Sunday, February 22, 2009

BREAKING NEWS from the Washington Times: When Eric Holder Was In Private Practice, He Did His Job!

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!


Decidere said...

Things I learned over the last year (it helps to have kids, get to learn all that history you ignored the first time around, and then arguing with wingnuts helps pad the remaining).

Long long time ago, about 3500 years, Egyptians sailed down to the Land of Punt, a remarkable feat, and one of their first acts was to gather up slaves. Which was probably not so remarkable, as one of God's 10 initial instructions to mankind included not to covet thy neighbor's slave, rather than noting that perhaps slave owning might be a problem in itself. Which let the Egyptians off the hook for owning Jews as slaves.

The Romans of course had slaves, as did later Ottomans and Arabs, as did the world's oldest civilization (which instituted a practice of crushing women's feet into gangrenous little hooves as a sign of beauty). Under the Ming Dynasty, China's most famous Admiral, Zheng He, who took a fleet of 300 Chinese ships in 1421 oddly to the Land of Punt, was a castrated Muslim slave from Yunan.

Somewhere in the mid-15th century a guy named Sonni Ali knocked off the Mali empire and set himself up with the Songhai empire selling gold, jewels, some produce, and you guessed it, slaves. The timing was fortuitous, as Prince Henry was just sending boats down along the African coast, so Portugal could import slaves to Lisbon and on to Spain and Italy. But sole-sourcing wasn't in the offer, and the Portuguese ended up further down the coast from Benin down to the Congo where slave trading already existed and on around the cape (too late to meet Zheng He though - a temple burned down and the new emperor ended their sea trade around 1430).

Perhaps in their attempt to imitate Europe, the new rulers Ivan the Great and Ivan the Not-So-Great (Terrible) in Moscow (having had enough of being tax collectors for Genghis Khan) came up with their own new improved version of feudalism called serfdom, with an amazing similarity to slavery as we typically think of it. [Only slightly different in style from enslaving Eastern Europe in the 20th Century, to work for her almost free gratis for 40 years in supplying her with cheap armaments and foodstuffs].

Meanwhile, Brazil was turning into big business, and while enslaving native Americans was still business, importing from Africa started to take off. In fact, 37% of all imported slaves to the New World headed to Brazil, most headed to the French, Spanish or British Caribbean, and only 5-10% of New World slaves being brought to the 13 colonies or United States. Slavery in the US got off to a slow start, the first state legalizing it in 1642, and ironically, it was the northern states that initiated the process. Massachusetts (1642), Connecticut (1650), Virginia (1661), Maryland (1663), New York (1664) and New Jersey (1664).

One of the big reasons why slaves weren't needed earlier is that over half of all white settlers to the colonies were indentured servants, but with working off their terms, replacement labor was needed.

The reason for all of this? Well, somewhere over at OpenLeft a few have decided that Southerners are the scum of the earth, unrepentant racists and the cause of all problems on earth. And while I agree that slavery is an abomination, I have trouble assigning all of the guilt through history to a small set of cotton farmers while we salute our erudite European neighbors and embrace Arabic Muslim [Malcolm X famously made Hajj to Mecca in the early 1960's, but in the 1950's, 1/4 of Saudi Arabia's population was slaves, some 250,000, and let's say Sharia Law is known to be tougher than Southern justice.

Also, seeing numbers for the Middle Passage that were obviously flawed (80 million? How would traders stay in business? Records show they took measures to lower death and ease conditions) it seems that the issue has taken on a huge amount of tense sensitive exaggeration with claims and accusations getting more contentious and abstracted from reality.

Aside from slavery, some curious facts about lynching. Over 70 years there would have been about 5000 lynchings of blacks and 2000 whites (using the padded upwards estimates, not the conservative numbers). 20% of these happened in the North. The numbers suprised me as being smaller than I'd imagined, and didn't think that much of it was outside of the South, though of course as only one part of systemized terrorism in the South, it didn't need to be much bigger - the message I'm sure got carried quite fast. Anyway, it was the first time I'd seen actual statistics on it.

Okay, that's part of my background on racism & history, probably more to follow somewhere/sometime.

msakel said...

