The Democratic chairs of the Senate Judiciary and intelligence committees told President Barack Obama today they support Attorney General Eric Holder’s handling of terrorism suspects.

Patrick Leahy (Getty Images)

Dianne Feinstein (gov)

Sen. Patrick Leahy of Vermont, the Judiciary panel chairman, and Sen. Dianne Feinstein of California, who chairs the Senate Select Committee on Intelligence, said they disagree with the barrage of recent criticism of the Attorney General and the Obama administration over decisions on terrorism cases.

“We should not let partisan distractions lead us to cast aside such valuable tools as the experienced terrorism interrogators of the FBI or forego convicting terrorists in our Federal courts,” the senators wrote in a joint letter to the president.

For months, Republicans have condemned Holder’s decision to try self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four alleged coconspirators in a New York City federal court, arguing a military tribunal is a better forum. Democrats last month joined the criticism after New York City Mayor Michael Bloomberg (R) raised concerns about the costs and disruptions to Lower Manhattan of a lengthy trial requiring high security.

Republicans have also been upset over the decision to treat alleged Christmas Day airplane bomber Umar Farouk Abdulmutallab as a civilian and allow the FBI to read him the Nigerian national his Miranda rights after a brief interrogation. Sen. Kit Bond (R-Mo.), Sen. Lamar Alexander (R-Tenn.) and 2008 Republican vice presidential nominee Sarah Palin have suggested Holder resign over the issue.

Sen. Lindsey Graham (R-S.C.) introduced legislation earlier this month that would prohibit the Justice Department from using funds to prosecute KSM and his alleged accomplices in federal court. The bill has 27 co-sponsors, including Democratic Sens. Blanche Lincoln of Arkansas, Ben Nelson of Nebraska, Mark Pryor of Arkansas and Jim Webb of Virginia, all of whom represent conservative-leaning states. Independent Sen. Joe Lieberman of Connecticut, who caucuses with the Democrats, also is a co-sponsor.

Rep. Frank Wolf (R-Va.) introduced a companion bill in the House earlier this month. The bill has 49 co-sponsors, including Democratic Reps. Jason Altmire of Pennsylvania, Dan Boren of Oklahoma and Bobby Bright of Alabama.

“Congress should not tie the hands of our national security and law enforcement agencies, but should instead ensure they have the flexibility to use every means available,” Leahy and Feinstein said in their letter. “Congress should be working with you in a shared mission to most effectively protect our national security and to ensure that just convictions, once obtained, will be sustained and upheld.”

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.

Dawn Johnsen during her confirmation hearing before the Senate Judiciary Committee in February 2009 (Getty Images)

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.

Dawn Johnsen during her confirmation hearing before the Senate Judiciary Committee in February 2009 (Getty Images)

Former Office of Legal Counsel nominee Dawn Johnsen is on course for re-nomination, an administration official told Main Justice today.

Johnsen has been in a state of limbo since the Senate returned her nomination to the White House on Christmas Eve, after she spent months waiting for a vote on the Senate floor. The White House sent her nomination to the Senate on Feb. 11, 2009 and the Senate Judiciary Committee approved her nomination on a party line vote on March 19, 2009.

Several Senate Republicans, joined by Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.

President Barack Obama must tap Johnsen again if he wants the Senate to confirm her. The White House has remained mum on whether she will be re-nominated.

Press Secretary Robert Gibbs told reporters today during a briefing that he has “not gotten an answer” on Johnsen and is looking into it. The administration official told Main Justice that Johnsen matter hasn’t come to the president’s desk yet.

Gibbs said the White House is unhappy with the pace of confirmation for some of the nominees.

“We’ve put a number of people into government in the first year,” Gibbs said in response to a question by the Huffington Post. “But at the same time, we have seen a pacing in dealing with nominations both for the executive branch and for judicial nominations that I think by almost any estimation would be deemed slow.”

William Treanor, who worked with Johnsen in the Office of Legal Counsel during the Bill Clinton administration, said Johnsen remains “enthusiastic” about her prospects for confirmation. We previously reported that she will continue to teach law at Indiana University during the spring 2010 semester. Johnsen declined to comment to Main Justice.

Johnsen has support from liberal advocacy groups, including the National Organization for Women, Alliance for Justice and People for the American Way.

People for the American Way recently wrote about the returned OLC nominee on its blog and has endorsed two letters in support of Johnsen.

Marge Baker, an executive vice president at People for the American Way, said her organization do “whatever needs to be done” to get Johnsen confirmed.

“We’ll continue working all of the angles,” Baker told Main Justice.

