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In Limbo: Dawn Johnsen's Nomination Stalls Thanks to Democrats

The most high profile of these undecideds is Sen. Arlen Specter (D-PA) who, upon defecting from the Republican party, voiced brusque opposition to the Obama nominee. But his staff confirmed to me yesterday that he's now considering how he'll vote on cloture, which represents, at least rhetorically, a move away from his earlier position.

And then there's Sen. Ben Nelson (D-NE), who says he finds her nomination troubling. But he also seldom votes to filibuster presidential nominees--including, importantly, a number of controversial Bush administration officials. Several weeks ago, Nelson's spokesman Clay Westrope said Nelson hadn't decided how the Nebraska Democrat would vote on cloture, but that he usually votes yes because "he is against obstruction and believes it is important for each issue to get an up or down vote."

But Nelson was recently dealt a significant blow by the White House and Democratic leaders when they signaled their intent to curb subsidies to student lending institutions.

Yesterday, Westrope said Nelson's position hasn't changed. When I asked him to reconcile Nelson's opposition to "obstruction" and his unwillingness to make a decision on Johnsen, he had no comment. And he bristled at the notion that the expectation is that Nelson will ultimately oppose a filibuster. On Thursday, Sam Stein reported that Nelson "appears to be the key obstacle to her confirmation."

Reid says he won't bring the nomination to the floor until the votes are there--and as you can see the votes aren't there. A Judiciary Committee source says it's leadership's responsibility to whip up the votes, and a spokesman for Senate Minority Leader Mitch McConnell says there's nothing stopping Reid from doing this if his caucus is united. Lugar's spokesman Andy Fisher confirms today that the Indiana senator continues to support both invoking cloture, and Johnsen herself. That puts the onus on Democrats.

Johnsen served as acting OLC Chief under President Bill Clinton. Republicans say their opposition to her is rooted in her work and writings for NARAL, where she served as legal director from 1988 to 1993. But Snowe and Collins, to name two, don't share the party base's...stalwart position on abortion. And the more recent, and more important subtext is that Johnsen was a vocal critic of the Bush-era OLC--the font of the administrations torture and wiretapping policies, which many believe should be investigated by the current justice department.

If the leadership vacuum isn't quickly filled, Johnsen may have to wait until Democrats seat Al Franken (not an easy task in and of itself) to get past the filibuster. In the meantime, Reid hasn't been able to nudge Nelson, or completely turn Specter, and the administration has made little progress getting the Snowe and Collins on board. And so Dawn Johnsen waits.

About The Author

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Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight and the debt limit fight. He can be reached at brian@talkingpointsmemo.com