The Washington Times has published an interesting article which reports that Attorney General Eric Holder did his job while he was a lawyer in private practice. Recently, Holder sparked a minor (if you disagree with the adjective, please feel free to choose your own) controversy, when he said that the country was a "nation of cowards" regarding issues of race.
The title of the Washington Times article -- "Holder Litigated Against Rights Claims" -- is almost as provocative as Holder's comments. The article reports that Holder "found himself on both sides of the courtroom on civil rights cases during his eight-year tenure at a high-profile Washington law firm." But the fact that litigators represent plaintiffs and defendants on the same issues is hardly newsworthy. Even in the area of criminal law, prosecutors later become defense attorneys or vice versa.
But the article's focus on Holder's representation of civil rights defendants seems particularly strange in light of the following fact: The Department of Justice, which Holder now runs, also represents defendants in discrimination claims. As the official lawyer for the United States, DOJ defends the federal government in all litigation, including cases alleging claims of discrimination. DOJ also defends the government in cases alleging deprivations of constitutional rights (including the rights to equal protection and liberty). Apparently, Holder's prior work prepares him for the complexity of his current job.
The article also states that the number of civil rights cases that went to a final verdict dropped during Holder's prior four-year stint at DOJ. But a number of reasons could have led to the decline -- including that the government settled more cases or that courts disposed of more cases on pre-trial motions (e.g., summary judgment or dismissal).
I was also struck by the inclusion of commentary from a woman whom the article reports was a plaintiff in a civil rights case against MBNA. The article reports that MBNA hired Holder to "fight off" (I have this image of Holder in fencing gear) the discrimination claim. The plaintiff in the case says she hoped that Holder did not get confirmed as Attorney General. The article does not present any of the facts of her case; it simply reports that the court ruled in favor of the company. But many factors, including the weakness of the plaintiff's case, could explain why she lost. Believing in the vigorous enforcement of civil rights does not require a concomitant belief that civil rights plaintiffs should always prevail.
Finally, the article reports that Holder also defended a bank against allegations that it provided "segregated" services to blacks. The court granted summary judgment for the bank. Summary judgment means that the undisputed facts establish victory for plaintiff or the defendant without the necessity of proceeding to trial. Although the article does not provide any facts from the case, proving race discrimination in civil rights litigation is usually very difficult. Unless the plaintiffs had pretty damning evidence, their claim of racial discrimination was doomed from the start, due in large part to conservative civil rights jurisprudence.
Final Word
In classic Dissenting Justice form, let's cut to the chase: I believe the article attempts to undercut Holder's inflammatory comments by portraying him as being on both sides of the fence with respect to racial justice. But it does a pretty poor job in this regard. Lawyers often represent defendants and plaintiffs on the same issues, and (more importantly) DOJ defends the United States against discrimination claims.
Furthermore, it's pretty difficult to draw implications about a lawyer's ideology or commitment to an issue simply because he or she represented a particular party to a case. Although lawyers often take cases for political or ideological reasons, most of the time, a case is just a case. Holder worked at a large law firm. I imagine that his representation in most cases did not reflect upon his own political values. Instead, he was just doing his job. For this reason, the comments of the civil rights plaintiff who did not want the Senate to confirm Holder seem misplaced.
Finally, I have not yet commented on the "cowards" issue because I have a natural aversion to drama, but I feel the need to address the matter briefly. Was Holder's statement inflammatory? You betcha (thanks, Sarah - I like this phrase). But underneath the surface, I thought he confirmed, even if for different reasons, what conservatives and moderates have said for many years: that "political correctness" has made people afraid to talk about race (or sex or anything worthy of discussion) for fear of being called a racist. Outside of the colorful nature of the comment, isn't it true that many people are indeed afraid of talking about race? If not - then go for it!
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