[fblike]
Last week, Attorney General Eric Holder announced his resignation. Holder is one of three officials still remaining from President Obama’s original Cabinet and he was a lightning rod for conservative criticism of the administration. During Holder’s six-and-a-half year tenure the Justice Department sought to re-emphasize the importance of civil rights, but it came under fire for refusing to cooperate with a congressional investigation into the “Fast and Furious” scandal and prosecuting journalists that leaked government information. Holder’s departure comes on the heels of an expected Republican takeover of the Senate, which may limit President Obama’s selection of his replacement. Holder announced that he will remain at his post until a successor is chosen and confirmed.
This topic brief will discuss Eric Holder’s career at the Justice Department, analyze conservative and progressive criticisms of his job performance, and provide an overview of who President Obama may select as his replacement.
Readers are also encouraged to use the links below and in the related R&D to bolster their files about this topic.
Holder as Attorney General
Prior to his selection as Attorney General in 2009, Holder served in a variety of roles within the Justice Department. After graduating from Columbia University Law School in 1976, Holder served for twelve years in the Justice Department’s Public Integrity Section, where he successfully prosecuted political figures for ethics violations. From 1988 to 1993 Holder served as a judge for the Superior Court of the District of Columbia before becoming the first African-American U.S. Attorney for the District of Columbia. In 1997, Holder was named Deputy Attorney General in the Clinton administration. This position allowed him to oversee personnel and budget decisions within the Justice Department. After Clinton’s term of office expired, Holder went into private practice before becoming Barack Obama’s senior legal advisor in 2007. After Obama won the 2008 presidential election, he nominated Holder for Attorney General. Holder was confirmed by the Senate in a 75-21 vote in February 2009, thereby becoming the first African-American Attorney General in American history.
Holder quickly established himself as the Obama administration’s “point man” on civil rights issues. Time notes on September 25 that in address to Justice Department staff on February 18, 2009 Holder announced that “In things racial we [the United States] have always been and continue to be, in too many ways, essentially a nation of cowards.” In future years, Holder would continue to speak candidly about race by telling the American Bar Association in August 2013 that he was troubled that black men received sentences that were twice the length of white offenders for the same crime. Following the controversial police shooting of Michael Brown in Ferguson, Missouri, Holder told community leaders that he was present as the Attorney General of the United States and “also a black man.” For critics, Holder’s comments on race tainted the impartiality of the Justice Department. They also accused him of exacerbating racial tension instead of seeking to diffuse it. Even members of President Obama’s original team, such as his then-Chief of Staff Rahm Emanuel, who is now the Mayor of Chicago, saw Holder’s speeches on race as unwarranted distractions. Undeterred by his critics, Holder sought to rebuild the Justice Department’s Civil Rights Office Division, which The Atlantic on September 25 reveals was criticized for not being proactive enough under President George W. Bush. Business Week on September 25 notes that under Holder, the Justice Department sued North Carolina and Texas over their voter identification laws and launched twenty investigations into abuses by local police forces. Additionally, The Wall Street Journal on September 25 writes that Holder found some allies on the other side of the aisle such as Senator Rand Paul (R-KY) when it came to overhauling the federal sentencing system for nonviolent offenders. ABC News on September 25 points out that the federal prison population dropped by 4,800 last year, which was the first time that a decline occurred since 1980.
Holder’s support of civil rights went beyond racial issues. Holder made the decision in 2011 not to defend the Defense of Marriage Act (DOMA) after gay rights groups challenged the law’s constitutionality. DOMA defined marriage between a man and a woman and homosexual couples were not eligible for federal benefits. In deciding not to defend the law, Holder made it easier for those groups to win their case before the U.S. Supreme Court (House Republicans had to organize a defense of the legislation). Additionally, from his time in the Clinton administration, Holder was a forceful advocate for hate crimes legislation.
During the 2008 presidential election, then-Senator Obama tried to distance himself from the foreign policies of George W. Bush. His record in office, though, has been mixed. Although President Obama succeeded in withdrawing troops from Iraq and set up a timetable to withdraw the bulk of U.S. forces from Afghanistan, he largely failed to close the Guantanamo Bay detention facility. Early in the President’s first term, Holder announced his support for putting terrorist suspects on trial in U.S. civilian courts. ABC News points out that Holder wanted to put Khalid Sheikh Mohammed, the alleged planner of the September 11 terrorist attacks, on trial in Manhattan. Conservatives seized on this as a security risk and successfully rallied public opinion against Holder. The Washington Post on September 25 writes that Rahm Emanuel persuaded President Obama to get Holder to back off of the issue because it was distracting from the President’s effort to get the Affordable Care Act passed. In 2011, Holder announced that Mohammed would be tried by a military tribunal because federal law prohibits Gitmo prisoners from traveling to the United States. Nevertheless, he has insisted that his original decision was correct and that the successful prosecution of other terrorists in civilian courts shows that he would have gotten a conviction. Holder’s original advocacy of putting terrorists on trial in civilian courts illustrates the complications of the Obama team as it took over national security policy from the Bush administration. Whereas it once hoped to close Gitmo and move terrorists into the civilian court system, public opinion and conservative opposition forced it to eventually shelve both ideas.
