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.
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The Senate approved legislation today that would fund the Justice Department for fiscal year 2010, clearing the measure for President Barack Obama’s expected signature.
The $28 billion DOJ budget is part of the Commerce, Justice, science appropriations bill, which was packaged with five other fiscal year 2010 spending bills to make the Consolidated Appropriations Act 2010.
Democrats ended a filibuster of the spending bill Saturday, garnering the 60 votes needed to cut off debate by holding the tally open for ailing Sen. Robert Byrd (D-W.Va.) and Sen. Joseph Lieberman (I-Conn.), an observant Jew who walked from his Georgetown synagogue for the vote, The Washington Post reported.
Obama requested $27 billion for DOJ. The department’s funding is up $2 billion from fiscal year 2009, when it received $26 billion.
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Senator-elect Al Franken will serve on the Senate Judiciary Committee, Congressional Quarterly reported this afternoon.
Sen. Ron Wyden (D-Ore.) was temporarily holding onto the comedian-turned-politician’s seat on the panel, according to CQ. Franken, a Democrat, claimed the disputed Minnesota seat after the state supreme court ruled today that he received more votes than his Republican challenger, former Sen. Norm Coleman.
The Senate plans to swear in Franken next week following the Fourth of July holiday. In theory, Franken will give the Democrats a filibuster-proof majority. With a united block of 60 Democratic senators, Majority Leader Sen. Harry Reid (D-Nev.) could finally schedule votes on DOJ nominees Dawn Johnsen for the Office of Legal Counsel, Thomas Perez for the Civil Rights Division and Mary L. Smith for the Tax Division.
But Franken’s seating might not be enough to schedule votes on the nominations or push through the long-stalled Johnsen.
Democratic Sens. Edward Kennedy (Mass.) and Robert Byrd (W.Va.) have been absent from Congress with severe health problems. Byrd was released from the hospital today after battling a staph infection for a month. It is unclear when he will be back to cast votes. Kennedy is being treated for brain cancer. He has said he will try to come back to Washington this summer to work on health care legislation.
Even if one of the ailing senators is able to cast votes, the DOJ nominations could still be held up. The Senate Judiciary Committee reported the Johnsen nomination to the Senate for consideration on March 19. Byrd was present to vote in the Senate until mid-May. Kennedy was present intermittently throughout March and April to cast votes.
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Democratic Sens. Robert Byrd and Jay Rockefeller recommended federal prosecutor R. Booth Goodwin to President Obama to replace Charles T. Miller as the U.S. Attorney for Southern District of West Virginia, The West Virginia State Journal reported this morning.
He is currently the office’s Assistant U.S. Attorney in charge of economic crimes.
“While much of my eight years with the office has been devoted to prosecuting public corruption and substantial fraud cases, I have prosecuted about every sort of case this office handles,” Goodwin wrote in an e-mail to The State Journal. “I’d certainly like the opportunity to continue this office’s focus on prosecuting child exploitation and other violent crime, while continuing to expand our efforts to combat financial crimes and violations of the public’s trust.”
If confirmed by the Senate, Goodwin could be forced to recuse himself from some U.S. District Court cases because his father is U.S. District Judge Joseph R. Goodwin, The State Journal said.