Tuesday, February 16, 2010

AG Holder and the Inevitability of Politicization

Consider the juxtaposition of two recent profiles of AG Eric Holder. Writing in the current New Yorker, Jane Mayer describes how Holder "has tried to depoliticize" decisions about such matters as how and where to try terrorism suspects. Although she notes that Holder is not politically naive, she does portray a struggle between Holder's view and the political shop in the White House (read Rahm Emanuel). Meanwhile, an article in yesterday's NY Times may suggest the exact opposite by its title--"After 9/11 Trial Plan, Holder Hones Political Ear." However, the substance of the Times article conveys much the same picture as Mayer's portrait in The New Yorker: despite his extensive political experience, Holder is temperamentally disdainful of politics. In the wake of the Obama Administration decision not to try KSM in NYC, Holder is trying to be more pro-active politically, but it hardly comes naturally.

Here I'll express skepticism about the possibility of maintaining an apolitical approach once one has been criticized on political grounds. Holder (backed by Obama
for now but perhaps not for long) appears genuinely annoyed and surprised by the fact that various Republicans are criticizing his preference for civilian trials of terrorist suspects when many of those very same Republicans supported the Bush Administration's similar actions. Notwithstanding the attention to Gitmo and military tribunals, under Bush many more people were tried and convicted in civilian court than before military tribunals, and most of the former were read their Miranda rights. This comparison (made in the Mayer article) is not entirely fair, of course, because most of the Gitmo detainees didn't get any trial at all. Still, as Mayer notes, the civilian courts have tended to give harsher penalties for terrorism convictions than the military commissions have. And so Holder concludes that his critics are simply grandstanding when they accuse him and Obama of "not realizing we're at war."

Holder is right about that, obviously. But once the political point has been made, it's virtually impossible for Holder to defend what he's doing as apolitical. Sure, Rudy Giuliani et al are saying things now that are inconsistent with what they said during the Bush years, but once the right advances the war-means-use-military-commissions-rather-than-civilian-courts-and-waterboarding-rather-than-Miranda-warnings meme, Holder's the-choice-between-security-and-our-values-is-a-false-choice response will inevitably be viewed as the other side of a political argument.

How do I know? Because this pattern was set in the earliest days of the Republic. Even before the Washington Administration came to an end, the people who came to be known as Federalists--especially John Adams and Alexander Hamilton--viewed the emerging Democratic-Republican Party of Thomas Jefferson as inappropriately partisan. The Federalists thought that Jefferson was betraying the constitutional ideal, expressed by James Madison in his Federalist days, under which "faction" was a vice, not a virtue. It must have been especially infuriating for the Federalists to see Madison among the leaders of the D-R's.

The Federalist response was to try to portray the D-R's as a faction that was fomenting division. But it didn't work, or rather, if it did, the Federalists were perceived as just as much of a faction. Was that fair? It's very hard to answer that question without some reference to the underlying merits of the issues that divided Federalists and D-R's. With what we now regard as extreme states' rights views (as per the Virginia and Kentucky Resolutions), not to mention disproportionate support among slaveowners and their allies, it's hard to see the D-R program in an especially sympathetic light. But neither do the Federalists look so wonderful in retrospect. They were shockingly (and openly) elitist by modern standards, and no friends of civil liberties (as per the Alien and Sedition Acts). Hence, seen from the distance over two centuries, it's easy to understand the political fight between Adams and Jefferson as essentially a bare-knuckles but sincere disagreement over the best direction for the country (as each eventually came to think in retirement).

So, can we expect that two hundred years from now, historians and legal scholars will view Dick Cheney and Eric Holder as protagonists in a tough-but-honest debate over how best to protect national security? We'll have to wait and see.


Jonathan Noble said...

I think that great picture of Holder gearing up for a kung-foo move on the elephant in the New Yorker convinced me that Holder's ready for a fight :)

Regarding the post, my question then is what does political mean? Do we mean when the goal is only to score political points, but not policy points as well? As you mentioned, there were some substantive policy differences between the Federalists and the D-R's, so is the fact that they used those serious policy arguments as a stick to beat down the opposition the overriding feature?

I think it's a political argument once you can make a strong case that the accusers are being hypocritical, like the New Yorker article tries to do for Giuliani. From your description of the Hamilton-Jefferson feud, though, I think it was heavily partisan, but I don't think it was strictly political.

Also, really funny that you linked to the Ettinger article from a few weeks ago. I really enjoyed reliving that Sports Illustrated expose on Alcor cracking Ted Williams' head!

Sam Rickless said...


I'm not sure what to make of your "skepticism about the possibility of maintaining an apolitical approach once one has been criticized on political grounds". Suppose Holder really and truly doesn't care about the political ramifications of his decision. That is, suppose he isn't checking poll numbers, or even if he is, he is disregarding them (or willing to stick to his approach even when polls show that it will hurt Democrats, or help Republicans, in forthcoming elections). How does the fact that he is being criticized by people who are trying to score political points entail that he can no longer maintain an apolitical approach? Whether he maintains such an approach is something that is entirely up to him.

But perhaps you don't really mean that Holder can't maintain an apolitical approach in the face of political criticism. A bit further below, you say that Holder's position "will inevitably be viewed as the other side of a political argument". It may be true that his position will be so *viewed*, and perhaps this is all you meant originally. But, as the philosophers say, there is a great difference between appearance and reality. From the fact that Holder's position is *viewed as* political it does not follow that his position *is* political. Indeed, I hope it isn't.

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