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November 19, 2008

Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?

Holder The AP has this latest report on the buzz surrounding President-Elect Obama's choice for attorney general: "A source close to the process of selecting Barack Obama's attorney general says the president-elect has 'informally' offered the post to Washington lawyer Eric Holder, who has accepted."  On this latest word, I am prepared to declare this a done deal.  I am also prepared to predict that Holder will get confirmed by the Senate, notwithstanding all the hold-over Clinton Administration DOJ scandals that necessarily will be a cause for media discussion and pundit critiques in the days and weeks ahead.

Many folks will use the Holder selection as an excuse to rehash lots of old Clinton Administration stories — involving once-semi-(in)famous figures ranging from Elian Gonzales to Marc Rich.  Fortunately, many others will be more eager to look forward.  Glenn Greenwald here at Salon, for example, already has a long and interesting piece up, under the headline "Preliminary facts and thoughts about Eric Holder: Is Obama's likely nominee for Attorney General an encouraging sign for advocates of the Constitution and the rule of law?"  Greenwald, who is mostly focused on war-on-terror issues, comes to this tentative early view: "on balance -- particularly in light of what he was saying regarding the most extreme Constitutional and executive power abuses of the last eight years and, more importantly, how he was saying it -- this choice, as a preliminary matter, seems like a step in the right direction."

Of course, my focus is on federal sentencing law and policy, and I am not yet even prepared to start forming preliminary thoughts.  I have a instinctual bias against anyone closely connected to the Clinton Administration because I have come to view that administration as uniquely willing and eager to put tough rhetoric and political calculations before sound sentencing policy-making.  And yet I sense that Holder's past Clinton Administration record can provide only a very limited guide to his future Obama Administration work.  For this reason, I am especially eager to have readers share any and all early federal sentencing thoughts about our likely next Attorney General.

November 19, 2008 at 11:45 AM | Permalink

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"Many folks will use the Holder selection as an excuse to rehash lots of old Clinton Administration stories — involving once-semi-(in)famous figures ranging from the Elian Gonzales to Marc Rich. Fortunately, many others will be more eager to look forward."

Oh yes, by all means, let's ignore obvious issues with Holder because we want to "move on".

Crime and Consequences has an interesting take on Holder:

http://www.crimeandconsequences.com/2008/11/eric_holder_and_the_death_pena.html

You have to wonder about the morals of a guy who would toss Justice under the bus for the sake of a bunch of capital defendants.

Posted by: federalist | Nov 19, 2008 12:32:29 PM

Apparently, Holder is a big fan of mandatory minimums for pot charges, even pushing for a five year MM.

http://findarticles.com/p/articles/mi_m1571/is_n15_v13/ai_19340518

Posted by: Tstaab | Nov 19, 2008 1:12:29 PM

"You have to wonder about the morals of a guy who would toss Justice under the bus for the sake of a bunch of capital defendants."

To me, that indicates that he is a man of high morals; a whistleblower unafraid to expose injustice.

Posted by: J | Nov 19, 2008 2:50:00 PM

Here's National Review's take on Holder:

http://article.nationalreview.com/?q=YmM1OGM4OGRiNTI5NTIzOTFkMDAwMTJiNGFlYWFiZGI

Posted by: federalist | Nov 19, 2008 2:56:21 PM

J, that just shows complete and utter ignorance. Did you even read the link? In a nutshell, Holder criticized the Justice Dept., because, gee whiz, the racial numbers in capital cases didn't match the numbers in the general population. What an ass. He pissed on Justice because he wanted to show the world how enlightened he was. That's immoral and disgusting. And it's every bit as disgusting as his craven careerism as shown in the Marc Rich pardon scandal.

Obama should keep Mukasey on.

Posted by: federalist | Nov 19, 2008 3:00:49 PM

Federalist,

nationalreview? crimeandconsequences.com? Who cares what those outfits think. The same outfits that just about accused Obama of being a terrorist sympathizer.

From national review: "supposed root causes of crime." That tells you about the credibility of national review. No legitimate criminologist, social scientist, or any thinker, whether of the right or left, would label "root causes of crime" as "supposed."

