Insights from the Eric Holder Hearing

Hopefully everyone is aware that the senate is holding hearings to help determine whether President-Elect Barrack Obama's choices for cabinet et al positions are appropriate. This is an important function of the senate and its great to hear it in action (via NPR). I was most struck listening to Eric Holder's confirmation hearing for attorney general as this was supposed to be the most contentious based on decisions made by Mr. Holder when he was a deputy attorney general during the Clinton administration. (You remember Clinton, the president who committed real crimes like lying about getting his dick sucked by a non-wife chick, not a persecuted president who is getting railroaded by simply trashing the document he swore to uphold among other things). Anyway...

There were three things I found most interesting during Mr. Holder's hearing and I wanted to briefly (in 8000 words or less) discuss them. Two of these are from republicans and I think one tells us a lot about the pro-life strategy and another about covering our asses. Of course, the remaining one comes from a democrat, basically because I love the exchange.

First, senator Orrin Hatch (R-Utah):
HATCH: OK. But back to our prior point, is the president's inherent authority under the Constitution -- can that be limited by a statute?
HOLDER: The president's inherent authority. Well...
HATCH: Right.
HOLDER: ... it's...
HATCH: I mean, you're relying on the statute as though that's binding on Article 2 of the Constitution.
HOLDER: Well, the president obviously has powers under the Constitution that cannot be infringed by the legislative branch. Glad someone has read the constitution That's what I was saying earlier. There are powers that the president has, and that have been delegated to him that he has. And in the absence -- Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always the tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the president, the executive branch interacting with the legislative branch, and coming up with solutions..

Anyone see where this is going?

HATCH: That still doesn't negate the fact that the president may have inherent powers under Article 2 that eve a statute cannot vary.
HOLDER: Well, sure. The...
HATCH: Do you agree with that statement?
HOLDER: Yes, there are certain things that the president has the constitutional right, authority to do, that the legislative branch cannot impinge upon.

See it yet? Here it comes...

HATCH: OK. Now, the FISA Amendments Act of 2008 included important civil liability protections for those providers who assisted the government with the Terrorist Surveillance Program in the aftermath of the September 11th terrorist attacks. Now, according to this act, in order for the liability protections to apply, the attorney general must first file a certification with the court. Now, last fall, Attorney General Mukasey filed the appropriate certifications with the court. You're aware of that. OK. Now, do you believe that those private partners who assisted the government should be given civil liability protection?
HOLDER: Well, that is now contained in a statute. The duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to. President-elect Obama was against the -- immunity was granted to those ISPs, Internet service providers -- but nevertheless voted for the statute that contained that immunity. It would seem to me that unless there are compelling reasons, even given the opposition, unless there are compelling reasons, I would not -- I don't think that we would reverse course.
HATCH: OK. So, if confirmed as attorney general, you will honor the certifications by Attorney General Mukasey.
HOLDER: Yes, I believe that we would. Obviously, we have to look at if there are changed circumstances, if there is some basis to change that determination. But in the absence of that, I don't think we would.
HATCH: Well, thank you. There have been numerous calls for prosecution of various individuals, ranging from the vice president to attorneys at the Office of Legal Counsel, for their support or approval of the Terrorist Surveillance Program and the CIA's interrogation and detention program. Now, if confirmed as the attorney general, do you intend to undertake, order or support a criminal investigation of those individuals, including those individuals at the Office of Legal Counsel, who were involved in drafting legal opinions on these matters? Or are you willing to acknowledge that there can be differences of opinion, but they acted in accordance with their best good faith efforts under the circumstances at the time?

Whoomp! There it is.

HOLDER: Well, senator, no one is above the law. And...
HATCH: I'll agree with that.
HOLDER: We will follow the evidence, the facts, the law, and let that take us where it should. But I think President-elect Obama has said it well. We don't want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don't want to do that.
HATCH: But would you consider these policy differences, or policy decisions?
HOLDER: Well, one of the things I think I'm going to have to do is to become more familiar with what happened that led to the implementation of these policies. I've not been read into a variety of things that I will be exposed to, should I become attorney general. And that would, I think, better inform any decision that I would make in that regard.
HATCH: OK. Let me just switch the subject -- I've got just another 40 seconds -- and explore your position -- well, let me just start with this.

