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

For several weeks–while torture revelations have dominated headlines and with the scandal still very much alive–Dawn Johnsen has been waiting. She’s Obama’s pick to head the Office of Legal Counsel–the same Justice Department shop that famously blessed Bush-era interrogation policies–and her strong stance on that issue has united Republicans against her. But that’s not her biggest problem. Her biggest problem is that Harry Reid has not been able to muster enough Democrats to overcome a filibuster threat.

Here are the numbers as they stand right now:

Votes Against Johnsen: 37 Republicans

Votes for Johnsen: 57 Democrats plus Indiana Republican Richard Lugar

Undecideds: Republicans Olypmia Snowe and Susan Collins and Democrats Arlen Specter and Ben Nelson

Reid frames the issue by saying he needs a couple Republicans to cross the line before he has the 60 votes necessary to overcome a filibuster. But as the numbers show, it’s just as much an issue of Reid not being able to muster the entire Democratic caucus in support of Johnsen.

The nomination isn’t dead yet, but with Reid trying to put the onus on the White House to shore up support for the beleaguered nominee and the White House staying mum about what it role in all this is, or should be, Johnsen’s nomination isnt going anywhere fast.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.

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