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Kmiec on Dawn Johnsen:

Former OLC head Douglas Kmiec argues in the Legal Times that Senate Republicans should not obstruct the confirmation of Dawn Johnsen to be head of the Office of Legal Counsel at the Justice Department. I agree. He writes:

Even as Johnsen, a professor of law at Indiana University-Bloomington, may be faulted on occasion for harsh language in her academic commentary on the missteps of the Bush Justice Department, it is that very spunk and independence of mind that make her the right tonic for a once proud, but recently tarnished, office.

Under proper supervision, the OLC is a vital internal check upon executive overreaching, a faithful defender of constitutional principle, and a reliable interpreter of congressional intent. Many notable legal figures have served as head of the office, including Nicholas Katzenbach, Malcolm Wilkey, Theodore Olson, Walter Dellinger III, Justice Antonin Scalia, and the late Chief Justice William Rehnquist.

Sen. John Cornyn (R-Texas) properly insists that the next OLC chief must be of the “requisite seriousness.” Johnsen is. She understands the fundamental difference between academic commentary and giving legal opinion on behalf of the United States. That she has sharply criticized some conservative policy is no more relevant to her ability than if she liked outré modern art and displayed it in her living room. Indeed, as a former OLC deputy (during the Clinton administration) and a respected scholar of the executive, she has a uniquely well-informed understanding of the OLC’s role as honest broker. For this reason alone, she merits the Senate’s approval.

UPDATE: In the comments below, a reader asks: "Do you think that Dawn Johnsen would make a good head of the OLC? Or do you just think that a president should generally get the people they want in their administration? (Assuming no criminality, et cetera.)" Taking the second question first, I certainly believe that a President should receive wide latitude in filling out his Administration. As for the first question, the short and honest answer is that I don't know, but I suspect that some Republicans have been too quick to attack her based upon her public comments critical of the Bush Administration. While she would not have been my choice, I don't think that's the relevant standard.

The biggest knock on Johnsen seems to be that she was too critical of the Bush Administration and, in particular, seemingly dismissive of the national security concerns that prompted some Bush Administration decisions. But I hardly think a handful of blog postings or casual remarks are the best measure of a nominee. Just because Johnsen has made pointed and partisan comments in the past does not mean she she would be incapable of faithfully performing her responsibilities at OLC. Indeed, we've seen reasonably "partisan" figures (e.g. Ted Olson) perform quite admirably and independently within the Justice Department, their prior partisan affiliations or strong political views notwithstanding.

Given the extent to which Johnsen has written about the importance of distinguishing the advisory role of an OLC attorney from the advocacy role attorneys often play, I would expect her to be attentive to this distinction if/when she is confirmed. Might she reverse some Bush Administration positions? Of course, but so will any Obama nominee to OLC. I do not know Johnsen personally, but I have spoken with attorneys who are familiar with her work at OLC during the Clinton Administration who believe she understands the importance of maintaining OLC independence and resisting political pressures. So while I think it is perfectly reasonable for Republican Senators to ask her probing questions about her views of various issues and her understanding of OLC's responsibilities, I do not see any reason to oppose her confirmation.

SECOND UPDATE: Glenn Reynolds chimes in:

Some people don’t like Dawn Johnsen because she’s a liberal feminist. Okay, fine — if you’re President, you don’t have to name somebody like that to the Office of Legal Counsel. But the chance that Obama will name someone who’s to the right of Dawn Johnsen is relatively low, so if you succeed in knocking her off, you’ll still get a lefty. Just a different one.

What kind of different one? Well, Johnsen has spent years arguing for openness and independence in the OLC. In that position, she’s likely to try to live up to those arguments, both because she believes them, and because she knows that people will be watching to see if she can live up to the standards she set out. This will probably constrain her, and by extension, Obama, to a degree that won’t apply if you succeed in knocking her off and she’s replaced by someone more in the mold of Eric Holder or Rahm Emanuel. This would seem to me to be a feature, not a bug. But hey, if you disagree, by all means oppose her confirmation. Just don’t complain when someone more pliable gets named instead.

