Who Will Fill Holder’s Shoes?

Ed Morrissey ponders the timing of Holder’s resignation:

The White House is apparently worried that a Republican takeover of the Senate will make confirmation of Holder’s replacement very difficult unless Obama appoints someone Republicans like. Resigning now allows Obama to appoint a replacement soon, and Senate Democrats to schedule the hearings during the lame-duck session (and don’t forget Harry Reid’s rule change on filibusters for presidential appointments, too, which expires at the end of this session).

But naming a replacement for Holder carries significant political risks if it happens ahead of the midterms, too; if Obama picks someone too radical, Republicans will jump all over the choice in Senate races, and warn that the Democratic incumbents (or challengers, as the case may be) will be a rubber stamp for confirmation. It really puts the rubber-stamp issue front and center in the Senate races, which is exactly what Democrats who are trying to distance themselves from Obama didn’t need.

Scott Lemieux runs through a handful of possible replacements. The one currently getting the most attention – even for his facial hair:

Some administration sources have suggested that the Solicitor General is already a top candidate to replace Holder. [Don] Verrilli, a corporate lawyer without [Massachusetts Governor Deval] Patrick’s civil rights experience before becoming the nation’s top lawyer, is far from an exciting choice (that mustache notwithstanding). He’d also seem particularly unlikely to demonstrate any independence whatsoever from his boss. But having already gone through the Senate confirmation wringer and as a well-known Obama confidante, he’d be a safe choice who would require a minimum of political capital to get confirmed, something that (for better or worse) has always been important to Obama.

Dylan Matthews provides some background on Verrilli:

Perhaps Verrilli’s most significant private client was the Recording Industry Association of America, and he worked on a number of copyright-related cases on the side of copyright holders. He successfully argued MGM Studios v. Grokster, in which the Supreme Court held that entertainment companies could sue peer-to-peer services like Grokster for copyright infringements committed by their users. Before joining the Obama administration as associate deputy attorney general in 2009, he coordinated an infringement lawsuit by Viacom against YouTube that has since been settled after a number of court rulings in favor of YouTube and its parent company Google.

So it’s not too surprising that copyright reform activists are skeptical of Verrilli.

Waldman expects fireworks at the confirmation hearings:

[T]here’s no doubt that the fact that [Holder] has been involved in so many racial controversies is the key reason why he is the second-most-hated member of the Obama administration among conservatives.

When Republicans get a chance to question the person nominated to replace him, each and every one of those issues is going to come up. The nominee is going to be asked to repudiate everything Eric Holder did. And when that doesn’t happen, Republicans in Congress will turn on the nominee with everything they can muster, in a demonstration to their base that they feel their anger.

In 2009, Holder got confirmed in the Senate by a vote of 75-21. It’s going to be a lot closer, and a lot uglier, this time around.

Relatedly, Harry Enten points out that “the confirmation of an attorney general has been the most contentious of any Cabinet position”:

Attorney general nominees are by far the most likely to face serious resistance. The average number of “no” votes for all Cabinet position is just 4.5. AG nominees average 13 more than that — 17.4 “no” votes — far ahead of labor secretary nominees at No. 2, who have averaged 10.3 votes.

A lot of these averages, though, are skewed by one or two confirmation votes in which the nominee was particularly controversial. For example, defense secretary nominees would average half as many “no” votes if we didn’t count John Tower’s 1989 confirmation — 53 senators opposed him.

That’s why the median column is quite instructive. The median attorney general nominee received 21 “no” votes. That is, the majority of AG nominees since 1977 have faced combative hearings.

Follow all of our Holder coverage here.

The Fight Holder Didn’t Pick

Danny Vinik wishes the soon-to-be-ex AG had taken on Wall Street:

Prosecuting the banks with their well-funded legal teams for criminal crimes wouldn’t have been easy. But the DOJ has a lot of legal firepower as well. Holder simply never tried to use it to hold Wall Street executives accountable. That is a major blemish on Holder’s record. Bankers sleep easier at night thanks to his decisions. And when the next financial crisis hitsand when we discover that financial fraud was a major cause of itHolder will deserve blame as well.

