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Nelson Never Asked For Johnsen Confirmation Vote

The Indianapolis Star has a fascinating tidbit in the ongoing Dawn Johnsen saga:

Sen. Richard Lugar, R-Ind., has said he is likely to vote for her, which would give Democrats the 60 votes they need for confirmation if all Democrats stick together. But while Sen. Arlen Specter, D-Pa., recently reversed positions and said he would vote for Johnson, Sen. Ben Nelson, D-Neb., has not said how he’ll vote.

Nelson said Wednesday that he doubted Johnsen’s nomination would be brought to a vote.
“We have to let the administration decide what they want to do,” Nelson said. Asked if he has told the administration whether he’d vote for Johnsen, Nelson said he hasn’t been asked.

It’s possible that the President didn’t want to force anything on Nelson during the touchy health care negotiations. It’s also possible that Nelson is misremembering here. However, voting to confirm Dawn Johnsen is not the stuff of attack-ad material three years down the road for Ben Nelson. So how can you possibly explain this admission, and not the first, that the Administration isn’t even inquiring about vote totals for their own appointees or initiatives (remember Joe Lieberman saying that the President never asked for his vote on the public option)?

I think you can chalk this up to rank incompetence on the part of the White House political operation. It’s really the Occam’s Razor explanation. There’s another one which will probably be proffered. We now know that the FBI repeatedly broke the law in acquiring phone records, doing as little as putting names on a Post-It Note for AT&T to compel the release of various call searches. And we know that, while the FBI illegality happened under the Bush Administration watch, an Inspector General report revealed that the Obama Justice Department produced an OLC opinion indemnifying it:

The FBI kicked the telecoms out of its offices in 2007, saying the bureau and telecom employees had become too comfortable working together.

The Obama administration retroactively legalized the entire fiasco through a secret ruling from the Office of Legal Counsel nearly two weeks ago.

That’s the same office from which John Yoo blessed President George W. Bush’s torture techniques and warrantless wiretapping of Americans’ communications that crossed the border.

Russ Feingold, Dick Durbin and Ron Wyden are seeking that secret OLC opinion now. And it’s plausible that no such opinion would be issued under Dawn Johnsen. Of course, John Yoo wasn’t the head of the OLC – he was just a midlevel operative who was found to produce the opinions desired by the White House. And the same could have happened in this case.

This is over now, however. And the Obama Administration submitted Johnsen’s name for re-nomination to lead the OLC. In fact, her re-nomination is moving – the Senate Judiciary Committee will consider it on Thrusday at their meeting. There is simply no decent explanation for why the White House would make life deliberately harder on themselves by installing a civil liberties advocate in a position they would then seek to constantly circumvent.

No, the better explanation for this is that the White House political operation, obsessed with remaining “above the fray” and untainted by Senate process, simply doesn’t do its job, even with its own nominees, unless they are Masters of the Universe charged with saving the economy like Ben Bernanke. The word “malpractice” comes to mind.

UPDATE: Sam Stein reports that Administration officials are disputing Nelson’s claim that he was never asked for his vote. I would agree that Lieberman and Nelson are untrustworthy, unreliable narrators, though this nomination should have been done ages ago – Arlen Specter’s vote was probably secure for months.

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David Dayen

David Dayen

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