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Responding to the National Review on Eric Holder:
The 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 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.
titus32:
I had never heard that Dan Burton story -- pretty hilarious.
11.19.2008 2:05pm
none_ (mail):
dont look now, but you just enabled The Estalishment, or something. paging glenn greenwald...
11.19.2008 2:06pm
therut (mail):
Apolitical?? What does that mean? I have never heard of an apolitical politcal appointment. Of coarse he is political. Good grief. I want to see what he says in his confirmation when asked about the 2nd amendment then I will either see him say he was wrong or wiggle out like a political appointee. Which do you bet it will be???? Honesty or political spin????
11.19.2008 2:16pm
Constantin:
Orin, what are your thoughts on the FALN and Weather Underground pardons, and Holder's reputed involvement in them, per the NRO editorial?
11.19.2008 2:16pm
PLR:
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.

Most of us would not expect NRO to be fair or honorable on political matters, any more than we would expect Mother Jones to be so on economic matters. Both preach only to the choir.
11.19.2008 2:18pm
gee mail (mail):
Seems odd on its face to refer to a political appointee as "apolitical". The opposite is of course not necessarily true either: that he's necessarily some kind of foaming at the mouth rabid political hack, but I don't think anyone would disagree with the idea that the appointees to these high level political offices are indeed political folks.
11.19.2008 2:22pm
AntonK (mail):

"[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."
You have to hold the above views to be a Democratic appointee? You're kidding, right?
11.19.2008 2:24pm
NYU Law Libertarian (www):
An Obama AG wants to enforce a liberal agenda? Crazy. What the hell did NRO think was going to happen? I'm upset about the change in focus that the DOJ is going to take, but I'm sure Holder will go about it in an honest and upstanding way. At least I have no reason (and NRO hasn't given any) why I shouldn't believe this. They should have left Holder out of it and simply criticized the policy choices of Obama.
11.19.2008 2:24pm
OrinKerr:
AntonK,

No, I'm not kidding. I'm curious, will you name the plausible Democratic nominees for AG who would substantially disagree with those views? If you could throw out some names, that would help.
11.19.2008 2:27pm
A.S.:
But the Democrat won, and surely the standard for measuring who would be a good pick for AG has to factor this into account.

No.

Why would it? Why President Bush nominated John Ashcroft, the Democrats surely did take into account the fact that Ashcroft's priorities reflected Bush's priorities. The Democrats (for the most part) opposed Ashcroft merely because Ashcroft had generic Republican priorities for DOJ.

What comes around, goes around. You reap what you sow. [Insert whatever other similar phrases come to mind.]
11.19.2008 2:27pm
A.S.:
Cripes. I hate typing.

*When* President Bush nominated John Ashcroft, the Democrats surely did *not* take into account the fact that Ashcroft's priorities reflected Bush's priorities.
11.19.2008 2:29pm
OrinKerr:
A.S.,

Back when some Democrats made those arguments, they were pretty stupid arguments, and a lot of people were quick to point that out. Is your argument that Republicans should now seek to make stupid arguments, too?
11.19.2008 2:30pm
Anon321:
Apolitical?? What does that mean?

I suspect it means primarily that, in Orin's experience, Holder gave legal advice and otherwise acted like someone trying to follow the law and behave professionally, rather than like someone trying to advance his or his party's political agenda. A corrolary might be to Chief Justice Roberts (if you find persuasive his self-depiction as a neutral arbiter): he surely has his own views on policy, and he was nominated and appointed through the political process; but he tries to say what the law is without being unduly influence by his own preferences. Someone who does likewise would generally be considered apolitical in the execution of his duties.
11.19.2008 2:31pm
veteran:
"[Holder] is convinced justice in America needs to be "established" rather than enforced"
"he's more likely to be animated by a touchy-feely Reno-esque agenda than traditional enforcement against crimes"

So we can expect more "justice" resembling say Ruby Ridge, Waco, and Elian Gonzalez.

Ought to be some really fun years.
11.19.2008 2:32pm
Kelly (mail):
Of course Holder is an awful choice to be AG. He's a Democrat. If the American people wanted Democrats to serve in important positions, they would have elected them or something....
11.19.2008 2:33pm
Gary Imhoff (mail) (www):
Orin, your defense of Holder's role in Clinton's pardons is particularly weak. Is the best that you can do an ad hominem attack, on unrelated matters, on the chairman of the committee that issued the Congressional report? I assume that means that you have no answer to the factual statements in the report or to the charges about Holder that the report makes.

Do you agree that Clinton's valedictory pardons were particularly and unusually sleazy, or do you support them? Do you agree that Holder had a leading role in enabling those pardons, or do you dispute that? Why do you believe that his actions in the pardons are irrelevant or unimportant when considering his qualifications as the nation's chief law-enforcement officer?
11.19.2008 2:35pm
sabinefemme (mail):
veteran...just a reminder, Ruby Ridge was under Bush Sr.'s watch.
11.19.2008 2:36pm
GSC:
And at the time of Waco, Holder was US Attorney for DC.
11.19.2008 2:39pm
dgs (mail):
I don't know Holder (or any other important public officials), although I have heard some good things about him. One thing I have found troubling and that may be somewhat consistent with his alleged views about "hate crimes" and his narrow view of free speech rights is his apparent role in the prosecution discussed in U.S. v. Popa, 187 F.3d 672 (D.C. Cir. 1999). He evidently (or at least his office) instigated the prosecution of an individual who called him with some unflattering things to say regarding actions he took as U.S. Attorney in D.C. (and his race) under a statute I believe was almost never utilized that (believe it or not) criminalized making harassing or annoying phone calls annonymously to public officials. The conviction was unanimously reversed. Then-Judge Ginsburg observed that the comments constituted political speech plainly covered by the First Amendment.

I hope the Obama administration does not seek to curtail the free speech rights of its critics. Anecdotal evidence during the campaign is not promising, however.
11.19.2008 2:40pm
OrinKerr:
Do you agree that Clinton's valedictory pardons were particularly and unusually sleazy, or do you support them?

They were incredibly sleazy, I think. That's one of the reasons I voted for Bob Dole in 1996. If Obama wanted to nominate Bill Clinton for AG, I would say "hell no."

But Holder's role in the pardons was minor, as best I can tell: He didn't stop Clinton from doing what Clinton wanted, but it wasn't Holder's pardon. Clinton had the Article II power and made the call, not Holder (assuming you believe in a unitary executive). That's my best understanding, at least.

Also, note that I didn't say that the pardons are irrelevant or unimportant: I agree they should be explored in the confirmation hearings. I just don't see the evidence that Holder played such a significant role in them, or that the role he did play was so particularly significant in determining whether he should be the AG (especially in light of his accomplishments).
11.19.2008 2:42pm
A.S.:
Back when some Democrats made those arguments, they were pretty stupid arguments, and a lot of people were quick to point that out.

Really? Your recollection is surely different than mine. Can you point to some folks - preferably on the left - who said they were stupid arguments?

Is your argument that Republicans should now seek to make stupid arguments, too?