ALJ (mail):
I knew Dawn Johnsen at IU-B Law. She is an annoying partisan, mean-spirited, nasty, unpleasant woman. She's intellectually average and that's being charitable. I can't think of any trait that she has that would recommend her for the job other than Obama wants her. That says a lot more about Obama than it does Johnsen.
4.14.2009 10:30am
Constantin:
Kmiec angling for another Obama admin job, having been rejected by the Vatican.

But I still think the GOP shouldn't obstruct. Obama won, he gets who he wants. If the GOP wants someone it likes as head of OLC, try putting forth an effort in the next presidential election.
4.14.2009 10:33am
wm13:
Well, it would be a little strange if Obama supporters like Kmiec started arguing against Obama's appointments. I mean, this is like Larry Summers arguing that Congress should pass Obama's budget package. It's hardly an admission against interest, or such like. And the quoted language--there doesn't seem to be a link to the entire article?--doesn't contain any sort of argument compelling on its own merits.
4.14.2009 10:44am
George Dixon (mail):
Dawn Johnsen is an ideologue, small minded and partisan to the point of extreme dysfunction.

Not a surprise that Obama would want her ilk at all.
4.14.2009 10:45am
rick.felt:
But I still think the GOP shouldn't obstruct. Obama won, he gets who he wants. If the GOP wants someone it likes as head of OLC, try putting forth an effort in the next presidential election.

Executive branch appointments should proceed unimpeded unless there's political hay to be made. Johnsen may be a nincompoop, but ultimately executive branch officers do what Obama wants or they get fired. It doesn't really matter who's doing the bidding of The Won, or whether he or she does His bidding willingly.
4.14.2009 11:02am
Claude Hopper (mail):
Constantin: Obama won, sort of. Consider: Whites favored McCain 55 to 43%, Latinos for Obama 67 to 31%, Asians for Obama 62 to 35% and Blacks for Obama 95 to 4%. If Blacks had voted 65% for Obama as did the Latinos and Asians, McCain would be President (Source CNN.com). The payoff for the Black support is H. R. 40: Reparations for African-Americans.
4.14.2009 11:07am
geokstr:

Even as Johnsen, a professor of law at Indiana University-Bloomington, may be faulted on occasion for harsh language in her academic commentary on the missteps of the Bush Justice Department, it is that very spunk and independence of mind...

Which approach to, say, writing negative academic commentary from the right (if you could actually find someone on the right in academia) on anything whatsoever about the Obama Justice Department, will quickly have you branded as a reactionary, troglyditic racist, and probably by the same people who love Johnsen.

"...spunk and independence of mind..." must be one of those terms of art that means whatever a leftie does is cool.
4.14.2009 11:07am
Anderson (mail):
Constantin: Obama won, sort of.

I see; insufficient voters of the more valuable skin-color classifications to have "won, period."
4.14.2009 11:11am
hawkins:

If Blacks had voted 65% for Obama as did the Latinos and Asians, McCain would be President


So what? When was the last time the GOP received 35% of the black vote?
4.14.2009 11:12am
PatHMV (mail) (www):
I'm sorry, but there is a serious distinction to be made between one's views on major political policy issues and one's views on "outre' modern art." I could care less what her artistic preferences are. But her views on political issues are altogether another matter. Yes, as head of OLC, she should be more concerned with legal issues rather than policy issues. But at that level, the two simply are not severable.

To claim that preferring liberal (exceedingly liberal, from what I hear) policies is no more relevant to her qualifications for OLC head than her artistic preferences is profoundly stupid, even for Kmiec. That may not be good reason to not confirm her, but it is certainly relevant to the discussion.

One question to try to answer is whether she's ever issued a legal opinion which said that her client could not follow a policy position which both she and the client would have preferred to follow, because the law simply did not allow it. In other words, has she ever been intellectually honest enough to admit that the law did not allow her to follow some preferred policy she advocated?
4.14.2009 11:15am
Nunzio:
I could care less if Dawn Johnsen is confirmed or not, but comparing her vituperative language about W. in published commentary to a predilection for art is asinine.

