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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.

PatHMV (mail) (www):
My concern with Holder is that he worked for a long time in the Reno Justice Department, which I don't consider to have been terribly well-run. It is perhaps mildly better compared to the Gonzales administration, but it was also very political, politicized many U.S. Attorneys' Offices, and laid the groundwork, in my opinion, for the slide from professionalism which continued in the Bush Administration.

How much Holder himself is responsible for any of that, I have no idea. But Janet Reno's DoJ, the DoJ of Waco, Elian, and other fiascoes, is hardly something to emulate or seek to recreate.

On the issue of ideology, I agree with you that the A.G. should generally share the ideology or philosophical leanings of the President. However, in the past several years, some Democrats have made a fetish of "professionalism" as being the primary quality that a President should look for. When one thinks of Holder generally, one thinks of him first and foremost as a political figure, not a career professional. This may or may not be an accurate impression, but I think it is the general perception of him. This stands in contrast to, say, the current Attorney General, who, while a Republican, was clearly not a very "political" type of person throughout most of his career. Picking Holder is not as bad as picking Gonzales, perhaps, but certainly not as good as picking a primarily apolitical type such as Mukasey. If the Democrats want to shift the goalposts a bit, that's fine, but Republicans can legitimately point that out.
11.19.2008 5:00pm
hey (mail):
The Dems have opposed nearly every nominee - Obama even voted against ROBERTS. The new game is to filibuster all nominees, so that's how Repubs should do it. Confirm no one. To do otherwise is to accept a one-way leftist ratchet and to take the part of Charlie Brown to the Dems' Lucy.

I also find any involvement in pardoning Marc Rich to be evidence of unfitness for any office, and would deny confirmation to Hillary for any position as well (Bill is obviously unconfirmable).
11.19.2008 5:07pm
Constantin:
I agree with this 100% from a philosophical perspective. He won, he gets to pick who he wants, more or less.

I disagree with it 100% from a practical standpoint as someone more partial to the GOP (by default) than the Democrats. Fight everything and throw whatever you can at Obama from Day One. Derangement works these days. Ask Speaker Pelosi and Leader Reid and President-elect Obama.
11.19.2008 5:09pm
Houston Lawyer:
I think the Republicans should show him every courtesy that Harry Reid &Co have shown the various Bush appointees. Sauce for the goose.
11.19.2008 5:19pm
Serendipity:
I think part of the reason that the Dems have such a large majority in the Senate is that many voters believed the "Republicans have been acting as obstructionists, we need a larger majority" argument more than they bought the "Democrats have been in control of the Congress for two years and they've gotten nothing accomplished" argument. If Republicans continue to "fight everything," and continue to be seen as obstructionists, the years in the wildnerness will surely continue. Republicans need to start standing for something rather than being against everything if power is to be regained.
11.19.2008 5:22pm
Constantin:
Republicans need to start standing for something rather than being against everything if power is to be regained.

Except that the Dems took back complete power with not a single novel policy idea among them. The entire past two elections boiled down to Bush is Bad. At its essence, even "Change" itself just meant "the opposite of the other guys." Your idea is the way we'd all like to think things work, but it's not borne out by reality or experience.
11.19.2008 5:27pm
one of many:
While I do agree that the president should get his choice for cabinet posts and the senate should only vote against presidential nominees on non-ideological grounds it is a little late to be changing the rules of the game, and I'm sure AG Olson will agree with me. Last year when Senator Reid graciously said "Ted Olson is some who's politics I find repugnant but that is not a reason to disqualify him from becoming AG, and I will do everything in my power to ensure he will be the next AG" it set the ground rules for these things, it is no more reasonable to attempt to block Eric Holder than it was to block Olson from becoming AG.

