WASHINGTON — As American warplanes dropped bombs on Libya in June 2011, lawmakers accused the Obama administration of usurping Congress and violating the War Powers Resolution. From his office in the Pentagon's E-Ring, Jeh Johnson, then general counsel at the Defense Department, penned advice to the president: Go to Congress for approval.
The president didn't agree, siding with aides who argued that without boots on the ground, the strikes did not constitute "hostilities" under the law, two former government officials familiar with the deliberations recalled.
But Johnson's dissent may pay off now: It won him some fans among Republicans in Congress, and they haven't forgotten. On Wednesday, Johnson, President Obama's pick to run the Department of Homeland Security, appears headed for something few high-profile Washington nominees receive these days: a smooth confirmation hearing.
At a time when the Obama administration is finding it nearly impossible to confirm some nominees to appeals courts and federal agencies, including the Homeland Security Department's No. 2 slot, Republicans do not appear to be planning the kind of opposition and hearing-room theatrics that, Democrats say, turned Obama's nomination for CIA director, John O. Brennan, into a circus. Senators pressed Brennan on the U.S. drone program during his confirmation hearings, and Sen. Rand Paul (R-Ky.) delayed a floor vote with a nearly 13-hour filibuster in March.
Just Tuesday, Senate Republicans blocked another nominee to the U.S. Court of Appeals for the District of Columbia Circuit, Cornelia "Nina" Pillard, a Georgetown law professor.
In February, Chuck Hagel became the first Defense secretary nominee to face a Senate filibuster, all the more striking given that he is a former senator as well as a Republican. Confirming Obama's choices to lead the Labor Department and Environmental Protection Agency in July required a Democratic threat to unleash the "nuclear option" to change Senate filibuster rules.
There are no guarantees that Johnson's hearing will be without bumps. A spokesman for Paul said he would inquire about "what role [Johnson] played in formulating and approving unconstitutional government surveillance policies."
Sen. Lindsey Graham (R-S.C.) has threatened to hold up all nominations until the administration satisfies his request for more information about the Sept. 11, 2012, attacks on a U.S. diplomatic compound in Benghazi, Libya, that left four Americans dead, including the ambassador.
And Rep. Michael McCaul (R-Texas), chairman of the House Homeland Security Committee, on Tuesday called Johnson a Democratic "hack" and "the president's lawyer," citing Johnson's support for Obama.
But other Republicans are praising Johnson's resume and style. If confirmed, the New York native would become the third African American in Obama's Cabinet and head of the government's third-largest department.
"Lindsey and I are getting some of the information we need," Sen. John McCain (R-Ariz.), the second-ranking Republican on the Homeland Security Committee, said last week. "He's a very outstanding individual. Highly qualified."
Republican congressional staff from both chambers described Johnson, 56, as a candidate with strong national security credentials and, more important, a knack for making lawmakers feel they are being heard. During meetings with Congress members in Washington, Johnson has been known to stop to ask if he can take notes on what lawmakers are saying.
"He's very effective at reaching across the aisle, dealing with issues on the merits and building trust," said Roger Zakheim, the former general counsel of the House Armed Services Committee, which has oversight over the Pentagon. "That makes him uniquely suited for the job."
Johnson won strong endorsements from major law enforcement groups and military leaders, as well as George W. Bush administration Atty. Gen. Michael Mukasey and former Defense Secretary Robert Gates, who served under both Bush and Obama. On Tuesday, all three previous Homeland Security secretaries, including two Republican appointees, urged the Senate to confirm Johnson.
Even when Republicans have had policy disagreements with Johnson, who helped the Pentagon navigate the repeal of the "don't ask, don't tell" policy that had prevented gays from serving openly in the military, they say they respect his commitment to protecting the military and his willingness to voice his opinions.
Zakheim thought Johnson's recommendation that the president go to Congress on Libya showed "integrity" and that Johnson could become a Homeland Security secretary who is "comfortable enough to express his opinions."
Sen. Thomas R. Carper (D-Del.), chairman of the Senate Homeland Security Committee, said in an interview that colleagues on the Armed Services Committee who worked with Johnson were "respectful" of the role he played at the Pentagon. He predicted that lawmakers would approach Johnson's confirmation with "an openness that is frankly better than we're doing in some other nominations."
That Johnson could face such a relatively smooth path in the Senate runs counter to the history of confirmation battles this year.
When Janet Napolitano announced her intent to resign as Homeland Security secretary to take the helm of the University of California system, Democrats worried it would be hard to confirm a replacement.
The department already has several vacancies among its top ranks. The nomination for the No. 2 job, deputy secretary, has been held up by Republican concerns about a pending inspector general investigation over whether the candidate, Alejandro Mayorkas, interfered in a visa program for foreign investors. Mayorkas is the current head of U.S. Citizenship and Immigration Services.
The positions at the head of Immigration and Customs Enforcement, which manages deportations, and Customs and Border Protection, which patrols the borders, have not been permanently filled.