Even assuming, arguendo, that they are stupid arguments, I don't see any reason for the Republicans to refrain from using them if the Democrats didn't. What do Republicans have to gain from being the sole party that refrains from using stupid arguments? Surely some arguments - even if stupid - are effective. And I see no reason not to use stupid but effective arguments.
11.19.2008 2:45pm
Frog Leg (mail):
NR in effect calls Holder a political hack? Did they ever use the same language about Al Gonzales, who is the very definition of a political hack? Was Gonzo an "inspired" choice?

There's only one political hack in this discussion from NR. Unfortunately the hack is the author of the piece.
11.19.2008 2:46pm
CJColucci:
Elections have consequences, as a variety of people used to love to point out.
11.19.2008 2:51pm
Gilbert (mail):

What comes around, goes around. You reap what you sow. [Insert whatever other similar phrases come to mind.] ...


... Two wrongs make a right.
11.19.2008 2:52pm
OrinKerr:
A.S.,

My assumption is that integrity and truth matter to you. If all that matters to you is partisan advantage, integrity and truth be damned, then my mistake.
11.19.2008 2:53pm
AntonK (mail):
Justice needs to be established, not enforced in the US?

Income redistribution to address the root causes of crime?

Orin, no, I know of no names to throw out that could agree with the above positions, and consider myself lucky that I can't. I would think that the positions above would more likely be held by a anti-Proposition 8 protester just back from beating a Nun or two, than by a serious individual.
11.19.2008 2:57pm
Kelly (mail):

Even assuming, arguendo, that they are stupid arguments, I don't see any reason for the Republicans to refrain from using them if the Democrats didn't. What do Republicans have to gain from being the sole party that refrains from using stupid arguments? Surely some arguments - even if stupid - are effective. And I see no reason not to use stupid but effective arguments.


The problem is that such arguments are both stupid and ineffective. Or did I miss where the Democrats had tons of success in opposing Ashcroft's nomination on the grounds that he shared Bush's positions?
11.19.2008 2:59pm
_quodlibet_:
What bothers me the most is that Eric Holder signed on to horrid Brief For Former Department-of-Justice Officials in DC v. Heller.
11.19.2008 3:00pm
Milhouse (www):

Do you agree that Clinton's valedictory pardons were particularly and unusually sleazy, or do you support them?

They were incredibly sleazy, I think. That's one of the reasons I voted for Bob Dole in 1996.

Huh?
11.19.2008 3:00pm
Syd Henderson (mail):

OrinKerr:

Do you agree that Clinton's valedictory pardons were particularly and unusually sleazy, or do you support them?



They were incredibly sleazy, I think. That's one of the reasons I voted for Bob Dole in 1996. If Obama wanted to nominate Bill Clinton for AG, I would say "hell no."


You voted for Bob Dole in 1996 because of Clinton's pardons in 2000?
11.19.2008 3:02pm
A.S.:
So, we've moved from saying that the argument (that Senators are perfectly entitled to hold the nominee's positions against him, even if they are no different than standard positions of his party) is "stupid" to saying that such argument is without "integrity and truth", and that anyone who makes such an argument does not care about "integrity and truth".

Seems pretty clear to me that you aren't interest in a civil discussion, so I'll stop commenting.
11.19.2008 3:04pm
Sarcastro (www):
Yeah, I often find Orin to be so unreasonable EVERYONE thinks he's in the tank for the other side!
11.19.2008 3:08pm
Oren:

"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."

Rumor has it that Obama asked Senate GOP members whether this would be a problem and they said that they would not hold up his nomination. Given that he solicited their input (something W did with Mukasey) it seems too late to complain.
11.19.2008 3:14pm
Oren:
I should add that I fully support a good questioning in the same vein as Mukasey was questioned. But a promise not to delay a nomination ought to be kept.
11.19.2008 3:19pm
wm13:
It seems that the disagreement here is whether it is appropriate and/or effective for members to use confirmation hearings to (a) highlight the unpopular positions of the administration and/or (b) damage nominees' reputations by harping on all instances of dubious behavior that they can find. It doesn't seem like a hard question. Since doing both (a) and (b) is well-established practice, it can't be inappropriate, and it must be effective, or people wouldn't do it. So the Republicans should definitely force Holder to defend his rather unpopular positions on gun control, affirmative action, etc., as well as smearing him with whatever they can on the Rich pardons. I mean, if it is appropriate for Ted Kennedy to highlight the racially-restrictive covenants in the chain of title to William Rehnquist's house, how can Holder's actions not be suitable for dredging up?
11.19.2008 3:22pm
A Law Dawg:
You voted for Bob Dole in 1996 because of Clinton's pardons in 2000?


And Monica and the Dot-Com bust, no doubt.

I think he meant "because Clinton was sleazy."
11.19.2008 3:31pm
Ted Frank (www):
There's no reason to complain about Holder. Given the wide range of possible Democratic Attorney General candidates, there is no reason to think that Obama would replace Holder with someone more favorable to conservatives.

If Holder implements bad policies, let's criticize the bad policies. And let's ask about his plans at his confirmation hearings, and subject those plans to scrutiny. And, sure, use the confirmation hearing to point out that Democratic positions on these issues are not the positions of the American mainstream. But a futile fight to oppose him personally seems pointless. It would be nice to break the cycle of the politics of personal destruction. A president is entitled to put his people into the cabinet, and the time to complain that an Obama administration would have poor public policy positions on the second amendment, affirmative action, and crime was before the election.
11.19.2008 3:36pm
Bob from Ohio (mail):
The GOP should pass on opposing any nominees except if some "smoking gun" emerges. They don't have nearly enough votes, why waste time.

The only way an O appointee gets rejected is if he is caught in bed with a dead goat.

Holder has a bad reputation on guns. Let him be AG and see if he lives up to his reputation. If he does, it will help the GOP in 2010. Its not like some other appointee will be "better" on most issues from a GOP point of view.



either fair or honorable to do so


I find that funny and pretty naive for a very smart guy.

Since when does either party act in a "fair or honorable" way when dealing with important cabinet appointments?

Maybe back in 1789 but not often since.
11.19.2008 3:37pm
MarkField (mail):

Justice needs to be established, not enforced in the US?


"We, the people of the United States, in order to form a more perfect Union, establish justice..."
11.19.2008 3:39pm
jukeboxgrad (mail):
as:

I see no reason not to use stupid but effective arguments.


To the extent that there are arguments that are "stupid but effective," I think they tend to be the latter mostly with people who are the former. The GOP did get a bunch of votes that way; just not enough to win.

wm13:

it must be effective, or people wouldn't do it


As a general rule, humans do indeed indulge in lots of behavior that is self-destructive and not "effective." So I dispute your logic.

as well as smearing him with whatever they can on the Rich pardons


Speaking of Rich, and speaking of pardons, I think no discussion of Rich's pardon is complete without mentioning his lawyer: Scooter. (Some people think it's quite appropriate to judge lawyers by the people they defend.) So when you think about how politically "effective" it is to remind people about Rich's pardon, you should realize that you're also reminding people to think about Bush's past and future pardons. And the ironic little circle made up of Rich, Libby, Clinton and Bush.
11.19.2008 3:44pm
Brian S:
Do you agree that Holder had a leading role in enabling those pardons, or do you dispute that?

