Two additional U.S. Supreme Court briefs have come to light that Attorney General Eric Holder did not disclose during his confirmation process in late 2008 and early 2009, as required by a Senate Judiciary Committee questionnaire, according to The Blog of Legal Times.

On Wednesday, a story in The National Review blasted Holder for not disclosing two amicus briefs to the Supreme Court in the high-profile terrorism case of Jose Padilla that he had joined in signing.

The undisclosed briefs reported Friday, one of which related to allegations of racial bias by prosecutors in jury selection, and the other involving the timing of Miranda warnings, bring the total number of undisclosed briefs to four.

In The National Review Online story, former Deputy White House Counsel Bill Burck and Press Secretary Dana Perino criticized the Attorney General both for not listing the briefs on his Senate questionnaire, and for the content of one of the briefs, which argued that the danger of a too-powerful executive branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts.

When Holder submitted his questionnaire to the Senate Judiciary Committee in December 2008, Republicans said it was incomplete. In response, Holder supplied additional materials to the committee before his confirmation hearing in January 2009, but the four amicus briefs were not among the new materials.

Justice Department spokesman Matthew Miller told Politico that “the [Padilla] brief should have been disclosed,” but had been “ unfortunately and inadvertently” left out in the documents submitted to the Senate Judiciary Committee before Holder’s confirmation hearings.

At a meeting of the Judiciary Committee on Thursday Sen. Jon Kyl (R-Ariz.) said that it’s hard to believe the Holder simply forgot to disclose the Padilla briefs.

“Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country’s most-publicized terrorism cases?” asked Kyl. “To me, that strains credulity, and I’m someone who voted for Attorney General Holder.”

Holder’s defenders argued that omissions are simply unavoidable when preparing the questionnaires. Former Obama White House counsel Gregory Craig said that Holder should not be blamed.

“I’m sure it wasn’t Eric’s job to gather all the briefs,” Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, told the BLT. “The notion that this was an intentional oversight is preposterous.”

Republicans on the Senate Judiciary Committee have said that they will question Holder about the omissions when he appears before them during a previously scheduled Justice Department oversight hearing on March 23.

The Justice Department trails all Cabinet agencies in percentage of occupied Senate-confirmed positions, according to data compiled by an independent group that tracks government personnel.

Two caveats, before we continue: The data, from the The White House Transition Project, disregard U.S. Attorneys and U.S. Marshals in the field, and it counts term-limited positions, such as FBI Director, as vacancies, even if they haven’t expired.

So, of the 37 Washington-based positions subject to Senate approval, five are held by officials who were confirmed during the Bush administration and are still serving terms. They include members of the U.S. Parole Commission and the Foreign Claims Settlement Commission, and the aforementioned Director of the FBI, Robert Mueller III.

That leaves us with 32 other DOJ posts, 10 of which have been filled. That’s a 31 percent confirmation rate — still the lowest, behind the Treasury Department (36 percent) and the Department of Health and Human Services (40 percent), according to the WHTP. The data are current as of Sept. 16 — day 240 of the Obama administration.

President Barack Obama has sent 15 DOJ nominations to the Senate (again, excluding U.S. Attorneys or U.S. Marshals). Let’s do some quick accounting.

Senate-confirmed:

• Attorney General Eric Holder (confirmed on Feb. 2)
• Deputy Attorney General David Ogden (confirmed on March 12)
• Associate Attorney General Thomas Perrelli (confirmed on March 12)
• Solicitor General Elena Kagan (confirmed on March 19)
• David Kris, Assistant Attorney General, National Security Division (confirmed on March 25)
• Lanny Breuer, Assistant Attorney General, Criminal Division (confirmed April 20)
• Christine Varney, Assistant Attorney General, Antitrust Division (confirmed April 20)
• Tony West, Assistant Attorney General, Civil Division, (confirmed April 20)
• Ron Weich, Assistant Attorney General, Office of Legislative Affairs (confirmed April 29)
• Cranston Mitchell, Commissioner, U.S. Parole Commission (confirmed Aug. 7)

Reported out of committee but awaiting a Senate vote:

• Dawn Johnsen for Assistant Attorney General, Office of Legal Counsel (nominated Feb. 11)
• Thomas Perez for Assistant Attorney General, Civil Rights Division (nominated March 31)
• Mary Smith for Assistant Attorney General, Tax Division (nominated April 20)
• Christopher Schroeder for Assistant Attorney General, Office of Legal Policy (nominated June 4)

Awaiting a committee vote:

• Ignacia Moreno for Assistant Attorney General, Environment and Natural Resources Division (nominated June 8th)
• Laurie Robinson, Assistant Attorney General, Office of Justice Programs (nominated Sept. 14)

Terry Sullivan, executive Director of the WHTP, said President George W. Bush had filled about 46 percent of the DOJ’s Senate-confirmed positions by this time in his first year, though the number is likely a bit high. (See caveat No. 2 above.)

At that time in the Bush administration, the department had the third-lowest confirmation rate. The Treasury Department and the Department of Transportation were faring worse.