If Johnsen has a sharp tongue in her writing, that is quite relevant to the job she has been nominated for.

Of course, I think OLC should be abolished. Waste of taxpayer $$$.
4.14.2009 11:16am
Joe T Guest:
I will have to remember this argument the next time the subject of Miguel Estrada and his wife comes up.

I think Johnson should be confirmed for the same reason I thought Estrada should have been confirmed - the president's picks may not be my own but unless they are unfit, the senate's job is to confirm, not to manipulate.
4.14.2009 11:17am
PatHMV (mail) (www):
Oh, and it hardly took any intellectual "spunk and independence of mind" for a legal academic to sharply criticize the Bush Administration. Liberal critics of Bush in academia were a dime a dozen. Independence of mind is demonstrated when you go against the flow of your own peer group, not when you join your fellows to scream about somebody you don't like who has no control over you, no influence over you, no way to harm you whatsoever. In that community, writing something in support of John Yoo or Jay Bybee or Alberto Gonzales or John Ashcroft would have been a display of independence. Her criticism, in that environment, was just easy group-think.
4.14.2009 11:19am
Oren:

If Blacks had voted 65% for Obama as did the Latinos and Asians, McCain would be President

And if my grandmother had wheels, she'd be a bus.
4.14.2009 11:19am
zuch (mail) (www):
ALJ:
I knew Dawn Johnsen at IU-B Law. She is an annoying partisan, mean-spirited, nasty, unpleasant woman. She's intellectually average and that's being charitable.
And what did she think of you? ;-) From what you say here, I wouldn't begrudge her much the same sentiment. That and $3.50 will get you a grande latte.

Cheers,
4.14.2009 11:20am
Per Son:
Claude Hopper wrote:

"Constantin: Obama won, sort of. Consider: Whites favored McCain 55 to 43%, Latinos for Obama 67 to 31%, Asians for Obama 62 to 35% and Blacks for Obama 95 to 4%. If Blacks had voted 65% for Obama as did the Latinos and Asians, McCain would be President (Source CNN.com). The payoff for the Black support is H. R. 40: Reparations for African-Americans."

Hmmm. Where do I start? How about if McCain received 50.01% of the electoral college he would have won the election.
4.14.2009 11:24am
ruuffles (mail) (www):

If Blacks had voted 65% for Obama as did the Latinos and Asians, McCain would be President (Source CNN.com).

Why would that happen? Even if Clinton were the nominee that would have been highly unlikely.

Black voters have historically trended towards the Democratic Party regardless—Al Gore received 90% of the black vote in 2000, and John Kerry received 88% of the black vote in 2004.

wsj
4.14.2009 11:28am
ruuffles (mail) (www):
Well silly me, I forgot to include the preceding sentence.

which would tie Democrat Lyndon Baines Johnson's 94% support among blacks in 1964 against Republican Barry Goldwater.

So there you go. Obama got the percentage as LBJ.
4.14.2009 11:30am
zuch (mail) (www):
Claude Hopper:
Constantin: Obama won, sort of....
Well, yes, when we count black votes like everyone else's. Or more to the point, when we count everyone's vote. Is this the genesis of your snide "sort of"?
Consider: Whites favored McCain 55 to 43%, Latinos for Obama 67 to 31%, Asians for Obama 62 to 35% and Blacks for Obama 95 to 4%. If Blacks had voted 65% for Obama as did the Latinos and Asians, McCain would be President (Source CNN.com).
Blacks have never voted that highly for a Republican candidate in recent history (and listening to the likes of Lott and DeLay, amongst others, one might wonder why), even with WASP men running as the Democratic candidate. Why should they do any different now? You need to stop listening to El Limbutt so much; his theenking doan make much sense....

