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.

Sen. Evan Bayh (D-Ind.) has urged President Barack Obama to nominate a Clinton administration U.S. Attorney to be a judge in the U.S. District Court for the Northern District of Indiana, The Indianapolis Star reported yesterday.

Jon DeGuilio (Peoples Bank)

Former U.S. Attorney Jon DeGuilio, who served in the Northern District from 1993 to 1999, was picked after consultation with Republican Sen. Richard Lugar of Indiana. Bayh also recommended that the president tap state superior court Judge Tanya Walton Pratt and U.S. Magistrate Judge Jane Magnus-Stinson for seats on the U.S. District Court for the Southern District of Indiana.

“Mr. DeGuilio, Judge Magnus-Stinson and Judge Pratt have each shown themselves to be deserving of the public trust,” Bayh said in a news release. “They have demonstrated the highest ethical standards and a firm commitment to applying our country’s laws fairly and faithfully. They know their job is to interpret our laws, not write them.”

DeGuilio is currently the executive vice president, general counsel and corporate secretary for NorthWest Indiana Bancorp and executive vice president for Peoples Bank. Read more about him here.

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.

Sonia Sotomayor won Senate confirmation this afternoon to the Supreme Court by a vote of 68 to 31.

Only nine Republicans voted in favor of her confirmation. They were:

-Sen. Mel Martinez (Fla.)

-Sen. Lindsey Graham (S.C.)

-Sen. Olympia Snowe (Maine)

-Sen. Susan Collins (Maine)

-Sen. Richard Lugar (Ind.)

-Sen. Lamar Alexander (Tenn.)

-Sen. Christopher Bond (Mo.)

-Sen. Judd Gregg (N.H.)

-Sen. George Voinovich (Ohio)

Here’s the Senate roll call vote:

The Senate passed legislation late last night that would protect people who are attacked because of their sexual orientation, gender or disability.

The Matthew Shepard Hate Crimes Prevention Act provides the most significant changes to federal hate crimes law since the approval of a 1968 bill that covered crimes carried out on the basis of religion, race, color or national origin. The legislation last night was added to the must-pass National Defense Authorization Bill. The hate crimes amendment passed by a voice vote after a 63-28 vote on cloture.

Harry Reid (Gov)

“The Senate made a strong statement this evening that hate crimes have no place in America,” said Senate Majority Leader Harry Reid in a statement. “I am pleased to see the Matthew Shepard Hate Crimes Prevention Act added as an amendment to the Department of Defense Authorization bill.”

Most Republicans were against the hate crimes legislation, saying state laws already cover hate crimes and it could criminalize religious opposition to homosexuality. Sen. John McCain (R-Ariz.) said on the Senate floor Wednesday that he was “deeply, deeply disappointed” by Reid for introducing the legislation as an amendment to the defense bill.

Sens. Susan Collins (Maine), Richard Lugar (Ind.), Lisa Murkowski (Alaska), Olympia Snowe (Maine) and George Voinovich (Ohio) were the only Republicans to vote in favor of cloture. There were no Democrats that voted against cloture.

Backers of the hate crimes legislation have tried to attach it to the annual defense authorization bill since 1999, but it was always taken out before a final vote on the defense legislation. Attorney General Eric Holder called on Congress last month to pass hate crimes legislation.

With the exception of Civil Rights Division nominee Tom Perez, it seems unlikely the Senate will hold confirmation votes on other top Department of Justice nominees before the August recess, a Democratic aide with knowledge of the process told Main Justice.

The Senate Judiciary Committee is consumed by preparations for the Sonia Sotomayor Supreme Court nomination hearings that begin July 13. And Sen. Charles Grassley (R-Iowa) has threatened to put holds on some DOJ nominees until the department delivers written answers to several outstanding requests for information.

That means much of the Department’s top leadership probably will not be in place until September or later. Of the 15 DOJ nominees requiring Senate confirmation, six have yet to clear the hurdles. Here’s where they stand:

DAWN JOHNSEN: President Obama’s pick to lead the Justice Department’s Office of Legal Counsel was reported out of the Senate Judiciary Committee more than 90 days ago. The Democratic leadership has since tried to coax its counterparts in the minority to support a vote on the nomination, but the Republicans have refused to bite even with the August recess quickly approaching, the Democratic aide said Tuesday.

Dawn Johnsen

Leading Republicans including Sens. John Cornyn of Texas and Jon Kyl of Arizona have criticized Johnsen for her position on abortion rights and her strong disapproval of the Bush administration legal memos used to justify torture against suspected terrorists.

Assistant Majority Leader Sen. Dick Durbin (D-Ill.) has tried to round up enough votes to prevent a Republican filibuster of Johnsen for months. Sen. Richard Lugar of Indiana is the only Republican who has come out in support of Johnsen, a law professor at Indiana University in Lugar’s home state. Democrats are hopeful they still may persuade Maine Sens. Olympia Snowe and Susan Collins, moderate Republicancs who remain undecided on the OLC nominee.

