President Barack Obama has no plans to use his constitutional power during the next Congressional recess to appoint either of two legal policy nominees whose views have raised concerns among a handful of Democrats.
For weeks, the nominations of Dawn Johnsen to become the head of the Justice Department's Office of Legal Counsel, and Harold Koh, to be the State Department's chief legal adviser, have been stalled. There simply aren't enough Democrats who will support either of them. Pro-life activists object to Johnsen's work as a chief counselor to NARAL, and a handful of conservative lawyers believe that Koh, a self-described "transnationalist," would gove too much weight to foreign legal interpretations. Sen. Ben Nelson (D-NE) has cited Johnsen's pro-choice activism in announcing his opposition. Opposition to Koh is more diffuse, although it's not clear whether most senators have taken the time to read the body of Koh's work, which has drawn praise from very prominent conservatives.
The held-up nominations have rankled Democrats; Johnsen has been an outspoken opponent of the legal rationales used to justify controversial Bush administration policies, and Koh's work on national security law has influenced a generation of Obama appointees. Activist Democrats suspect that the White House is slow-walking the nominees because they would -- or could -- stoke the embers of a re-lit cultural firestorm. It is true that the White House isn't playing hardball with senators who oppose the two nominees.
The true culprits, though, are Republicans, who refuse to allow the Democratic majority to pass the nominees through the Senate by unanimous consent, which would require 50 votes. Non-unanimous consent implies a full debate, which Republicans intend to use to reduce the policy-making energy of the Democratic majority. If the Democrats bring a controversial nominee to the floor, Republicans will filibuster, knowing that there aren't 60 aye votes. That would eat up precious legislative time.
Obama's press secretary, Robert Gibbs, said that the President would not make a recess appointment.