/sarcasm

The problem is that after all the rhetoric about how Bush couldn't pick a Olson because he was too partisan and the AG had to be independent and non-partisan when Bush was looking to nominate Olson it is downright insulting to pick someone like Holder who cannot even make a pretense is independent or non-partisan. It's not even the idea of Holder being AG that bothers me, it is the insult of the senate last year pretending it wasn't blatant politics which derailed Olson (it is not his politics but the fact that he is too political and the AG must not be a partisan) suddenly being forgotten now that the appointer has a (D) after thier name.
11.19.2008 5:27pm
Constantin:
And some of the stuff Jim Geraghty and others are reporting on Holder brings the "at least he's not unethical" declaration into some question, too.
11.19.2008 5:28pm
wm13:
O, Serendipity, I don't think it works that way. The party that holds the White House and the Congress gets blamed for everything. (Don't you remember 1992 to 1994?) The Republicans should be as obstructionist as possible; people will blame Obama and the Democrats in Congress for their inability to work co-operatively and get things done, and the Republicans will gain in the end.

Or is it your theory that voting against Ashcroft on strict party lines hurt the Democrats?
11.19.2008 5:32pm
runape (mail):
Ilya,

I'm curious: why do you think Holder is a "left-wing Democrat," as opposed to "a Democrat"?
11.19.2008 5:34pm
turdsimile (mail):

Obama even voted against ROBERTS


He did. And he did so "with considerable reticence." Obama's remarks on that vote are worth a read:

http://obama.senate.gov/press/050922-remarks_of_sena/

Of course, tens of millions of people heard McCain tell that absurd lie in the last debate: "Senator Obama voted against Justice Breyer and Justice Roberts on the grounds that they didn't meet his ideological standards."
11.19.2008 5:34pm
hawkins:
One of Many - Dems believe Olson was a partisan hack on a witch hunt going after Clinton. Why is it that "Holder cannot even make a pretense as independent and non-partisan"? I dont think he's ever been accused of dirty partisan politics of the sort Dems believe Olson is guilty of.
11.19.2008 5:36pm
Sarcastro (www):
The Constantin doctrine:

1. GOP is always good, Dems are notning but bad.
2. When Dems fail, GOP succeeds.

Therefore, GOP needs to irrationally and constantly block everything the new administration tries to do!

It's the only way to save America from not agreeing with Constantin!
11.19.2008 5:43pm
Railroad Gin:
I agree with this 100% from a philosophical perspective. He won, he gets to pick who he wants, more or less.

But shouldn't his pick be in keeping with how Obama won? He ran as a moderate, but Holder is significantly more liberal. Obama said he supports the 2A but Holder is as anti-gun as they come. Obama was going to clean up Washington but he picks a guy whose fingerprints are all over the Marc Rich disgrace. He sounded rather hawkish regarding Afghanistan and Al-Qaeda but picks a guy who sees little difference between prosecuting a war and prosecuting street crime.

I think it would be wrong (and politically stupid) for the GOP to mindlessly try to obstruct every Obama appointment. But there are good reasons to single out Holder. And as everyone here seems to agree, the AG is the most political of the cabinet posts. For that reason alone there probably should be more scrutiny.

On the other hand, the last time the GOP stopped a Democratic AG nominee, it didn't exactly work out. I would have preferred Zoe Baird or Kimba Wood over Reno.
11.19.2008 5:49pm
hawkins:

But shouldn't his pick be in keeping with how Obama won? He ran as a moderate, but Holder is significantly more liberal.


Who would you prefer to Holder? I havent heard an answer from anyone opposing the nomination. Would you have preferred Gorelick or Patrick?
11.19.2008 5:58pm
Sarcastro (www):

He ran as a moderate

A moderate socialist messiah who loves the hitler-youth!
11.19.2008 6:05pm
Felix Sulla:
I agree with this 100% from a philosophical perspective. He won, he gets to pick who he wants, more or less.