Critics of Holder’s Tenure
While supporters of Holder, such as Senate Judiciary Committee Chairman Patrick Leahy (D-VT), claim that he was one of the best Attorney Generals that the United States has ever had, conservative and progressive forces disagree. For conservatives, Holder turned the Justice Department into a political weapon against President Obama’s opponents and refused to cooperate with Congress. For progressives, the Holder-led Justice Department failed to adequately prosecute those responsible for the 2008 financial crisis, rein in the aggressive war on terror policies left over from the Bush administration, and threatened the freedom of the press.
One of the conservative arguments made against Holder is that he refused to investigate certain violations of the law if they did not suit the political ends of the Obama administration. Time in a separate article on September 25 reports that Republicans were not happy that the Justice Department refused to prosecute ex-Internal Revenue Service (IRS) employee Lois Lerner for the targeting of conservative groups in recent election cycles. According to The Washington Post on September 25, Republicans also accused the Justice Department of political bias when Holder decided to drop the prosecution of members of the New Black Panther Party who held nightsticks outside of a Philadelphia polling station in 2008. The Justice Department’s willingness to challenge voter identification laws in Republican-led states raised the ire of conservatives as well, and Louisiana Governor Bobby Jindal got into his own battle with the Justice Department when it looked into racial disparities in his state’s school voucher program.
Holder’s biggest foe on Capitol Hill was Representative Darrell Issa (R-CA), the chairman of the House Oversight and Government Reform Committee. Issa’s committee played a significant role in investigating a failed sting operation led by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). This operation, dubbed “Operation Fast and Furious,” took place between 2006 and 2011. The National Interest on September 25 writes that the intent of the operation was to have the federal government allow firearms to fall into the hands of so-called straw buyers, which they hoped would lead them to major gun traffickers operating along the U.S.-Mexican border. Unfortunately for federal officials, more than 1,400 of the weapons used in the sting operation were lost and one of them was used to murder Border Patrol agent Brian Terry in 2010. Holder’s argued before a series of congressional committees that he had very limited knowledge of the ATF’s operations (the ATF operates underneath the Justice Department’s bureaucratic umbrella), but memos were unearthed by investigators that predated the time that Holder told Congress he became aware of the situation. Republicans accused the Justice Department of trying to cover-up what the Attorney General knew and when he knew it and demanded thousands of documents related to the incident, but the Obama administration refused to hand them over, arguing that the documents were protected under executive privilege. According to Politico on September 26, a federal judge recently ruled against the administration and has mandated that it explain in greater detail why they cannot release more than 64,000 documents related to the “Fast and Furious” operation. For refusing to turn over the documents, House Republicans voted to hold Holder in contempt in 2012, making Holder the first Attorney General to be cited for criminal contempt of Congress. Upon hearing of Holder’s resignation, Issa told The Washington Post that Holder’s legacy will be the erosion of public confidence in the American legal system.
Progressive forces were critical of the way Holder handled the aftermath of the 2008 financial crisis. Business Week on September 25 says that far-left forces were disappointed that Holder chose to force banks to enter into multi-billion dollar civil settlements with the government instead of prosecuting CEOs that mislead investors in the run-up to the Great Recession. Holder’s settlements with firms such as JPMorgan Chase, Citigroup, and Bank of America totaled more than $36 billion, but The Guardian on September 25 writes that these penalties did not go far enough. The Guardian argues that the Justice Department will probably collect only 25% of the fines that were assessed and that banks are really extracting one-third of what they owe to the government from customers. Instead of trying to fine financial institutions, progressives hoped that federal prosecutors would charge executives with violating the Sarbanes Oxley Act that prohibits corporate leaders from signing inaccurate financial statements. The Nation on September 25 points out that during the Savings and Loan crisis of the 1980s and 1990s more than 1,000 bankers were sent to prison. Holder justified his actions by saying that targeting CEO’s might produce economic instability, but his opponents say that the Justice Department could have done more to protect homeowners from the illegal behavior of corporations.
Under Holder, the Justice Department also made enemies of civil libertarians because of its willingness to crackdown on government whistleblowers and support President Obama’s anti-terrorism policies. ABC News explains that last year the Justice Department came under fire for seizing phone records of the Associated Press (AP). Holder justified the records seizure by saying that a national security issue was at stake in an AP story concerning a Yemeni terrorist plot against the United States. The Justice Department also came under fire for monitoring the activities of Fox News reporter James Rosen after a story that he published about Iran in 2009. Opponents of the Justice Department argued that its actions were an attack on the First Amendment, but Holder insisted that the Justice Department acted within its legal authority to protect national security. The Progressive on September 25 added to the left-wing criticisms of Holder by saying that he publicly defended the President’s expansion of America’s assassination doctrine to American citizens. It scoffed at his argument that the President respects a suspect’s due process rights. Finally, civil libertarians criticized the Justice Department for supporting the phone surveillance policies of the National Security Agency (NSA), which Edward Snowden revealed last year.
