A few days ago President Obama summoned a press conference to announce the resignation of Attorney General Eric Holder. For all the misty-eyed platitudes, it was hard to believe that the president was speaking about the only sitting Cabinet member in U.S. history to be held in contempt of Congress. In fact, only three days ago a federal court dealt the Department of Justice a significant blow, ordering Mr. Holder to hand over a list of the documents it has withheld from the congressional investigation into Operation Fast and Furious. None of this stopped the president from praising Holder’s “deep and abiding fidelity to one of our most cherished ideals as a people, and that is equal justice under the law.” To the contrary, Holder leaves behind a dubious legacy of selective law enforcement, careless public pronouncements, and partisan abuses inconsistent with the principle of equal justice under the law.
The attorney general is what President Obama correctly called “America’s lawyer, the people’s lawyer.” His principal functions are to uphold the Constitution of the United States and enforce the laws duly enacted by the elected representatives of the people. At least, that’s his job in theory. In practice, Holder has behaved more like the President’s hired gun than the people’s lawyer. This was underscored by a slip of the tongue as Holder spoke yesterday: “Over the last six years,” he remarked, “our administration”–and then, correcting himself–“your administration, has made historic gains in realizing the principles of the founding documents[.]” Honest mistake or Freudian slip, there was truth in Holder’s faux pas: this attorney general has faithfully pushed the president’s political agenda, even at the expense of the rule of law.
In his six years as attorney general, Holder has become more notable for not enforcing federal law than for enforcing it–and this should be troubling to all Americans. If we are truly to live in a government of laws and not of men, all people must be afforded equal treatment under generally applicable laws. The attorney general is in a singular position to ensure this through his prosecutorial and enforcement powers. But, as I’ve discussed elsewhere, when the president has been unable to reform existing laws through the political process, Holder has effectively nullified them by refusing to defend or enforce the statutes in question. This was the case when the DOJ refused to defend the Defense of Marriage Act from judicial challenge, and it remains the case now that the DOJ refuses to enforce provisions of federal immigration and drug-control law.
All this suggests a baldfaced contempt for the role of Congress in the lawmaking process and a deep distrust of the judiciary as the proper arbiter of constitutional disputes. Under Holder’s leadership, the Department of Justice provided the executive with a way of bypassing constitutionally ordained processes, creating law and policy by executive fiat. And this subverts the very spirit of the Constitution that Holder is sworn to defend, replacing the majesty of the law with a kind of leering cynicism for political and judicial processes.
This cynicism made it all the more jarring when both Obama and Holder attempted to don the mantle of Robert F. Kennedy through repeated appeals to his legacy in yesterday’s statements. In May 1961, only a few months after the University of Georgia campus exploded with violence in response to a court’s desegregation order, Bobby Kennedy spoke to the university’s law students about Brown v. Board of Education. “I happen to believe that the 1954 decision was right,” he said. “But my belief does not matter. It is now the law. Some of you may believe the decision was wrong. That does not matter. It is the law. And we both respect the law. By facing this problem honorably you have shown to all the world that we Americans are moving forward together, solving this problem under the rule of law.”
If the rule of law is to mean anything in this nation, it must command the respect of those sworn to uphold and defend it. Attorney General Holder’s successor, whoever that may be, would do well to remember that.