Dawn Johnsen ends charade

Dawn Johnsen — a constitutional law professor; liberal proponent of the rule of law, transparency in government and holding representatives and government officials accountable for their actions — vacated her candidacy to lead the Office of Legal Council after a year of waiting for the Senate to vote on her nomination. She was twice nominated by President Obama for this office.

At first glance, Johnsen's withdrawal would appear to be a defeat for the Obama administration since it had thought enough of Johnsen to submit her name twice for the position. But, is it a defeat simply and completely?

I believe it is not. Here is where the charade comes in. If Obama had wanted Johnsen at the OLC, as one would expect, he surely would have included her name in the recent group of recess appointees, as emptywheel hints and Glenn Greenwald explicitly points out. Include Johnsen's name on that list and she has the position. He also could have mustered partisan support for her when his Party had a filibuster-proof majority in the Senate. But he could bother to make the effort. Given Johnsen's qualifications, policy commitments and the kind of department she would have run had the Senate confirmed her nomination, "you would think confirming Dawn Johnsen would be a priority for the Obama White House," as bmaz points out. Yet it was not at all a priority for the administration. She seemingly was not wanted at all by Obama.

The mistaken judgment which makes the charade plausible emergences as such when one considers Greenwald's point that,

What Johnsen insists must not be done [by the executive branch] reads like a manual of what Barack Obama ended up doing and continues to do — from supporting retroactive immunity to terminate FISA litigations to endless assertions of "state secrecy" in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that "opennees will empower terrorists" to the overarching Obama dictate that we "simply move on."

In other words, it is likely that Johnsen would have advised Obama to not be the Obama we have come to know and loathe. Why, one might ask oneself, would Obama promote the cause of someone like Dawn Johnsen if he knew he would have to fire her in the near future or explain away her resignation over a matter of principle, especially if he could shift the blame for her failure to make it through the Senate onto the obstructionist Republicans? He would not if he were as tricky as he is elegant!

When considered in this way, the Johnsen nomination now appears to have been a bit of political window dressing for an Obama administration which has yet to reveal its willingness to abandon the methods and justifications of the Bush administration on matters of foreign policy, national security and executive power. Simply put, Johnsen's candidacy permitted President Obama to take credit for her politics while implementing policies she would have criticized as a matter of principle. The Republican obstructionists merely abetted by opposing her appointment.

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Given Johnsen's failed nomination, one must wonder whether Elizabeth Warren, another liberal law professor and the likely choice to be the first head of a Consumer Financial Protection Agency, will become a victim of Obama's hypocrisy when the time arrives to put into practice Warren's ideas for such an agency. Would anyone wish to bet against the prediction that the Obama administration would judge her to be too principled and thus impractical to serve in the Obama administration?


Update I

Writing for The Nation, Ari Melber debunks the claim that Obama and Johnsen withdrew her nomination for the OLC post because the nomination process would have meant politicizing the office. Johnsen's goal was to depoliticize the office. Yet, as Melber points out:

Since the goal of restoring "nonpartisan traditions" to the Justice Department was threatened by "lengthy delays and political opposition," the statement explained, Johnsen's withdrawal would actually help restore nonpartisanship and finally get the post filled. See, having her do the job was going to restore nonpartisan leadership, but since the Republicans won't allow it, now having her not do the job will produce the same result. As if that argument doesn't rankle enough, the White House sent out the statement under Johnsen's name. As The Times
reported:

Johnsen said she had come to realize that the strong Republican opposition to her nomination had undermined her own goal for the office, which was to restore its reputation for providing legal advice "unvarnished by politics or partisan ambition."

Of all the potentially legitimate arguments available, it is odd to see the White House (and Johnsen) endorse the idea that surrendering to a partisan, unaccountable campaign to sink a nominee without a vote will actually advance nonpartisanship in government.

Surrendering such as we see here could promote a non-partisan mode of governance insofar as it brings the parties closer together on substantial issues. Yet, the apotheosis of the effort to produce a non-partisan politics is achieved when a single party emerges which governs a totalitarian state. Partisanship per se is never a desirable goal for a democratic political system. In fact, treating non-partisanship as a highly desirable goal can effectively undermine a democratic politics by forcing divergent political groups to adopt an untenable consensus position on divisive issues. In other words, conflict, not unanimity, is the normal condition of a democratic politics.

Thus, the senselessness of any defense of Johnsen's withdrawal that relies upon a quest for a non-partisan politics or a non-partisan constitutional politics.


Update II

Laura Flanders interviews Ari Melber and Lyn Paltrow about Johnsen's failed nomination:

Last modified 4.14.2010, 5:12 PM