Six months ago today, I wondered aloud on this blog when President Obama might nominate a new Legal Adviser. At that point, the position had been vacant for over a year since Harold Koh stepped down in January 2013. The Administration has now been without a Legal Adviser and the Legal Adviser’s office has been without a confirmed head for over eighteen months, the longest vacancy in recent memory. Even if the President nominates a Legal Adviser this week before the Senate goes on recess, the nominee might well not be confirmed until 2015.
To be clear, this is not a case where the Senate has been slow to act on a nomination. The President has simply failed to nominate a Legal Adviser (after he withdrew his nomination of Avril Haines in June 2013 and instead appointed her as Deputy Director of the CIA). As I noted in January, this is surprising for a President who was a law professor and who touted his strong commitment to international law. The absence of a confirmed Legal Adviser has made it more difficult for the Administration to engage as forcefully as it might to defend U.S. legal positions on drones and NSA surveillance, to criticize other countries who have violated international law (such as Russia for its annexation of Crimea and Syrian President Assad for his use of chemical weapons), or to push important treaties (such as the UN Disabilities Convention) through the Senate.
This is not to detract from the very fine work done by Mary McLeod, the Principal Deputy Legal Adviser who has led the office for the last eighteen months (and who served as Acting Legal Adviser for as long as permitted under the Vacancies Act). But it is much more difficult for an unconfirmed, career official to deliver forceful bilateral messages or defenses of Administration positions, to give major public speeches on international law, or to make use of social media (such as blogging) in the manner that both Harold Koh and I were able to do.
The names of a several qualified candidates have been circulating for many months. If President Obama and the White House are serious about their commitment to international law, the President must nominate a new Legal Adviser – either Mary McLeod or another experienced candidate – in the next few weeks.