The confirmation hearing for Eric Holder, the attorney general nominee, did not live up to expectations. In advance of the hearing, Senator Arlen Specter (R-PA) (in a floor speech and public statements) and a raft of news reports set out the details of Holder’s involvement in controversial Clinton-era pardons and identified the main issue for his confirmation: could he be relied upon to resist political pressure and act with independence as the country’s chief law enforcement officer? But at the hearing it soon became evident that the Republicans did not have the stomach for a full-blown fight.
When the hearing opened on Thursday, Holder anticipated their arguments at the onset of the hearings and began with an apology for his involvement in the Marc Rich scandal, dubbing it “the most searing experience I’ve ever had as a lawyer.” The New York Times recounted Holder’s effort to take the wind out of the Republicans’ sails:
“As I indicated in my opening statement, my conduct and my actions in the Rich matter is a place where I made mistakes. … I’ve accepted the responsibility of making those mistakes. I never tried to hide; I never tried to blame anybody else.”
“I should have made sure everybody who was a prosecutor in that case was informed, an assumption that turned out not to be true.”
Senator Specter grilled him on his pardon recommendation, eliciting a response that he had offered his “neutral, leaning favorable” recommendation for Rich without knowing much at all about the fugitive financier, who was on the FBI’s top ten wanted list. Not even the ever-friendly MSNBC commentators were buying that one. NBC Washington Bureau Chief Mark Whitaker noted:
You know, that strains credibility a little bit, I’ve got to say. Because Marc Rich, there’s talk about him being on the top ten list. Pete Williams reminded us this morning that he was on the top ten list. But this was a well-known case. And it was also well known that his wife Denise Rich had been a big supporter and fund-raiser for Bill Clinton. So the idea this was sort of just a tax fraud case, nobody knew that he was this international arms dealer, that, I think is a little bit hard to believe.
After gentle questioning from friendly Democrats the inquisition heated up again. Sen. Jeff Sessions (R-AL) wanted to know about his pardon recommendations for 16 unrepentant FALN terrorists. On this Holder gave less ground, going so far to call the pardon decision a “reasonable one.”
The most startling testimony early on, however, came in an exchange with Sen. John Cornyn (R-TX) on torture and “enhanced interrogation” techniques. Holder indicated that he would not waterboard a terrorist even if thousands or tens of thousands of American lives were at issue. (Potential victims might hope there was some unspoken loophole that might spare them in case that situation arises.)
But there were some tidbits to please conservatives. He offered that the Supreme Court’s decision in DC v. Heller had firmly established the Second Amendment as a personal right and therefore there was little room for further gun regulation. He acknowledged that we are at war, and that we were as well during the 1990s — although we failed to realize it. He suggested there would be little interest in prosecuting Bush administration officials for “war crimes,” as netroots had been clamoring for.
Then, just as it seemed that the hearing was going to fizzle, fireworks struck late in the afternoon. In a series of questions Sens. Grassley and Specter again quizzed Holder on the pardons. Unlike his morning contrition Holder insisted he really hadn’t helped Rich get his pardon. (But hadn’t he given a “neutral leaning favorable” recommendation and helped steer Rich’s attorney around the Justice Department officials normally tasked with pardon requests?) Finally as night fell Sen. Specter honed in, accusing Holder of political favoritism in the 1990s when he and then Attorney General Janet Reno refused to appoint a special prosecutor to investigate Vice President Al Gore’s involvement in illegal campaign donations. Holder snapped back, losing his cool and warning Sen. Specter not to question his integrity. Sen. Pat Leahy (D-VT) swooped in to make peace. But Holder had lost composure — and that round — to the former prosecutor Specter.
Nevertheless, not much damage had been done to Holder and it was unclear whether any minds were changed. Sen. Specter appeared to be leaning against him, but Sen. Hatch (R-UT) expressed his support and expectation (before the afternoon excitement) that Holder would be confirmed. Sen. Mel Martinez (R-FL) later signaled he also would vote to confirm.
And, not surprisingly, the Democrats are stonewalling on Republicans’ attempts to get more information which might illuminate some of the facts surrounding those pardons. As Paul Mirengoff explains:
As to the Democrats, they have refused to give the Republicans the time they need to review the documentary record that has been produced; refused to allow them to present more than a handful of witnesses; refused to sign a letter that would have expedited the release of key documents from the Clinton library; and refused to subpoena key witnesses, including the pardon attorney at the time of Rich pardon, Roger Adams. Among the documents that the Dems have obstructed the Republicans from obtaining is the Justice Department memo concerning another extremely controversial pardon Holder was involved with — the pardon of the FALN terrorists. Holder may have nothing to hide, but the Dems aren’t behaving that way.
Sen. Specter, in a post-hearing interview, expressed dismay at the refusal by Sen. Leahy to subpoena key witnesses. He then candidly admitted that without public pressure the Democrats will support Holder and he will be confirmed.
Some heat did come Holder’s way concerning his role in pushing through the FALN terrorists’ pardon. A compelling editorial by Joseph Connor, son of a man murdered by the FALN, served to remind people just how appalling was the decision to pardon terrorists who had expressed no remorse and who had even threatened the trial judge. Connor and former FBI Director Louis Freeh both condemned the FALN pardons in their testimony on Friday, although Freeh declared his support for Holder in spite of both the Rich and FALN pardons. (Even in retrospect Holder had been unwilling to admit that his action in facilitating the terrorists’ pardons was a “mistake,” although he conceded things might look different now in a post-9-11 world.) Connor’s was perhaps the most compelling testimony of the hearing, but it may have been too little and too late.
At this point it appears that Holder is on track for confirmation, unless new information arises or the public begins to stew over Holder’s role in the pardons (which are now rather uniformly looked upon as disgraceful episodes in the Clinton era). If the Republicans are concerned about upholding ethical standards, filling the attorney general slot with a person all too eager to facillitate the president’s political desires and putting the president-elect’s claims of transparency to the test, they will have to do better than this. And once again we have learned that, if you are a Democrat, “politicizing” the administration of justice isn’t necessarily a disqualifier for high office.