Analysis: Holder's A Keeper

WASHINGTON, D.C. — Eric H. Holder, Jr., President-Elect Obama's nominee for Attorney General of the United States, underwent over six hours of often-tough questioning by the Senate Judiciary Committee today, particularly from ranking member Sen. Arlen Specter (R-Pa.), but seems to have emerged with flying colors — though there's no telling what objections Republicans will dream up once the hearings are through. (Holder completed his testimony today; supporters and opposers will testify tomorrow.)

Interestingly, not one senator brought up the issue of pornography or even child porn. This lack may have been as a result of an analysis written by former Sen. Tom Davis (R-Va.) , who retired this past November, wherein Davis warned that in order for the Republican Party to regain power, "First, we eliminate checklists and litmus tests and focus on broad principles, not heavy-handed prescriptions.  Free trade. Strong defense - at home and abroad.  Government as small as is practicable in these times. Economic, education and energy policies that promote growth, energy independence and a competitive agenda that will allow businesses to grow and compete, not be protected by artificial barriers." However, as Markos Moulitsas noted on his DailyKos website, "That is the current GOP agenda minus one big, glaring omission: nothing about 'Strong family values'. In fact, he ignores the issue altogether, pretending that the modern GOP isn't beholden to its Sarah Palin wing." Republicans may finally have wised up to the fact that in the midst of the worst economic and dysfunctional governmental disaster in nearly a century, nobody wants to hear about why adults shouldn't watch other adults having sex.

Perhaps the most welcomed statement from the nominee came early in the proceeding, in response to a question from committee chair Sen. Patrick Leahy (D-Vt.), and it was also the most simple: "Waterboarding is torture." Somehow, those three words never got past the lips of either Alberto Gonzales or Michael Mukasey, both of whom were confirmed as Attorneys General — and both of whom got Specter's vote for confirmation. (Later, Sen. Jeff Sessions (R-Ala.), after noting Holder's extensive governmental and Justice Department (DOJ) experience, attempted to use Gonzales' alleged lack of governmental sophistication to excuse his "unintentional" errors on the job.)

Also  welcome was Holder's statement that even the President of the United States is bound by the laws of the land and the Constitution, and that even he can't overrule the Foreign Intelligence Surveillance Act (FISA) when it comes to wiretapping. This led at least two senators to attempt to get Holder to state that the DOJ wouldn't attempt to prosecute Bush or other administration officials for any criminal acts which they may have committed. Holder essentially replied that he'd need to study the situation more before he could answer.

Holder also promised Sen. Charles Schumer (D-NY) that he would, in Shumer's words, "end the rancid politicization of the [Justice] Department," and in discussing the report recently issued regarding Deputy Assistant Attorney General Bradley Schlozman's insistence upon hiring 63 "true Americans" — that is, avowed conservatives — to staff the DOJ's Civil Rights Division, Holder assured Shumer that, "The attempts to politicize the department will not be tolerated." However, later he declined to say that he would overturn Mukasey's decision not to try Schlozman for having lied to the Judiciary Committee, and that he would have to look at the qualifications of the attorneys Schlozman hired before deciding whether to retain them in the Civil Rights Unit.

Perhaps the most interesting series of questions came from Sen. Lindsay Graham (R-S.C.), who asked, with deceptive simplicity, "Is there any question that we're at war?" The actual answer, of course, is "No," because Congress never made a formal Declaration of War, but Holder agreed that we were, which led Graham to follow up with, "Where are the battlefields?" Graham was obviously attempting to get Holder to brand the U.S. as one "battlefield" in the war, which might be used to give Bush a legal "out" from charges of ordering the illegal wiretapping and email searches which have been rampant over the past several years, and Holder nearly fell into the trap, talking about both physical and pyschological battlefields, but noting that "These are extremely difficult questions.." Graham ended by saying, "The only thing I ask of this [Obama] administration is that they not criminalize the war." (Too late, Linds; it's been a criminal war from the get-go.)

 Sen. Dick Durbin noted that one side-effect of Bush administration policies has been the tremendous backlog of criminal cases in the federal courts, including a large number of attempted deportations of "illegal aliens," and asked Holder what could be done about it. Holder decried the backlog and called it emblematic of the overzealous enforcement of certain statutes, engendered by a very vocal conservative constituency. He stated, "This is the test for America: Are you really who you say you are?"

 Republican objections to Holder can really be reduced to five words: Marc Rich, FALN and Second Amendment. Every Republican on the committee asked Holder either about his roles in President Clinton's decisions to pardon fugitive financier Rich and to commute the sentences of17 FALN members, all of whom had committed various (non-lethal) terrorist acts in the early '80s in an attempt to free Puerto Rico from U.S. domination, or his willingness to oppose federal gun control laws in light of the Supreme Court's affirmation of gun-ownership rights in U.S. v. Heller — or all three.

Leahy also asked Holder if he would look into reversing former Attorney General John Ashcroft's dictum that government agencies should resist supplying records in response to Freedom of Information Act requests — itself a reversal of the open-door policy for such requests under Janet Reno. Holder promised to review the Ashcroft policy, but regarding the willingness to fulfill FOIA requests, he said, "My guess would be, the administration would support that."He also told Leahy that he would support the Justice Department's program to gather DNA from criminal suspects, would enforce the Violence Against Women Act, particularly in Indian-owned territories, and that he would support the Voting Rights Act.

Sadly, Holder also suggested that he would affirm the congressionally-passed immunity of the telecommunications companies for having acceded to the Bush administration's requests for warrantless wiretaps, though when Sen. John Kyl (R-Ariz.) attempted to get Holder to say that he's support similar immunity for future illegal acts the telecoms might commit, Holder said he couldn't respond to that hypothetical.

Perhaps the most darkly amusing exchange came when Sen. Tom Coburn (R-Okla.) questioned whether Holder would support the ability of returning Iran/Afghanistan war veterans who had been classified as "mentally defective" to buy guns, once their "mentally defective" status had been reevaluated.

Another concern of Kyl's was the impending newspaper reporters' shield law. Kyl suggested that a provision should be written into the law requiring reporters who didn't want to reveal confidential sources to be forced to reveal them to a federal judge under seal, and it would be up to the judge whether that information would be revealed to, for instance, the DOJ. (That, of course, would presume that the judges are trustworthy, so it's worth noting that almost 300 of them are Bush appointees.) However, Holder responded that, "It does strike me as somewhat reasonable."

It was inevitable that someone would get around to asking Holder's position on the possible imposition of the "Fairness Doctrine" on broadcasters, and Sessions came through for the Republicans on that one. Holder, however, said he would need to know more about the issue before he could answer. Sessions also asked what habeas corpus rights Guantanamo inmates should have, in light of the Supreme Court's decision in the Boumediene case, since Holder had once said that the Supreme Court hadn't gone far enough in recognizing the prisoners' rights. Holder responded that he wasn't sure at this point what he'd had in mind when he said that.

All of the Republicans reserved the right to submit further written questions for Holder to answer, but from a lay person's point of view, it seemed as if Holder had aced this "exam."