I would actually dispute that.

The Potemkin process surrounding presidential pardons is a sham and a charade. If Bill Clinton was determined to pardon Marc Rich, he didn't need Holder to issue any sort of recommendation - he has the authority to unliterally do it. The only person responsible for Clinton's pardons, ultimately, is Clinton.
11.19.2008 3:48pm
Anon321:
I find that funny and pretty naive for a very smart guy.

Since when does either party act in a "fair or honorable" way when dealing with important cabinet appointments?


I don't think his argument is that political parties have acted in a fair or honorable manner. The point, as I see it, is basically this: do you care more about (a) acting honorably and advancing arguments that you sincerely believe are fair and legitimate; or (b) seeing your preferred political party succeed, whatever the methods? If the former, then the response that "the other guys do it, too" is essentially irrelevant. If it's wrong, for example, to gin up pretextual personal justifications for opposing the nomination of someone whose policies you disagree with, say so and stick with it, regardless of who's doing it.
11.19.2008 3:50pm
Karan Singh (mail):
I think Bob from Ohio nailed it: let's see what happens.

And being leery of Holder is not necessarily a "Republican" activity.
11.19.2008 3:53pm
hawkins:
There really isnt any point in responding to these complaints. The GOP (just like the Dems) simply wants to use the opportunity to bitch and whine about the opposition. It makes no difference that Holder has near unanimous support from prior coworkers. Nor that nobody, as far as I've seen, has put forth a viable nominee that they would prefer.
11.19.2008 3:55pm
Kazinski:
I don't think Republicans should hold up Holder's nomination, if they even can. But they should make sure his views are thoroughly aired during the confirmation processes.

There certainly is nothing wrong with that is there?

Of course his views reflect Obama's, and that is as it should be. The problem though is that many Americans are not aware that is what the voted for, and the confirmation process should be used to help educate Americans on what they are in for. If Republicans want to oppose Holder that is fine, but they certainly shouldn't demonize him the way Ed Meese and John Ashcroft were.
11.19.2008 4:01pm
wm13:
"So when you think about how politically "effective" it is to remind people about Rich's pardon, you should realize that you're also reminding people to think about Bush's past and future pardons."

I'm not a Republican. I don't really have any political views other than generalized dislike for everyone in authority over me. So it's fine with me if officials and power brokers in both parties are discredited.
11.19.2008 4:02pm
Don de Drain:
I have never bought the argument that the party in the minority should simply roll over merely because a nominee for a high level position (such as AG, or Supreme Court Justice) is professionally qualified for the job. The minority party can legitimately oppose nominees because they disagree with the nominee's views. The Dems who voted against confirmation of CJ Roberts based on their disagreement with his overall judicial philosphy were well within their rights to do so, and Repubs who oppose Obama's nominee for AG because they disagree with his law enforcement philosphy are well within their rights to do so. Reasonable people can disagree as to whether pursuing this course of action is beneficial (or detrimental) to those pursuing it, but I do not view such a course of action as being beyond the pale or unprofessional.

But the manner in which the opposition is presented is important. Frog Leg's point above is well taken. Holder is professionally qualified for the job, and it does not appear that he is a political hack in the sense that he would compromise ethical/legal standards to benefit Obama politically. The NRO piece comes accross as more partisan screed than principled opposition, although it contains some of both. Those who use the "Shana, you Slut!" method of criticism/opposition do a disservice to us all.

Principled, reasoned opposition is fine. It's something I can respect. But if you are going to oppose Holder as AG nominee because you do not like his law enforcement policies please do not criticize the Dems for opposing the confirmation of CJ Roberts because they did not agree with his judicial philosophy.
11.19.2008 4:08pm
Steve P. (mail):
Having a leading Bush apologist endorse Obama's pick for AG makes me much more comfortable with the selection, moustache notwithstanding.
11.19.2008 4:09pm
OrinKerr:
A.S. writes:
So, we've moved from saying that the argument (that Senators are perfectly entitled to hold the nominee's positions against him, even if they are no different than standard positions of his party) is "stupid" to saying that such argument is without "integrity and truth", and that anyone who makes such an argument does not care about "integrity and truth".

Seems pretty clear to me that you aren't interest in a civil discussion, so I'll stop commenting.
A.S., your reputation as a partisan precedes you. But you yourself said that that Republicans should make the argument even if it's stupid and Republicans know it is meritless. It seems to me that if you value truth and integrity, then you would not make an argument that you know is false. Of course, if you can explain to me how you can both make an argument that you know is false and also value truth and integrity, I am all ears to hear your explanation.
11.19.2008 4:12pm
jukeboxgrad (mail):
wm13:

generalized dislike for everyone in authority over me


Fair enough. I should have said it generally rather than personally. Instead of saying "when you think about" it would have been better if I had said "when one thinks about." Or "those who think about."
11.19.2008 4:16pm
Anderson (mail):
Since I'm always happy to repeat myself, I'll just reiterate that Bush's likely slew of pardons may make the GOP leery of "going there" in Holder's confirmation hearings. Time will tell.

--Btw, is there anyone intelligent and ethical remaining at NRO? Ponnuru and who else?
11.19.2008 4:17pm
OrinKerr:
You voted for Bob Dole in 1996 because of Clinton's pardons in 2000?

What a puzzling suggestion! Remember that in 2000, Clinton's pardon of Marc Rich was hardly a surprise: Clinton was not some ethical giant for 8 years who suddenly, on the last day of his second term, had an ethical breach. I voted for Dole in 1996 in part because that sort of thing was what I expected would happen in Clinton's second term.
11.19.2008 4:17pm
Anderson (mail):
Of course, if you can explain to me how you can both make an argument that you know is false and also value truth and integrity

The ends justify the means, right? Once evil is vanquished, the earth becomes safe for truth and integrity; until then, they're just weaknesses for the enemy to exploit.
11.19.2008 4:20pm
Kazinski:
Anderson,
I'll just reiterate that Bush's likely slew of pardons may make the GOP leery of "going there" in Holder's confirmation hearings.

What pardons has Bush issued in the first 98% of his Presidency that indicate he'll be issuing a slew of inappropriate pardons in his last 60 days?
11.19.2008 4:23pm
Brian S:
What pardons has Bush issued in the first 98% of his Presidency that indicate he'll be issuing a slew of inappropriate pardons in his last 60 days?

Scooter Libby's commutation.
11.19.2008 4:26pm
Oren:

I have never bought the argument that the party in the minority should simply roll over merely because a nominee for a high level position (such as AG, or Supreme Court Justice) is professionally qualified for the job.

Those two jobs are so different in kind as to make your point virtually unintelligible to me.
11.19.2008 4:27pm
Steve:
If the Republicans want to re-run the election by objecting to Holder on the basis that he is a Democrat who has Democratic views, they are well within their rights. Perhaps it will turn out that the American people actually prefer Republicans after all.

