Revisiting Dawn

Events go by with ever-increasing speed. The always-valuable Scott Horton takes a look back on Barack Obama's dumping of Dawn Johnsen.

Why did the Obama White House and Democratic Senate leadership allow the Johnsen nomination to die?

It seems to me that there are three explanations, each applicable to some extent.

1. Obama has largely adopted Bush-era policies in the “War on Terror.” True, Obama has distanced himself from torture, extraordinary renditions, and a handful of other extreme projects. But the broad expanse of Obama policy can hardly be distinguished from that of its predecessor. Johnsen was one of the principal intellectual authors of the critical views on legal policy that Barack Obama embraced and articulated on the campaign trail. This has produced a sense of awkwardness within the White House about the Johnsen nomination, a sense that has grown more acute with the departure of prominent figures like Greg Craig and Phil Carter, who were strong exponents of the official campaign-era Obama viewpoint. How would Johnsen view the deal that Rahm Emanuel is working out with Lindsey Graham about trials before the Guantánamo military commissions, for instance? It would be hard to imagine her advocating horse trading surrounding criminal prosecutions, and indeed, it would be hard to imagine any career Justice Department lawyer who wouldn’t be sickened by the whole approach. Yet at this point, the White House seems close to embracing it.

2. The Obama White House knows its priorities. Rahm Emanuel and David Axelrod settle on them. The agenda started with health care reform, moved on to arms control on the foreign policy side, and banking reform on the domestic. Immigration reform is lurking in the background. But those big legal policy issues that were the center of such a flurry in the Bush years? Barack Obama may be a lawyer and a law professor, but his staff doesn’t reflect much attention to legal issues. It even shows some contempt for them. The Bush White House viewed the Justice Department as a vital political tool—it would protect controversial policy choices by issuing secret opinions, silencing would-be whistleblowers, going after political opponents, and suppressing votes—but the Obama White House seems to view most of these matters as a distraction.

3. But the Dawn Johnsen problem is not peculiar to Dawn Johnsen. Notwithstanding its historical majority in the Senate, the Obama team has been slow to push through nominees for appointed positions requiring confirmation, especially including senior posts at the Justice Department and judgeships. Normally, one would expect the push to come from the White House, well-coordinated with the Senate leadership. But Rahm Emanuel seems not to recognize that his job portfolio includes orchestrating the confirmation of nominees. They are apparently supposed to wade their way through the Senate on their own, and they are abandoned at any sign of resistance. The Bush team got its appointees in place, quickly, by hook or by crook. Indeed, whereas Johnsen had majority support in committee and perhaps 60 votes on the floor, her predecessor, Steven Bradbury, had a majority in opposition in committee and on the floor. But that didn’t stop the Bush team for a second. Bradbury was given an acting appointment and then kept in place through various acts of administrative legerdemain through the end of Bush’s term. Democratic attempts to obstruct other appointees were loudly opposed with appeals for an “up or down vote.” The era of Rahm Emanuel and Barack Obama seems surprisingly weak-willed and inept, on this score at least.

Each of these factors points to a White House staff with weak governance instincts balanced by a love for legislative intrigue. In both respects, it compares poorly with its predecessor in its understanding of the art of governance.