But, even Democrats aren’t fully committed to Johnsen. Sen. Mark Pryor (D-Ark.) hasn’t said how he will vote, and Democratic Sens. Ben Nelson (Neb.) and Arlen Specter (Pa.) oppose her nomination. Nelson, however, has said he will vote with his party on a motion to cut off debate over Johnsen’s nomination – a procedural move to end a filibuster that requires 60 votes.

Snowe said earlier this month that there are other issues facing the Senate that could also delay a vote on the OLC nominee, including Sotomayor and the Obama administration’s ambitious health care system overhaul. ”I don’t know if it [Johnsen's nomination] is going to come up anytime soon,” Snowe said in an interview.

THOMAS PEREZ:

Tom Perez (maryland.gov)

The Judiciary Committee reported the Civil Rights Division nominee to the full Senate on June 4 by a vote of 17-2. Perez, a non-controversial choice who is currently serving as Maryland’s secretary of labor, could go up for a vote in the Senate within a few weeks, the aide said.

The Maryland labor secretary met with Republican Sens. Jeff Sessions (Ala.), Jon Kyl (Ariz.) and Tom Coburn (Okla.) in a private meeting Wednesday evening, Kyl told Main Justice in an interview today after a Senate Judiciary Committee meeting. Kyl said his colleagues got a “much clearer view” of Perez from the meeting, which Perez’s home-state senator, Ben Cardin (D-Md.), also attended.

Coburn and Sessions had voted against Perez in committee. While it is unclear whether the conservatives will ultimately support Perez’s confirmation, it appears unlikley they will use procedural hurdles to block a floor vote.

“It was a good meeting,” Sessions said in an interview.

MARY L. SMITH:

A Senate vote on Smith will likely come much later, according to the Democratic aide. That’s because Smith, a Chicagoan and Clinton White House veteran who was an early supporter of Barack Obama, is opposed by Republicans for her lack of tax expereince. The Judiciary Committee reported her nomination June 11 on a party-line vote of 12-7. Republicans unanimously opposed her.

Mary L. Smith (Main Justice)

“She is inherently unqualified for this job,” Coburn said before the panel vote.

It isn’t clear why Smith was nominated. She is a former in-house counsel at Tyco International but has no prosecuting experience. She is a Native American and headed up the Obama DOJ transition team for the Tax Division. The DOJ issued a statement this week in support of her nomination, acknowleding she is not a “traditional tax lawyer” but arguing that her extensive securities law and litigation experience qualifies her for the job.

CHRISTOPHER SCHROEDER:

Christopher Schroeder (Duke)

Office of Legal Policy nominee Christopher Schroeder will have his Senate confirmation hearing on Wednesday.

Schroeder is a Duke University law professor and a former Acting Assistant Attorney General for the Office of Legal Counsel in the Clinton administration. At the OLP, he will be in charge of judicial nominations and legal policy. Read his biohere.

Schroeder served on the Obama transition team for the Department of Justice. A critic of Bush-era legal policies, he was nominated after the president’s first pick for the job, Mark Gitenstein, withdrew under criticism about his lobbying work.

IGNACIA MORENO and LAURIE ROBINSON:

Moreno, counsel for corporate environmental programs at the General Electric Corp., is nominated the head the Environment and Natural Resources Division. Her corporate ties have stirred some controversy. Robinson is nominated to head the Office of Justice Programs. The DOJ veteran is already effectively in the job: She was named Acting Assistant Attorney General/Principal Deputy Assistant Attorney General for OJP on Jan. 28, 2009. Neither is scheduled yet for a Senate hearing.

Almost three dozen Republican Indiana state senators called on Sens. Evan Bayh (D-Ind.) and Richard Lugar (R-Ind.) to oppose the nomination of Dawn Johnsen to lead the Justice Department Office of Legal Counsel, The Indianapolis Star reported today.

Both Bayh and Lugar have said they would not oppose her nomination, but state Republicans wrote a letter asking them to reconsider because of Johnsen’s support of abortion rights.

“It’s a statement from a very strong pro-life caucus,” Republican Indiana Senate President Pro Tem David Long told The Star. “It is not based on the fact she is pro-choice, it is based on the fact that she is radically so.”

The Star reported that only two Indiana Republican senators did not sign the letter.

There’s a lot of confusion out there about just which Democrat is responsible for imperiling Indiana University professor Dawn Johnsen’s nomination to head the Office of Legal Counsel.

As Main Justice reported two weeks ago — and which some reporteres have overlooked — the real problem Democrat isn’t Ben Nelson of Nebraska, who has already said that he will vote “yea” on cloture.  No, the real problem is Arkansas Sen. Mark Pryor, who is undecided on both cloture and confirmation.

Click here to read our story on Pryor, and scroll down to his Arkansas colleague Sen. Blanche Lincoln’s (D) quote about how she is “confident” she will support a cloture vote. 

But after Attorney General Eric Holder said recently that confirming Johnsen is “probably my top priority,” there will be intense pressure on Pryor to get in line with his party.  How can Democrats pressure him?  Well, Lincoln is up for a potentially tough re-election next year.  And among other tools, Holder is sitting on billions in stimulus funds for local law enforcement.  He could threaten to withhold grants from Arkansas if Pryor doesn’t play ball.  And Lincoln, who wants all that stimulus pork she can get for next year’s election, could pressure Pryor to fall in line if Holder holds the stimulus stick over them.  And that’s only one of a multitude of ways the administration could pressure Pryor.

