Despicable

I really, really don’t want to believe this is so. And I really, really, do believe it is. (Emphasis mine.)

Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.

Again, with the “go nuclear.”

And let’s make it clear what this is (assuming it is true). This is not political wrangling, even about the appointees themselves (more about which in a moment); if Obama had nominated Mother Teresa and Ronald Reagan themselves, it wouldn’t change this. This is blackmailing the president, under the table, to set policy or else see appointments perpetually blocked.

And it’s not just “policy” but transparency and, well, discussion of torture.

Republican senators have expressed strong reservations about their promised exposure, expressing alarm that a critique of the memos by Justice’s ethics office (Office of Professional Responsibility) will also be released. “There was no ‘direct’ threat,” said the source, “but the message was communicated clearly—if the OLC and OPR memoranda are released to the public, there will be war.” This is understood as a threat to filibuster the nominations of Johnsen and Koh. Not only are they among the most prominent academic critics of the torture memoranda, but are also viewed as the strongest advocates for release of the torture memos on Obama’s legal policy team.

A Republican Senate staffer further has confirmed to me that the Johnsen nomination was discussed at the last G.O.P. caucus meeting. Not a single Republican indicated an intention to vote for Dawn Johnsen, while Senator John Cornyn of Texas was described as “gunning for her,” specifically noting publication of the torture memos.

Not only would these memoranda be politically embarrassing, but actually could line up some Bush officials (John Yoo in particular) for war crimes charges abroad.

But, remember — the GOP is the party of liberty, of good government, and of law and order. 

As commented elsewhere.

Besides the ugliness of the attacks [on Koh and Johnsen], what the Republicans are doing is really unprecedented. First, the President has traditionally been given deference in the choice of his advisors. If some President wants to have someone in his cabinet, the presumption is that he ought to be able to do so, absent illegality or some sort of manifest incompetence. For the Republican Senators to hold these appointees up not for those reasons, but because they disagree with their policies, is just wrong; if this happened every time a new administration came into office, the opposition party would filibuster half the nominations and no one would never govern at all.

Honestly, I don’t understand (aside from that’s how the Senate passed the law) why these positions require “advice and consent” from Senate in the first place. The top cabinet secretaries? Maybe. Legal counsels? Goofy.

Second, what the Republicans are trying to do is to dictate to the President a matter that is purely his prerogative: deciding whether or not to unclassify documents. This is insane: it’s as though Obama threatened to withhold funding for the Senate unless Mitch McConnell fired some staffer he didn’t like. [UPDATE: Adam Serwer points out that it isn’t even optional: a judge has ordered that the memos be turned over.]

And the combination — holding appointments hostage while trashing people’s reputations in order to keep Obama from making a decision he plainly has the right to make — is unconscionable.

I really, really, really hope Obama doesn’t give in on this. As the GOP kept pointing out to the Dems the last eight years, the obstructionist party get short-term points and long-term penalties in the public eye. Even the whiff of this sort of thing is going to damage the Republicans more than it will show them as brave defenders of, um, something (John Yoo?) against the transparency juggernaut of the White House. Or whatever.

Besides, if he lets them back him down on this, then any of the other initiatives he’s looking to put forward are similarly doomed, and we’ll be stuck with Rule by the Minority Veto for the foreseeable future. Isn’t that part of what doomed the government under the Articles of Confederacy?

This is one more piece of evidence that the Senate is broken. It needs to change its rules. I support keeping the filibuster for judicial nominations, which are for life. I can imagine a world with a sane opposition in which I would support keeping it generally. But this is not that world. At the very least, the rules need to be changed to force people who want to filibuster to actually be present in the Senate chamber.

I find it remarkable that they do not. Filibustering is a valuable last-ditch stand against tyranny of the majority. I’m kind of okay with that. But it’s become so easy to do and so painless to execute, that the GOP — which spent all of the last two presidential terms lambasting the Dems for any hint of filibuster sentiment — are able to wave it about as a weapon far too easily.