It's kind of funny, though, to see people take a 50/50 issue such as affirmative action, and pretend that the position they disagree with is some kind of "non-mainstream" position that would cause voters to recoil in horror if only they realized which political party takes that position.
11.19.2008 4:27pm
Anderson (mail):
What pardons has Bush issued in the first 98% of his Presidency

You mean, besides Scooter Libby's?

Regardless, the baseline is not what pardons Bush has issued; by definition, one can't estimate last-minute pardons by the number of pardons issued prior to the last minute.

Rather, the question is whether Bush has reason to believe that members of his administration may face possible criminal charges for things they've done. NOT whether Bush thinks they're guilty, mind; just whether he thinks that a pardon would preempt any costly legal defenses. (Cf. "Whitewater.")
11.19.2008 4:28pm
Hutz:
DGS: Then-Judge Ginsburg observed that the comments constituted political speech plainly covered by the First Amendment.

The decision was in 1999, when Ruth Bader had been on the Supreme Court for 6 years. It would have been more accurate if you had written "still-Judge Douglas Ginsburg . . . ."

The point: If you're implying that "even a flaming liberal like Ginsburg took Holder to task," you've got the wrong Ginsburg.
11.19.2008 4:29pm
Anderson (mail):
Oh, right, Brian, Libby's was a commutation.

I wonder: Can Bush "commute" sentences for crimes not yet indicted, like Ford pardoned Nixon?

That might be an important distinction to anyone who wanted to avoid the appearance of admitting guilt by accepting a pardon.
11.19.2008 4:30pm
wm13:
If Bush issues a slew of pardons on January 19, that will definitely undercut any attack on Holder based on the Rich pardon. The Republicans will know about that before they have hearings, so I presume they will adjust accordingly.

However, I am not so sure that Bush will be doing anything like that. To the best of my knowledge, he will be in the unique position among recent presidents of not having a single close associate or political ally under indictment or in jail on the day he leaves office.
11.19.2008 4:32pm
Bart (mail):
Besides giving Clinton cover for his rancid last minute pardons of terrorists, family members and campaign contributors, Mr. Holder ran interference for the Clinton DOJ seizure/kidnapping at gunpoint of Elian Gonzales.

It will be interesting what other flacking Mr. Holder did for the Clintons and then for the Obama campaign.

I am having a hard time seeing how this appointment represents any sort of change from the shenanigans of the Clinton DOJ and then the Bush DOJ under Gonzales.

The more things change...
11.19.2008 4:38pm
Ileana (mail):
Hey all,

Yesterday afternoon on CNN a couple of talking heads (bothe white males) were criticizing Holder and going on about how he was a horrible pick. I caught a piece of it where one of them (white haired) said that this wasn't change just bringing Clinton administration back, AND THEN he said something about Obama had a lot of explaining to do and something about terrorists. I didn't have glasses on so I couldn't read the names. Anybody know who the 2 guys were -- especially the white haired one? Is there video somewhere? or a transcript?
11.19.2008 4:40pm
turdsimile (mail):

Justice needs to be established, not enforced in the US?

"We, the people of the United States, in order to form a more perfect Union, establish justice..."


Where's that quote from? What a stupid quote! And Holder is excited about hate crimes! They just makes him real excited! The Federal Government started ragging on poor Randy Weaver when Holder was President!
11.19.2008 4:43pm
Mike& (mail):
I thought people would settle down after the election. Judging by the comments, I guess not.
11.19.2008 4:43pm
Anderson (mail):
he will be in the unique position among recent presidents of not having a single close associate or political ally under indictment or in jail on the day he leaves office

Now *that's* the way to run a Justice Department!
11.19.2008 4:45pm
Thales (mail) (www):
Orin writes: "My assumption is that integrity and truth matter to you. If all that matters to you is partisan advantage, integrity and truth be damned, then my mistake."

That's a very hopeful assumption about both the commenter and about anything published in National Review these days. Welcome to team hope, Orin! I had no idea you were a closet Obama supporter.
11.19.2008 4:46pm
Anderson (mail):
I had no idea you were a closet Obama supporter.

I hope not. The Republicans need him.
11.19.2008 4:49pm
jukeboxgrad (mail):
wm:

not having a single close associate or political ally under indictment or in jail on the day he leaves office


I think it's a question of how you define "close." A bunch of big shots in the GOP have been and still are in plenty of hot water.

There is also some talk about how Bush might issue pardons on a preemptive, blanket basis.
11.19.2008 4:50pm
Kazinski:
Scooter Libby of course makes my point, that Bush has been very cautious with his pardon power, merely commuting the sentence, not the fine, and leaving the felony conviction intact and Scooter disbarred.

I wouldn't rule out Bush giving some precautionary pardons if they are requested, John Yoo for instance, but I don't know if Gonzales can expect one or would ask for one. I think he'll try to protect those members of his administration that he thinks might be the focus of witch hunts not those that may have actually broken the law and are currently under investigation (i.e. Gonzales).
11.19.2008 4:51pm
Constantin:
It's kind of funny, though, to see people take a 50/50 issue such as affirmative action, and pretend that the position they disagree with is some kind of "non-mainstream" position that would cause voters to recoil in horror if only they realized which political party takes that position.

I get your point, but I don't think affirmative action as it is actually practiced in this country is anything close to a 50/50 proposition. Ward Connerly's record illustrates that, no?
11.19.2008 5:12pm
A Law Dawg:
It's kind of funny, though, to see people take a 50/50 issue such as affirmative action,


I would be shocked if affirmative action is truly a 50/50 issue when polled without loaded language.
11.19.2008 5:13pm
Steve P. (mail):
A Law Dawg — does "Do you generally favor or oppose affirmative action programs for racial minorities" count?

http://www.pollingreport.com/race.htm
11.19.2008 5:20pm
jukeboxgrad (mail):
More polling here.
11.19.2008 5:22pm
Steve:
I get your point, but I don't think affirmative action as it is actually practiced in this country is anything close to a 50/50 proposition. Ward Connerly's record illustrates that, no?

What is your contention? That it's 55/45 or something? The point is that it's simply absurd to pretend that the losing side of a close vote is outside the mainstream.
11.19.2008 5:25pm
Andrew J. Lazarus (mail):
What sleazy pardons had Clinton made at this point in his Administration?
11.19.2008 5:26pm
wm13:
"I think it's a question of how you define "close." A bunch of big shots in the GOP have been and still are in plenty of hot water."

