in the Office of Legal Counsel in the Obama administration).

The inspectors general report details how Yoo and the administration ignored parts of the FISA law that conflicted with his theory, for example, and made the outrageous argument that a warrantless search doesn’t violate the Fourth Amendment’s prohibition on “unreasonable” searches and seizures because it can’t be “unreasonable” for the president to authorize it in wartime. Why it’s “reasonable” to prevent even secret judicial review of such searches is never explained.

For an academic to hold extreme views of executive power, of course, is arguably a matter of academic freedom, and even a form of creative theorizing that one might admire. (Although some of Yoo’s Berkeley colleagues, such as economist Brad DeLong, among others, have described his theories as reaching so far beyond the bounds of creative academic theorizing as to be simply dishonest and undeserving of that protection.)

But Yoo’s memos at OLC were not part of an academic exercise; they were making policy. Setting aside for a moment the potential culpability of Yoo himself, the more important point here is that, as the inspectors general report makes clear, the White House specifically sought him out and excluded his superiors, ignoring the usual chain of command in the Justice Department, apparently because they knew that John Yoo would give them the legal opinions that they wanted to hear.

That is not the purpose of the Office of Legal Counsel, as Dawn Johnsen, the Obama nominee to head that office has repeatedly made clear, along with more than a dozen other alumni of that office.

As Johnsen wrote in a law review article describing the ten “Guidelines” that should govern the Office of Legal Counsel: “OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies … In short, OLC must be prepared to say no to the President.”

That the president and vice president apparently chose someone who they knew in advance would not say no to the president is more than an abuse of that legal office; it strongly suggests an intentional and unlawful abuse of executive power.

The latest news accounts that Attorney General Eric Holder is leaning toward appointing an independent prosecutor suggest he may finally be starting to reach the same conclusion.

Can we take that to mean that he won’t vote for Johnsen? Maybe. But he didn’t come out to say specifically that that’s the case — as he did when he very clearly voiced his intent to vote against the Employee Free Choice Act moments before.

Johnsen has made headlines for uniting conservatives behind what they consider her radical support for abortion rights — a controversy over which even the pro-choice Specter drilled Johnsen earlier this year during her confirmation hearing in the Senate Judiciary Committee.