On 14 September 2011, the White House announced President Obama’s first appointment to the Court of Appeals for the Armed Forces: career Justice Department attorney Kevin Ohlson. The nomination seemed relatively uncontroversial … but it would languish for more than two years before finally winning Senate confirmation.
Judge Ohlson’s resume was, on its face, impeccable: graduate of the University of Virginia School of Law; former U.S. Army officer and Gulf War veteran; Bronze Star recipient; former Assistant United States Attorney. His career in DOJ included service as chief of staff to then-Deputy Attorney General Eric Holder in the Clinton Administration, and a rise through the ranks in the Bush years, culminating in service as Director of the Executive Office of Immigration Review. From 2009-2011, he was chief of staff to now-Attorney General Holder.
His nomination, however, soon became sidetracked by questions concerning the so-called “gun-walking” operations meant to track the movement and use of firearms by drug runners and organized crime. These operations, which began in 2006, culminated in Operation Fast and Furious, an ambitious and failed program criticized sharply by congressional Republicans. Although Judge Ohlson disclaimed any involvement in Fast and Furious, his nomination stalled and was returned without action to the White House at the end of the 112th Congress.
His rocky road to the bench arguably was simply a part of the ongoing Washington melodrama involving partisan opposition to Presidential nominees, complicated by his long-standing ties to Attorney General Holder, a perennial bête noir of the political right. Despite the initial failure of the Senate to act on his nomination, the President renominated Judge Ohlson in 2013. This time his nomination met with no significant opposition and he was confirmed by a voice vote of the Senate on October 16, 2013. Judge Ohlson’s confirmation came more than a month before the rule change that effectively eliminated the filibuster for lower-court judicial nominees.
With the addition of Judge Ohlson, CAAF returns to its full complement of five judges. It remains to be seen what kind of jurist he will be; but one incident from his days in the Justice Department may offer a clue. As head of DOJ’s Professional Misconduct Review unit, he overruled a 2012 staff recommendation that prosecutors who failed to turn over exculpatory evidence deserved no sanction, ordering both prosecutors suspended without pay. That decision (although subsequently reversed by the MSPB) suggests Judge Ohlson may not be reluctant to call the government to account when dealing with the rights of the accused.