[My earlier post regarding the EEOC and NLRB appointments, and Obama's use of recess appointments more generally, can be found here.]
Finally, a brief thought on the “where’s Dawn Johnsen” question.
No one knows today. Certainly many will have views and insights into the reasons why President Obama’s nominee for the DOJ’s Office of Legal Counsel was not among the 15 appointments.
I’d like to add one to the mix.
Johnsen, an eminent and brilliant legal scholar whose appointment I strongly support, is a DOJ nominee, and it’s quite possible that Attorney General Eric Holder — or Obama himself — does not want Johnsen — or any DOJ nominee — to be a part of recess appointments that can and will (rightly or wrongly) be characterized as political. Obama’s statement itself admits the underlying political dispute here, noting that the reasons for the appointments include, as he said in the statement, “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”
In a Justice Department where the Attorney General has asserted that the renewed independence and decreased politicization of the Department are among his key goals for it, it seems to be more than reasonably possible that Obama or Holder (or even Johnsen) might prefer that Johnsen’s nomination not be added into the political mix of Obama’s first recess appointments.
This seems to me to be even more reasonable for the OLC head, considering the recent publication of the DOJ’s Office of Professional Responsibility report on the activities of former officials in the Office of Legal Counsel. The relationship between the White House and the DOJ OLC during the months and years after 9/11 were not always of benefit to our nation, and itself serves as the strongest argument for why the President might not want to take overly political actions regarding his nominee to head up OLC.
In the end, we do not know the reason why Johnsen’s name was not among those appointed today.
It might, however, not be the worst thing that she was not.
[UPDATE: Firedoglake's emptywheel asked the White House why Johnsen was not included today, and got this non-specific response:
Of the 77 people on the calendar, we are only recess appointing 15 and there are a number of qualified individuals the President has nominated that do not fall in this group. If the Republicans do not end their campaign of obstruction, the President reserves the option of exerting his authority to recess appoint qualified individuals in the future, but our hope is that we can move beyond the partisan politics that have held up the process for the last fifteen months for the good of the American people.
Of this, Glenn Greenwald asked me, "If they were motivated (as always) by such noble considerations, why wouldn't they just say so when asked?"
I responded that, assuming my thoughts to be on target, doing so could push the nomination into an unworkable political back-and-forth that wouldn't move it forward. I did, however, note that I remain open to another explanation. And expect, at the least, an alternative argument to come from Greenwald.]
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