OLC has not had a Senate-confirmed head since George W. Bush appointee, Jack Goldsmith, resigned in June 2004.

Bush nominated Steven Bradbury to the post five times, but he was returned to the White House each time. Bradbury served as acting OLC chief from June 2005 to April 2007, and continued to lead the office as Principal Deputy Assistant Attorney General until the start of the Obama administration.

David Barron has been the acting head of OLC since January 20. In 2004, Johnsen, Barron, Treanor and other former OLC officials signed the “Principles To Guide the Office of Legal Counsel,” which offered suggestions on how the office could move forward after it was revealed that the office authorized harsh interrogation methods used against terrorism suspects during the Bush administration.

Joe Palazzolo contributed to this report.

President Barack Obama will need to re-nominate three nominees for top Justice Department posts if he wants the Senate to consider them again.

Dawn Johnsen (Indiana University)

The Senate approved a unanimous consent request today to hold over several nominees for the second session of the 111th Congress, which begins in January.

But nominees to head three DOJ offices: Dawn Johnsen, for the Office of Legal Counsel, Mary L. Smith, for the Tax Division, and Christopher Schroeder, for the Office of Legal Policy, were returned to the White House before the Senate recessed for the holidays.

Johnsen, who was nominated in February, was approved by the Senate Judiciary Committee in March on a party line vote.

Mary L. Smith (Schoeman, Updike & Kaufman)

Several Senate Republicans, joined by Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.

Republicans have also raised concerns about Smith, who was nominated in April. She did not receive a single Republican vote when she was reported out of committee in June. GOP lawmakers said Smith, a Chicago lawyer who served in the Clinton White House counsel’s office, lacked tax law experience.

Christopher Schroeder (Duke University)

It is unclear what objections have been raised about Schroeder, who was approved by the Judiciary panel in July by voice vote. He was nominated in June.

But Schroeder, like Johnsen, had been a critic of Bush’s national security policies. Read his June 2008 testimony before Congress about interrogation policies at Guantanamo Bay here.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) had been pushing for the Senate to confirm the nominees before the Senate recessed today.

A White House spokesperson didn’t immediately respond to a request for comment.

An effort to repeal the antitrust exemption for health insurers took a step back this weekend, when Democratic leaders left it out of a package of changes to the health system overhaul bill the Senate is voting on this week.

Sen. Patrick Leahy (D-Vt.) three weeks ago offered language to repeal the exemption as an amendment to the Senate’s health care legislation. The proposed repeal would subject health and medical malpractice insurers to federal laws that forbid firms from fixing prices, rigging bids, or dividing up markets with competitors.

In a statement on Saturday, Leahy said he was “disappointed” the amendment would not be a part of the Senate’s debate.

Similar language, which represents a partial repeal of the 1945 McCarran-Ferguson Act, is included in the House version of the legislation. Leahy said he will continue to push for the repeal as the the Senate and the House work to reconcile their bills.

The amendment, which had the support of Majority Leader Harry Reid (D-Nev.), was a casualty of Reid’s well-chronicled struggle for the 60th vote in favor of the bill from Sen. Ben Nelson (D-Neb.)

Nelson, a former insurance executive, had earlier expressed reservations about the repeal. Insurers had also lobbied to keep the provision out. Nelson also has been at the heart of tense negotiations over other provisions of the bill, including whether it would include a government-run health care plan option and restrictions on taxpayer funding of abortions.

Liberals have called attention to the repeal’s notable absence in the latest Senate package, and backers of the repeal have urged House Democrats to fight to keep the repeal in the final bill.

But congressional Democrats have little room to deviate from the Senate version of the legislation. “It is very clear that the bill — the final bill — to pass in the United States Senate is going to have to be very close to the bill that has been negotiated here,” said Sen. Kent Conrad (D-N.D.) on “Fox News Sunday.” “Otherwise, you will not get 60 votes in the United States Senate.”

Whether the House repeal language will survive in a House-Senate conference negotiation over the final version of the bill is largely dependent on what Nelson is willing to give up. In an interview with CNN, Nelson laid out several provisions in the House bill that are deal-breakers for him, but he did not single out the antitrust exemption as one such deal-breaker.

Two stalled Justice Department nominees are slated for university teaching jobs again early next year,  according to university course schedules for spring 2010.

The teaching jobs give the two nominees a backup plan in case their confirmations continue to be stalled in the Senate.

Office of Legal Counsel nominee Dawn Johnsen, who was nominated Feb. 11, will teach a class at Indiana University’s Maurer School of Law this spring.