Wonkblog explains Holder’s reluctance to tackle the banks:

In defense of his agency, Holder has stressed the difficulty of bringing criminal charges against top-level executives who are rarely involved in the day-to-day operations of their firms. Prosecutors, he has said, need evidence of culpability, the kind of proof that often comes from cooperating witness or whistleblowers. Just last week, Holder called for Congress to increase the whistleblower award as an incentive for Wall Street executives to come forward with information.

Danielle Kurtzleben adds more rationales:

There are all sorts of reasons why the department might have been timid — going up against banks’ well-funded legal defense teams would be tough, particularly when trying to prove wrongdoing to a jury in the byzantine world of finance, says James Angel, associate professor at the Georgetown University McDonough School of Business. In an article in the July/August edition of Politico Magazine, Glenn Thrush writes that a test criminal case against bankers ended in an acquittal, which scared Holder away from actual prosecution against individual bankers.

In addition, the Justice Department simply had a lot of other things on its plate in the last few years: terrorism and voting rights, for example. But if the Obama DOJ simply doesn’t have the manpower to handle all of the problems thrown at it, that may signal that it’s time for a new structure, says one expert.

Holder’s Civil Rights Legacy

African American Activists Call For Justice In Shooting Deaths In Ferguson And NYC

Jeffrey Toobin declares that after Obama was reelected, “Holder found himself—or rediscovered himself”:

He decided to embrace civil rights as his cause. His civil-rights division filed lawsuits against the voting restrictions imposed by the legislatures in Texas and North Carolina. He began the process of reducing the number of nonviolent offenders in the federal prison population. He went to Ferguson, Missouri, to assure its citizens that there would be a full and fair investigation into the death of Michael Brown, a teen-ager shot dead by a police officer. It is tempting, even hopeful, to believe that this was the real Eric Holder.

Holder also spoke multiple times about the discrimination he believed he had experienced as a black man.

“I am the attorney general of the United States, but I am also a black man,” he said during a visit to a community meeting in Ferguson, Mo., this year, where he recounted his anger at being stopped by police while running down the street in Washington, D.C., and while driving on the New Jersey turnpike. “I remember how humiliating that was and how angry I was and the impact it had on me.”

Like many other efforts, he spoke these words not just as a cabinet secretary but as a social activist, urging the country to be better. “The same kid who got stopped on the New Jersey freeway is now the Attorney General of the United States,” he said in Ferguson. “This country is capable of change. But change doesn’t happen by itself.”

David Graham adds:

With Holder’s departure, Obama will lose a close friend—an apparently rare breed—and an essential ally on issues close to the president’s heart. Who Obama nominates to succeed him, and whether the nomination is successful, will offer some hint of how the president intends to close out his term in office. But the new attorney general is unlikely to have as eventful a term as Eric Holder.

But Eric Posner argues that Holder’s record is not one “that a civil-rights-promoting attorney general can be proud of”:

But two things can be said in Holder’s defense. First, the attorney general just doesn’t have much power to compel a president to comply with civil rights. The attorney general is merely the president’s legal adviser; he doesn’t have any authority to force the president to obey the law. In principle, Holder could have resigned in protest of these civil rights violations, but he surely thought that he could do more for civil rights by staying in office and picking his battles, and rightly so.

Second, while Holder’s decisions disappointed civil libertarians of all stripes, they were not obviously wrong. Indeed, they were mostly right. “In times of war, the law falls silent,” said Cicero. This is something of an exaggeration in the United States today, but it remains true that the rights of people considered a threat to a country tend to diminish as the magnitude of that threat increases, for good reason. Holder, like his Bush administration predecessors Alberto Gonzalez and John Ashcroft, adopted a pragmatic rather than rigidly legalistic position on civil rights, human rights, and the laws of war. That pragmatism will be his legacy.

(Photo: Michael Brown Sr., father of Michael Brown, who was killed by police in Ferguson, Missouri, wears a tie with his son’s image on it during a news conference at the National Press Club in Washington, DC on September 25, 2014. Rev. Al Sharpton called for federal review of racial violence and discrimination in the law enforcement community. By Mark Wilson/Getty Images)

Holder Out