With that, here’s the Democratic scenario for reaching the 60 votes needed to cut off debate and proceed to the nomination:

After Arlen Specter’s party switch, Democrats (with the help of two independents) now effectively control 59 seats in the Senate.  When all is said and done, Specter, who had a rough start with his new party, is likely to support his fellow Dems on the procedural vote.  Last week, Greg Sargent at The Plum Line confirmed what we’d already reported: that Specter simply hasn’t decided yet how he will vote on cloture, though he opposes Johnsen’s confirmation.  His spokeswoman told Sargent the obvious: that undecided means there is a chance Specter will vote yes.

But Democrats can’t count on Sen. Edward Kennedy, who is battling brain cancer, to show up for a cloture vote.  According to govtrack.us, Kennedy hasn’t voted since April 2.  So that makes 58 votes. 

But yet another twist: Sen. Richard Lugar (R-Ind.) has said he supports his home-state nominee.  So now Democrats have 59 votes.  So, assuming Pryor stays tethered, now all Democrats have to do is wait until June, when Republican Norm Coleman’s election challenge in Minnesota is expected to be over and Democrat Al Franken is likely to be seated.

There you have it folks: 60 votes.

Sen. Mark Pryor (D-Ark.) remains undecided on Dawn Johnsen’s nomination to head the Office of Legal Counsel. Unlike fellow conservative Democrat Ben Nelson of Nebraska — who is opposed to Johnsen’s confirmation because of her past work for abortion rights, but who will vote with the Democratic party on a procedural motion to end debate on her nomination — Pryor hasn’t made up his mind on either point. This doesn’t bode well for Democrats, who are struggling mightly to muster the 60 votes needed to end a likely Republican-led filibuster.

Dawn Johnsen

Pryor’s spokeswoman, Lisa Ackerman, told Main Justice that Pryor met last week with a group of constituents about the Johnsen nomination. Ackerman declined to name the group or say whether its members were opposed or in support of Johnsen. Being from Arkansas myself, I feel safe in saying the group was probably opposed. Arkansas is a solidly Democratic state, but very conservative, with many Christian evangelicals active in politics. Arkansas voters chose John McCain over Barack Obama in the 2008 presidential election. Johnsen’s past work as a lawyer for the abortion rights group now known as NARAL Pro-Choice America makes her a difficult sell in Arkansas.

UPDATE 5/5/09: Arkansas’s other conservative Democratic senator, Blanche Lincoln, told Main Justice’s Andrew Ramonas today, “I haven’t really looked into it.” Asked if she will vote for cloture on Johnsen, Lincoln said, “I feel confident I will.” Lincoln is up for re-election next year.

Meanwhile, the only Republican to come out in favor of the liberal Indiana University professor, Sen. Richard Lugar of Indiana, is under fire at home from anti-abortion groups for his support of his fellow Hoosier.

The Senate isn’t any closer to voting on Justice Department Office of Legal Counsel nominee Dawn Johnsen, Assistant Senate Majority Leader Dick Durbin (D-Ill.) said at a reporter’s gaggle in the Capitol today. ”We need some Republicans on our side,” Durbin said.

For weeks, Democrats have tried to unify their caucus behind the liberal Indiana University law professor and woo some Republicans to prevent a filibuster. With Sen. Arlen Specter’s party switch this week, Democrats have 57 seats in the Senate. In addition, two independents caucus with the Democrats. And one Republican – Johnsen’s home state senator, Richard Lugar of Indiana – has said he supports her nomination.

But that doesn’t mean Democrats are over the 60-vote hurdle to cut off debate. After weeks of staying mum on the subject, Specter said Tuesday he opposes Johnsen’s confirmation. But he didn’t answer a question about whether he’d vote with his new party on a procedural motion to end debate.

Moreover, Sen. Edward Kennedy is battling brain cancer and unlikely to make it for a vote. And the Minnesota Senate race is still undecided. That means: Even if all the Democrats (including Specter but minus Kennedy), and the two independents, and Lugar vote to end debate on Johnsen, Democrats only have 59 votes.

If Specter balks at voting with his new party on the procedural vote, Democrats only have 58 votes.

If any conservative Democrat peels off, Democrats could be even farther in the hole. (We have a call into Arkansas Sen. Blanche Lincoln, who is up for re-election next year in a conservative-leaning state, but haven’t heard back about her position on Johnsen). However, conservative Democratic Sen. Ben Nelson of Nebraska, who opposes Johnsen’s confirmation over her past advocacy for abortion rights, has said he will stick with his party on the procedural vote and support ending debate.

The Democrats are still whipping. Majority Leader Sen. Harry Reid (D-Nev.) said he “had a conversation” about the Johnsen nomination on Tuesday. He wouldn’t say with whom, but moderate Maine Republicans  Sens. Susan Collins and Olympia Snowe have said they have not made up their minds on Johnsen.