Eric Holder Apparently Obama's Choice for Attorney General.

Here's a profile of Holder from the American Lawyer in June 2008.


Eric Holder Reportedly Tapped for Attorney General: Newsweek is reporting that Eric Holder has been picked to be Obama's nominee for Attorney General. This is a very good pick, I think: Holder was my favorite of the folks who had been mentioned as being on the short list. Holder was the Deputy AG back when I was at DOJ during Clinton's second term, and my impression at the time was that he was smart and professional. A very good choice, I think.

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.

The Case for Accepting Obama's Nomination of Eric Holder for Attorney General:

Like co-blogger Orin Kerr, I tend to believe that Republicans shouldn't fight the confirmation of Eric Holder, Obama's nominee for attorney general. Most of the objections to Holder articulated by the National Review and other conservatives seem to be ideological in nature. I too believe that Holder is wrong on many issues. But that is not enough reason to justify opposing his nomination.

In the past, I have argued that senators can legitimately consider ideology in deciding whether or not to support presidential judicial nominees. Executive branch nominations, however, are a different matter. Federal judges are not the president's subordinates. They belong to an independent branch of government. The president isn't entitled to a judiciary that defers to his preferences. By contrast, cabinet officers and other executive officials are supposed to follow the president's policies and take his orders. Therefore, it is important that the president be able to choose people who share his policy priorities. Conservative advocates of the unitary executive should be among the first to appreciate the importance of allowing the president to choose his own top advisers. Realistically, any attorney general nominated by Obama will likely be a liberal Democrat; after all, that is what Obama is himself.

Senators might still be justified in rejecting a cabinet nominee if he were clearly unqualified for the job, showed evidence of serious moral depravity, or had ideological proclivities that are dangerously far removed from the mainstream. I don't think Holder qualifies on any of these counts. He is obviously qualified for the job, and seems to be a fairly conventional left-wing Democrat. I'm not a fan of his apparent role in President Clinton's pardons of Marc Rich and others; but as far as I know there is no evidence that Holder did anything illegal or seriously unethical in these cases.

Holder would not be my choice for AG. But he is an unsurprising choice for a liberal Democratic administration, and his flaws are nowhere near serious enough to justify setting aside the president's prerogative to choose his own cabinet personnel.