For the confirmation prospects for President Barack Obama’s recently re-nominated pick to lead the Justice Department Office of Legal Counsel (OLC), recent developments have brought one bit of good news and one bit of potentially bad news.
Earlier this month, long-stalled OLC nominee Dawn Johnsen received the backing of Sen. Arlen Specter (D-Pa.), who previously said he opposed her candidacy to head the elite DOJ office that assesses the constitutionality and legality of government actions.
Specter’s newly declared support theoretically put Johnsen at the 60 votes that would Democrats need to invoke cloture and proceed to a Senate floor vote on her nomination. And we emphasize the “theoretical” part, because the whip count is complicated.
Getting to 60 depended on ailing Sen. Robert Byrd (D-W.Va.) being present in the chamber and having Democrats who haven’t declared their position on cloture, such as Sen. Ben Nelson of Nebraska,who opposes Johnsen, siding with their party on the procedural vote. One Republican — Sen. Richard Lugar of Johnsen’s home state of Indiana — has said he supports her nomination and a spokesman for the senator told Main Justice he “believes” the Indiana Republican would vote for cloture.
But the Senate victory by Republican Scott Brown in Massachusetts this week was another pothole in Johnsen’s long and winding confirmation road. Once Sen.-elect Brown is seated, Democrats will have only 59 votes in the Senate, including those of independents who caucus with the Democrats. Republicans will have 41.
The Judiciary Committee had endorsed her nomination March 19, 2009, on a party-line vote of 11-7. Although Democrats had 60 votes during most of the 10 months that Johnsen was a nominee last year, opposition to Johnsen from Specter, Nelson and several Republicans made it difficult for Democratic leaders to schedule a floor vote on the nomination. Conservative senators have voiced concerns about Johnsen’s attacks on the George W. Bush administration’s national security policies and her past work for an abortion rights group.
The Senate was forced to return the nominee to the White House on Dec. 24, after the majority leadership was unable to secure enough support to hold her over to the next session of Congress. But Obama re-nominated her this week.
With Lugar and Nelson voting for cloture and Byrd in good health, the Democrats would have their 60 votes. Without the senators, Democratic leaders might be able to lean on moderate Maine Republican Sens. Olympia Snowe and Susan Collins, who both remain undecided on cloture and confirmation.
Democrats seem unlikely to win any new Republican support on Johnsen. And Sen. Jeff Sessions (R-Ala.), the ranking member on the Judiciary Committee, is urging panel Chairman Patrick Leahy (D-Vt.) to hold another hearing on Johnsen.
Sessions said in a letter to Leahy that there are “many unanswered questions” about her.
With health care still on the front burner and continued uncertainty about Johnsen’s prospects for confirmation, Johnsen could spend more months traveling a rocky road toward confirmation.
Don’t hold your breath but…
Sen. Tom Harkin (D-Iowa) is urging his fellow senators to support his effort to change Senate rules to essentially eliminate the filibuster, The Huffington Post reported today. A rule change must pass the Senate by a two-thirds vote.