As John discussed earlier this evening, Dawn Johnsen, President Obama’s nominee for head of the Justice Department’s Office of Legal Counsel, has withdrawn. When members of one party oppose another party’s nominee on ideological grounds, they almost always claim that the nominee is “outside the legal mainstream.” Sometimes the claim is valid; other times it is not.
In Johnsen’s case we know the claim is valid because she could not be confirmed by a Senate that during the second half of last year contained 60 Democrats and thereafter contained 59. And, to my knowledge, she is the only Obama nominee for a legal position that the Senate has rejected on ideological grounds. Had Johnsen been in the mainstream, she would have passed the Democrat controlled Senate, as so many other nominees have.
But there is a pending nominee whose views are at least as far outside the mainstream as Johnsen’s – Goodwin Liu. In fact, Liu strikes me as more radical than Johnsen, whose known extremism was largely confined to issues relating to abortion and the war on terrorism. Liu’s radicalism seems more wide-ranging, extending to a host of issues – race, education, welfare, health care – whose common thread is the desire to redistribute income, benefits, and prestige.
Johnsen and Liu are similar in another important respect – both were extraordinarily strident critics of those in whose footsteps they hope to follow. Johnsen made her name by harshly attacking the Bush administration’s Office of Legal Counsel. And she accomplished this not just in the traditional way, through “scholarly” writing, but also in through non-traditional vehicles including blogs.
Liu gained a certain amount of prominence by virtue of his attacks on the Bush administration’s two Supreme Court nominees, John Roberts and Samuel Alito. He argued that their fitness for the Court should be judged, in part, on their ideology which, you guessed it, he claimed was outside the mainstream. In doing so, he set up nicely the argument that will endlessly be used against him.
Liu promoted his cutting edge left-liberal views not just through scholarship but also through his appearances at American Constitution Society events. Like Johnsen, he threw everything he had had into his effort to lead the lawyers’ charge against the Bush administration. In a way, that’s admirable, but it doesn’t exactly grease the skids for Senate confirmation.
Will Liu suffer the same fate as Johnsen? It’s too early to say. However, there are enough similarities between the two to give his opponents cause for hope.
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