The Dawn at Stevens’ Sunset?

Johnsen

Today was a day for celebrating the service of Justice John Paul Stevens.

Today was a day for considering the impact of Stevens’ work on American law.

Today was a day for contemplating who could enter the Court in the fall and take his vote, if not his place.

Today was not a day for questioning whether the President would have the wherewithal to make his constitutional vision a part of America.

And yet, with the end-of-the-day announcement that Dawn Johnsen, the president’s nominee to head the Department of Justice’s Office of Legal Counsel, was withdrawing her name from consideration because of Senate inaction, that question — among legal thinkers on the left and the right — has been pushed into our focus as this week draws to a close.

Do not misinterpret my concern. I have argued — and still believe — that a convincing case could be made that a recess appointment is inappropriate for the head of the Office of Legal Counsel, particularly when, as Johnsen noted in her statement today, a goal that she brought with her to the nomination was the depoliticization of the OLC.

My specific concern is not only that she has withdrawn, although that fact upsets me greatly. The very serious concern I am discussing here is an admittedly more political one — that the White House allowed this to happen today.

Dawn Johnsen’s principled stand against executive overreaching was what led presidential power critics like Glenn Greenwald to be thrilled with her nomination.

There is no such thing as take-out-the-trash day for legal-political blogger-critics. The OLC job is out of the way enough that John Yoo is still teaching and Jay Bybee was able to leave the executive and enter the judiciary without incident, despite the questionable — if not actionable — activities in which they engaged while working there. Among those people for whom this position matters, though, there was no real benefit to be gained by making this move today.

There are, however, two important and related but distinct disadvantages.

For the administration, on this day, to allow for the Johnsen news to disempower liberal legal thinkers and advocates is an incalculably short-sighted political misstep. It is right at this very moment when the administration needs these people most. To allow for Johnsen’s nomination to come to an end today can only be offset with the news of a Supreme Court nominee likely to gain as much praise on the legal left as did Johnsen. (The only sure bets there would be Pam Karlan or Goodwin Liu, in my view.)

What’s more, this has empowered the very people on the legal right who the administration has the least interest in seeing empowered today. There is nothing to be gained by having the opponents of Dawn Johnsen’s nomination coming down off the ego and power of victory right as they are gearing up to come at Obama’s nominee — regardless of who it is — with all their might.

As everyone at this point is well aware, I have significantly more trust in the Obama administration’s legal strategies and political tactics thus far than have many others. I have criticisms, but I also believe that much of their work has been done with a keen eye both to the legal and political realities of the system in which they find themselves.

This afternoon’s announcement about Dawn Johnsen, however, gives me pause just as the administration is asking liberals — and the nation — to trust Obama’s judgment the most, as he selects his second lifetime-tenured nominee for the high court.

Popularity: 18% [?]