Who Replaces Holder?
President Obama must now select Holder’s replacement but there are some political and personal considerations at play with his choice. The National Journal explains on September 25 that aside from Secretary of Education Arne Duncan, Holder was the closest official to President Obama within the Cabinet. The article notes that presidents typically select an Attorney General that they are close to, so with Holder leaving it is very likely that President Obama will choose someone he has a past relationship with. Politically, President Obama must choose someone that can get through what is shaping up to be a rough Senate confirmation process. As previously explained in this brief, Republicans were not very happy with Holder and they are likely to take out their frustrations on his replacement. Extempers who watch those confirmation hearings can expect to see the nominee grilled about whether they support Holder’s previous policies. Additionally, President Obama has to decide when to announce Holder’s replacement and when to get the Senate to confirm them. After the midterm elections, Congress returns for its so-called “lame duck” session. If Republicans win control of the Senate they will not take over until January, so President Obama could try to get the lame duck session to approve his choice. Republicans could try to mount a filibuster, but due to a change in the Senate’s rules a majority vote can defeat a filibuster of a presidential Cabinet appointee. However, trying to push the nominee through the lame duck session carries risks as The New York Times reports on September 25 that the new attorney general would have questionable legitimacy.
So who might President Obama appoint? According to The Hill on September 25, if President Obama wants to avoid a bruising confirmation battle he could appoint a sitting senator to the position. The senators supposedly under consideration include Sheldon Whitehouse (D-RI), Claire McCaskill (D-MO), and Amy Klobuchar (D-MN). It is unclear whether any of them would accept the job, although Whitehouse has indicated that he would prefer to remain in the Senate. Appointing any of these individuals would be a safe selection because Democrats govern all of the states those senators are from, so there is not a risk of a Republican governor choosing a non-Democrat as their replacement. Another relatively safe choice would be Massachusetts Governor Deval Patrick, whose term expires in January. Patrick has a close relationship with President Obama, which would suit one of the President’s requirements, but he has signaled that he does not have much of an interest in the job.
One of the difficulties that President Obama may run into is that he only has two years left in his term, so that may prove to be a deterrent to an ambitious candidate. This might be one of the reasons that California Attorney General Kamala Harris, the state’s first African American and Asian American attorney general, has not shown a public interest in the job. Harris’s nomination would be something progressive forces would welcome since she opposes the death penalty, supports gun control, and supports San Francisco’s lenient immigration policy, but that could make her confirmation battle quite bitter. Although a term as Attorney General might bolster Harris’s future political ambitions, such as becoming California’s next governor or senator, she would only have two years to make a mark and she may choose to stay put.
USA Today on September 25 provides a quick summation of other candidates. Some are arguing that Donald Verrilli, the U.S. Solicitor General, who once served as deputy counsel to the President is the frontrunner for the job. Others argue that if the President wants a female candidate that he might give a call to former Homeland Security Secretary Janet Napolitano, who is now the President of the University of California system. Napolitano reportedly had interest in the attorney general position several years ago, but when Holder opted to stay on after President Obama’s first term she decided to leave for greener pastures. Another name that has been brought up is Loretta Lynch, who is the U.S. attorney for the Eastern District of New York. Lynch investigated disgraced Republican Representative Michael Grimm, who will face tax evasion and perjury charges this December.
When President Obama announces his choice, which he still has not done at the time of this brief, extempers should immediately gather as much background information on them as possible. Questions that extempers should investigate are what legal experience the nominee has; what their stance is on controversial social issues regarding civil rights, gay marriage, gun control, terrorism, and immigration; and whether any of their views will create problems with Congress. Extempers should also make note of any similarities or differences between the nominee and the way that Holder ran the Justice Department. Drawing comparisons will prove useful in speeches where you either have to talk about who should succeed Holder or whether a selected nominee will be able to fill his shoes. Finally, when confirmation hearings begin, I highly recommend extempers watch them on C-SPAN. You can discover a wealth of information about the concerns of senators at these hearings (some of whom may be posturing for 2016 campaigns) and how the nominee plans to run the Justice Department. A scandal is always possible as well, so be prepared to discuss the factors that may disqualify a nominee.
In closing, the person who will succeed Holder will inherit a significant amount of sensitive cases. The Justice Department is still locked in disputes with conservative states over its voter identification laws and it is still handling the investigation into Michael Brown’s shooting in Ferguson. Attorney General Holder’s legacy is arguably his actions on civil rights, so his successor will be pressured to keep the Justice Department on that same path lest minority voters, who are a substantial part of the Democratic coalition, create headaches for the Obama administration and the Democratic Party’s 2016 presidential nominee.