I disagree with it 100% from a practical standpoint as someone more partial to the GOP (by default) than the Democrats.
Hmmm, so no matter what is intellectually honest or correct as a matter of principle, as a practical matter you will not act in an intellectually honest or principled manner when it comes to anything the Democrats do. And you are also aggressively and irrationally proud of this fact. Mentioning your partiality to the GOP was redundant, methinks.
11.19.2008 6:18pm
Arkady:
From a purely partisan point of view, I sincerely hope the Republicans try to obstruct everything the Obama administration attempts to do. Really, I do.
11.19.2008 6:28pm
Railroad Gin:
Who would you prefer to Holder? I havent heard an answer from anyone opposing the nomination. Would you have preferred Gorelick or Patrick?

Napolitano is more moderate, although that may have more to do with her being from AZ. At least Patrick didn't help to pardon Marc Rich. Gorelick would be just as bad as Holder.
11.19.2008 6:30pm
Constantin:
Hmmm, so no matter what is intellectually honest or correct as a matter of principle, as a practical matter you will not act in an intellectually honest or principled manner when it comes to anything the Democrats do. And you are also aggressively and irrationally proud of this fact. Mentioning your partiality to the GOP was redundant, methinks.

It's entirely rational. And it's exactly what the Democratic Party has done for the past eight years, to great electoral success. Save the sanctimony for your fellow geniuses, like Sarcastro.
11.19.2008 6:46pm
Sarcastro (www):
[Constantin do you really think the (admittedly "deranged") liberal desire to bring Bush up on war crimes etc. is what won them the election?

It was the Republicans that were all about booing and demonizing this time around.]
11.19.2008 6:55pm
Eli Rabett (www):
Eli is with Arkady and Constantin
11.19.2008 7:30pm
Constantin:
Yes, Sarcastro, I do think that the derangement was so effective at painting a caricature of Bush--and he was so ineffective in that he failed to even attempt at fighting back--that it paved the way for something as hollow as "Change" (read: Not Bush) to win the election.
11.19.2008 7:36pm
Sarcastro (www):
[Constantin I disagree. I didn't see Obama's message as particularly integral to his campaign. It was more his calming demeanor, youth and organization up against McCain's lack of all three.

Angry people are not generally very convincing. If you want to go and start calling it the "Obama recession" and yell about his birth certificate, go for it. But I think you're driving off a cliff cause you saw some liberals do it once and their guy got elected this time.]
11.19.2008 7:46pm
Oren:

I think the Republicans should show him every courtesy that Harry Reid &Co have shown the various Bush appointees. Sauce for the goose.

You mean confirming Mukasey even after he flat refused to answer their questions with absurd evasions?

Mukasey was precleared with Schumer, Holder was precleared with Hatch &McConnell (if you trust the rumors). How much more consideration does the minority party deserve for executive (not judicial) nominees?
11.19.2008 9:25pm
LN (mail):
Why would eight years of 9/11, the Iraq War, Abu Ghraib, Hurricane Katrina, the stock market collapse, and a general financial crisis be enough to make voters responsive to a simple message of change? Clearly the nefarious Angry Left and their comrades the Main Stream Media caused the idiot ignorant moron voters to cast their ballots for Barack Obama and the Democrats, despite Bush's eight fabulous years of accomplishment and service.

Those stupid voters, so stupid. It's interesting, because just a few years ago they were decent hardworking Americans who knew the truth in their hearts no matter what some over-educated smug latte-sipping coastal elitists said. It used to be just disrespectful -- nay, anti-American -- to not respect their preferences. I wonder what happened.
11.19.2008 10:15pm
Saladman (mail):
In principle I agree with you, but in practice I think the R's should adopt the exact same standards Dems have used to oppose nominations. I agree with the poster above about there being a "leftward ratchet" in American politics from liberal Democrats daring more and demanding more, while Republicans play by the old rules.

A more practical objection to my wish for a stand against Holder is that the GOP may not be able to mount much of a filibuster, and may have to pick its battles more wisely. But the demand, to whatever extent it is made by the left, that the GOP not consider idealogy, is laughably hypocritical.
11.20.2008 12:16am
wm13:
"You mean confirming Mukasey even after he flat refused to answer their questions with absurd evasions?"

