This column originally appeared on National Review Online on December 16, 2008.
President-Elect Barack Obama’s nomination of Eric Holder to be attorney general surprised many. There are reasons that Holder ought not to be confirmed, but regardless of that, his nomination tells us quite a bit about Obama and the Supreme Court he will likely give this country.
Most of the president-elect’s Cabinet appointments have been praised, from Timothy Geithner as treasury secretary to Bill Richardson as commerce secretary. Others have been seen as reasonable but with reservations — such as Hillary Clinton as secretary of state and Janet Napolitano as homeland-security secretary. But even the Washington Post has raised questions about Eric Holder’s nomination as U.S. attorney general.
Eric Holder has had a very impressive career. He graduated from Columbia Law School, served as a city judge in D.C., was a federal prosecutor, and then deputy attorney general under Janet Reno.
But two of his final acts at the Justice Department are simply unpardonable: the infamous pardons of Marc Rich and the FALN terrorists. The Justice Department Office of Pardon Counsel (OPC) evaluates requests for a presidential pardon. OPC considers evidence that the conviction was wrong or the sentence unjust, usually requiring a convicted person to have served five years of their prison sentence.
But Holder helped Rich evade that process. Marc Rich, a billionaire, had been indicted of 65 counts of tax evasion and arms-dealing with Iran. He fled to Switzerland, where he lived an extravagant lifestyle. Holder personally worked with Rich’s attorney to get the pardon directly to then-president Clinton. Holder made clear that he did not oppose the pardon, while Rich’s wife was giving over $400,000 to the Clinton Library. She also raised significant money for the Democratic party and Hillary Clinton’s Senate race. President Clinton granted the pardon.
The pardon looked far worse than a bad idea. It looked like corruption. It looked like malfeasance in office — selling out justice for potential personal gain.
As bad as that is, the FALN pardons where worse. Sixteen terrorists of the FALN group were imprisoned for felonies involving bombs, guns, robbery, and sedition. But in 1999, Eric Holder facilitated President Clinton commuting their sentences.
These were unrepentant terrorists. America is now at war with terror, and yet when we imprisoned over a dozen confirmed terrorists involved in bombings and other terrorist acts, the man who would be our top official against acts of terror helped convince the president of the United States to let them go. Whatever the consequences of that act may have been in 1999, in 2008 it should be political suicide.
But evidently Obama has decided it is not. And that tells us two things about our next president.
First, he is doubtless only trying to nominate Holder because the Democrats have at least a 58-42 advantage in the Senate. Only nine cabinet nominations have been denied by the Senate in all of American history. While others have been withdrawn for various reasons, you can count on your hands the number that failed when the president decides to demand a vote.
The fact that Obama is willing to ignore the “Do No Harm” rule that usually accompanies cabinet picks shows that he is going to push the envelope on a number of issues.
This nomination might also shed light on the kind of policies Obama will pursue. Despite Obama’s new lip service to the Second Amendment, Holder signed onto a brief earlier this year reaffirming his long-held position that the Second Amendment confers no rights whatsoever to private citizens, and that the Supreme Court should have upheld D.C.’s absolute ban on handguns, even in homes. Holder also has far-left views on unrestricted abortion, and opposes the death penalty. And, in a war on terror, Holder believes that all the rights that U.S. citizens have in civilian courts should be extended to foreign terrorists captured abroad.
A president’s pick for attorney general also foreshadows the kind of judges the president will nominate. By picking Eric Holder, Obama is showing that he is dead serious about his campaign promise to appoint far-left judges like Ruth Bader Ginsburg to the Supreme Court, plunging this nation further into a regime where unelected, unaccountable jurists impose their personal political views on the rest of us through the courts, declaring the Constitution to require whatever they think the public policy should be.
Some Republicans will mount an opposition to the Holder nomination. Regardless, Holder will likely be confirmed. But GOP senators must get him on record on all these issues, and force him to fully explain under oath all of his views and his choices regarding terrorists and pardons.
— Ken Blackwell, a former Ohio secretary of state, is a senior fellow at the American Civil Rights Union. He is currently running for chairman of the Republican National Committee.