Posted by: J | Nov 19, 2008 3:04:10 PM

Well, I am disappointed in this choice but I'm not sure just how disappointed to be. And the reason for that is that Obama, unlike Bush, is a lawyer himself. It remains to be seen just how much interest Obama as a lawyer has in DOJ issues. This is especially true because Obama, unlike Clinton, had a law career before and outside of politics. Clinton was a politician that just happened to be a lawyer. I'm not sure that Obama is in the same mold. One perspective that makes Holder a little easier to swallow is that it signals Obama wants more of a technocrat in the position because he intends to run the ship himself. OTOH, it's also striking that this is the first real major appointment to get greenlit. Perhaps that's because it was in some way easier that Secretary of State or Defense, which may signal his lack of interest.

I guess my initial reaction to this choice is disappointment but I am willing to take a wait and see attitude as the entire context develops.

Posted by: Daniel | Nov 19, 2008 4:06:01 PM

Federalist, what exactly did Holder say that was "immoral and disgusting." He acknowledged that "many factors have led to the disproportionate representation of racial and ethnic minorities throughout the federal death penalty process." But he said that he was personally and professionally disturbed by the numbers." Everyone should be. He then said. "no one reading this report can help but be disturbed, troubled, by this disparity." How is that "piss[ing] on Justice." Only in the mind of an ideologue would that be so offensive as to justify calling a man an "immoral and disgusting . . . ass."

Posted by: J | Nov 19, 2008 4:12:46 PM

Holder basically calls Justice racist and points to crappy raw data, and you wonder why I am calling him an ass? He knows what he's doing here. He doesn't like the numbers, and, instead of saying, well they are what they are, and I am confident that all death cases are well-vetted etc., he says that he is "disturbed". Well, what exactly is he disturbed about?

Posted by: federalist | Nov 19, 2008 4:49:06 PM

Looking forward is important. But, if you can't see anything behind you, or around you, it just might be a comment on your ability to see what is ahead!

Holder appears to me to be the left side of the Nixonian law-and-order routine. The pardon process all but vanished under his leadership as deputy attorney general - except for odd pardons here and there, for political reasons, or for persons with connections. His prosecutorial experience and leanings toward mandatory minimums suggest to me that the Obama administration may grant even fewer pardons than Bush. Beth Nolan thought he (Holder) was too "conservative" with respect to pardons. Indeed, she felt that, under Holder, the Justice Department "had not fulfilled its pardon function." It would be a shame to go right back into all of this because we are making such an effort to look foward.

Posted by: P.S. Ruckman, Jr. | Nov 19, 2008 5:03:19 PM

federalist wrote: "Holder basically calls Justice racist and points to crappy raw data, and you wonder why I am calling him an ass? He knows what he's doing here. He doesn't like the numbers, and, instead of saying, well they are what they are, and I am confident that all death cases are well-vetted etc., he says that he is 'disturbed'. Well, what exactly is he disturbed about?"

"Crappy raw data?" "They are what they are?" You believe that racial disparities in criminal justice statistics (or any socioeconomic statistic) should be shrugged off as being "what they are?" Case closed? I take it this means you believe that blacks commit a disproportionate amount of crime and that, because this is so, blacks being imprisoned (and executed) at disproportionately higher rates than whites means we have "justice." Answer me a question: why do blacks commit more crimes than whites? Maybe if we follow your line of thought a bit we can hit at precisely what disturbs Holden. I have to warn you, you won't like how this ends, but I can assure you it won't take long to get there.

Posted by: DK | Nov 19, 2008 8:27:44 PM

I love the fact that the National Review blames Holder for the SCOTUS's Dickerson decision, which enshrined Miranda as a Fifth Amendment precedent.

Didn't that flaming liberal Rehnquist write the opinion?

Posted by: Steve | Nov 19, 2008 8:50:28 PM

Oh DK, I am all a quiver. And by the way, I suggested nothing of the sort. Raw data means very little, and Holder should know better. But he chose to demagogue. He's an ass.

Posted by: federalist | Nov 20, 2008 1:49:24 PM

Raw data? What does that even mean? The raw data that reflects racial disparities in criminal convictions and sentencing? Are you saying that raw data--when somehow processed--reflects no such racial disparity? Or are you just saying that blacks are not in fact overrepresented in the prison population compared to their population in the society overall? If the latter, you're just plain wrong. If the former, what processes do you wish to run the "raw data" through to turn the racial disparity into this thing you call "justice"? It's not like we don't both know how this ends (which I suppose is the reason for your demur).

Posted by: DK | Nov 20, 2008 7:08:51 PM

DK, read the C & C post I linked to, then talk. It's easier that way.

Posted by: federalist | Nov 21, 2008 10:01:10 AM

Oh, so by "raw data," you're just parroting Kent Scheidegger. Scheidegger quoted the DOJ: "The information gathered by the Department indicates that the cause of this disproportion is not racial or ethnic bias, but the representation of minorities in the pool of potential federal capital cases." Which brings us back to the question I initially asked: why do blacks (or Hispanics) commit more [capital eligible] crimes than whites? The emphasis here is on the why part. You see, you call this "justice." So I'm exploring where you see justice in the fact that racial minorities are "in the pool of potential federal capital cases" at a disproportionate rate to which they swim in the general population. I am not disputing the fact. I'm asking you to explain it.

Posted by: DK | Nov 21, 2008 10:58:08 PM

I don't see the need to explain it. Just like you choose to be an ignorant ideologue, people choose to be criminals.

Posted by: federalist | Nov 22, 2008 3:44:56 PM

What do you believe causes blacks and Hispanics to "choose" to be criminals more frequently than white people? It sounds like you are framing it as a moral or ethical issue (the choice of whether or not to commit a criminal act), so we could also ask: why do you think blacks and Hispanics are less moral than white people?

Posted by: DK | Nov 22, 2008 7:01:52 PM

Federalist, The people have spoken. You could not change the constitution. Your preferred candidates did not win. This was a failure of you to convince them of the merits of your position. As a lawyer you should understand that this is an important talent.

Posted by: S.cotus | Nov 23, 2008 5:24:26 PM

"[S]o we could also ask: why do you think blacks and Hispanics are less moral than white people?"

I don't think that. Believing that people are responsible for their choice to commit crime does not equate to thinking that groups of people are less moral than other groups. I tend to think that we are all at war with violent criminals be they white, black, Hispanic, Asian or whatever. Criminals tend to harm all of us, and getting bogged down in the numbers obscures the reality that we need to protect public safety, and it also saps the will to incarcerate criminals, which has some pretty nasty consequences. I frankly don't care what race a burglar is--I want him incarcerated. I also don't care what race a murderer is--I want him executed.

Posted by: federalist | Nov 24, 2008 5:47:02 PM

You do think that. You just said so in the posts above this one. You cannot, on the one hand, insist that crime is a function solely of one's character and, on the other hand, dismiss the fact that disproportionately more people of certain races are "criminals." Whether you want to make it explicit or not, universal logic will make the deduction for you. You cannot avoid the consequences of your beliefs; they are thoroughly racist. And it's nothing short of irresponsible of you to avoid it as you do.

Posted by: DK | Nov 24, 2008 10:54:31 PM

Criminals are responsible for their behaviors. That they may not have done it absent certain circumstances is no excuse. Certainly, Nazi concentration camp guards are responsible for their crimes despite the fact that others, if put in the same situation, would have done the same thing.

Posted by: federalist | Nov 25, 2008 12:18:55 AM

Daniel, you say, "It remains to be seen just how much interest Obama as a lawyer has in DOJ issues. This is especially true because Obama, unlike Clinton, had a law career before and outside of politics. Clinton was a politician that just happened to be a lawyer. I'm not sure that Obama is in the same mold."

I'm not sure the distinctions between Clinton and Obama in this area really hold up. Obama DID practice law, http://articles.latimes.com/2008/apr/06/nation/na-obamalegal6 , but the time was brief and he was very much involved in politics and composition of his autobiography. He was also lecturing at the Univ. of Chicago. But both Clintons were working in academics right out of law school, too.

With the exception of some civil rights cases, and perhaps a lengthier period of academic life, I'm not sure Obama's "real lawyer" background makes him any more likely to fiddle with DOJ than Clinton's.

Posted by: Texas Lawyer | Dec 1, 2008 1:07:32 PM

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