Huh? The overwhelming majority of Democrats voted against Mukasey, as they had against Ashcroft. I would presume that the Republicans would follow the same rule. Furthermore, I think they are behaving rationally: it's best for the Republicans if anyone who is ideologically on the left, or who has any scandal in his past, is denied any veneer of bipartisan acceptance from the get-go.
11.20.2008 6:49am
BGates:
Since the Republicans will be unable to block the nomination, I'd be more interested in using the confirmation hearing to air some questions.

Such as, would the First Black President's appointment of the First Black Attorney General suggest that the Democratic Party need to come up with a more current excuse for their encouragement of vote fraud than invoking the specter of Jim Crow to argue against voter ID laws?
11.20.2008 7:21am
Sarcastro (www):
Listen, in principle I agree that women should vote, but in practice I think they tend to vote wrong.

It's like liberal women keep voting more and more while men play by the old rules.
11.20.2008 7:44am
Richard Aubrey (mail):
Ilya
Nobody's talking about setting aside the president's prerogatives. Who could do it, anyway?
The question is whether Holder is a good choice, or, if a bad choice, what it says about Obama.
If all we had to go on was his backing and filling wrt Rich, he'd be unsat. Right up there with corrupt--looking for future career favors--and/or stupid. And completely unable to understand conflicts of interest.
Other than that...hey, it's DC, after all.
11.20.2008 8:17am
jukeboxgrad (mail):
wm13:

it's best for the Republicans if anyone who is ideologically on the left … is denied any veneer of bipartisan acceptance from the get-go


It turns out that the country just handed a mandate to a president-elect who is "ideologically on the left" (I've heard rumors that he might actually be a Democrat). It turns out that granting him "bipartisan acceptance from the get-go" might actually be what the country needs and wants.

But does the GOP want to do what's "best for the Republicans," or what's best for the country? Because it might not be the same thing.

Then again, serendipity made a good point:

If Republicans continue to "fight everything," and continue to be seen as obstructionists, the years in the wildnerness will surely continue.


So obstructionism might be "best for the Republicans" in the same sense that running Palin in 2012 might be "best for the Republicans." It has been observed that 64% of Rs and 100% of Ds support Palin for the nomination ("when asked to choose among some of the GOP's top names for their choice for the party's 2012 presidential nominee, 64% say Palin"). Go Palin!
11.20.2008 9:01am
JosephSlater (mail):
So, practically speaking, what exactly would the Repubs do to try to block this? Filibuster? You think the Dems don't have 60 votes for this (even if Franken and Martin both lose)? I'm sure Obama and Holder are quaking in their respective boots.
11.20.2008 9:17am
wm13:
"But does the GOP want to do what's "best for the Republicans," or what's best for the country?"

Well, obviously, if people agreed on what's best for the country, we wouldn't have politics at all, would we? So I don't think that's a very useful standard. But, if anyone is interested--and there is no particular reason they should be--my view is that what's best for the country is division and paralysis among our rulers, and skepticism about government and scorn for politicians among the governed. I would think anyone with even the remotest libertarian sensibility (which is all I have) would agree.

So an obstructionist GOP that tars the Obama administration with phony scandals and makes Washington appear to the general public as a rancorous place full of dislikable people is good for America, in my view.
11.20.2008 10:04am
Richard Aubrey (mail):
wm.
And they can use the dem playbook, too. Saves time having to write their own.
11.20.2008 10:20am
TIm (mail):
Hey Jukebox, if 52 percent is a mandate, then the 51 percent Bush got in 04 should qualify as a mandate as well, no?

So, have you been accepting of the Bush picks as well,? If not, then you really might want to reconsider what you consider a mandate.
11.20.2008 11:17am
Baseballhead (mail):
Hey Jukebox, if 52 percent is a mandate, then the 51 percent Bush got in 04 should qualify as a mandate as well, no?
Well, that's exactly what Bush claimed it was. Good enough for me.
11.20.2008 2:03pm
David in NY (mail):
God, that's honesty:

So an obstructionist GOP that tars the Obama administration with phony scandals and makes Washington appear to the general public as a rancorous place full of dislikable people is good for America, in my view.