Short version:
Hatch: Are you willing to say you won't go after any illegal activities conducted by the REPUBLICAN administration?
Holder: I don't want to, but I have to see what happened first and if so (probably not) maybe.

Second, senator Charles Schumer (D-New York)

This line of questioning follows the following premise...

And I want to thank you for your years of service. I worked with you when you were deputy attorney general. I was impressed then as I am now with your integrity, your experience, your excellence. Much of the discussion leading up to your hearing has focused on the question of your independence: Will you be the people's lawyer or the president's lawyer? And I think this is absolutely and correctly at the heart of the matter, because every other day, it seems, another scathing report from the inspector general hits us on the head like a hammer reminding us that the likes of Alberto Gonzales and Bradley Schlossman sullied and demoralized a great legal institution -- probably the finest civil service institution in the country -- that they really dragged through the mud. So we're in dire need of a less political and more independent Justice Department beginning at the very top. And I spent a lot of time in the last Congress, as you know, making this point. Four years ago, moreover, the question of independence was my central consideration when Alberto Gonzales sat in the witness chair: that he was too close to the president, didn't understand the nature of the job of attorney general. As I said when I voted against him at the time, "It's hard to be straight shooter when you're a blind loyalist." And I think that in my entire Senate career, the vote against Alberto Gonzales may have been one of the most vindicated by subsequent history. So some of my friends across the aisle are questioning your independence and making ludicrous comparisons to Mr. Gonzales. And they're cherry picking a few episodes from your long and distinguished career and ignoring, conveniently, other more substantial actions you've taken that manifest a true independent streak in the best traditions of the Justice Department. My colleagues have mentioned them already. I'm not a fan of either the Marc Rich pardon or the FALN. I disagree with your ultimate analysis on FALN -- and on Marc Rich, I guess, although you certainly said that was a mistake. I was a critic then, and I'm a critic now. The essential point, though, is that many who have criticized your role in those pardons -- Democrat and Republican alike -- recognize your entire career and vigorously support your nomination: Jim Comey, Louis Freeh, the Fraternal Order of Police. So if we're going to make an informed assessment about your independence, I think we have to look at the entire record. And as I look at your background and record, it's clear that you are less connected and less beholden to the new president than most attorneys general in the last 50 years.

I love the "cherry picking" line. This sums up 95% of debate in America today. Ok, here comes the coup de grace...and remember the issue is independence...

SCHUMER: Have you ever been President-elect Obama's personal lawyer, like William French Smith had been for years for Ronald Reagan?
HOLDER: No, I have not.
SCHUMER: Have you ever been a staffer to Barack Obama, like Ed Meese had been for President Reagan?
HOLDER: No, I have not, senator.
SCHUMER: Have you ever served as official counsel to Barack Obama, like Alberto Gonzales had been for George Bush?
HOLDER: No, I have not, senator.
SCHUMER: And, by the way, has Barack Obama ever dispatched you to the hospital room of a sick government official...(LAUGHTER)... to get him to authorize an illegal wiretap program?
HOLDER: (Inaudible)
SCHUMER: Yeah, I didn't think so.
HOLDER: No, he has not. (LAUGHTER)
SCHUMER: All right. And I take it you're not a close relation to the new president, like Bobby Kennedy was to Jack Kennedy?
HOLDER: No, we're not related by blood, though people do say we look alike. (LAUGHTER)
SCHUMER: I don't think so. (LAUGHTER) Although you're both very handsome.
HOLDER: I've heard he's handsome. I was going to try to, you know, draft on that.
SCHUMER: OK. Let me ask you this: Have you ever been a professional politician, like, say, John Ashcroft or Dick Thornburg?
HOLDER: No, I've never run for office.
SCHUMER: OK. Before last year, at age 57 after 30 years as a lawyer, did you owe any paid job or government appointment to Barack Obama?
HOLDER: No, I have not. I do not.
SCHUMER: When did you first meet the president-elect?
HOLDER: After he was elected but before he was sworn in as a senator.
SCHUMER: Great. What did the president-elect tell you about what kind of attorney general he wanted you to be?
HOLDER: He said, Eric, you've got to understand you've got to be different. You know, we have a pretty good relationship. That's probably going to change as a result of your taking this position. I don't want you to do anything that you don't feel comfortable doing. You've got to be my counselor. You've got to tell if I'm going to get myself in any kind of trouble. I understand that the Justice Department is different. I understand that you're going to be different. He said he hoped that it wouldn't affect our relationship, but he says he understands that I have a different obligation than other people in the Cabinet.
SCHUMER: OK. Well, that's refreshing, because I doubt that President Bush ever had that kind of conversation with Alberto Gonzales. And it's a refreshing change. So when we talk about independence, we need to keep in mind the notion of independence is often a two-way street. I welcome your nomination, not just because you will be a different kind of attorney general but because Barack Obama will be a different kind of president. So I really want to thank you. I believe that your nomination, should you be approved, will end the rancid politization at the department, because it will mean an end to waterboarding and other shameful forms of torture and because it will mean a full return to the rule of law and our reputation around the world.

