Stalled nominee knows exactly what purgatory looks like

Photo Credit: Indiana University
Photo Credit: Indiana University

Everyone knows getting Senate confirmation to serve in a top executive branch post can be difficult in the current polarized atmosphere; Max Stier, president of the nonpartisan Partnership for Public Service calls it "a living purgatory." But what does it mean for an individual, especially if you don't even get a floor vote in the end?

Consider the case of Dawn Johnsen, the Indiana University law professor whom President Obama picked to head the Justice Department's office of legal counsel in 2009. Johnsen, who came under fire for her writings about interrogation techniques practiced under President George W. Bush and her support for abortion rights, spent 14 months waiting for a confirmation vote before withdrawing her name from the process. Here are some of things you have to do as a nominee, even if you don't get the job in the end.

1. Move to Washington without an actual job. White House officials told Johnsen she had to be ready to show up for work right away, so she rented a house in Bethesda, Md. and moved her husband and children after they finished the fourth and seventh grade, respectively.

2. Keep your day job, but don't cause controversy. Johnsen kept teaching, because she needed the paycheck, but even the subject of her seminars -- such as sexuality and reproductive rights -- raised questions. She had to stop attending conferences and giving speeches, and she was also asked to pull an article on reproductive rights from the Yale Law Journal, which she declined to do because it was part of a symposium.

"Questions were raised, 'Do you really have to teach that class?'" she recalled. "People who wanted me confirmed were risk averse. They just want you to sit in your house for 14 months and do nothing."

3. Be prepared to fly to Washington at a day's notice, at one's own expense, to meet with a senator. While Johnsen commuted between Bloomington, Ind., and Washington as she taught, she had to appear on Capitol Hill repeatedly to address the concerns of lawmakers who would theoretically vote on her appointment. "I had to pay out of my own pocket at a moment’s notice to meet with senators," she said.

4. Persuade your spouse to give up all civic volunteer posts. Johnsen's husband, the president of non-profit community development organization, was active in several local organizations. But he ultimately had to give up his posts on the Monroe County school board, the board of a community homeless group and within their church in order to focus on their lives in Washington.

5. Get ready to defend footnotes. Johnsen was one of 13 lawyers who filed a brief in a 1989 abortion case on behalf of 77 organizations; a footnote in the brief analogized being forced to bear a child to involuntary servitude. Then-Sen. Arlen Specter (Pa.), who was a Republican at the time, brought the issue up in hearing and followed up with a formal question on it.

7. Remember, it's not about you. "In meetings with Republican senators, I was told by several of them, 'This is not about you in any way.'" They indicated they were going to talk about her national security positions and torture, she said, "but it was more about the president’s position and partisan disputes about those issues."

6. Learn to live with uncertainty. At Johnsen's nomination process dragged on, administration officials urged her to take on a double teaching load so she could stop teaching altogether as soon as she was confirmed. "It was impossible to plan," she said. "I would have just been thrilled to have a vote."

"People who happen to live in Washington, D.C., who are wealthy, who don’t have to move children and a spouse and happen to have a job that allows them to be supported during this period are well situated to endure this," Johnsen added.

Raben Group president Robert Raben, who advises Democratic judicial and executive branch nominees, said that Obama has nominated more female and minority candidates, but they have also faced a tougher time getting confirmed.

"I don't doubt the artillery is stronger and more lethal with minorities," Raben said. "The de facto problem is absolute, that women and ethnic minorities are really struggling in an intensely politicized process."

Sen. Lamar Alexander (R-Tenn.) rejected that idea, noting that Obama's nominees have been confirmed at roughly the same rate as his immediate predecessors -- 76.6 percent, compared to 77.9 percent for George W. Bush and Bill Clinton.

"That is complete baloney," he said in an interview. "The administration’s own statistics show they have been treated just as well as President Bush and President Clinton."

After all this, would Johnsen ever accept another presidential nomination?

"For me, there’s nothing more important I can do than, for example, head the office of legal counsel," she said. "If the president wanted to me to serve, I would make every effort to do that, even if there was a risk it would not happen."

Juliet Eilperin is a White House correspondent for The Washington Post, covering domestic and foreign policy as well as the culture of 1600 Pennsylvania Avenue. She is the author of two books—one on sharks, and another on Congress, not to be confused with each other—and has worked for the Post since 1998.
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