Cheers,
4.14.2009 11:31am
A.S.:
It is irrelevant. OLC is a useless institution with no relevance other than to rubber stamp the President's political positions. As we saw with the DC representation bill, OLC can and will be ingored at the whim of the AG and the President; accordingly, the office exists solely to bolster the political policies (when convenient) of the higher ups. We should not have to pay for an irrelevant political office. The office should be abolished.
4.14.2009 11:31am
mls (www):
I tend to agree that Obama is entitled to his choice at OLC, or at least an up or down vote on his choice. However, is there anything in the Kmiec op-ed that actually explains why Johnsen would make a good head of OLC? Certainly, the quoted language does not. Kmiec claims that Johnsen's criticism of the Bush OLC shows "spunk" and "independence." That's like claiming that John Yoo showed spunk and independence by criticizing the Clinton OLC. Makes no sense.

If Kmiec has an example of Johnsen putting fidelity to legal principles above partisanship or ideology, now would be a good time to produce it. Particularly useful would be an example of Johnsen, in her former role at OLC, issuing a legal opinion that contravened the administration's policy preferences (as the acting head of OLC has just done with regard to the DC Voting Rights Act).

Otherwise the sum and substance of the argument for Johnsen appears to be that she is a respected legal scholar. So was John Yoo.
4.14.2009 11:31am
Kazinski:
I agree that the Republicans should not obstruct Johnson or any other Adminstration official for that matter. Full and fair hearings are not obstruction. They should just get her views on the record, vote against her if they like, and let the process go forward.

But why would you cite Kmiec as an opinion worth listening to?
4.14.2009 11:43am
MizGabby:
Another Bush hater. How refreshing.
4.14.2009 11:50am
Thales (mail) (www):
To the anonymous ALJ: Funny, I knew her too and have no knowledge of the negative qualities of which you speak. Moreover, she's regarded by everyone I know who knows her as intellectually exceptional and having a very warm and pleasant personality to boot (not that the latter has any bearing on OLC, but it's nice to not have jerks in government).
4.14.2009 11:51am
DangerMouse:
Bork her.
4.14.2009 11:58am
Paul A'Barge (mail):
"a once proud, but recently tarnished, office"

You know who tarnished the office?

Democrat-infatuated line prosecutors and prosecution supervisors who were using their power to railroad Republicans.

Let's try and keep this straight, shall we?
4.14.2009 12:00pm
Ken Hahn (mail):
If she has ever criticized overreach by a Democratic official, I'd be willing to consider her. Otherwise, she's a partisan hack. Which, come to think of it, makes her a perfect fit for the Obama regime.
4.14.2009 12:01pm
CJColucci:
Constantin:
The three-fifths clause in the Constitution is now inoperative. They count like everybody else now. Maybe you regret it, but that's the way it is.
4.14.2009 12:03pm
ruuffles (mail) (www):

Democrat-infatuated line prosecutors and prosecution supervisors who were using their power to railroad Republicans.

US attys who serve at the pleasure of the president? A US Atty also railroaded Don Siegelman, Dem gov.
4.14.2009 12:04pm
mike d (mail):
Respectfully diagree that Johnsen can be counted on to act appropriately and not allow her knife-fighting partisan side get the best of her.

There are as yet no indicators of competence or circumspection in this administration generally and Holder's DOJ in particular. Until Team Obama possesses these qualities, the benefit of doubt which was never extended to the Bush admin cannot be given to Obama in the absence of any reason to do so beyond partisan politics.

"Under proper supervision" thats the kicker. There ISNT any proper supervision in the Obama DOJ at this time and more than there was under the hapless Al Gonzalez.
4.14.2009 12:08pm
Joe T Guest:
But why would you cite Kmiec as an opinion worth listening to?


Because he used to be a conservative and a practicing Catholic who opposed abortion before he saw the light, kind of like how Andy Sullivan had a Road-to-Damascus moment. So Kmiec's (and Sullivan's) opinions were worthless right wing drivel before, but now they are are super duper extra trenchant, and function like intellectual kryptonite when wielded against conservatives.
4.14.2009 12:14pm
Constantin:
Constantin:
The three-fifths clause in the Constitution is now inoperative. They count like everybody else now. Maybe you regret it, but that's the way it is.


