President Barack Obama has no plans to use his constitutional power during the next Congressional recess to appoint either of two legal policy nominees whose views have raised concerns among a handful of Democrats.
For weeks, the nominations of Dawn Johnsen to become the head of the Justice Department's Office of Legal Counsel, and Harold Koh, to be the State Department's chief legal adviser, have been stalled. There simply aren't enough Democrats who will support either of them. Pro-life activists object to Johnsen's work as a chief counselor to NARAL, and a handful of conservative lawyers believe that Koh, a self-described "transnationalist," would gove too much weight to foreign legal interpretations. Sen. Ben Nelson (D-NE) has cited Johnsen's pro-choice activism in announcing his opposition. Opposition to Koh is more diffuse, although it's not clear whether most senators have taken the time to read the body of Koh's work, which has drawn praise from very prominent conservatives.
The held-up nominations have rankled Democrats; Johnsen has been an
outspoken opponent of the legal rationales used to justify
controversial Bush administration policies, and Koh's work on national
security law has influenced a generation of Obama appointees. Activist
Democrats suspect that the White House is slow-walking the nominees
because they would -- or could -- stoke the embers of a re-lit cultural
firestorm. It is true that the White House isn't playing hardball with
senators who oppose the two nominees.
The true culprits, though,
are Republicans, who refuse to allow the Democratic majority to pass
the nominees through the Senate by unanimous consent, which would
require 50 votes. Non-unanimous consent implies a full debate, which
Republicans intend to use to reduce the policy-making energy of the
Democratic majority. If the Democrats bring a controversial nominee to
the floor, Republicans will filibuster, knowing that there aren't 60
aye votes. That would eat up precious legislative time.
Obama's press secretary, Robert Gibbs, said that the President would not make a recess appointment.
While it is true that the Republican strategy regarding both Dean Koh and Professor Johnson is clearly to delay a vote by the full Senate on their confirmations, it is inaccurate to say “there simply aren’t enough Democrats who will support either of them.” No Democrat has said that he or she won’t support Dean Koh, and with between three and eight Republicans signaling or strongly suggesting that they would support him, he has more than enough votes to override a filibuster and be confirmed. While Senators Kennedy and Byrd may face challenges due to illness in getting to the floor to vote, it is likely that Koh will succeed in being confirmed once Senate Majority Leader Reid schedules a vote on his nomination by the full Senate.
There's more to Koh than just the sovereignty issue, even if every Beltway hack refuses to discuss it.
Here's what they won't tell you about Harold Koh.