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The Right Divided on Holder


The nomination of former Deputy US Attorney General Eric Holder for the top job at the Department of Justice has given some conservative activists, attorneys, reporters and bloggers hope in an otherwise gloomy round of cabinet-level confirmations. Conservatives have seen Holder, now an attorney at Covington & Burling LLP, as the most “beatable” of President-elect Barack Obama’s high-profile nominees.

While Republican criticisms of Holder have turned Thursday’s confirmation hearing into a high-profile event, few seriously expect that Holder will be rejected by the Senate. Few argue that such a rejection was ever a serious possibility. Republicans led by Sen. Arlen Specter (R-Penn.), the committee’s ranking member, see the hearing as a “trial” for Holder that he can win if he allays a small number of concerns about his work for the Clinton administration and its second-term presidential pardons. One of the witnesses who will testify for the Republicans has not even taken a position on whether Holder can be blamed for one of the pardons.

Image has not been found. URL: http://www.washingtonindependent.com/wp-content/uploads/2008/08/politics.jpgIllustration by: Matt Mahurin

The result will be a contentious hearing in which Republicans draw out Holder’s roles in the Clinton pardons, his view of the Second Amendment, and his fealty to presidential power. That’s as far as it will go, and as far as disgruntled conservative activists expect it to go. According to one Senate staffer, Republicans are wary of what would happen were they to “make a real effort to defeat Holder, and lose.”

“We’re aware that elections have consequences,” said Eric Pratt, whose Gun Owners of America are actively opposing Holder and testifying against him. “We’ve also won fights that we weren’t expected to win.”

The first signs that Holder’s nomination would be somewhat contentious came in mid-December, two weeks after President-elect Obama announced the choice. Eight of the nine Republican members of the Senate Judiciary Committee requested documents from the Clinton Presidential Library pertaining to the Rich pardon, the 2000 repatriation of Elian Gonzalez to Cuba, and other issues. Sen. Jeff Sessions (R-Alabama) was not part of the request, and while he promised “tough questioning” of Holder while he “hope[d] to be able to be supportive.” This added to Sen. Orrin Hatch’s (R-Utah) promise that he “intend[ed] to support” Holder were early signs that Republicans were not girding for total war against the nominee.

There was, however, a change in tone after the Senate learned that Holder had left work for troubled Gov. Rod Blagojevich (D-Illinois) out of his initial answers to its questionnaire. That news broke on December 17; on January 6, Specter delivered a lengthy statement on the Senate floor that raised questions about Holder’s honesty, asking if his view of executive privilege mirrored that of former United States Attorney General Alberto Gonzales.

“I am not passing judgment on the nominee,” said Sen. Specter, who compared the coming hearing to a day in court. “I am prepared to give Mr. Holder a full opportunity to explain his past actions and convince the Committee and the Senate that his record warrants confirmation.”

The days between that statement and today’s confirmation have been days of document-digging by Senate staff and increased lobbying from Second Amendment groups, but neither activity has chipped away at Holder’s chances. According to one account, the National Rifle Association was asked to testify against Holder. It declined. NRA executive vice president Wayne LaPierre and executive director Chris Cox sent a formal letter to the committee citing “substantial concerns about his ability to perform the duties of Attorney General in a manner that respects the Second Amendment,” but they declined to include a vote on Holder in their annual scores of senators. That stoked anger on conservative blogs like RedState.com, whose managing editor Erick Erickson called the NRA’s leaders “pitiful sellouts.”

“I’ve had both Judiciary committee staffers call me and NRA staffers call me to raise hell about not scoring Holder,” said Erickson yesterday. “They all say they don’t know that he is beatable, but probably could be beatable given which Democrats are up for re-election in 2010.” However, only two of the seventeen Democratic senators who face re-election in 2010 come from states won by Sen. John McCain (R-Arizona).

Only one of the witnesses called to today’s hearing by Republican members, lawyer and scholar David P. Halbrook, is expected to address the Second Amendment issue at all. The other two witnesses, Joseph Conner and intelligence consultant Richard S. Hahn, were called to discuss President Clinton’s 1999 pardon of 16 members of FALN, a Puerto Rican terrorist group. Conner’s father Frank was murdered by the group 34 years ago, and Hahn has worked with him in the past. However, neither man is planning a testimony that indicts Holder or brings to light new information.

“I don’t much about Eric Holder,” said Hahn yesterday. “I don’t know who in the Department of Justice pushed for the clemencies in 1999, as that’s shrouded by executive clemency. While Hahn said that anyone who pushed for clemency “abandoned their responsibility to their office, their responsibility to the victims, and their responsibility to the American public,” he saw his role in the hearing as educating the Senate about the FALN, not questioning whether Holder was fit to become attorney general.

“Not knowing the facts of what he did or didn’t do,” said Hahn, “I have a hard time making that sort of a judgment call.”

Democrats have responded to the conservative and Republican offense on Holder with a much harder-edged and declarative defense. Democrats have collected letters of support for the nominee from Republican appointees such as former Solicitor General Ted Olsen and former Attorney General Bill Barr, former Holder critics like Republican-turned-Liberarian Bob Barr (who grilled Holder over the Marc Rich pardons in 2001), and 36 state attorneys general.

At the same time, Senate Judiciary Committee Chairman Pat Leahy (D-Vermont) has baited Republicans in general with claims that they are holding Holder to a different standard than George W. Bush’s nominees and that Specter is doing a political favor. “It may be coincidence that his positions have been those of Karl Rove,” said Sen. Leahy this week, in one of several statements making that connection. “I suspect it is coincidence.”

Leahy was referring to the widely-circulated rumor that Karl Rove was “helping lead the fight” against Holder, a rumor first aired one month ago by Ceci Connolly of the Washington Post. But staff with the Judiciary Committee denied the rumor, questioned its provenance, and denied that Rove was advising or in contact with anyone working on the hearing.

“There may not be anything in Holder’s past that not makes him unworthy of being confirmed,” said Brian Darling, director of Senate Relations at the Heritage Foundation. “There might be something we haven’t seen yet. The Senate should take a look.”

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