I didn't write that asinine post about Obama "not really winning" because of his voters' racial makeup. Someone else did in response to my assertion that Obama won and should get to have whomever he wants serve in his administration.
4.14.2009 12:15pm
Anderson (mail):
My bad, when I quoted Claude Hopper, I included his addressing Constantin, which I fear has misled readers to think those were Constantin's sentiments.

Apologies to Constantin.
4.14.2009 12:31pm
Capt Vee (mail):
Under proper supervision, the OLC is a vital internal check upon executive overreaching

I find it hard to believe that someone who serves at the discretion of said executive is going to be any kind of check on that executive, regardless of party or individual disposition.

Even if they wanted to, they'd be able to pull it off only as long as it took the executive to find someone more compliant.
4.14.2009 12:45pm
2001 historian:
I agree that the Prez should get generally his appointees confirmed without the ideological objection that a Prez has shockingly picked a liberal/conservative (depending on who's in). That's many times stronger for executive appointments than for judicial.

But I am waiting for more press accounts to remind readers that Democrats opposed both AG Ashcroft and SG Olson, on near-party-line votes.

So I urge every GOP Senator to vote to confirm, and precede the vote with a speech reminding the Ds across the aisle that they did not provide the same standard, and I'd urge every GOP speaker to openly say those words: "I am voting this way to be less blindingly partisan than you all were in the first months of 2001, long before Pres. Bush did anything to allegedly alienate you. I challenge you to come around and do the same when the sides switch again."

It won't do a lick of good, but truth should be told for it's own sake.
4.14.2009 12:52pm
cdg (mail):
ALJ,

Your comments are worthless as long as you remain anonymous. If you had any respect for your alma mater or for yourself, you would engage in more thoughtful discourse about the merits a person possesses for a position, instead of resorting to a petty personal attack.

I did not know Professor Johnsen personally, but her reputation as a scholar was very well known within the community at Indiana Law.

-Conor Granahan, IU Law '05
4.14.2009 1:04pm
RPT (mail):
To the DJ critics, who can you suggest who would be a better choice?
4.14.2009 1:09pm
Peter Thomas (mail):
I am puzzled to see Prof. Adler's seconding of Prof. Kmiec, without more, on the Diane Johnsen nomination. Are they in some kind of club? Prof. Kmiec has lost a lot of traction with the conservative movement/ blogosphere, because he has never managed convingingly to explain his Obama endorsement or his unaccountable reversal on other quite serious principles. All that aside, I believe a President is entitled to the advisors he chooses, unless they suffer from some inherently and seriously disabling character flaw. While the analogy can be carried too far, and it usually is, "Borking" a nominee, or more to the point "Thomasing" a nominee, appeals to the dismal partisan, not to the engaged citizen. I am willing, therefore, to dismiss, as "thought experiments" or otherwise, Prof. Johnsen's oft-cited writings of the past, as intended for what should be the protected sphere of academic discourse, a fundamentally different species of discourse than that of the OLC. (The election of many an academic to dishonor that protected sphere ever since Bork is that person's defect of character, not a defect of the protected sphere. Know what I mean?) So I would still like to hear something substantive on Prof. Johnsen's intellectual merit, capacity for dispassionate intellectual labor, and personal integrity; with examples. I'm not getting it in this thread.
4.14.2009 1:14pm
mls (www):
"To the DJ critics, who can you suggest who would be a better choice?"

Seems to me that just based on the DC Voting Rights example, the current political deputies, Barron and Lederman, would be better choices.
4.14.2009 1:15pm
wm13:
I think 2001 Historian has pretty much nailed it. (He might also have mentioned the Mukasey confirmation vote.) The precedent is well-established that the confirmation votes for DOJ nominees will be conducted on party lines. So Kmiec, and for that matter Profs. Adler and Reynolds, would have to come up with a reason why this precedent should be disregarded, i.e., why Johnsen is qualitatively different from Ashcroft and Mukasey. Otherwise, any Republicans who vote to confirm Johnsen will be violating the fundamental maxim of justice, which is that equals must be treated equally.
4.14.2009 1:20pm
zuch (mail) (www):
Paul A'Barge:
"a once proud, but recently tarnished, office"
You know who tarnished the office?