I think this lamentable attitude explains the recent poll result showing that 61% of Americans disapprove of the Republican party. If Republicans continue to act like irresponsible frat boys, it will get even worse for them.

By the way, the Democratic Party has a 55% approval rating.
11.20.2008 4:02pm
Dilan Esper (mail) (www):
How much Holder himself is responsible for any of that, I have no idea. But Janet Reno's DoJ, the DoJ of Waco, Elian, and other fiascoes, is hardly something to emulate or seek to recreate.

Waco was a fiasco (indeed, it was more than a fiasco, it was a horrible outrage and a tragedy), but Elian was a fantastically successful use of government power to vindicate a father's rightful claim of custody over the wishes of a lawless mob that wished to use a small boy as nothing more than a means of demonstrating their power. And the mob was defeated without a shot being fired.
11.20.2008 4:25pm
BGates:
Well said, Dilan.

Viva Castro!
11.20.2008 4:30pm
Dilan Esper (mail) (www):
BGates:

There are many, many dictators in this world. We don't, however, presume that the people who are unlucky enough to live under their rule lose their rights to custody of their children. Indeed, I would think conservatives would recognize the importance of parent-child relationships, especially when living in repressive regimes that claim that one's loyalty is always and forever to the state above all. Hating Castro should not change this essential point.
11.20.2008 4:37pm
JEM:
Okay, Holder wouldn't be a GOP president's choice as AG. But in the overall spectrum of who Obama might have picked, he's far from the worst possible choice.

Save the ammunition for whatever crackpot he decides to put in at EPA.
11.20.2008 4:45pm
jukeboxgrad (mail):
wm13:

what's best for the country is division and paralysis among our rulers … I would think anyone with even the remotest libertarian sensibility (which is all I have) would agree


There is some merit in the impulse to make sure government is weak and ineffective. But like most impulses, it leads to bad results when taken too far.

an obstructionist GOP that tars the Obama administration with phony scandals and makes Washington appear to the general public as a rancorous place full of dislikable people is good for America


When the shoe was on the other foot for the last eight years, did you promote the same philosophy? I don't seem to recall you or anyone else doing so.

This reminds me of the way the GOP recently told us about the virtues of a divided government. I don't remember them raising that argument in 2004.
11.20.2008 8:51pm
jukeboxgrad (mail):
tim:

if 52 percent is a mandate, then the 51 percent Bush got in 04 should qualify as a mandate as well


I see you're using the special GOP rounding algorithm, which leads to interesting results. Bush didn't get "51 percent." He got 50.7%. And Obama didn't get "52 percent." He got 52.7%. So you've managed to apply some magical math that turns a 2-point advantage into a 1-point advantage. Since you think the numbers 1 and 2 are interchangeable, is it OK if I borrow two grand from you and then pay you back just one?

Bush's victory margin in 2004 was 2.4%. Obama's victory margin is 6.8%. Can you grasp that there's a big difference between those two numbers?

Aside from that, it's fundamentally misleading to compare an incumbent's result to a non-incumbent's result. Since FDR, most incumbents who won another term did so with especially large portions of the popular vote. FDR, Ike, LBJ, Nixon, and Reagan all achieved at least 53.4% of the popular vote when they were reelected. Clinton was reelected with only 49.2%, but that was a special case, because Perot took 8.4% of the vote (and exit polls showed that Perot voters had an equal preference for Clinton and Dole). In this historical context, Bush winning reelection with only 50.7% is a very weak performance. Nevertheless, Cheney and a bunch of other people promptly called this a "mandate."

Obama winning 52.7% as a non-incumbent is a very strong performance. 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 (unlike FDR, Ike, LBJ, Nixon, and Reagan).

have you been accepting of the Bush picks as well


I answered that question here.
11.20.2008 8:52pm