During his confirmation hearing in early 2009, Eric Holder declared he would not politicize the Justice Department. Yet throughout more than five years in office, the attorney general has done just that—without objection from President Obama, who obviously paid no heed to Holder’s promise. Indeed, it is manifestly clear that Holder and Obama approach law the same way: Where necessary, it may be manipulated—or ignored—in pursuit of political ends.
Holder has announced his resignation, and we recognize that Obama is unlikely to pick a replacement as close to him as Holder has been. With any luck, the nominee will be someone who realizes that being at least an inch or two independent of the president might be good for the Justice Department and the country. We are under no illusion, however, that Obama will choose a successor to Holder who has a more traditional understanding of law. After all, he is Obama.
Still, the situation is not futile, since the confirmation hearing will offer Republicans an opportunity to show how under Obama and Holder the law has in critical contexts been abused for political purposes. This could prove a deterrent to Holder’s successor, such that some new abuse is not attempted. It could also help Republicans begin to frame an important argument as 2016 draws near: for a president—and an attorney general—committed to restoring the integrity of the Justice Department.
Among the items worth raising during the confirmation process is one that involves the department’s Office of Legal Counsel, an elite unit of lawyers who provide first-class legal advice not tilted in favor of a president’s political agenda. Early in Obama’s first term, David Barron, a liberal Democrat installed by Holder as the acting head of OLC, signed an opinion concluding that legislation to give the District of Columbia a voting member in the House of Representatives is unconstitutional—a position the Justice Department has held since 1963, regardless of the party in power. But because Holder, like Obama, supports such legislation, he asked the deputy solicitor general whether his office could defend the bill in court and was told it could—whereupon he overruled OLC.
The problem here was not that OLC was overruled, which is permissible but rarely happens. The problem lay in how it was done. As Ed Whelan, the legal writer who was principal deputy in OLC from 2001 to 2004, wrote at the time, “the right way” for the attorney general to overrule OLC is “to conduct a full and careful formal review of the legal question.” And if that review yields “the conclusion that [the attorney general’s] position [is] in fact the best reading of the law . . . then [the AG] would sign a written opinion to that effect.”
Instead, said Whelan, Holder “adopted a sham review that abused OLC’s institutional role”; he signed no opinion giving his reasons for reversing OLC. “Holder didn’t ask for [the deputy solicitor general’s] best judgment as to whether the D.C. bill was constitutional. He instead asked merely whether his own position that the bill is constitutional was so beyond the pale, so beneath the low level of plausible lawyers’ arguments, so legally frivolous, that the solicitor general’s office, under its traditional commitment to defend any federal law for which any reasonable defense can be offered, wouldn’t be able to defend it in court.”
A second item concerns Holder’s notable decision to stop defending in court the Defense of Marriage Act, which defined marriage (in traditional terms) for purposes of federal law. In his February 23, 2011, letter to Congress announcing that decision, Holder said it was consistent with the Justice Department’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” The implication was that there were no reasonable arguments that could be offered. That was not true—the procreation and childbearing argument surely is a “reasonable” one. No, Holder simply refused to make such arguments, a position inconsistent with “longstanding practice.”
The Supreme Court, which ruled against DOMA in the 2013 case of United States v. Windsor, was not impressed with Holder’s position. Said the majority: “[W]hen Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative.” In his dissent Justice Scalia wrote, “There is no justification for the Justice Department’s abandoning the law in the present case.”