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Monday, November 02, 2009

Law - "Groups urge Senate leader to move ahead with Dawn Johnsen confirmation"

Updating the ILB's long list of earlier entries on Indiana Universtiy Mauer School of Law professor Dawn Johnsen's long-pending nomination to head the DOJ Office of Legal Counsel, Andy Graham of the Bloomington Herald-Times reported in a story ($$) Nov. 1st:

Harry Reid does have a few other things on his plate right now. Reforming health care comes to mind.

But the U.S. Senate Majority Leader was sent a letter Thursday — signed by the leaders of 39 civil rights, union, education and liberal advocacy groups — urging him to move forward with a floor vote on the nomination of Dawn Johnsen to head up the Obama administration’s Office of Legal Counsel.

Indiana University law professor Johnsen was selected by Obama for the post in January and approved by the Senate Judiciary Committee in March, but still awaits a confirmation vote on the Senate floor.

“This delay is extraordinary and unacceptable,” the letter read, in part, “(and) as you know, the Office of Legal Counsel performs a critical role in guiding executive branch activities, advising the President and his Administration on the constitutionality of proposed policies, legislation and executive orders...

“No one is better qualified for this position than Professor Johnsen.”

Johnsen served as deputy in the Office of Legal Counsel, then as acting head of the office, under President Bill Clinton.

Her boss there, Duke professor Walter Dellinger, spoke highly of his former colleague Friday.

“It is particularly dismaying Dawn Johnsen hasn’t gotten a vote because her credentials to head the Office of Legal Counsel are beyond question,” Dellinger said. “For five years, she was in a leadership position in that office, and her work there won praise across the board from senior officials of the FBI, CIA, the national security agencies and the other major departments with which she dealt.

“There is no guesswork involved in terms of how she would conduct the office. She conducted it in a non-partisan, effective manner that showed devotion to the rule of law.”

Republican objections have been rooted in Johnsen’s work as National Abortion Rights Action League (now NARAL Pro Choice America) legal director from 1988 to 1993.

The Constitution gives the Senate oversight of many presidential appointments. Senate rules allow individual senators or groups of senators to delay that process, perhaps indefinitely, via the filibuster and other mechanisms. Reid apparently hasn’t been able to muster the 60 necessary votes to override an implied filibuster and force a final vote on Johnsen’s nomination.

Historically, the Senate readily acquiesced to administration choices for executive branch jobs, particularly those below cabinet level.

“Going back to the 1990s and before, there was the presumption that presidents got to fill out the positions in their cabinet, sub-cabinet and beyond,” Ted Carmines, Center for Congress research director at IU said Friday. “They weren’t held up for any undue length of time.

“But that has changed the past 10 or 15 years when the minority party, whichever it was, has held up more nominations and blocked more. That’s clearly happening right now. It’s further evidence of the growing polarization and partisanship we’ve seen in the legislative body. These nominations haven’t been pushed to the floor, haven’t been withdrawn and are just waiting for the Senate to deal with them. Usually, finally, they’re dealt with at some point.”

The letter to Reid maintained that in the 60 years since Senate rules changed to permit invoking cloture to close debate on nominations, only 24 executive branch nominations have required that vote to end filibusters — but that five such instances have occurred during the first nine months of the Obama administration.

IU political science professor Marjorie Hershey didn’t question those numbers, but echoed Carmines in saying many of those 24 previous instances likely occurred during the George W. Bush and Clinton administrations. She strongly defended the congressional oversight outlined by the Constitution.

“There are a lot of differing views about this sort of situation,” Hershey said. “One view is that it’s the president’s prerogative to decide who should head these offices and that Congress should rubber-stamp them. But I think that would run counter to the constitutional checks and balances. The president proposes, the Congress disposes.

“It isn’t the case that the president has carte blanche and Senate just bows to his will. The Senate is exercising its constitutional right and authority. And the current Republican minority is exercising its rights.”

Hershey noted that the Senate was created by the Founding Fathers to be a more deliberative body than the House of Representatives.

“The House was always going to have a lot more members and has different rules of operation,” Hershey said. “It’s more difficult to make a decision when there are more people in the room. So the House leadership has more power in determining what comes to the floor and who can offer amendments or comment and so on.

“The Senate has never worked that way. The rules of the Senate don’t permit the leadership to direct legislation, to order how the legislation will be dealt with, nearly as much as their House counterparts. And the Senate has the rule and tradition of the filibuster.”

Hence Harry Reid’s problem regarding Dawn Johnsen, whether to fight a nomination battle he might not win, and delay other key Senate business in the process.

Posted by Marcia Oddi on November 2, 2009 07:20 AM
Posted to General Law Related