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Hypocrisy of a Filibuster

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By Ruth Marcus
Wednesday, April 8, 2009

Meet the new John Bolton. Her name is Dawn Johnsen; she is President Obama's nominee to head the Justice Department's Office of Legal Counsel. And her selection is likely to trigger, as Bolton's did, a Senate filibuster and indignant squeals from members of the president's party that his nominees are entitled to an up-or-down vote.

As with Bolton's nomination to become U.N. ambassador, it's not at all clear that Johnsen can amass the 60 votes needed to shut down debate. Obama risks losing this nomination unless he puts some presidential muscle behind it. In one ominous sign, Johnsen is the administration's only Justice Department nominee to pass the Senate Judiciary Committee on a party-line vote.

Of course, my Bolton parallel is intentionally provocative. I happen to know both Bolton, back to his days in the Reagan Justice Department, and Johnsen, back to her days as legal director of the National Abortion Rights Action League. Dawn Johnsen is no John Bolton.

Bolton was as famously bristly as his trademark mustache. Johnsen is a slight, soft-spoken Sunday school teacher -- who also happens to be a serious legal scholar (like Bolton, a graduate of Yale Law School) with impeccable credentials (she was acting head of OLC during the Clinton administration). To my knowledge, she's never suggested lopping a few floors off the Justice Department, as Bolton did with the United Nations.

But I do mean to remind the people who are considering a Johnsen filibuster how hypocritical this stance would be -- and to needle those who blocked Bolton's appointment about the seeds they helped sow with that maneuver. What was sauce for the gander could turn out to be sauce for the goose.

It is unusual, and generally unwise, to use the filibuster to kill a president's choice for a Cabinet position, and certainly for a subcabinet appointee. Consider: There was no filibuster of President George W. Bush's controversial choices for his Justice Department, from Attorneys General John Ashcroft (42 votes against) and Alberto Gonzales (36 votes against) to Solicitor General Ted Olson (47 votes against).

For all the controversy over filibustering judicial nominees, the argument against it is stronger in the case of the executive branch. After all, judges are confirmed for lifetime positions; the president is entitled, absent extraordinary circumstances, to have the advisers of his choosing. Voting against a president's nominee is a serious step. Voting to prevent that nomination from getting an up-or-down vote kicks it up several notches.

It is ludicrous to argue that Johnsen's nomination is one of those few that should rise to the level of meriting this treatment. One item in the bill of particulars against her involves a footnote in an abortion brief she signed 20 years ago that said forcing a woman to bear a child against her will was "disturbingly suggestive of involuntary servitude." This may not have been the strongest legal argument, but Johnsen was not, as critics have asserted, arguing that the 13th Amendment protects the right to abortion.

Another of the counts against Johnsen is her use of provocative -- Boltonesque, even -- language to denounce the OLC memos written by John Yoo. Slate's Dahlia Lithwick put it best: "She has used language like 'outrage' and 'torture' to describe outrages and torture."

Perhaps the oddest critique of Johnsen comes from Texas Republican Sen. John Cornyn, who suggested that Johnsen, now a law professor at Indiana University, lacks the "requisite seriousness" for the job. This from a man who voted for Alberto Gonzales?

The irony of the controversy over Johnsen is that she is firmly in the mainstream on the kind of executive power issues at the core of the OLC's work. During the Bush years, I regularly called Johnsen precisely because I found her analysis to be more thoughtful than the reflexive Bush-is-wrong liberal reaction. She had an appropriate respect for presidential power; she understood the importance of keeping certain presidential communications private. On presidential signing statements, Johnsen staked out a nuanced position to the right of the American Bar Association, which opposed their use in all circumstances. She has expressed doubt about prosecuting CIA employees for engaging in torture based "on what OLC and the White House instructed that the law permitted."

This is hardly the kind of nominee so extreme that she should not be entitled to an up-or-down vote. "Elections have consequences, and one of the consequences . . . is that he has the right to appoint officials of his choice," Arizona Sen. John McCain said. "Obscene," said Utah Republican Orrin Hatch, about the nominee's treatment, decrying the "obstructionist tactic of filibustering." Of course, that was Bolton, this is now. And, it should be noted, one of those who voted to continue the Bolton filibuster now sits in the Oval Office.

marcusr@washpost.com


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