Karl Rove launched an effort last month to block Barack Obama’s nomination of Eric Holder as the first African American US Attorney General. As part of this campaign, Rove has raised memories of Holder’s ill-conceived advice to Bill Clinton about his last minute pardons of some questionable characters.
have suggested that Rove is doing this only to provide cover for some of George W. Bush’s own questionable pardons, some of which have already violated Department of Justice policies regarding who is eligible for a presidential pardon. According to this analysis, Rove wants the public comment on Bush’s pardons to be something like, ‘well Clinton did the same thing.’
But Rove’s opposition to Holder may run a little deeper than this.
In a speech delivered to the American Constitution Society in June 2008, Eric Holder emphasized a judicial philosophy that differs sharply with Karl Rove and the the ultra right view of the Constitution.
Holder described the Constitution as a unique founding document of US society, but ultimately an imperfect document. Citing its initial legalization of slavery and its refusal to give women the right to vote until the 20th century, Holder expressed the view that within the spirit of the Constitution and the ideals of the founders of the country ‘there is contained the capacity for change. The choices the founders made were not frozen in time.’ The concepts embodied in the Constitution, Holder said, allowed ‘the pursuit of a more perfect union.’
This philosophical view of the legal system and the Constitution sharply diverge from the so-called strict constructionist view of the Constitution upheld by the right wing. Theoretically, the right wing believes the Constitution to be a static, unchanging document in which is contained all the legal precepts we need.
While Rove shares this narrow ideological view, a view, incidentally, when strictly applied refused to budge on things like Jim Crow or voting rights and the like, the former Bush advisor may have even other motives for his opposition to Holder’s nomination.
In this same speech, Holder pointed to the Bush administration’s flouting of the rule of law and the Constitution. ‘We have, quite frankly, lost our way with regard to this commitment to the Constitution and to the rule of law,’ he said. ‘The rule of law is not, as some have seen it, an obstacle to be overcome. It is the very foundations of our nation,’ Holder added in a direct reference to the actions over the past few years of top Bush administration officials.
Among the Bush administration’s specific violations of law, Holder cited the authorization of the use of torture, warrantless wiretapping on Americans, secret detention of US citizens without due process, and the suspension of the writ of habeas corpus. While these actions may have been done with the general good in mind, that does not change the fact that they were wrong, Holder said.
‘We owe the American people a reckoning,’ he added. While our country faces some great dangers, Holder continued, military power alone cannot win the day. Moral leadership and upholding our democratic principles are also part of the picture. ‘Sadly, that moral leadership has been fractured,’ he said.
Our response to the challenges of the world should not be based on fear, as in the past few years, but an adherence to the rule of law, Holder stated.
“Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more, safe,” Holder said. “For the sake of our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.”
To reclaim the ‘moral high ground,’ Holder called, first, for closing the Guantanamo prison camps. He called the existence of the prison camp an ‘international embarrassment’ and to even many friendly countries seem to be a ‘symbol of what America has become.’
Holder also recommended adopting a review process to determine rapidly which Guantanamo detainees need to be prosecuted and which need to be released.
Holder went on to reject the Bush administration’s authorization of torture and insisted that the US must return to abiding by its commitments to international and US law that prohibit the use of torture or degrading treatment of prisoners.
‘Torture is illegal, immoral, counterproductive, and beneath the dignity and tradition of Americans,’ he said.
Holder also suggested ending extraordinary rendition, the practice of deliberately turning detainees over to countries known to use torture in their interrogation methods.
In addition, Holder rejected the use of secret warrantless electronic surveillance as a violation of liberty and an ‘abuse of power.’ Intelligence gathering should be done in balance with protecting liberties and privacy, he suggested. Holder called for returning to the use of the Foreign Intelligence Surveillance Act, which allows intelligence services to gather information covertly, but only with judicial oversight.
‘There simply is no tension,’ Holder stated emphatically, ‘between an effective fight against those who have sworn to harm us and a respect for our most honored civil liberties traditions.’
While during the speech Holder made no special plea for charging any individuals who have been responsible for violating the rule of law and the Constitution over the past period, his philosophy signals a significant change from the policies and practices that Karl Rove helped to invent and rigorously defended.
Further, a recent Senate investigation into the Bush administration’s authorization of torture concluded that the next Attorney General should consider indictments against top administration and intelligence officials who blatantly violated the law on these matters. An Attorney General Holder seems as amenable as anyone to pursuing these matters.
Because of the weakness of the Republican minority, there seems to be little doubt that Holder’s nomination will easily pass in the US Senate. So for Karl Rove there must be a nagging fear, no matter how small, that he along with other administration officials could face charges for their illegal actions while in the White House.
The Obama administration will have to decide if changing the people in power and the policies they pursue is enough to ensure that these abhorrent policies are no longer used or if prosecutions of Bush administration officials who implemented them are necessary to see that justice is served.
See portions of Holder’s speech here: