The Senate confirmation hearings prove bruising chiefly for Al Gonzales.
It's enough to make you miss the poetry of an Alberto Gonzales and the seal-sleek interpretive dance of a Michael Mukasey.
Remember back when Gonzales was asked in July 2007 about whether water-boarding violated the Geneva Conventions? His response:
There are certain activities that are clearly beyond the pale and that everyone would agree should be prohibited. And so, obviously, the president is very, very supportive of those actions that are identified by its terms in the executive order. There are certain other activities where it is not so clear, Senator. And, again, it's for those reasons that I can't discuss them in the public. ...
When Barack Obama's nominee for attorney general, Eric Holder, is asked the same question today, the response is this: "Water-boarding is torture. … It would violate the international obligations that all civilized nations have agreed to—the Geneva Conventions."
Remember when Michael Mukasey was asked last January whether the president could override laws passed by Congress? "I can't contemplate any situation in which this president would assert Article II authority to do something that the law forbids."
Here's Holder responding to the same question today: "No one is above the law, the president has a constitutional obligation to faithfully execute the law of the United States."
Anyone promising you that today's Senate confirmation hearing for Eric Holder would be a knock-down drag-out bruiser gets paid by their traffic. Other than ranking minority leader Arlen Specter, R-Pa., who is evidently paid for his umbrage, virtually nobody on the committee is there to give him a hard time. Many are just there for a good old fashioned neck-nuzzling. (Sen. Sheldon Whitehouse, D-R.I.: "When you stood up to President Clinton, what were you feeling?")
And to the extent anyone attempts to give him a hard time, Holder just calmly pushes back. When John Cornyn, R-Texas, asks multiple times whether Holder would agree to water-board terrorists if it meant preventing the deaths of tens of thousands of innocents (and if Jack Bauer would sign his yearbook): Holder replies, "It's hard for me to answer your hypothetical without accepting your premise," explaining that from his discussions with experts, he believes people who are tortured do not yield valuable intelligence. "The premise that underlies that, I'm not willing to accept." When Cornyn tells him that he must accept the false hypothetical, Holder insists he in fact must not.
When Holder is asked about his plans for Guantanamo, he says, "Guantanamo will be closed" (although he insists it will be complicated and take a while). Asked whether any interrogators are free to depart from the restrictions laid out in the Army Field Manual, he said that the Field Manual would be a "good place to start" to establish a uniform standard for interrogation and that he did not believe that restricting interrogations to the rules of the Field Manual would hamper the government's efforts to fight terrorism.
Wait! Who is that knocking on the courthouse doors? Hello, legal clarity. I think I recognize you from the late '80s.
There's a moment midmorning when Sen. Herb Kohl, D-Wis., asks Holder if he'll do everything he can to defeat Obama on the basketball court. Holder replies that "he's 10 years younger than me. He plays a lot more frequently than I do. Having said that, I've got a New York City game ... but I think I could hang with him." Then he adds that he still doesn't think it would be wise to beat the president. One waits in vain for the increasingly rage-filled Specter to bellow that this is yet more evidence of a lack of prosecutorial independence.
Sen. Chuck Schumer, D-N.Y., goes after the Specter claim that Holder is inclined toward presidential lap-doggery, a la Gonzales, by asking Holder a line of questions about how beholden he is to Obama: "Have you ever been President-elect Obama's personal lawyer, like William French Smith had been for years for Ronald Reagan?" (Answer: No.) "Have you ever been a staffer for Barack Obama, like Ed Meese had been for Reagan?" (Answer: No.) "Have you ever served as official counsel to Barack Obama, like Alberto Gonzales had for George Bush?" (Answer: No.) "And has Barack Obama ever dispatched you to the hospital room of a sick government official to get him to authorize an illegal wiretap program?" (Answer: No.) "And I take it you're not a close relation to the new president, like Bobby Kennedy was to Jack Kennedy?" (Answer: "No, we're not related by blood, though people do say we look alike.")
The sticky wicket here was meant to be Holder's scandalous role in the scandalous pardon of fugitive financier Marc Rich. In fact, going into the hearings, it sounded as though 50 percent of the evenly split committee was deeply concerned about Holder's careless legal advice. Turns out, nobody cares much but Specter, though he cares enough to support the whole "knuckle-biter" meme. It doesn't help that Holder cops to most of it. In his opening statement, he admits, "My decisions were not always perfect. I made mistakes. … [W]ith the benefit of hindsight, I can see my errors clearly, and I can tell you how I learned from them." He says the Rich episode "was and remains the most intense and searing experience I've ever had. I've learned from that experience. I think, as perverse as this sounds, I will be a better attorney general."
Wait. Who's that knocking on the courthouse doors? Hello, the ability to admit to errors. I think I recognize you from the late '90s.
Here's what Alberto Gonzales said when he was asked in November 2006 whether he regrets any decisions he'd made:
Oh, I think that you and I would—I'd have to spend some time thinking about that. Obviously I'm not going to say that I am perfect and that I've been perfect in doing my job. Obviously I've made some recommendations to my client. Some of those recommendations have not been supported in the courts. In hindsight, you sometimes wonder, well, perhaps, perhaps the recommendation should have been something different.
Holder's day is not perfect. He's wobbly on FISA, wobblier on the Patriot Act, and if he were any wobblier on the possibility of personal accountability for criminal wrongdoing in the Bush administration ("We don't want to criminalize policy differences that may exist between the outgoing administration and the Obama administration"), he'd be an egg. But he is capable of answering legal questions with simple declarative sentences, and he has the refreshing ability to admit mistakes. His extraordinary qualifications and the rave reviews of his supporters notwithstanding, after years of near- unchecked lunacy at the Justice Department, that's almost enough.
Dahlia Lithwick writes about the courts and the law for Slate.