By Robert L. Ehrlich Jr.
8:00 AM EDT, July 29, 2012
Next time the president asks you to be attorney general of the United States, it might be best to politely refuse the offer.
My reasoning: Modern day attorneys general are regularly torched by the Congressional opposition, particularly when that opposition holds a majority in one or both chambers of Congress.
Such is the context for the life and times of Attorney General Eric Holder, a movement progressive who dutifully followed the Obama administration's line when Democrats controlled Congress in 2009-10. But things changed in the aftermath of the 2010 mid-term elections. The GOP took back control of the House. And the A.G. has been under withering fire from Day One of the Speaker John Boehner era.
One area in which he has drawn considerable criticism is DOJ's hyper-aggressive supervision of certain states under section 5 of the Civil Rights Act of 1965 — a provision originally put in place to protect minority voting rights in states with past histories of racial discrimination. But 50 years later, even the liberal wing of the Supreme Court has shown a willingness to scale back this section. Should a future voting rights case provide the high court an opportunity to do so, the federal government would then have the burden of proving actual discrimination, as opposed to present standard, which imposes a lofty burden on the defendant states to prove their ballot protection laws lack discriminatory impact.
•DOJ has sued and states have counter-sued over voter photo identification bills. These statutes typically require some form of photo ID in order to vote. Exceptions are provided in appropriate circumstances. Yet, it seems Mr. Holder believes such a minimum level of ballot security is discriminatory against minority voters. This despite 16 states having passed some version of a photo ID law and the Supreme Court's 2008 decision to uphold a strict photo ID law in Indiana — an opinion authored by liberal Justice John Paul Stevens.
•Recently, DOJ sued the state of Florida to stop it from purging voters from its registration rolls. The state's purpose was to remove non-U.S. citizens and other ineligible people from its voter lists. (Florida officials had previously identified 100,000 names of non-eligible voters that remain on its rolls.) DOJ claims the program is meant to dissuade minority voters from going to the polls. If you are having difficulty following the foregoing rationale, join the crowd. One explanation: The president carried Florida with 51 percent of the vote in 2008. The state is classified as a toss-up by every major pollster in 2012.
Other controversial decisions have generated substantial criticism as well.
•Recently, Mr. Holder became the first sitting Attorney General held in contempt of Congress. The big fight is about the A.G.'s failure to produce documents relating to the failed "Fast & Furious" gun tracking program. Congressional Republicans want the relevant paperwork accompanying the initiative, in which the department lost track of guns sold to Mexican drug cartels, two of which were found at the scene of border patrol agent Brian Terry's killing. The president denied the request on grounds of executive privilege. To date, only 7,600 out of 100,000 requested documents have been produced.
•In 2010, DOJ sued Arizona in the aftermath of that state's crackdown on illegal immigration. A divided Supreme Court has now upheld the right of local and state police to check the immigration status of individuals they stop, even for minor violations. Other provisions relating to the mandatory carrying of immigration papers, solicitation of work in public places, and warrantless arrests where police believe a deportable crime has been committed were struck down. Mr. Holder's view seems to be that states have few options to protect themselves from the wholesale failure of the federal government to secure our borders.
The foregoing policies reflect the genuine philosophical views of the president and attorney general. Collectively, they are not a surprise to any interested observer: Both men have devoted their professional lives to furthering the reach of an ever-intrusive federal government. They are now in positions to bring this goal to fruition. Obamacare, the stimulus bill, lax voter registration requirements, open borders, and a strong anti-2nd Amendment bias are predictable policy results.
But there is reason for hope on the horizon: These and so many other harmful positions are up for a vote in the November elections.
To paraphrase Chief Justice John Roberts, it's not the judiciary's job to protect the people from the consequences of their political choices, it's the peoples' job. Here's hoping…
Robert L. Ehrlich Jr.'s column appears Sundays. The former Maryland governor and Member of Congress is a partner at the law firm King & Spalding, the author of "Turn this Car Around" — a book about national politics — and Maryland chairman for the Romney presidential campaign. His email is firstname.lastname@example.org.
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