Third and maybe most importantly based on what I heard, senator Sam Brownback (R-Kansas)

BROWNBACK: That's a big issue for them and I have spoken to Secretary Gates and the chairman of joint chiefs about this as well. Last Congress, Senator Kennedy and I successfully worked to pass a prenatally and postnatally diagnosed conditions act and there's no reason I expect you to know about that bill but what it was targeted at was to provide an adoption list for children borne with Down Syndrome.

You know this seems like a good idea. Although I do not know why someone or adoption service cant simply make a website on their own. I see no reason for the government to have to do this....oh wait, yes I do...

Right now, if you do the in utero test for Down Syndrome, 80 percent of the children are aborted. And both Senator Kennedy and I thought that was a really tragedy. What we need to do is to try to figure a system to try to encourage that they would be warned. And this is a very tough situation, if you can't handle it, BITE ME there are people that want to do this, rather than killing the child FETUS, ITS A FETUS . And we also put in that there would be current information put forward about life expectancy of Down Syndrome children, conditions for early treatment. And we're both very proud that we could get this. The Kennedy family has been great on working with people with disabilities and I was delighted to partner with him on it. The thing I find extraordinary is that the Americans with Disabilities Act, part of which, the Justice Department will be enforcing applies and protects people with disabilities yet we tend to not apply it. But at a certain point of life and the children tend to be killed before it gets applied to them. I would hope you would review with them, the Department of Justice, when you would apply the ADA, the Americans with Disabilities Act. I know there are other agencies that have jurisdiction and maybe primary jurisdiction over this but that you would look at when do we apply the ADA. I don't know if you're familiar with that or if you could make a point of view on it.

Unfuckingbelievable!!! Are we seeing the next round of anti-abortion strategy? Get the ADA to apply to the fetuses with potential disabilities (they aren't disabled in the womb). If that can be done, then the argument (and its a shit one to begin with) is that if ADA applies to the fetuses, then fetuses have rights, thus they are people, thus they must not be aborted. (However, once they are born, we must impinge on their rights to listen to music, read books, watch TV/movies, play games we find offensive. They must believe in a specific set of christian doctrines, dress appropriately, and keep the hell off my lawn.) Are you sickened by this argument? How do you handle this "question."

HOLDER: I think a core of what you're talking about are very personal, difficult decisions that people would have take...
BROWNBACK: I'd say a very legal question on your part.
HOLDER: ... but I think the legal determination is based on what the Supreme Court has said in essence are personal decisions tied to the right to privacy. I think the legislation that you described, that you worked on with Senator Kennedy, is admirable. The possibility of adopting Down's children, that's obviously a wonderful thing. The application of the statute that you mentioned in, I guess, a prenatal sense, I just don't know what the impact of that would be on...
BROWNBACK: Can you see the disconnect here? If that child gets here, it's protected as the ADA applies. If it doesn't, 60 to 80 percent are killed. I would hope you would look at that and say that this should be applied at an earlier point because clearly the intent is to protect this child, not to kill it.

WOW! Just WOW!