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December 4, 2008

Pardons, politics, race and justice: why Holder should come out swinging

President-elect Obama's selection of Eric Holder to be the next U.S. Attorney General is generating more buzz this morning, with this new piece at Politico, headlined "Holder pardon makes Dems squirm," and this new editorial at the Wall Street Journal, titled "Eric Holder's Politics: His years at Clinton Justice don't inspire confidence."  Both pieces effectively highlight how the ugly pardons of the Clinton era provide a basis for questioning Holder's ability to be unduly influenced by political considerations. 

There is, of course, some irony in folks attacking Holder primarily for political reasons by questioning if he is too much influenced by politics reasons.  But I am never troubled by a political system acting politically as long as there is transparency.  What is starting to trouble me, however, is the prospect that the public debate over our nation's first African-American AG nominee is going to focus on a few dumb decisions by his boss roughly a decade ago.

As I noted in this prior post, the import and impact of racial issues in all aspects of the work of the federal Justice Department (both criminal and civil) should not be overlooked.  For this reason and many others, the potential appointment of the first African-American Attorney General is noteworthy and perhaps quite consequential.  Though lots of (disproportionately white and rich) Senators apparently want to talk with Holder about pardons, war on terror and other political issues, I would like to see Holder come out swinging in the confirmation debate by raising race and justice issues right from the start. 

Notably, an effort to put Senators back on their heels during a confirmation hearing by speaking about racial issues worked quite well for Justice Clarence Thomas.  It would be quite interesting if Holder had the guts to take a page from the Thomas playbook.

Some recent Holder as AG posts:

December 4, 2008 at 09:18 AM | Permalink

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Comments

"But I am never troubled by a political system acting politically as long as there is some transparency."

I commend you for this enlightened perspective. I had a conversation at the gym with a person who was outraged, yes outraged, that they got a call from the chairman of the local Democratic party asking them to vote for a local Democratic candidate during the past election. They simply couldn't or wouldn't understand my response that the guy was simply doing his job.

It is the type of thinking this man displayed, however, that makes me more tolerant of backroom deals than I should be. But if people go nutcase over a politician doing his job honestly, no wonder so many of politicians want to hide in the closet.

Posted by: Daniel | Dec 4, 2008 11:26:38 AM

Just to quibble, the headline you reference is not "Holder pardon makes Dems squirm"... It is "GOP hopes Holder pardon makes Dems squirm".

Posted by: Matt | Dec 4, 2008 11:37:35 AM

Great quibble, Matt, in part because it documents that Politico CHANGED ITS HEADLINE after I wrote this post. I am certain that I just cut/pasted the headline from Politico when I wrote this post this morning, and I am now certani you are right about what the headline says at around 12noon EST.

Now I am wondering what else goes on behind the scenes at Politico!?!?!?

Posted by: Douglas A. Berman | Dec 4, 2008 11:54:31 AM

There is a very important difference between Holder and Thomas. Black conservatives anger the left by their very existence because they tend to disprove one of the left's most dearly cherished myths -- that conservatism is nothing but veiled bigotry. For this reason, they come under particularly harsh attack simply for being black conservatives. That factor is absent with Holder.

Also, what's wrong with focusing on a dumb decision by the boss if the person under consideration now pushed hard for that decision? If Decision X was dumb, the subordinate who recommended the boss make that decision is jointly responsible with the boss who accepted his recommendation.

Posted by: Kent Scheidegger | Dec 4, 2008 12:20:55 PM

I agree, Kent, that those playing a role in dumb decisions can/should be questioned about those decisions. That said, Holder (and Reno and Clinton) made thousands of important justice-related decisions during Holder's time as deputy AG. Don't you think his role in other decisions besides a few ugly pardons ought to be a prominent part of the discussion?

I know, Kent, that you are not a fan of Holder for death penaty reasons. I am hopeful --- but not at all optimistic --- that the record of the Clinton Administration on the death penalty is discussed more than the Rich pardon during Holder's confirmation hearings.

Posted by: Law Professor Blogs LLC | Dec 4, 2008 1:39:37 PM

I wasn't going to comment then I read Kent's silly comment. Holder isn't "jointly responsible" with Clinton. Clinton is solely responsible for the decisions he made; that what the word "advise" means. I find it deeply ironic that Kent of all people wants to hold an attorney accountable for giving ill-considered advice. That is not Kent's position when we are dealing with public defenders and their poor clients: in those situations, the attorney isn't accountable at all, even when he sleeps though the trial!

Posted by: Daniel | Dec 4, 2008 8:07:53 PM

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