Democrat-infatuated line prosecutors and prosecution supervisors who were using their power to railroad Republicans.
Didn't know that Bybee and Yoo were "Democrat-infatuated" ... or that Afghani cooks were Republicans. Or that Siegelman was Republican, for that matter.

Cheers,
4.14.2009 1:21pm
zuch (mail) (www):
2001 historian:
So I urge every GOP Senator to vote to confirm, and precede the vote with a speech reminding the Ds across the aisle that they did not provide the same standard, and I'd urge every GOP speaker to openly say those words: "I am voting this way to be less blindingly partisan than you all were in the first months of 2001, long before Pres. Bush did anything to allegedly alienate you. I challenge you to come around and do the same when the sides switch again."

It won't do a lick of good, but truth should be told for it's own sake.
You're right about the first part: It won't do a lick of good. The Republicans will vote en masse against Obama's ... well, against Obama's everything, by the looks of things.... Ashcroft garnered eight Democtatic votes, BTW, and two voted for Olsen (of the ignomious Arkansas Project, FedSoc and such; a bit of a wonder, really, that the Democrats didn't like him much). But neither one was filibustered.

Cheers,
4.14.2009 1:37pm
zuch (mail) (www):
Peter Thomas:
I am puzzled to see Prof. Adler's seconding of Prof. Kmiec, without more, on the Diane Johnsen nomination. Are they in some kind of club? Prof. Kmiec has lost a lot of traction with the conservative movement/ blogosphere, because he has never managed convingingly to explain his Obama endorsement or his unaccountable reversal on other quite serious principles.
So have John Dean and Bruce Fein, just to mention a few others. Wonder why....

Cheers,
4.14.2009 1:42pm
CJColucci:
Constantin:
You're right. I goofed. I apologize. As for Claude Hopper, the point stands.
4.14.2009 1:44pm
Anderson (mail):
There's also the rumor that Cornyn is tying approval of Johnsen and Koh to an Obama pledge not to investigate torture, etc. conspiracies in the Bush administration.

Interesting if true.
4.14.2009 1:44pm
hawkins:

the precedent is well-established that the confirmation votes for DOJ nominees will be conducted on party lines. So Kmiec, and for that matter Profs. Adler and Reynolds, would have to come up with a reason why this precedent should be disregarded


The fact that its a bad precedent is not sufficient reason to oppose it?
4.14.2009 1:45pm
My Middle Name Is Ralph:

But I am waiting for more press accounts to remind readers that Democrats opposed both AG Ashcroft and SG Olson, on near-party-line votes.


1. Ashcroft actually got a fair amount of Democratic support (8 of 50); Olson only got 2 votes.

2. Democrats did not filibuster either of those nominations and knew by not doing so that they would pass. That's not as partisan as filibustering the nomination to kill it.

So, I'm sure that when you're waiting on the press to report Democrats opposition to Ashcroft and Olson, you're also rooting for them to tell the full story.
4.14.2009 1:53pm
Jim Miller (mail) (www):
Professor Adler - You would clarify matters if you would separate the two questions. (As some of the commenters have already done.)

Do you think that Dawn Johnsen would make a good head of the OLC?

Or do you just think that a president should generally get the people they want in their administration? (Assuming no criminality, et cetera.)

From what little I have read about Johnsen, I would find it far easier to answer yes to the second than the first. And if she is as awful a choice as she appears, senators (and not just Republican senators) have an obligation to point that out -- even if they vote to confirm her.
4.14.2009 1:55pm
hawkins:
I dont think Prof. Adler is endorsing Johnsen in any manner. I think he simply believes Obama can choose who he wants.
4.14.2009 2:08pm
IU Grad:
I too know Dawn from IUB Law and believe she is just the kind of independent, academic, intellectual attorney that the Administration needs.
4.14.2009 2:32pm
2001 historian:
In response to Ralph and others re the Olson and Ashcroft votes:

Yes, I acknowledge that the Democrats voted mostly against but did not filibuster. I would be thrilled if the press reported the mostly-opposed votes at all, and do not mind at all if they add the "full story" by noting the lack of filibuster. I think it's a sad comment on how partisan the standards and expectations are that one can hold up "but they didn't filibuster!" as a point in someone's favor. In my book, the underlying vote is an embarassing display of partisanship. I note again that I said the GOP should not just stop filibustering, but should actually vote YES on the confirmation, and stop the declining cycle that both sides are engaging in.