I hardly think Bush will be pardoning Larry Craig or Bernard Kerik! I stand by what I said: Bush is in the relatively unique position of not having a close associate or political ally in jail or under indictment. I didn't say that there wasn't a Republican politician in jail or under indictment.
11.19.2008 5:44pm
Steve:
Scooter Libby would be in prison today but for Bush's commutation of his sentence. I'm baffled at the suggestion that as a result of commuting Libby's sentence, Bush now deserves some sort of credit for not having any close associates in jail.
11.19.2008 5:57pm
zippypinhead:
I recognize, based on yesterday's post on Holder, that this post is likely to enrage a number of our more partisan Republican readers.
Hey, there's a great idea to liven up the otherwise boring post-election discussions on VC -- buy a large bag of Purina Troll Food and scatter it all over this blog! Induced feeding frenzies not only advance the dialectic, but are also just plain phun. Brilliant! [sorry, but I had to say it, since on this thread Sarcastro seems to be falling short of his usual insightful commentary standards]

But seriously, Eric Holder is obviously not "apolitical," but he's also not a classic partisan hack. He served nearly a dozen years as a career prosecutor in the Public Integrity Section of DOJ's Criminal Division, during most of the Carter and Reagan administrations. Among other things, he distinguished himself during the Abscam cases (remember: 5 of the 6 Senators/Congressmen convicted were Democrats). Then President Reagan appointed him to the D.C. bench. President Clinton appointed Judge Holder to be U.S. Attorney for D.C., where among other things he supervised the prosecution of Dan Rostenkowski (Big-D) in the House Post Office scandal. Clinton later nominated him to be DAG.

Holder is not only very qualified to be A.G., he's no Gonzalez-style political manipulator (that's Alberto, not Elian, for the terminally perspective-skewed).

...and now back to our regularly-scheduled feeding frenzy.
11.19.2008 6:01pm
wm13:
Steve, I am not handing out credit or blame. I am only saying that I wouldn't necessarily expect Bush to give out a slew of pardons on January 19, because he doesn't have any close associates or political allies in jail or under indictment. My prediction may be wrong, but my factual statement is the simple truth. Bringing up Larry Craig (as jukeboxgraduate did) or Scooter Libby is simply muddying the waters.
11.19.2008 6:02pm
Bob from Ohio (mail):

The point, as I see it, is basically this: do you care more about (a) acting honorably and advancing arguments that you sincerely believe are fair and legitimate; or (b) seeing your preferred political party succeed, whatever the methods? If the former, then the response that "the other guys do it, too" is essentially irrelevant. If it's wrong, for example, to gin up pretextual personal justifications for opposing the nomination of someone whose policies you disagree with, say so and stick with it, regardless of who's doing it.


I believe, based on long observation, that the overwhelming answer of 95%+ of politicians would be (b). Now, they might say in public (a) but their actions nearly always scream (b).
11.19.2008 6:11pm
Thales (mail) (www):
"I hope not. The Republicans need him."

Amen. Could Orin Kerr be the last rational person left in the Republican Party?
11.19.2008 6:19pm
A.S.:
Orin Kerr writes: A.S., your reputation as a partisan precedes you.

Interesting that you'd say that since, unlike you, I didn't even support John McCain for President.

But you yourself said that that Republicans should make the argument even if it's stupid and Republicans know it is meritless. It seems to me that if you value truth and integrity, then you would not make an argument that you know is false.

"Stupid" is not a synonym for "false". It means unintelligent. Certainly people should not use arguments they know are false, and I have not witten or implied anything to the contrary. And yet you immediately and baselessly impugn my truthfulness and integrity. That's not very polite.

As I said earlier, the Democrats did not treat John Ashcroft in the manner you state that Republicans should treat Eric Holder. For example, Sen. Kennedy said, during the Ashcroft hearings, the following:

The vast majority of Americans support vigorous enforcement of our civil rights laws, and those laws and the Constitution demand it. Senator Ashcroft, however, spent significant parts of his term as Attorney General of Missouri, and his term as Governor, strongly opposing school desegregation and voter registration in St. Louis. The vast majority of Americans believe in access to contraception and a woman's right to choose, and our laws and Constitution demand it. Senator Ashcroft does not, and his intense efforts have made him one of the principal architects of the ongoing right- wing strategy to dismantle "Roe V. Wade" and abolish a woman's right to choose. Deep concerns have been raised about his record on gun control. He has called James Brady the "leading enemy of responsible gun owners." Senator Ashcroft is so far out of the mainstream that he has said that citizens need to be armed in order to protect themselves against a tyrannical government. Our government? Tyrannical? As these few examples demonstrate, the clear question before the Senate is whether, if confirmed as Attorney General, Senator Ashcroft will be capable of fully and fairly enforcing the nation's laws to benefit all Americans. Even though he profoundly disagrees with many of the most important of those laws, his past actions strongly suggest that he will not.


Ashcroft had views similar to most Republicans, including the elected President, George Bush, on issues such as abortion and gun control. Yet Senator Kennedy did not pay heed to that, and voted against Ashcroft. I don't believe that Republicans should do with Holder anything different than what Kennedy did with Ashcroft.

You write that arguments such as Kennedy's objections to Ashcroft were widely viewed as "pretty stupid arguments". And you write that "a lot of people were quick to point that out". However, I don't remember many people calling Kennedy's objections stupid (and I don't necessarily think they were, even if I disagree with them). I asked you to provide some evidence that such objections were viewed as stupid in 2001, and you provided none, instead resorting to attacking my truthfulness and integrity.

It may seem obvious to you that, there mere fact that Democrats made "stupid arguments" against Ashcroft doesn't militate in favor of Republicans returning the favor by making similar arguments against Holder. But attacking the truthfulness and integrity of the commenter is not an effective means of convincing people.
11.19.2008 6:20pm
Sarcastro (www):
I didn't support John McCain for President, I wrote in ALan Keyes! I guess this makes me non-partisan!

I also hear most Republicans anoint themselves in cooking oil, think the statue of lady justic is indecent and can sing like jay-birds.

The point is, we need to oppose Holder cause he's a liberal and they're bad.
11.19.2008 6:30pm
A.S.:
I didn't support John McCain for President, I wrote in ALan Keyes! I guess this makes me non-partisan!

Well, one indicator of partisanship is support for your party's presidential candidate, I'd think.
11.19.2008 6:39pm
zippypinhead:
Much better, Sarcastro. I was starting to worry you'd lost your touch...
11.19.2008 6:40pm
Sarcastro (www):
[zippypinhead I take a shorgun aproach to humor. If one of my posts doesn't strike you right, just wait!]
11.19.2008 6:45pm
OrinKerr:
A.S., back from a brief self-imposed exile, responds:
"Stupid" is not a synonym for "false". It means unintelligent. Certainly people should not use arguments they know are false, and I have not witten or implied anything to the contrary. And yet you immediately and baselessly impugn my truthfulness and integrity.
While stupid is not a synonym for false, an argument is stupid if it is known to be extremely weak and unpersuasive. Making an argument that you know is extremely weak means misrepresenting its strength: You pretend it is strong when you know perfectly well that it is not. The misrepresentation is a nice way of saying a lie: It is a fraudulent claim. So let's review what you said:
Even assuming, arguendo, that they are stupid arguments, I don't see any reason for the Republicans to refrain from using them if the Democrats didn't. What do Republicans have to gain from being the sole party that refrains from using stupid arguments? Surely some arguments - even if stupid - are effective. And I see no reason not to use stupid but effective arguments.
That sounds to me like you are saying you see no reason people shouldn't make claims that they know are baloney -- that is, that they need not have the integrity to stick to claims that they honestly believe in. I suppose different people will have different view for whether that violates their personal moral code, but it would certainly violate mine.
11.19.2008 6:49pm
eddiehaskel (mail):
A simple question:

Will there ever be a time going forward that we won't be under a serious, persistent threat from Islamist terrorists? Because until we kill every suspected terrorist and every relative and friend and every relative and friend of all the foregoing, such a threat will "exist."

