After President Barack Obama nominated Eric Holder to be Attorney General, the Senate Judiciary Committee sent Holder a questionnaire that required him to provide copies of any briefs he had filed with the Supreme Court. Holder told the Senate he had participated in a total of five such briefs and that none of them dealt with terrorism-related issues. But as National Review Online has now confirmed, that was false. Specifically, Holder signed his name to an amicus brief arguing that President Bush lacked the authority to indefinitely detain Jose Padilla as an enemy combatant. That brief asserts:
[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.
Former press secretary to President Bush Dana Perino and former federal prosecutor Bill Burck comment in NRO:
The authors do cite an academic study purporting to show that two-thirds of suspects provide incriminating information after being read their rights — but this suggests, of course, that one-third did not. Maybe that’s okay for criminals, but the prospect of one out of three suspected terrorists not cooperating is far from reassuring.
Whatever the numbers are, the brief leaves no doubt that Holder views the loss of intelligence information as sometimes an acceptable tradeoff because, to quote from the brief again, “as a Nation we have chosen to place some limits on Executive authority in order to protect individual authority.” Pre-Obama Holder well appreciated that under some circumstances, treating terrorists like criminal defendants may be less protective of national security than treating them like enemies of the United States. But he was willing to take the risk to reduce what he perceived as possible abuses of power by the executive branch.
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The brief does not specifically quantify what level of risk the nation should be willing to accept. Perhaps it is 33 percent, reflecting the one-third of people who don’t cooperate after being Mirandized. Or maybe it’s something like the 20 percent of detainees released from Guantanamo who return to the fight, which, the president’s top counterterrorism adviser John Brennan said, “isn’t that bad” compared to the 50 percent recidivism rate of criminals.
Attorney General Eric Holder may be our nation’s top law enforcement officer, but he is also a political appointee subject to Senate confirmation. The United States Senate should have been informed about what Holder views as ‘acceptable’ and ‘unacceptable’ risks to national security. Holder, the Department of Justice, and the White House all owe the American people a believable explanation as to why Holder failed to disclose these views.
At its Executive Business Meeting on February 4, 2010, the Senate Judiciary Committee sent the nominations of Edward Chen, Louis Butler, Mary Smith, and Christopher Schroeder to the floor for consideration by the Senate. President Obama resubmitted those nominations in January after the Senate adjourned in December without acting on them.
Chen, who has been nominated for a judgeship in the Northern District of California, was sent forward on a party line 12-7 vote. After three years in private practice, he worked as a staff attorney for the American Civil Liberties Union from 1985 to 2001, when he became a federal magistrate judge. While with the ACLU, Chen participated in unsuccessful challenges to an Arizona referendum calling for the State’s official business to be conducted in English, a California referendum that eliminated so-called “bilingual education” and implemented other measures for teaching English to nonnative students, and a California ban on racial preferences in state education, employment, and contracting.
While a federal magistrate judge, Chen objected to the singing of “America the Beautiful” at a funeral, citing his “feelings of ambivalence and cynicism when confronted by appeals to patriotism.” He has also endorsed the notion that judges should draw on their experiences, including “one’s ethnic and racial background,” in judging.
Butler, who has been nominated for a judgeship in the Western District of Wisconsin, also went forward on a 12-7 party line vote. In 2000, he ran for the Wisconsin Supreme Court, challenging the then-incumbent Diane Sykes, but got only 34% of the votes and did not carry a single county. When Sykes was confirmed to a federal judgeship on the Seventh Circuit Court of Appeals, Wisconsin’s Democratic Governor appointed Butler to finish out her term. While on the Wisconsin Supreme Court, Butler helped to expand the rights of criminals and the scope of potential liability for businesses. He also helped to strike down legislatively-enacted limits on punitive damages in medical malpractice lawsuits. In 2008, the voters of Wisconsin declined to elect him to the court in his own right. Apparently, Wisconsin’s Democratic Senators, who sent Butler’s name forward, believe that they know more than the voters of Wisconsin, who had two opportunities to consider Butler’s qualifications, about who will be a good judge.
Smith, who has been nominated to head the Tax Division at the Department of Justice, likewise went forward on a 12-7 vote. Smith was nominated for this position notwithstanding that she has not held a job specializing in tax law, written or spoken on tax issues, or taken a continuing legal education course in tax law. According to the Department of Justice, while she is neither “a traditional tax lawyer [n]or a tax specialist,” she does have “extensive experience in financial litigation, both for and against the government.” Senator Kyl, who voted against the nomination, pointed out that there must be “thousands of highly experienced tax lawyers who would love to have a job like this.”
Schroeder, formerly chief counsel for the Democrats on the Senate Judiciary Committee and now a law professor at Duke, went forward on a 16-3 vote. Schroeder has been nominated to head the Office of Legal Policy at DOJ. In his writings, he has objected to the use of cost-benefit analysis in the review of proposed federal regulations, and he told the Judiciary Committee that empathy is one of the qualities that should be part of a judge’s decision-making process. While voting to send the nomination forward, Senator Sessions observed that Schroeder is a “very strong partisan” and encouraged him to “be careful about that.”
Each of these nominees must be confirmed by the Senate before they can begin serving. The Senate will have to consider them carefully given the concerns raised in the Judiciary Committee.