Also, while Ashcroft's 8 Democratic votes are huge compares to Olson's mere 2, I disagree with calling it a "fair amount." Eight is only 16% (8/50). It's only a "fair amount" if you start with a baseline expectation of party line, so that "look! 8 whole votes!" is a deviation from zero. If you naively start, as I do, with the idea of executive deference unless there's a big problem, then having 84% vote against is still the problem.

I am not praising the GOP here, and I criticized them for opposing here. Their mostly-party-line vote against Kagan for SG is not a good sign. I don't expect them to do what I suggest on Johnsen, either.

I just didn't like the idea that some critics of the GOP obstruction were giving the Democrats a free pass on their own partisan obstruction in this area. The attempts by some to read all comments as stealthily covering for full-throated partisanship, and parrying and thrusting in kind, just confirms my pessimism.
4.14.2009 2:51pm
a knight (mail) (www):
The fact that John Cornyn is even given a platform from which he can question the competence of Dawn Johnsen, is further evidence of the GOP's continuing decline into the morass of moral relevance.

On October 5, 2005, Cornyn was one of the Nine reprehensible US Senators who voted against John McCain's anti-torture amendment to the Department Of Defense Appropriations Act, FY 2006. Now he frets that the Obama DOJ might be too aggressive in its attempt to publicly expose the previous administration's acts of torture? LOL!

On February 7, 2008, Sen. Cornyn issued the following press release:

U.S. Sen. John Cornyn, a member of the Senate Judiciary Committee, made the following statement Thursday regarding a renewed push to confirm President Bush's nominees. There are currently 180 nominees, judicial and non-judicial, waiting to be confirmed.

"These nominees have offered themselves for public service and deserve a simple up-or-down vote in the Senate. It is encouraging to see the President renewing his fight for their confirmation, and I hope our Senate colleagues will join in this effort.

Far too many judicial and executive nominees have been delayed by the majority party of the Senate. An up-or-down vote is a matter of fundamental fairness, and it is the Senate's constitutional duty to act on each nomination. It is also critically important to our judicial system and the proper functioning of our federal government to fill these positions.

Senators have a right to vote for or against any nominee-but blocking votes on nominations is unacceptable."

John Cornyn, "Confirming President's Nominees Matter of Fairness, Senate Duty", Senator John Coryn's Official Senate website, February 7, 2008

What is Cornyn's definition of "an up or down vote"?
4.14.2009 3:11pm
Just an Observer:
wm13: The precedent is well-established that the confirmation votes for DOJ nominees will be conducted on party lines.

Jay Bybee, George W. Bush's first nominee to head OLC, was confirmed by voice vote 10/23/2001 without debate on the Senate floor. IIRC, he was asked a total of six questions at his confirmation hearing.
4.14.2009 3:30pm
My Middle Name Is Ralph:

The attempts by some to read all comments as stealthily covering for full-throated partisanship, and parrying and thrusting in kind, just confirms my pessimism.


Sorry if I misapprehended your original comment as engaging in partisanship. But, you did write:

I'd urge every GOP speaker to openly say those words: "I am voting this way to be less blindingly partisan than you all were in the first months of 2001, long before Pres. Bush did anything to allegedly alienate you. I challenge you to come around and do the same when the sides switch again."


