In January, I wrote about Dawn Johnsen, the strident critic of Bush torture memo author John Yoo who President Barack Obama selected to run Yoo's old office, the Justice Department's Office of Legal Counsel. The OLC is responsible for providing legal advice (and, in the case of the Bush administration, legal cover) to the President. Johnsen, as I wrote in January, is the anti-Yoo: an outspoken opponent of torture and an advocate for an OLC that challenges presidential power. But now Senate Republicans may be planning to block her confirmation.
According to a story in Tuesday's New York Times, Senate Republicans "will first gauge whether they can attract some support from conservative Democrats" to filibuster Johnsen. A spokeswoman for Mitch McConnell, the Senate Minority Leader, refused to say whether McConnell was plotting a filibuster. Reid and McConnell have not been able to reach an agreement on bringing Johnsen's nomination to the floor: "We are discussing how to proceed on the nomination; it is our hope that the Republicans will not obstruct her nomination through filibuster," Reid spokesman Jim Manley told me in an email.
If the Republicans are looking for conservative Democrats to help them oppose Johnsen and provide some bipartisan cover, who might be their best prospects? Not Indiana's Evan Bayh, who runs a group of "Blue Dog"-style "moderate" Democrats in the Senate. He introduced Johnsen at her confirmation hearing before the Judiciary committee, and a spokesman confirms he still supports Johnsen's confirmation. A better bet might be Sen. Ben Nelson (D-Neb.). His spokesman told me Nelson hasn't made up his mind yet. (According to the spokesman, Nelson usually doesn't make a final decision on confirmation votes until shortly beforehand.) Another Democrat the GOP might target is Sen. Bob Casey (D-Penn.), a strong opponent of abortion rights. Johnsen has been criticized by Republicans for a 20-year-old footnote in a legal brief she filed when she was working as a lawyer for the National Abortion Rights Action League. Johnsen wrote that forcing a woman to give birth to a child she did not want was "disturbingly suggestive of involuntary servitude." Conservatives have suggested that means Johnsen has "equated pregnancy with slavery." Casey's office has not responded to a request for his position on Johnsen.
Not surprisingly, Reid still thinks highly of the OLC nominee. "Ms. Johnson is well qualified for this post, having served in leadership roles in the Office of Legal Counsel (the office to which she is now nominated to lead) for roughly five years; she was known during her time at the Department as a lawyer dedicated to the rule of law, intellectually honest and not moved by political pressures and particular policy preferences; all qualities particularly in need as the Department and the Office of Legal Counsel in particular turns the page from the Bush years," says Manley, Reid's spokesman.
In the end, the Republicans may not have the votes to filibuster Johnsen or Obama's other nominees. After all, Dems only need to peel off two GOP votes to prevent a filibuster. On Capitol Hill on Thursday, I overheard two GOP aides voicing their displeasure with Sen. Patrick Leahy's chairmanship of the Senate judiciary committee. They were frustrated that Leahy had convened the committee on Tuesday to consider the nomination of David Hamilton, Obama's first federal court nominee, who could also be the target of a filibuster. Republicans had complained that Leahy was moving too fast on the nomination, and boycotted the hearing in protest. But the two aides conceded that Leahy "probably knows he has the votes" for Hamilton. Does Reid have the votes for Johnsen?