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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.

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