Your urging does not seem particularly post-partisan to me.
4.14.2009 3:35pm
zuch (mail) (www):
2001 historian:
Also, while Ashcroft's 8 Democratic votes are huge compares to Olson's mere 2, I disagree with calling it a "fair amount." Eight is only 16% (8/50). It's only a "fair amount" if you start with a baseline expectation of party line, so that "look! 8 whole votes!" is a deviation from zero. If you naively start, as I do, with the idea of executive deference unless there's a big problem, then having 84% vote against is still the problem.
What's the point of having a vote if everyone (or near everyone) is going to vote in favour every time? Makes a mockery of "advice and consent".

What's the point of putting drapes over Ms. Justice? While Ashcroft was pretty bad, the rest of the Dubya contingent managed to make him look relatively good....

Cheers,
4.14.2009 4:01pm
NickM (mail) (www):
Jonathan - if you want an actual reason to oppose her nomination, given a principle of defence to a President in the choice of executive branch officials, you should start with her lack of candor in her testimony before the Senate Judiciary Committee, especially in regard to the questioning by Senator Specter.

Nick
4.14.2009 5:00pm
Mikey NTH (mail):
I worked as a law clerk for a state circuit court judge. The job entailed taking the facts as they were admitted and applying the relevant law and burden of proof to arrive at an adivsory opinion memo for the judge.

It is different than advocating, and my druthers didn't come into play at all - and it was one of the most satisfactory jobs I've had.
4.14.2009 5:50pm
Kevin T. Keith (www):
I certainly believe that a President should receive wide latitude in filling out his Administration.

Do you think a distinction should be made, in this respect, between Executive Branch appointments (including watchdog roles) and Judiciary (including Supreme Court) positions? Does the Senate have more latitude to impose its views of the country's appropriate direction when deciding on appointments for a competing branch, as opposed to positions nominally reporting to the president him/herself?
4.14.2009 7:40pm
Rod Blaine (mail):
> "It's hardly an admission against interest, or such like."

Err, no, it is. Because Kmiec, although an Obama supporter, was (and reputedly still is) a vocal pro-lifer, and because Ms Johnsen considers pro-lifers to be not only the moral but the constitutional and legal equivalent of slave-owners. That's why this is a "man bites dog" story.
4.14.2009 9:03pm
Bob from Ohio (mail):
Stage 2 of Kmiec's plan for a SCOTUS appointment by O.

Sad that someone who says he is pro-life will pimp for the most pro-abortion president ever.
4.14.2009 9:58pm
DangerMouse:
Sad that someone who says he is pro-life will pimp for the most pro-abortion president ever.

That's because he's no longer pro-life. He's lying.
4.14.2009 11:51pm
Daryl Herbert (www):
Obama ran as an open-government sunshine do-gooder, and as soon as he got into power, he ran government like a Chicago boss. He fooled a lot of people.

Now we have Dawn Johnsen, who by all accounts is also an extreme partisan who took partisan pot shots at the Bush Administration for allegedly not being open enough.

Here's a reality check: partisan sniping at the other side does NOT show a real, deep commitment to whatever principle on which the partisan sniping was based. More likely it just means she's a partisan hack.

Prof. Reynolds' faith that the liberal media will keep Dawn Johnsen honest by accurately reporting whether or not she keeps her promises about open government looks especially naive.
4.15.2009 12:14am
Thales (mail) (www):
Ugh. Let me point out that the alleged misleading testimony by Johnsen regarding the Thirteenth Amendment footnote is actually quite straightforward. An unfortunately heated op-ed by Andrew McCarthy at National Review started this mess, but her testimony was truthful. See here:

Balkinization link
4.15.2009 10:43am
Bob from Ohio (mail):
Instapundit's second point is important only if you think that subordinate officials need to be independent of the President.

The Constitution gives all the executive power to one person who gets assistants to help him. These assistants, including the head of OLC, do not head independent fiefdoms.

OLC exists to help the President. If a director can't do that, he or she should resign, not be "independent".

Johnsen should be confirmed because O appointed her, not to act as a check on O.
4.15.2009 11:18am
rick.felt:
Johnsen should be confirmed because O appointed her, not to act as a check on O.

I'm very sympathetic to this argument, but it does make me think that Myers v. United States was wrongly decided.
4.15.2009 12:40pm

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