Furthermore, the gratuitous and laughable reference to the politicization of the department misses the actual point and harm that was done. One can have a political head of a department while maintaining the professionalism and competence of the careerist and excluding political tests for such hires. I guess the pundits at NRO don't understand integrity and an abiding respect and love of our form of government. But then, it's their own ideology and politics that prevent them.
11.19.2008 6:49pm
Pon Raul (mail):
After all of the Post comments about people making ad hominem attacks, it is nice to see that Gary Imhoff actually knows what is an ad hominem attack. It is where you say that X is wrong because Y said it and Y is a bad bad person. In the case of Post, people were accused of making ad hominem attacks for saying that Post was bad because Post stated X.
11.19.2008 6:53pm
A.S.:
While stupid is not a synonym for false, an argument is stupid if it is known to be extremely weak and unpersuasive. Making an argument that you know is extremely weak means misrepresenting its strength: You pretend it is strong when you know perfectly well that it is not.

Oh, please. You are attempting to assert that Ted Kennedy knew he was making an "extremely weak and unpersuasive" argument when he argued against Ashcroft becuase, among other thing, Ashcroft opposed Roe and gun control (just the same as Bush and most Republicans)? Really? And that, not only did Kennedy know perfectly well his argument was extremely weak, but he misrepresented it was strong? That Kennedy didn't "honestly believe in" the arguments he was making against Ashcroft? You're becoming less convincing by the post, Orin.

I think the Republicans should treat Holder the way Kennedy treated Ashcroft. You may think differently, but the line of reasoning you are using to support that view hasn't been persuasive.
11.19.2008 7:05pm
Don de Drain:
Pardon me for making this comment.

I think Addington and Cheney are strong candidates to get blanket pardons. Libby, I doubt he will get a pardon.

There was an important reason Bush commuted Libby's sentence instead of giving him a pardon, namely, Libby retained his 5th amendment rights without a pardon and thus could invoke those rights if called to testify before Congress.

While giving blanket pardons to Cheney and Addington eliminates their ability to claim the 5th in front of Congress, I suspect that they have stronger legal grounds, outside of the 5th amendment privilege, to refuse to testify even after Bush leaves office, merely by virtue of the fact that they, unlike, Libby, have never been convicted of a crime. If my suspicions are correct, Libby is not likely to get a pardon.

But if giving blanket pardons will make it much easier for Congress to force all of those pardoned to testify, pardons may not be issued by Bush.
11.19.2008 7:17pm
OrinKerr:
A.S.,

I find your arguments obnoxious and your good faith highly questionable. Please cease commenting in the comment threads to my posts: Their quality would be higher without your contributions.

Orin
11.19.2008 7:23pm
jukeboxgrad (mail):
wm13:

Bringing up Larry Craig (as jukeboxgraduate did) or Scooter Libby is simply muddying the waters.


Accusing me of "bringing up Larry Craig" is simply stretching the truth beyond recognition. I didn't bring him up. I cited a page that mentions scores of names, including his. Singling him out was your idea, not mine.

But I was the first person in this thread to mention Scooter, so I'll gladly take the blame for that.
11.19.2008 8:23pm
jukeboxgrad (mail):
as:

Well, one indicator of partisanship is support for your party's presidential candidate, I'd think.


(You said that in connection with asserting that your decision to not support McCain is proof that you're not particularly partisan.) Unless you've decided to not support him because you think he's not partisan enough. Just a possibility.

I don't believe that Republicans should do with Holder anything different than what Kennedy did with Ashcroft.


There are various reasons why the Ashcroft/Holder comparison is difficult. Here's one reason. Bush had just won a paltry 47.9% of the popular vote.

Since 1916, there were only two occasions when a president had taken office with a number that low (or lower). That happened in 1968 and 1992, and on both those occasions it was clearly because of a strong 3rd party candidate. Wallace (in 1968) took 13.5% of the vote, and Perot (in 1992) took 18.9%. In comparison, Nader in 2000 took only 2.7% (and I think only in the Nader instance is there a strong basis to claim that the 3rd party acted as a spoiler).

So Bush's very weak victory helped further the expectation that he might govern from the center. Ashcroft's nomination was a strong signal that he intended to not do that, and therefore the Ashcroft battle took on special importance.

In contrast, Obama has just won 52.7% of the popular vote. Since FDR, Bush I and Ike are the only candidates who managed to beat that number (when running as a non-incumbent). All the following failed to beat that number (when running as a non-incumbent): Bush II, Clinton, Reagan, Carter, Nixon, JFK, and Truman. And Bush II failed to beat that number even when running as an incumbent. But his 50.7% in 2004 was promptly called a "mandate" by Cheney and lots of other folks.

So compared with other elections, and definitely compared with 2000, Obama is in a particularly strong position to claim that his appointments should reflect his own policy preferences, given the electoral mandate supporting those preferences.

That Kennedy didn't "honestly believe in" the arguments he was making against Ashcroft?


I'm not sure what Kennedy was thinking when he made those arguments, but I wonder what you were thinking when you said this:

I see no reason not to use stupid but effective arguments.


I wish you would clarify what you mean by an argument that's "stupid but effective." It seems to me that such an argument would be designed to trick people who are too stupid to understand that they're falling for a stupid argument. What else could you mean by "stupid but effective?"

I realize OK told you to not speak up, but maybe he won't mind if you respond to this question. That is, provided you respond with something other than a "stupid" argument.
11.19.2008 8:24pm
Vail Beach:
I do appreciate the discussions at TVC. I'm persuaded by the weight of the arguments that while Holder is a flawed choice, he is qualified and will be overwhelmingly confirmed. His flaws will be explored, but mostly for purposes of political theater. Not that there's anything wrong with that. If Holder turns out to be a magnificent AG, the political charges will be forgotten. If not, then the blame will go to the president who nominated him, not to the senators who assented to the president's choice.

I disagree only with the ad hominem against Burton. Certainly he had some peculiar ideas, but his pardon investigation was never questioned. Staffs with law degrees do these investigations, not pumpkin-slayers.
11.19.2008 9:26pm
Thales (mail) (www):
"What pardons has Bush issued in the first 98% of his Presidency that indicate he'll be issuing a slew of inappropriate pardons in his last 60 days?"

Interesting but I think irrelevant question. The question for me is, what offenses against the United States have members of Bush's inner circle likely or actually committed that would compel him to act consistently with his behavior in office (which for the most part appears to value loyalty to him over competence, integrity and even the rule of law) and reward such persons with pardons? Only time will tell whether he will act "appropriately," but I am not holding my breath waiting for an act of redemption or responsibility from the current President. Given the serious allegations and unanswered questions in the public record about all of the following people, I would predict at a minimum prospective (meaning for potential offenses committed but not yet charged) or after the fact pardons of Scooter Libby, members of the Office of Legal Counsel, David Addington, various CIA, NSA and military intelligence officials, anyone involved in the administration of Guantanamo Bay or Abu Ghraib, and possibly Alberto Gonzales, Dick Cheney and himself (I think the last three are highly unlikely), to the extent understandings not to investigate or prosecute any of these people have not already been secured, as they may well have been. There has been zero interest among congressional leadership to date in getting involved with any of these things, so I would expect any investigation that occurs to be strictly through DOJ. To be clear, the President has the absolute constitutional prerogative to issue such pardons regardless of the offense, motive or appropriateness.
11.19.2008 9:27pm
first history:
I stand by what I said: Bush is in the relatively unique position of not having a close associate or political ally in jail or under indictment.

