Dawn Johnsen’s nomination to head the Office of Legal Counsel fell apart on Friday, but it’s actually quite late for an autopsy. President Obama first tapped Johnsen to fill the influential post, which literally defines the legal limits on executive power, in January 2009. One year later, he renominated her. But by then it was already over.
The Senate had refused to even give Johnsen a floor vote, despite approval from the Judiciary Committee and her sterling credentials. Obama had refused to give her a recess appointment, despite a wasted year and few signs of life for her in the Senate chamber. When he renominated her in January, it was surrender masquerading as the middle ground.
Friday’s news only revealed that subterfuge. The White House formalized its defeat by announcing that Johnsen had withdrawn from consideration. The three months between renomination and withdrawal now look gratuitous: There was no big push for cloture and a floor vote (even though she had the backing of Democrats in the high 50s and bipartisan sheen from Republicans like Dick Lugar); there was no presidential speech on partisan obstruction hindering the Justice Department. And while the news of Justice Stevens’ retirement took most of the media and legal attention on Friday, the next Supreme Court battle is not really a distraction from Dawn Johnsen’s fate. Both standoffs reveal the profound ambivalence in Obama’s emphatic pledges to swiftly restore the rule of law.
In surveying the slow, confounding death of Johnsen’s nomination, attorney Glenn Greenwald proposes something akin to Nominator’s Remorse. Obama cooled on his own choice, Greenwald suggests, as his administration began adopting several sweeping theories of executive power that Johnsen had long opposed. “I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges,” he writes, citing recent assertions by administration lawyers. And while Greenwald does not claim to know exactly “why her nomination was left to die,” he contends that Johnsen’s “beliefs are quite antithetical to what this administration is doing.”
Others do claim to know the inside story. One “Senate Democratic leadership source” told ABC News that fear was a bigger issue than remorse. Obama “didn’t have the stomach” for a close fight on Johnsen, the source said, so the show was over after Scott Brown’s election.