Dawn Johnsen and the Ted Olson Precedent:
Last Friday, Marc Ambinder had a post indicating that Dawn Johnsen's nomination to head the Office of Legal Counsel may be in trouble:"Vote counters believe that she is several votes shy of the 60 needed to avert a filibuster." I agree with co-blogger Jonathan Adler that Johnsen should be confirmed.
I think the relevant point of comparison is Ted Olson, the first SG in the Bush Administration. Today, Olson is on his way to developing a reputation as something of a senior statesman in the DC legal community. But at the time of his nomination in 2001, Olson was known as a very sharply partisan figure, with a record in that score far more developed than Johnsen today. If Ted Olson should have been confirmed as Bush's SG in 2001, I don't see a principled reason why Dawn Johnsen shouldn't be confirmed as Obama's head of OLC in 2009.
Of course, I fully realize that the Johnsen nomination is now an issue for the political world. In that world, these sorts of comparisons don't matter; the central question is who has the votes, and what long-term scores they can help settle. (Notably, the vote for Olson was a squeaker: 51-47.) And this is a world that Obama has played in himself — as witnessed by his voting against both John Roberts and Samuel Alito for the Supreme Court when Obama was in the Senate — so I appreciate that the tit-for-tat crowd has at least a plausible case here. Still, I think Johnsen is qualified for the job. On the merits, and given the deference a President is owed in his executive nominees, I think she should be confirmed.
I think the relevant point of comparison is Ted Olson, the first SG in the Bush Administration. Today, Olson is on his way to developing a reputation as something of a senior statesman in the DC legal community. But at the time of his nomination in 2001, Olson was known as a very sharply partisan figure, with a record in that score far more developed than Johnsen today. If Ted Olson should have been confirmed as Bush's SG in 2001, I don't see a principled reason why Dawn Johnsen shouldn't be confirmed as Obama's head of OLC in 2009.
Of course, I fully realize that the Johnsen nomination is now an issue for the political world. In that world, these sorts of comparisons don't matter; the central question is who has the votes, and what long-term scores they can help settle. (Notably, the vote for Olson was a squeaker: 51-47.) And this is a world that Obama has played in himself — as witnessed by his voting against both John Roberts and Samuel Alito for the Supreme Court when Obama was in the Senate — so I appreciate that the tit-for-tat crowd has at least a plausible case here. Still, I think Johnsen is qualified for the job. On the merits, and given the deference a President is owed in his executive nominees, I think she should be confirmed.