Sullivan, who teaches political science at UNC Chapel Hill, said the difference between the two Justice Departments — in terms of staffing — is negligible.

“That’s pretty much the statisical range,” he said.

President Barack Obama’s nominee to head the Office of a Legal Counsel will teach a seminar titled “Sexuality, Reproduction and the Law” this fall at Indiana University’s Maurer School of Law, reports The BLT.

Dawn Johnsen (Indiana University)

Dawn Johnsen, who was nominated in January and moved to Washington over the summer, will commute weekly to Bloomington, Ind., while she waits for confirmation, Debbie O’Leary, a spokeswoman for the law school, told The BLT

News of the course, which Johnsen has taught before, was first reported on Blue Indiana, a left-leaning blog.

According to the course description, students will “explore governmental regulation of sexuality and reproduction in the United States. We will focus on regulation aimed at sexual activity, reproduction and sexual orientation, with particular attention to the constitutional protections afforded in those areas.”

As The BLT notes, the course will likely touch on the very subject — abortion — that has led Repubicans to filibuster her  nomination. From 1988 to 1993, Johnsen was legal director of the abortion-rights group NARAL Pro-Choice America from 1988 to 1993. She authored an amicus brief in the major Supreme Court case Planned Parenthood v. Casey (1992).

The BLT asked what would happen if the Senate were to confirm Johnsen while she’s teaching. O’Leary said the law school’s dean, Lauren Robel, and Johnsen have been working on back-up plans. If she’s not confirmed before the fall break, Johnsen could still likely complete the semester.

Jonhsen’s nomination was reported out of the Senate Judiciary Committee on March 19.

A CQ report raising the possibility President Obama will make a recess appointment of controversial Office of Legal Counsel nominee Dawn Johnsen over the Memorial Day break appears to be pure speculation.

Dawn Johnsen

In the story, CQ reporter Kathleen Hunter asks various Senate Republicans and Democrats to respond to the possibility of a recess appointment. Newsflash: Republicans hated the idea. But Democrats either had no comment or said they hadn’t heard any such talk.

We checked and feel confident the White House has no plan to appoint Johnsen during the Memorial Day break. The Indiana University law professor’s confirmation has been delayed by conservative Democrats and Republicans uneasy over her past abortion-rights advocacy and legal work.

The Constitution gives presidents the right to appoint executive branch officials who can’t win Senate approval during a recess of the chamber. President Bush did it a lot over the last eight years, stirring resentment among Democrats. Recess appointees can only serve until the end of the two-year Congress in which they were appointed.

    

 

 

 

 

Image via CAP Action Fund

In what is shaping up to be a heated confirmation battle for a key Justice Department post, the Senate Judiciary Committee formally recommended former Clinton administration official Dawn Johnsen to head the Office of Legal Counsel, splitting 11-7 along party lines.

Johnsen, a noted American Constitution Society blogger and anti-torture activist who spent five years in Clinton’s OLC, has drawn fire from conservatives for her past work with the American Civil Liberties Union and the National Abortion and Reproductive Rights Action League (now NARAL Pro-Choice America). Sen. John Cornyn (R-Texas), joining a chorus of conservative voices that include Rep. Steve King (R-Iowa); and National Review’s Andy McCarthy, has voiced opposition to the nomination.

“As I see it, Dawn Johnsen has not demonstrated the seriousness and necessary resolve to address the national security challenges we face,” said Cornyn, telling the Legal Times that he would fight to prevent Johnsen’s confirmation in front of the full Senate. But in a sign the former National Republican Senatorial Committee Chairman may be more interested in scoring political points out of his opposition to the unabashedly liberal nominee than evaluating her fitness for office, he made only a brief appearance at her February 25th confirmation hearing before the Senate Judiciary Committee and posed no questions.

Sen. Arlen Specter (R-Penn.), the ranking Republican on Judiciary, abstained from voting, citing his desire to see Johnsen get a vote in front of the Senate. The 79-year-old Specter faces a potentially tough Republican primary fight in his re-election campaign next year. Many centrist Republicans are believed to have changed party registration to vote Democratic in last year’s presidential election, skewing the Pennsylvania GOP primary more conservative.

Specter now appears to be pivoting on some of his moderate positions. Although he supports abortion rights, Specter at Johnsen’s confirmation hearing questioned her about a footnote in a 1989 amicus brief she co-authored that drew parallels between unwanted pregnancies and slavery. Johnsen said she does not believe that abortion restrictions violate the Thirteenth amendment against involuntary servitude. Democrats need only the support of a handful of moderates like Specter for the nomination to succeed.

Johnsen’s fight to lead the Office of Legal Counsel is not without precedent – Steven Bradbury, whom former President Bush nominated in 2005 for the position, was never confirmed by the Democratic 110th Congress. The author of controversial secret legal memos that authorized harsh interrogation techniques against terrorism suspects, Bradbury served as acting head throughout his 4-year tenure. This politicization is not surprising, as some have called the office “more important to the war on terrorism than the attorney general.” The OLC gives the executive branch guidance for acting within legal and constitutional bounds.

No date has been set for Johnsen’s confirmation vote in front of the Senate.