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What’s the Right Ethical Batting Average for the AG?

The Washington Times reports that a tumultuous hearing awaits Eric Holder:

Sen. Charles E. Grassley, Iowa Republican and a member of the Judiciary Committee, told reporters Wednesday Mr. Holder’s quest for confirmation will not be “smooth sailing.”

“He still may end up being attorney general. And I wouldn’t say that I wouldn’t vote for him because you can’t say he’s not qualified for it; he is qualified,” Mr. Grassley said. “But there’s a lot of people that are qualified.They have other reasons that maybe they shouldn’t be in that position.”

Republicans are gearing up to vigorously question Mr. Holder during the hearing, particularly about his time as the deputy attorney general, the Justice Department’s No. 2 post, under President Clinton.

Sen. Arlen Specter, Pennsylvania Republican, delivered a speech Tuesday on the Senate floor criticizing Mr. Holder’s role in the controversial pardon of fugitive financier Marc Rich. Mr. Specter also criticized his involvement with clemency being given to members of a Puerto Rico nationalist organization that the FBI considered terrorists, and his part in the decision by Justice not to investigate allegations of campaign-finance violations by then-Vice President Al Gore.

“Some of his actions raised concerns about his ability to maintain his independence from the president,” Mr. Specter said. He drew parallels to former Attorney General Alberto R. Gonzales, who resigned in 2007 after a tumultuous term in which critics accused him of making decisions based on direction from the White House, at times to the detriment of the Justice Department.

Now, as many conservatives have found out the hard way, Specter is not a legal conservative or an advocate of judicial restraint. But that’s not what is at issue here. Certainly, some conservatives are concerned about Holder’s views on the Second Amendment, for example. But he will no doubt recite the platitude that he’ll follow the Supreme Court’s decision in D.C. v. Heller. The primary concerns revolve around Holder’s adherence to Justice Department guidelines and ethical standards for all government attorneys and his candor during prior testimony before Congress.

The Democrats are rounding up the usual ideological defenders of judicial liberalism — everyone from the ACLU to the NAACP will sing Holder’s praises. But if that’s what the defense consists of, they’re fighting the last war(s). This isn’t a Supreme Court confirmation hearing, and the Republicans by and large aren’t focusing on legal philosophy. The Democrats would do better to get some legal-ethics gurus to attest that Holder behaved properly in the controversial pardon decisions. But wait, I don’t think they have any of those sorts of witnesses. They would be hard to come by.

And they are going to have a tough enough time when Specter and the other Republicans start reading back the comments of Democrats in 2001 who found the Rich pardon and Holder’s involvement in the same to have been unacceptable. So the Democrats are employing the tried and true tactic utilized when there is a serious problem with a nominee of theirs: changing the subject. They’ll talk about all the wonderful achievements in Holder’s career; they’ll describe other instances in which Holder behaved ethically (What’s the right batting average for ethics — .500? .250?). And they’ll emphasize the ground-breaking nature of his nomination as the first African-American attorney general. But lots of attorneys have distinguished careers, have perfect records on ethics and would meet the diversity criterion (if there was one). Larry Thompson comes to mind, for example.

So questions remain: why Holder, and why someone with serious character issues — including a failure to be entirely candid with Congressional investigators — deserves to be attorney general? That’s what the hearing will be about. And that’s why Democrats are circling the wagons.


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