Posted by Orin Kerr:
Responding to the National Review on Eric Holder:
http://volokh.com/archives/archive_2008_11_16-2008_11_22.shtml#1227121128
The [1]National Review Online has posted an editorial criticizing
Obama's apparent pick of Eric Holder as Attorney General. NRO's bottom
line: "To be blunt, Holder is a terrible selection. If there�s any
Obama cabinet nomination that Republicans feel moved to oppose, this
should be it."
NRO makes two basic arguments against Holder. First, he is a
"conventional" liberal. According to NRO,
[Holder] is convinced justice in America needs to be �established�
rather than enforced; he�s excited about hate crimes and
enthusiastic about the constitutionally dubious Violence Against
Women Act; he�s a supporter of affirmative action and a
practitioner of the statistical voodoo that makes it possible to
burden police departments with accusations of racial profiling and
the states with charges of racially skewed death-penalty
enforcement; he�s more likely to be animated by a touchy-feely
Reno-esque agenda than traditional enforcement against crimes; he�s
in favor of ending the detentions of enemy combatants at Guantanamo
Bay and favors income redistribution to address the supposed root
causes of crime.
In any other time, Holder would simply be an uninspired choice.
But these are not ordinary times � we face a serious, persistent
threat from Islamist terrorists. At the same time, Democrats have
expressed outrage over both the alleged politicization of the
Justice Department and the reckless disregard of its storied
traditions. For these times, it is difficult to imagine a worse
choice for AG than Eric Holder.
I don't know Holder well (I once shook his hand, I think), and I
don't have any particular reason to defend him. But I don't quite
follow the argument here. Holder's views sound a lot like
President-Elect Obama's, which are in turn more or less the views you
might expect to be held by a Democrat appointee. Isn't that what you
would expect from a Democratic President? Of course, you don't have to
vote for the Democratic nominee: I didn't. But the Democrat won, and
surely the standard for measuring who would be a good pick for AG has
to factor this into account. Also, to the extent the NRO is arguing
that Holder is too political or somehow has "recklessly disregarded"
DOJ's traditions, the editorial hasn't even bothered to provide
evidence for it. (Having served under Holder myself at DOJ for 2 and a
half years, I can say that I never thought of him as political.)
Next, NRO argues that Holder played too much of a role in
controversial pardons and commutations that President Clinton granted.
The lead example is of the Marc Rich pardon, which was the subject of
a Congressional report that labeled Holder's role "unconscionable."
But the NRO leaves out that the report was directed by Dan Burton, a
ferocious Clinton critic who was famous for believing that Vince
Foster was murdered (you may recall Burton as the guy who reenacted
[2]Foster's death in his backyard by shooting a pumpkin that was
supposed to stand in for Foster's head in order to help show Foster
must have been murdered). A report championed by Dan Burton hardly
seems like a neutral source for a judgment like that.
More broadly, the idea that Holder somehow furthered the Rich pardon
to help himself become AG never quite made sense to me. Holder was
already a natural pick for AG in a Democratic administration, and it's
unclear why he would have thought that helping Jack Quinn with a
private client would help get him that job -- or how giving the pardon
that the President wanted to grant a "neutral leaning favorable"
review would be a way of helping Quinn. The story just doesn't make
sense. I am certainly open to hearing more about it: Maybe there are
details to the story that remain unknown that make the criticism of
him more understandable. I trust the confirmation hearings will go
through these issues again, and that certainly seems fair. But based
on what we know so far, the case that Holder's conduct was
"unconscionable" seems pretty weak to me.
I recognize, based on yesterday's post on Holder, that this post is
likely to enrage a number of our more partisan Republican readers.
Holder is a "Dem," after all, and some Republicans are eager to get
back in the aggressive posture of attacking the Dems with whatever
they can. But in my experience, Holder was an honorable and apolitical
public servant. It might serve Republican party interests to go on the
attack against him, but it doesn't strike me as either fair or
honorable to do so.
References
1.
http://article.nationalreview.com/?q=YmM1OGM4OGRiNTI5NTIzOTFkMDAwMTJiNGFlYWFiZGI=
2. http://en.wikipedia.org/wiki/Dan_Burton#Vincent_Foster
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
