Saturday, April 4, 2009

Edward Whelan Has Harsh Words for AG Eric Holder

Ultra-conservative Edward Whelan drafted a Washington Post op-ed, wherein he has very harsh words for AG Eric Holder. Holder overturned an OLC (Office of Legal Counsel) opinion on District of Columbia voting rights. Whelan used extremely harsh rhetoric to chastise Holder as going back on "the department's high standards." "[T]here's a right way to overrule OLC, and then there's Holder's way," Whelan proclaims.

For all of Whelan's bluster, he could not be bothered to make a substantive critique of Holder for the first half of the op-ed. Then, in the second half, he is only capable of mustering two criticisms: (1) Holder failed to follow proper, traditional procedures for overturning OLC opinions, and (2) Whelan believes that Holder's decision to overrule the opinion is legally inaccurate. These two -- and only these two -- critiques are enough for the affable Whelan to accuse Holder of "abus[ing] OLC for partisan political purposes" and "[p]oliticizing [j]ustice." This is an extremely slender reed on which to rest such a hefty charge!

And yet, the op-ed is chalk-full of exactly the problem Whelan projects upon Holder -- politicization:

1. Whelan began the op-ed by injecting politics: "David Barron -- a liberal Harvard law professor appointed by Holder . . . ." (emphasis added)

2. Whelan says, "The facts, admittedly, are somewhat sketchy . . . ." You mean, similar to how you accuse Holder of basing an opinion on sketchy legal authority?

3. In an attempt to demonstrate the political nature of Holder's action, Whelan constructs a hypo involving a conservative AG overturning a OLC opinion upholding abortion rights. This is significant for two reasons. First, abortion and D.C. voting rights are simply not comparable. Abortion issues are far more charged and controversial. Second, Whelan intentionally selected the most partisan issue imaginable for the comparison, thus demonstrating his on ideological bias.

Like Whelan, I wish that Holder had not taken this unfortunate action -- but good grief, Whelan overreacted! Perhaps the core problem for Whelan is itself political: as an ultra-conservative, Whelan needs to defend the Bush administration's politicization of the DOJ; thus, he is attempting to project this politicization upon the Holder-led DOJ.

h/t Volokh

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