The Washington Post this morning reports that Attorney General Holder turned to the Solicitor General’s office for an opinion on the constitutionality of the DC voting rights legislation, after having received critical views from the Office of Legal Counsel.   The story poses for its readers the question of whether, somehow, this is too much like the Bush Administration’s pressure on its lawyers to tailor legal conclusions to political preference. A former Bush Administration, true to expectation, is sure that Holder’s action is a “blatant abuse” of OLC.

   It has become chic, as suggested here on other occasions, to confer on expert staff judgments a certain authority that their superiors should be loathe to challenge.  The counterpoint here is the familiar one: sound legal analysis on the merits in a struggle with a political “agenda”.  It is a strange notion that on a difficult constitutional question, the conclusion should default to a staff position. 

   The Attorney General should be entitled to review and consider to this own full satisfaction the views he receives on legal issues. If he wishes a full airing of the alternative views, he should be able to seek them out. His own preferences may run to one side of the argument, and he may well want to determine how strongly it can be built out.  The only question of importance is whether there is a case to be made, a case he can argue credibly and successfully, for this side.  

   On the D.C. voting rights bill, there is such a case, and the Solicitor General’s office, if the Post account is correct, advised the Attorney General that it could make it. The argument for the constitutionality of the bill is not trivial and it is not novel: it has been advanced previously and debated vigorously.  Rick Hasen says it is up to the courts to decide, and that the Congress can, without fear of acting frivolously or irresponsibly, enact the bill and await judicial judgment.

   The Attorney General asked whether the Administration could expect to give the bill a respectable and possibly successful defense. So Mr. Holder did not, as the Post headline would suggest, “override” a “ruling” about the constitutionality of the law.  As we have seen in the public space, there are different views on the question. He was given first one set and then, at his request, another. 

   The Department’s spokesman, responding to the Post story, stated:

As the leader of the department, it is his [the Attorney General’s] responsibility to make his best independent legal judgment, and he believes that although there are reasonable arguments on both sides, ultimately the bill would constitutionally grant D.C. residents a right to elect a voting representative in Congress.

   The Attorney General is right on all counts: that there are reasonable arguments on both sides; that it is his right to hear all of them and exercise his independent judgment; and that he may legitimately reach the conclusion, contestable as it may be, that the bill is constitutional.

Bob Bauer