A World of Answers in the Fate of Dawn Johnsen

If you're looking for clues to Barack Obama's likely nominee for the Supreme Court, or just an explanation of his penchant for betraying the liberalism that got him elected, you'll find it in the fate of his withdrawn nominee to head the Office of Legal Counsel, Dawn Johnsen.

bmaz at Firedoglake begins:

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.

You want to know why the Obama White House killed their own nomination of Dawn Johnsen? Glenn Greenwald put it so well that I cannot improve on it and will just adopt and incorporate his spot on words:

Vvirtually everything that Dawn Johnsen said about executive power, secrecy, the rule of law and accountability for past crimes made her an excellent fit for what Candidate Obama said he would do, but an awful fit for what President Obama has done.

SNIP

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”?

I find it virtually impossible to imagine Dawn Johnsen opining that the President has the legal authority to order American citizens assassinated with no due process or to detain people indefinitely with no charges. I find it hard to believe that the Dawn Johnsen who wrote in 2008 that “we must regain our ability to feel outrage whenever our government acts lawlessly and devises bogus constitutional arguments for outlandishly expansive presidential power” would stand by quietly and watch the Obama administration adopt the core Bush/Cheney approach to civil liberties and Terrorism. I find it impossible to envision her sanctioning the ongoing refusal of the DOJ to withdraw the January, 2006 Bush/Cheney White Paper that justified illegal surveillance with obscenely broad theories of executive power. I don’t know why her nomination was left to die, but I do know that her beliefs are quite antithetical to what this administration is doing.

There is your answer. In brutal black and white. And progressives better wake up and start paying attention, because what you see here is extremely telling about the mindset and backbone, or severe lack thereof, the Obama White House has for the coming nomination and confirmation battle to replace Justice Stevens. If past is prologue, we are on the cusp of shifting the ideological balance of the Supreme Court severely to the right – under a Democratic “liberal” President.

At Down with Tyranny, KeninNY makes the connection to Senate obstructionism.

Well, this administration has more or less built an automatic ejection dock from which it can throw its nominees under the bus whenever the occasion arises, meaning anytime conservatives complain that one of his nominees is "too liberal."

Does the administration really believe that it has accomplished anything by captulating to the obstructionists? As often as the president has done so since taking office, can anyone think of a single instance in which he has reaped any reward? Certainly not from the opponents, who smack their lips in triumph at each additional indication that they can get this fellow to roll over just by looking at him crossly. You can see them mouthing gleefully, "We own him!"

SNIP

Wouldn't this have been a jolly time to make any recalcitrant senators understand that this is the way things are going to work now, and they had better all understand that or they can be next? But of course Master Rahm only plays hardball with people to his left, which means most everyone with a working brain who hasn't been bought by the megacorporate thugs who own him.

And of course this president doesn't work that way. He's "postpartisan." Meaning he'll concede just about anything to Republicans and ConservaDems.

And finally, Zandar and SteveM disagree on the meaning of yesterday's kerfluffle over gossip about Solicitor General Elena Kagan.

Zandar:

Which means the odds of Elena Kagan actually being President Obama's pick as a Supreme Court nominee just became all but certain. The White House went white-hot on the attack this morning, and that absolutely has to mean that Kagan is Obama's choice for the high court. To move this hard, this fast on killing this rumor (once again, Kagan's sexual preference should not matter, but politically the GOP will crucify her for it and they can filibuster her) means that the White House has just invested a lot of political clout in somebody who, up until now, may be the nominee to the Supreme Court.

SNIP

The real story is that the White House said from beginning that they did not want a nasty fight, and wanted an easy confirmation process with an obviously qualified nominee (of which Kagan is). And yet, the White House has now absolutely signaled a fight for Kagan even before she is presumably going to be announced as Obama's pick.

If the White House is fighting this hard for Kagan, why are they not in fact picking a more obviously more liberal nominee and taking the same level of fight to the GOP?

That's the story. The White House leaned towards Kagan to avoid a fight. But within hours of the CBS story on Kagan, the White House went full-bore in her defense.

Which mean the White House said "screw you" to progressives. Again. Here's hoping that Kagan's not the nominee and that Obama surprises us all.

I wouldn't count on it however.

Steve M. predicts that Kagan won't be the nominee, and responds:

This is a White House that won't defend nominees' and appointees' progressive principles, but will defend Kagan on this. I think that's because this administration simply doesn't go to the mat for progressivity, either out of an insatiable (and futile) desire to make nice or because of a lack of genuine commitment to uncompromised liberalism. The Kagan situation is different. She's not, as Domenech described her, an out lesbian. So this is personal, not ideological. The Obama White House is fighting harder because it will go to the mat where ideology isn't the issue.

If anything, I'd say that the hospital visitation rule change might be a sign that Obama is going to pick someone everyone's sure is straight -- he's made one inroad for gay people, and to me that may be a signal that he wanted to placate gay and gay-friendly voters and then run far away from the issue in this confirmation battle.

I could be wrong, but I'm just offering an alternate reading. And in answer to Zandar's question...

If the White House is fighting this hard for Kagan, why are they not in fact picking a more obviously more liberal nominee and taking the same level of fight to the GOP?

... it's because that would be a fight on ideology, which is not something the White House wants (and is something the White House thinks it can avoid).

This White House doesn't cave to the repugs and Blue Dogs on warmongering and corporatism because it's afraid or spineless; it caves to the repugs and Blue Dogs because it agrees with them.