So, it was not Ben Nelson who killed the nomination of Dawn Johnsen, nor was it Arlen Specter or Senate Republicans. No, the sole reason Dawn Johnsen is not leading the OLC is that Barack Obama and his coterie of advisors did not want Dawn Johnsen leading the OLC. The Obama Administration cravenly hung their own nominee out to dry, and the reason is almost certainly that she was not compatible with the Administration’s determination to maintain, if not expand, the Bush/Cheney positions on unbridled executive power, indefinite detention without due process as well as warrantless wiretapping and other Fourth Amendment invasions.Obama could have made Johnsen as a recess appointment. He chose not to after 15 months. That was Obama's choice. If he was serious about ending torture and warrantless wiretapping, Johnsen would have been appointed. She was not. Obama chose not to do so. It really is that simple. Glenn Greenwald:
What Johnsen insists must not be done reads like a manual of what Barack Obama ended up doing and continues to do -- from supporting retroactive immunity to terminate FISA litigations to endless assertions of "state secrecy" in order to block courts from adjudicating Bush crimes to suppressing torture photos on the ground that "opennees will empower terrorists" to the overarching Obama dictate that we "simply move on." Could she have described any more perfectly what Obama would end up doing when she wrote, in March, 2008, what the next President "must not do"?It is a toss-up to see which is a larger failure so far in this administration: the failure to fix Bush's legal excesses, or the failure to fix Bush's financial catastrophe. Both will have far-reaching, long-lasting consequences that will haunt us for decades. President Obama has done a lot of good as leader of the free world. But in this respect, he has absolutely failed us as a country.
The Republicans of course would have chosen the same path on warrantless wiretapping and financial regulation. The difference is we would have gotten virtually none of the accomplishments Obama has done. It is however a steep, steep price to pay for real benefits to America like health care reform and nuclear reduction. Serious students of history will be asking if that price was worth it for quite some time to come.
Obama will go down as a conflicted President. He will go down as one who made accomplishments. But these decisions will also haunt him. He will not be remembered as a great President, merely one that came out on the positive side of the balance.
The galling part is after Bush, we needed better. Obama can do some real good with his Supreme Court nomination here to replace Justice Stevens. It is possible he let Johnsen go in order to marshal his capital for a truly liberal nominee. It is possible that's the price he had to pay. I don't know. Republicans will attack whomever he nominates and demonize them as an unconscionable liberal ideologue that must be stopped to save humanity. But he could have appointed Johnsen in recess. He chose not to. He chose to cut Johnsen out. Why was she appointed in the first place?
It is possible that Johnsen had some sort of problem that we aren't aware of. I don't know the full story. I'm merely going with Occam's Razor based on the previous decisions Obama has made. But I will be questioning the cost of this decision in every other action Obama makes now. Do not make the mistake of forgetting that in the end, Barack Obama is a politician. He is better than Bush. He is better than McCain/Palin by an order of magnitude, easily. That is still a shamefully low standard to meet. We need better alternatives than "hideous" and "is not hideous".
Unless you think America is perfectly fine with "is not hideous" in its leadership.
[UPDATE 11:32 AM] Senators like Joe Lieberman are already saying Obama has the opportunity to make the Supreme Court "less liberal". Take that as you will.