Executive Nominations

  • July 25, 2011

    by Amanda Lynch

    Law professors “have received a relatively chilly reception in Washington of late, at least when it comes to high-profile positions that require the blessing of the Senate,” reports The National Law Journal. That has taken some by surprise, given the President’s own academic background.

    The Journal highlights the stalled bids of federal judicial nominees Goodwin Liu and Victoria Nourse and executive branch contenders Elizabeth Warren and Dawn Johnsen, all law professors who were opposed by Republicans. The blocking of UC Berkeley law professor Liu’s nomination to the Ninth Circuit Court of Appeals prompted UCLA law professor Adam Winkler to make a similar point about academics’ prospects before the Senate in May. In a guest post for ACSblog, Winkler wrote:

    Even if a law professor scores a nomination, today’s highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn’t unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don’t reflect her personal views but were required by precedent. Law professors don’t have that easy out – as Liu’s case shows.

    Winkler expressed concern that law professors with judicial aspirations will be deterred from writing frequently, discussing controversial topics, and speaking out, a fear that Indiana University law professor Dawn Johnsen, whose nomination to head the Office of Legal Counsel was filibustered, urged young lawyers to resist.

    “In the current climate, even if you attempt a crass political calculus about how to live your life, you may as well say what you think, because they can always find a footnote to twist and distort in a 20-year-old brief," Johnsen, an American Constitution Society Board Member, said during the 2010 ACS National Convention.

  • May 10, 2011

    Senate Republicans yesterday blocked a confirmation vote on James M. Cole, who has been serving as Deputy Attorney General for months via a temporary recess appointment, The Washington Post reports.

    By a vote of 50 to 40, the Senate voted against invoking cloture, rejecting Senate Majority Leader Harry Reid’s attempt to force an up-or-down vote on Cole (pictured right). Cole was first nominated almost a year ago, and has waited “longer for confirmation than any previous nominee for the post in 30 years,” according to The Post.

    “The delay in confirming Mr. Cole is ridiculous,” an editorial in The Washington Post asserted before the vote, urging an end to this “unacceptable confirmation delay” because of his “condemnation of Bush-era anti-terrorism tactics.”

    If Cole is not confirmed by the Senate, his term will expire at the end of this year. In the meantime, “[o]nly a Senate-confirmed Deputy Attorney General can exercise certain national security authority, such as signing off on applications for surveillance warrants to the Foreign Intelligence Surveillance Court,” Main Justice explains.

    “It is hard to believe that one week after the successful operation that killed Osama bin Laden, the world’s number one terrorist, we cannot take this step to ensure that President Obama has his full national security team in place,” Senate Judiciary Committee Chairman Patrick Leahy said in a statement.

    The Senate Judiciary Committee had more success yesterday in moving nominees forward, approving Bernice Bouie Donald for a seat on the U.S. Court of Appeals for the Sixth Circuit, Virginia Seitz (pictured left) to head the Department of Justice’s Office of Legal Counsel and Denise E. O'Donnell to head the DOJ’s Bureau of Justice Assistance. These nominees are now ripe for consideration by the full Senate.

    Seitz, a frequent ACS participant and a partner in Sidley Austin's Washington, D.C. office, is President Obama’s second nominee to head the Office of Legal Counsel. Obama’s first nominee, ACS Board Member and constitutional law professor Dawn Johnsen, withdrew her nomination after a sustained Republican filibuster threat that lasted fourteen months.

    Last June, she wrote an op-ed in The Washington Post emphasizing the urgency of filling the position with a confirmed nominee after six years in limbo.