Eric Holder’s Legacy: Bold on Equality, Less So on Civil Liberties
Eric Holder has been a historic attorney general. Not only is he the first African American to hold the position, but he is the fourth-longest-serving attorney general in our nation’s history, behind only William Wirt (1817-1829), Janet Reno (1993-2001), and Homer Cummings (1933-1939).
A product of the civil-rights era, Holder has consistently been one of the most liberal voices in the Obama administration. From voting rights to gay rights to the rights of people accused of a crime, Holder hasn’t hesitated to advance progressive positions in a White House that has sometimes been reluctant to do so for fear of inciting ever-more-vitriolic attacks by right-wing pundits and politicians. Holder has also frequently spoken out publicly about racial issues in our nation with a boldness that often was not politically realistic for the president. In so doing, Holder has made important contributions to public discourse and public understanding on matters that cut to the very heart of American democracy.
In the voting-rights arena, Eric Holder has been the most effective attorney general in decades. He has filed multiple lawsuits challenging the legality of both state redistricting plans and state voter-ID laws that were clearly designed to disenfranchise millions of minority voters. Condemning such laws as reminiscent of the era of Jim Crow, Holder pledged “to honor the generations” of Americans who took “extraordinary risks” to win the right to vote. Along similar lines, Holder also substantially revitalized the Civil Rights Division of the Department of Justice, which had been largely gutted under President George W. Bush.
In the realm of equal rights for gays and lesbians, Holder announced in early 2011 that the Justice Department would no longer defend the constitutionality of the federal Defense of Marriage Act, a course of action he had strongly advocated to the president. Holder had concluded, as the Supreme Court did two years later, that the Defense of Marriage Act could not be squared with the commands of the United States Constitution. Moreover, under Eric Holder the Justice Department has vigorously enforced the landmark Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and moved quickly to implement the Supreme Court’s 2013 decision in Windsor v. United States, making federal marriage benefits available to same-sex couples who are legally married under state law.
As the Human Rights Campaign has observed, “Some attorneys general wait for history, others make history happen. Attorney General Holder has made history for the LGBT community.” He has been, the HRC declared, “our Robert F. Kennedy, lightening the burden of every American who faces legal discrimination and social oppression.”
On issues relating to the War of Terror, though, Eric Holder’s positions have often disappointed his civil-libertarian friends and allies. On some of these issues, Holder has taken forceful pro-civil-libertarian positions, condemning the Bush administration’s use of torture, strongly supporting the closing of Guantanamo Bay, and advocating the prosecution of suspected terrorists in civilian rather than military courts.
On a range of other terrorism-related issues, however, Holder has defended the legality of programs and positions that civil libertarians deplore. These include, among others, approval of investigations and prosecutions of government employees and contractors who leak classified information, approval of the issuance of subpoenas directed at journalists who publish leaked classified information, approval of the use of drones to kill suspected terrorists (including an American citizen), approval of the NSA’s telephone metadata program, approval of the use of the state-secrets privilege to shield the secrecy of classified national-security programs, and approval of presidential authority to engage in military actions without congressional consent.
On issues like these, Holder has no doubt found himself torn between his natural civil-libertarian inclinations and the awesome responsibility of keeping our nation safe from a terrorist attack. Perhaps the central question here is whether Holder has put in place the necessary safeguards to review, reconsider, and reevaluate these programs on an ongoing basis after they were initially instituted. On this score, my sense from having served as a member of the President’s Review Group—which was charged with evaluating at least some of these programs—is that the oversight mechanisms were good, but could and should have been better. As a result, at least some programs have been approved that should at the very least have been more carefully narrowed.
Throughout his tenure, Attorney General Holder, like the president he serves, has been the target of indefensible and unprecedented attacks by Republican members of Congress. Much of this has been pure, or more accurately, impure, political theater. Republicans have inexcusably held him in contempt of Congress—the first time in American history that Congress has ever held an attorney general in contempt. Moreover, without any credible justification, they have even gone so far as to call for impeachment proceedings against him. Through it all, though, Holder has maintained his composure and remained focused on his legal and constitutional responsibilities.
At a meeting several years ago with Attorney General Holder, I was struck that he had prominently displayed in the Attorney General’s Conference Room a magnificent portrait of Attorney General Robert F. Kennedy. I reflected at the time that this might be because Holder hoped that, like RFK, he would be able to use his authority to advance the cause of freedom, justice, and equality during his tenure. I rather suspect that Robert Kennedy would be pleased.