Not quite true.
11.19.2008 9:29pm
Anderson (mail):
The question for me is, what offenses against the United States have members of Bush's inner circle likely or actually committed

Note btw that the Military Commissions Act, rushed through Congress before the 2006 elections, acted effectively as a blanket pardon for all sorts of people who may have committed torture &other war crimes, or conspired to commit same -- that latter category including a good chunk of Bush's cabinet (who met to approve particular uses of waterboarding etc.), not to mention Bush and Cheney. This was, I think, underreported in the media, though readers of certain blogs knew what was up.

I would expect to see some pardons re: whatever the NSA has been up to, since AFAIK that's not going to be covered by the MCA.
11.19.2008 9:48pm
Thales (mail) (www):
Yes, Anderson is correct. The Commissions Act was a despicable piece of legislation for that reason alone, let alone its execrable jurisdiction stripping (yes, it's technically constitutional to disestablish the federal courts in pieces, that doesn't make it wise or acceptable) and insult to the very concept of habeas corpus. To be clear, I think it's unlikely that *many* members of the administration have definitively committed "offenses against the United States," but I do think some likely or arguably have based on the public record alone, and it is in the best interests of such persons to secure a pardon. My heart simply bleeds for the poor CIA operatives forced to choose between torture (and subsequent prosecution) and honorable resignation.
11.19.2008 10:03pm
Richard Aubrey (mail):
Orin.
In the interests of full disclosure, you might admit that there is information about Holder and Rich which is not in the Burton report and cannot be automatically discounted by pointing to pumpkins.
11.20.2008 8:19am
JoeS (mail):
Vacuous arguments and posing opinion as fact will only serve to speed NRO and the National Review into deserved oblivion. I have long had conservative leanings, but seeing the radical neocons and rabid theocons has driven me from the tent. Conservatism in America will need to reestablish or reinvent itself, because it has mutated into a monster!
11.20.2008 8:36am
rp (mail):
Funny, in light of Gonzo's total politicizing of DOJ, for NRO even to mention the subject. As per usual, NRO was for the most part silent on Gonzo. As for pardons, the commutation of poor Scooter Libby's sentence by Bush, a good way of ensuring that Scooter never rats on the pathetic GWB, was an actual obstruction of justice. Once again, NRO was silent. Given that NRO's hero, GWB, will probably find it awkward to travel abrod without a diplomatic passport -- especially to countries that take human rights seriously -- it is somewhat absure for GWB's deranged idoelogical enablers to even utter words on the subject of impartial administration of justice
11.20.2008 9:19am
fred:
One reason not to use "stupid but effective" arguments is that they tend to get you run out of office when they blow up. {CUT TO: LAST 8 YEARS}
11.20.2008 11:29am
sonicfrog (mail) (www):

Even assuming, arguendo, that they are stupid arguments, I don't see any reason for the Republicans to refrain from using them if the Democrats didn't. What do Republicans have to gain from being the sole party that refrains from using stupid arguments? Surely some arguments - even if stupid - are effective. And I see no reason not to use stupid but effective arguments.


Ladies and Gentlemen, I submit to you the evidence of just how far the conservative movement has fallen. We used to argue that, partisan wise, we took the moral high ground. We did not try to block Clinton's judges, and that, unlike liberals today, we supported the President when he took action in Bosnia. We had some semblance of honor. Now we're reduced to - "They did it to us, so lets do it to them". The transformation is complete. The Conservative movement has fallen from the party of great men such as William F Buckley, to become the party of Rush and Hannity. Congratulations!

PS. I don't know that much about Holder, but I do know it could have been worse. Obama could have picked Jerry Brown as AG!!!....

Actually, I kind of wish he would have, then at least my fellow Californians would be free of that scourge :-)
11.20.2008 12:17pm
LnGrrrR (mail):

Oh, please. You are attempting to assert that Ted Kennedy knew he was making an "extremely weak and unpersuasive" argument when he argued against Ashcroft becuase, among other thing, Ashcroft opposed Roe and gun control (just the same as Bush and most Republicans)? Really? And that, not only did Kennedy know perfectly well his argument was extremely weak, but he misrepresented it was strong? That Kennedy didn't "honestly believe in" the arguments he was making against Ashcroft? You're becoming less convincing by the post, Orin.


Way to invert what he was saying. He told you that you, KNOWINGLY advancing arguments that were stupid, were making claims that showed a lack of integrity.

One can argue from a viewpoint that an argument is strong and persuasive without it actually being so. However, A.S, YOU claim that even if an argument is stupid, it should still be advanced, even if KNOWN to be stupid. That's what OK is talking about.
11.20.2008 12:32pm
David in NY (mail):
I'd just like to say that I'm amazed that someone with the insight to know that Dan Burton was a complete nutjob failed to vote for Barack Obama.

And in a similar vein:
"The Conservative movement has fallen from the party of great men such as William F Buckley, to become the party of Rush and Hannity. Congratulations!" Uh, you just noticed? You might be interested in Nate Silver's comments on the talk-radioization of conservatives. They don't even know how to speak to anyone but themselves.
11.20.2008 3:39pm
Railroad Gin:
Obama is in a particularly strong position to claim that his appointments should reflect his own policy preferences, given the electoral mandate supporting those preferences.

For the sake of argument, I'll concede your math and agree that there was some sort of mandate. But for what? What policy preference did Obama campaign upon with any clarity so that it can honestly be said there was an electoral mandate for that position?

Probably a middle-class tax cut. (though its debatable whether the expansion of the EITC masquerading as a tax cut is what voters thought they were getting). And its safe to say the electorate supported some move in the direction of socialized medicine. Beyond that I think the electorate had no idea what it was getting beyond some sort of nebulous "change." How does Holder fit into a tax cut or socialized medicine?

It is precisely because Holder runs against the grain of promising to clean up Washington, support the 2A and so forth that it is legitimate for the GOP to consider making him the cabinet nominee they go after.
11.20.2008 3:56pm
David in NY (mail):
What policy preference did Obama campaign upon with any clarity so that it can honestly be said there was an electoral mandate for that position?

You know, on this score, I think Obama was pretty clear. His priorities were actions to reduce global warming and to create national health care, raising taxes on the wealthy to pay for a cut for most people, and later, actions to stimulate the economy. He also promised to close Guantanamo, restore habeas corpus to its accustomed place, and end a policy of using torture. This was the kind of change people knew they would get when they voted for him. I suspect its the kind of change you'll be seeing.
11.20.2008 4:11pm
LM (mail):
Thales,

Amen. Could Orin Kerr be the last rational person left in the Republican Party?

