In ordinary times, no one would be surprised -- or critical -- if a president-elect chose as his attorney general someone who combined first-rate legal credentials with a close relationship with his boss. But in the aftermath of the reckless politicization of the Justice Department under George W. Bush, the wisest course for Barack Obama would be to choose an eminent lawyer who shares the administration’s legal philosophy but can’t be caricatured as a presidential insider.
For all of his impressive qualities, former Deputy Atty. Gen. Eric H. Holder Jr. doesn’t fit that description. Holder is no Alberto R. Gonzales, the hapless functionary who had served as Bush’s legal advisor in Texas and in the White House before being moved disastrously to the Justice Department. But Holder was active in the Obama campaign, most conspicuously as one of two people who vetted potential vice presidents and settled on Joe Biden.
As Democrats rightly pointed out during Gonzales’ confirmation hearings, the attorney general is primarily the nation’s lawyer, not the president’s. When not attending Cabinet meetings, he or she presides over the investigation and prosecution of federal crimes and sets standards for the use of intrusive but sometimes necessary tools such as wiretapping or the inspection of citizens’ financial records.
We don’t argue that Holder would allow his loyalty to Obama to trump his responsibilities as the nation’s chief law enforcement officer. We assume the contrary, and there are precedents for an attorney general putting the law above the preferences of the White House. John Ashcroft (even in a hospital bed) resisted some aspects of the Bush administration’s illegal surveillance programs. But an attorney general drawn from the campaign team invites partisan sniping.
Like other politically active candidates for attorney general (Massachusetts Gov. Deval Patrick, Arizona Gov. Janet Napolitano), Holder boasts impressive legal bona fides. Particularly admirable was his role in negotiating a consent decree that led to significant improvements at the Los Angeles Police Department. The appointment of an African American also would have powerful symbolic force, given the Justice Department’s heroic role during the civil rights movement of the 1960s.
If Obama chooses Holder, the Senate should offer considerable deference to the president’s choice. Still, we continue to believe that Obama should go the extra mile in extirpating the image of the Justice Department as a branch office of the White House. That means an attorney general who can’t be accused of being the president’s lawyer above all.