Office of Legal Policy nominee Christopher Schroeder, who was tapped June 4, will teach two courses, along with Sen. Ted Kaufman (D-Del.), for the Duke University School of Law in Washington this spring.

Dawn Johnsen (Indiana University)

Johnsen’s constitutional law seminar is titled, “Congress, the Presidency and the Courts.” The OLC nominee’s course is slated to tackle such topics as “permissible forms of congressional oversight of the Executive, including limitations on the appointment and removal of executive branch officers” and “when may the president assert executive privilege and refuse to comply with requests for information from Congress or the courts,” according to the Indiana University law school’s Web site. Read the full course description here.

The OLC nominee taught a a seminar titled “Sexuality, Reproduction and the Law” this fall, while commuting between Washington and Bloomington, Ind.

Several Senate Republicans, joined by Democrats Arlen Specter (Pa.) and Ben Nelson (Neb.), have criticized Johnsen because of her vocal opposition to the Bush administration’s national security policies and her past work for the group formerly known as the National Abortion and Reproductive Rights Action League. She was approved by the Senate Judiciary Committee March 19 by a 11-7 vote. Specter, who was a Republican at the time, abstained from the vote. Nelson is not on the committee.

Christopher Schroeder (Duke)

As for Schroeder, one of his courses requires students to participate in an externship in D.C. about federal policy making. The other class requires students to write about their federal policy making externship.

The externship course is designed for “students who are interested in public policy, public service, and careers in the public sector an opportunity to study federal policymaking firsthand,” according to the Duke law school Web site. The externship course description is here. The paper class description is here.

Schroeder also taught the externship course with Kaufman in spring 2009. Schroeder did not teach a course this fall.

The Senate Judiciary panel, of which Kaufman is a member,  approved Schroeder’s nomination by voice vote on July 28. Committee Chairman Patrick Leahy (D-Vt.), complained on Nov. 17 about the delay in Senate action on a number of nominations, including that of Schroeder, noting in a press release,  “I can only imagine that the reason his confirmation is being delayed is part of the partisan effort to slow progress on judicial nominees.”

The effort to repeal the antitrust exemption for health insurers inched another step forward today, when Sen. Patrick Leahy (D-Vt.) announced he would file a proposed repeal as an amendment to the health care reform bill on the Senate floor.

Leahy’s amendment would subject health and medical malpractice insurers to federal laws that forbid firms from fixing prices, rigging bids, or dividing up markets with competitors. Insurers have been exempt from such federal regulation since the 1940s McCarran-Ferguson Act.

The House bill includes a similar provision, but allows insurers to share some data used to set rates.

The fate of Leahy’s amendment is unclear. Sen. Ben Nelson (D-Neb.), whose support Senate Democrats have assiduously courted, has expressed displeasure with the amendment.  Majority Leader Harry Reid (D-Nev.) has signaled he would be willing to drop the amendment in exchange for Nelson’s support on the health bill.

The White House and congressional Democrats made repeal of the 1945 law a priority, after negotiations over health care reform with the insurance industry broke down.

Reid testified before a Senate Judiciary Committee hearing in October, along with Assistant Attorney General Christine Varney,  and argued that a repeal would produce more competition and better prices for consumers.

In his weekly radio address that week, President Barack Obama also attacked the exemption, complaining that the industry is “earning these profits and bonuses while enjoying a privileged exemption from our antitrust laws.”

Sen. Arlen Specter’s challenger in the 2010 Pennsylvania Democratic primary is bringing the stalled Dawn Johnsen nomination to the fore of the election battle.

Joe Sestak (Gov)

Rep. Joe Sestak, Specter’s Democratic primary opponent, accused the Pennsylvania senator of “joining the GOP stonewalling” of the Office of Legal Counsel nominee, who has languished without a Senate vote for seven months. The Senate Judiciary Committee approved Johnsen’s nomination in March, but Specter hasn’t committed to support her.

“Opposition to Professor Johnsen does not have to do with her qualifications to head of the Office of Legal Counsel,” Sestak said in a statement. “Rather, it has to do with her pro-choice views and her vocal, but justified, opposition to extra-legal practices of the Bush administration. I call on my colleague, Arlen Specter, to state unequivocally that he will stop supporting Republican obstructionist tactics and stop depriving the President of his most important legal advisor in this difficult and dangerous time.”

Specter changed parties in April after it became clear he would face a tough Republican primary challenge next year from former Rep. Pat Toomey (R-Pa.). At a news conference announcing his dramatic party switch, Specter said he opposed Johnsen. But he has never clarified whether he would vote for a procedural motion to advance her nomination. Democrats need 60 votes to end debate and move to a full Senate vote on Johnsen.

“Senator Specter has several concerns about Ms. Johnsen’s nomination,” Specter’s office said in a statement to Main Justice today. “Senator Specter had a second meeting with her to get clarification on her positions and he is still considering her nomination.” The first meeting was April 2, and the second occurred May 12, according to Specter’s office.

Sestak is trailing Specter by 19 points in the latest Quinnipiac University poll released last month.

We reported last week that several liberal groups are putting more pressure on Senate Majority Leader Harry Reid (D-Nev.) this week to move on Johnsen.

Sen. Ben Nelson (D-Neb.) and many Republicans have criticized the Indiana University law professor because of her vocal opposition to the Bush administration’s national security policies and her past work for abortion rights.A

Liberal activists are putting more pressure on Senate Majority Leader Harry Reid (D-Nev.) this week to move on President Obama’s Justice Department Office of Legal Counsel nominee.

Dawn Johnsen (Indiana University)

Dawn Johnsen, an Indiana University law professor, was nominated Feb. 11 and reported out of the Senate Judiciary Committee March 19 along party lines. Several Senate Republicans and Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.) have criticized Johnsen because of her vocal opposition to the Bush administration’s national security policies and her past work for the group formerly known as the National Abortion and Reproductive Rights Action League.

In a letter to Reid yesterday, leaders of almost 40 left-leaning organizations said the hold-up on Johnsen is “extraordinary and unacceptable.” The groups included the Human Rights Campaign, National Council of La Raza, People for the American Way and Alliance for Justice.

“Professor Johnsen has the experience, the integrity, and the intellect to head this critical office,” they wrote in the letter. “She should be confirmed without further delay. We understand the press of legislative business before the Senate. But further delay is untenable.”

Though Democrats have a 60 vote-majority, Reid may not have enough votes to end a Republican filibuster on Johnsen.

Specter and Sen. Mark Pryor (Ark.) have not said how they will vote on the procedural motion to end debate, known as cloture.

If Specter and Pryor balk at voting with his party on the procedural vote, Democrats only have 58 votes. But Reid might be able to lean on Maine Republicans Olympia Snowe and Susan Collins, who have not said how they would vote on cloture.

Justice Department Office of Legal Counsel nominee Dawn Johnsen does not have a job in Washington yet. But her family is already settling into life in the nation’s capital, her former colleagues told Main Justice this week.

Dawn Johnsen (Indiana University)

Johnsen started renting a house in Maryland for her family earlier this summer. Her kids — boys ages 10 and 12 — are attending the local public school. Her husband, John M. Hamilton, is the president of D.C.-based City First Enterprises, which develops affordable housing in Washington.

“I think Dawn is proceeding…with confidence,” one former colleague told Main Justice.

Johnsen and Hamilton declined to be interviewed for this report.

Life for Johnsen, however, is not going according to plan. The Indiana University law professor will be traveling between Washington and Bloomington on a regular basis this fall to teach “Sexuality, Reproduction and the Law” at IU’s Maurer School of Law as she waits for the Senate to move on her nomination.

It has been more than five months since the Senate Judiciary Committee reported her nomination to the full Senate on a party-line vote. But objections from Republicans have kept the nomination from moving forward. Democrats need 60 votes to overcome a GOP filibuster – a task made harder by Sen. Edward Kennedy’s (D-Mass.) death this week and the frail condition of ailing Sen. Robert Byrd (D-W.Va.).

It isn’t clear who’s blocking her nomination. But leading Senate Republicans including Judiciary Committee members John Cornyn (Texas) and Jon Kyl (Ariz.) have criticized Johnsen for her support of abortion rights and her strong disapproval of the Bush administration legal memos used to justify torture against suspected terrorists.

Sen. Arlen Specter (Pa.) has sent mixed signals. The former ranking member of the Senate Judiciary panel didn’t vote on her nomination in committee. Specter later switched parties and faces an uphill battle for re-election next year. He has said he opposes Johnsen’s confirmation. But he hasn’t said how he will vote on the all-important procedural motion to end debate, known as cloture. Click here to read our previous report about how Johnsen gets to 60 votes needed for cloture.

Sen. Richard Lugar (Ind.) is the only Republican publicly to support of Johnsen. Democrats are hopeful they still may persuade Maine Sens. Olympia Snowe and Susan Collins, moderate Republicans who remain undecided.

But even Democrats aren’t all behind Johnsen. Sen. Mark Pryor (Ark.) hasn’t said how he will vote. Sen. Ben Nelson (Neb.) is against her confirmation, though he has said he will vote with Democrats on cloture.