No, there are others, including a couple, I'd say, who blog on this very site (assuming EV and Ilya consider themselves Republicans). I even know some personally.

So, no, I'd say Orin isn't the last rational person left in the Republican Party. But he may well be the most rational one.
11.20.2008 4:15pm
Railroad Gin:
You know, on this score, I think Obama was pretty clear. . . .

I agree with all the points you've made except possibly Gitmo/Habeas Corpus. So what does Holder have to do with global warming? If Obama were to pick some enviro-wacko to head EPA, then I think it would be a valid argument that the electorate gave a mandate for that sort of thing. I'm not seeing that Holder as AG fits into any mandate that can be gleaned from the tea leaves.

As for Gitmo/Habeas -- its arguable that the majority of the electorate actually agreed more with Palin's mockery of Obama for believing that "terrorists should be read their rights." But if that's not the case, how does picking someone with so many ties to Waco, the Elian Gonzales raid and the Ruby Ridge cover up bode well for humantarian treatment of prisoners?

Maybe there's reasons Holder would make a good AG or at least not so bad of one that the GOP should refrain from going after him. But that he's part of some mandate for Obama just isn't supported by the evidence.
11.20.2008 5:08pm
sonicfrog (mail) (www):

And in a similar vein:
"The Conservative movement has fallen from the party of great men such as William F Buckley, to become the party of Rush and Hannity. Congratulations!" Uh, you just noticed?


Nope. Known for a while.
11.20.2008 7:08pm
jukeboxgrad (mail):
sonic:

unlike liberals today, we supported the President when he took action in Bosnia


But you didn't support the President when he took action in Kosovo. Many of the following statements were made while Americans were being held as POWs. Republicans support the troops, except when they don't:

"If we are going to commit American troops, we must be certain they have a clear mission, an achievable goal and an exit strategy." -Karen Hughes, speaking on behalf of presidential candidate George W. Bush

"Victory means exit strategy, and it's important for the President to explain to us what the exit strategy is." -Governor George W. Bush [Houston Chronicle, 4/9/99]

"I had doubts about the bombing campaign from the beginning...I didn't think we had done enough in the diplomatic area." -Senator Trent Lott (R-MS)

"You think Vietnam was bad? Vietnam is nothing next to Kosovo." -Tony Snow, Fox News 3/24/99

"Well, I just think it's a bad idea. What's going to happen is they're going to be over there for 10, 15, maybe 20 years" -Joe Scarborough (R-FL)

"This is President Clinton's war, and when he falls flat on his face, that's his problem." -Senator Richard Lugar (R-IN, New York Times, 5/4/99)

Then-House Majority Whip Tom Delay (R-TX): "America needs to quickly change directions and leave behind this chilling comedy of errors that has defined our foreign policy." [Copley News Service, 3/22/99]

Tom Delay: The deployment of U.S. military forces in Kosovo is "just another bad idea in a foreign policy without a focus." [Editorial, Saint Paul Pioneer Press (Minnesota), 3/17/99]

"You can support the troops but not the president" -Tom Delay

May 7, 1999 --Tom DeLay: "While we may not support the President's ill-advised war, we do support our troops. … Without any coherent international blueprint, the White House has bombed its way around the globe while dropping troops far and wide for ill-defined peacemaking duties. This policy has gutted the American military, which now must be rebuilt."

"I cannot support a failed foreign policy. History teaches us that it is often easier to make war than peace. This administration is just learning that lesson right now. The President began this mission with very vague objectives and lots of unanswered questions. A month later, these questions are still unanswered. There are no clarified rules of engagement. There is no timetable. There is no legitimate definition of victory. There is no contingency plan for mission creep. There is no clear funding program. There is no agenda to bolster our overextended military. There is no explanation defining what vital national interests are at stake. There was no strategic plan for war when the President started this thing, and there still is no plan today" -Tom Delay

"President Clinton is once again releasing American military might on a foreign country with an ill-defined objective and no exit strategy. He has yet to tell the Congress how much this operation will cost. And he has not informed our nation's armed forces about how long they will be away from home. These strikes do not make for a sound foreign policy." -Senator Rick Santorum (R-PA)

"No goal, no objective, not until we have those things and a compelling case is made, then I say, back out of it, because innocent people are going to die for nothing. That's why I'm against it." -Sean Hannity, Fox News, 4/5/99

GOP House Speaker Dennis Hastert (R-IL): "Many may question the path that has taken us to this point. I have my own questions about the long term strategy of this campaign." [Dallas Morning News, 3/25/99]

Senator Judd Gregg (R-NH): "I don't believe that a ground war in Kosovo using American troops is going to be very successful." [NBC, "Meet the Press," 4/18/99]

Representative Randy "Duke" Cunningham (R-CA): "This is the most inept foreign policy in the history of the United States." [Washington Times, 4/29/99]

April 5, 1999 --USA Today quoted Senator Richard Shelby (R AL), as saying, "Obviously, we are not winning the war."

Then-GOP Presidential candidate Rep. John Kasich (R-OH) was skeptical of NATO's military campaign in Kosovo and said, "The fact is the civil war in Kosovo has been raging since 1389. The fact is, our intervening in the middle of an ethnic civil war that has been going on for six centuries is not likely to be successful." [New York Times, 4/29/99]


There's been a lot of revisionism on this point. All these statements were forgotten when the GOP found it convenient to claim that anyone who failed to agree with Bush's Iraq policy was undermining the troops and giving comfort to the enemy.
11.20.2008 9:33pm
jukeboxgrad (mail):
sonic:

The Conservative movement has fallen from the party of great men such as William F Buckley, to become the party of Rush and Hannity


True. Notice what Chris Buckley said, quoting his dad:

I've spent my entire lifetime separating the Right from the kooks


Right now it looks like Buckley lost that battle.
11.20.2008 9:33pm
jukeboxgrad (mail):
gin:

What policy preference did Obama campaign upon with any clarity so that it can honestly be said there was an electoral mandate for that position?


If you're looking for "clarity," try reading his 33-page Blueprint for Change (pdf). Or the other extensive material he's posted at his site.

Aside from that, you might have noticed that Obama's opponents repeatedly labeled him as a socialist and Marxist. It's probably worth considering the possibility that some number of voters believed those labels, and viewed them as a reason to support him. (When the guy with a bunch of extra houses warned middle-class voters that his opponent wanted to "spread the wealth" around, some of those voters might have thought it sounded like a good idea. And they might have understood why someone like McCain would see it as a bad idea.)

27 years after the onset of Reaganism, we've had a chance to see where it leads. Pushing the pendulum a teeny bit in the opposite direction might not be such a terrible idea at this exact moment, and a "socialist" would be exactly the right person to do that. In other words, the labels that McCain stuck on Obama help us understand the nature of the mandate that Obama received.

And to the extent that Holder embodies the same leftist beliefs as Obama (however one chooses to define 'leftist'), then nominating Holder is consistent with Obama's mandate.
11.20.2008 9:33pm