You betcha! A case is just a case and a sigh is just a sigh. And Casablanca makes the point well. Why do they presume that just because a litigator can represent competently both the plaintiff and defendant on various issues, then that person is "biased"?! Then, using the same argument, all lawyers representing 'criminals' are criminals themselves. (Well, some...maybe!). What I fail to understand is why Eric Holder's remarks are "inflammatory". Pray tell, I'd like to know why a former Deputy Att. General and Judge (who has probably tasted himself racism in any of its insidious forms) should be handcuffed and silenced from expressing his views. This, in my opinion, is his right and he should exercise it accordingly. Further, he may enlighten some neophytes and/or neanderthals out there with his insights. Could it be that Holder is being sabotaged? He was a very effective counsel during the Clinton years and the man is competent. So, what's the big deal? Could it be.....You betcha all your liberal creds!

Decidere said...

Holder's counsel to Clinton wasn't that competent.

dualdiagnosis said...

Race is discussed and pontificated on continuously in this country. What outcome is Holder looking for? My belief is that Holder makes comments like this to browbeat people who may disagree with him, the left in general is not really in favor of a discussion so much as they just want everybody to just hurry up and agree with them on the "solutions".

Darren Lenard Hutchinson said...

DD, I think you are overestimating the power of the Attorney General position on broad isues like "race." Although he is a powerful lawyer, he's still just a lawyer!

Decidere said...

Darren, I'd agree.

And quite frankly, between our 2 wars, the financial crisis (with numerous cases of billion dollar fraud) and the Constitutional crisis (including torture, the firing of the Attorneys, wiretapping on a huge scale, monitoring simple protesters as potential terrorists, continual political payoff scandals), I'm actually rather taken aback that less than one month in this yo-yo thinks he has time for a dialog on race. Yes, uphold the law and prosecute violations of discrimination laws, etc., but leave the school ma'arm stuff to someone else.

Decidere said...

Mr. Holder could start be investigating whether we're still torturing under Obama (Further details)

Dean Boyd, spokesman for the US department of justice, said: "We will undoubtedly need the assistance of our close friends and allies as we work towards closing Guantánamo."

Eric Holder, Attorney General, said: “we, as average Americans, simply do not talk enough with each other about torture.”
“If we’re going to ever make progress, we’re going to have to have the guts, we have to have the determination, to be honest with each other. It also means we have to be able to accept criticism where that is justified,” Holder told reporters after the speech.

Oh wait, Holder didn't say "torture", he said "race".

dualdiagnosis said...


Thought you might like this Walter Williams piece-

...The population statistics of states such as South Dakota, Iowa, Maine, Montana and Vermont show that not even 1% of their populations are black. Does that mean Reagan National Airport water fountains and South Dakota, Iowa, Maine, Montana and Vermont are racially segregated?

If Holder does anything about "voluntary segregation" at the state level, I hope it's not court-ordered busing; I'm not wild about their winters.

Just because some activity is not racially integrated does not mean that it is racially segregated.

The bottom line is that the civil rights struggle is over and it is won. At one time black Americans didn't share the constitutional guarantees shared by whites; today we do. That does not mean that there are not major problems that confront a large segment of the black community, but they are not civil rights problems nor can they be solved through a "conversation on race...."

Darren Lenard Hutchinson said...

DD - thanks for the post. I disagree with you on the racial isolation issue. First, Jim Crow was never really about keeping people from drinking water together (although Jim Crow enforced this restraint). Instead, Jim Crow was a legal and social system premised on the inferiority of blacks and the superiority of whites. In my eyes, it was unconstitutional the day it began, but it took about 100 years to convince the Supreme Court that it was (and even longer for portions of society).

I concede that today's racial (and class) isolation in schools is not the product of a system of Jim Crow, but that does not make it unproblematic from a policy or constitutional perspective. The problems associated with poverty schools are very complex and debilitating. I think you buy into the argument that equal protection violations require us to search for an "evil" person upon which to assign "blame" for the situation. But that is too narrow an analysis. Rules in other areas of law (including constitutional law) consider impact, negligence and impose strict liablity. We can at least have a conversation about this as a matter of law or policy. I actually hate the "blame" model because it makes people either "afraid" to talk about race or "defensive" on the subject, and we end up getting no where.

Finally, your airport analogy really does not get at the heart of the schools issu. The school equality movement is not seeking to spread small populations of black or Latino students across Maine, New Hampshire or similarly populated states. Instead, it really involves schools within one city or metropolitan area. School boundaries are not fixed (like state lines); states choose where they locate new schools and where they assign students.

Some cities have utilized their authority to remedy this situation. Remarkably, the SCT invalidated plans in Seattle and Lexington -- so much for states rights. That raises an issue I brought up in the post on Michael Steele trying to attract blacks and Latinos to the Republican Party (which, is a "race conscious" effort, by the way). Some individuals become exorcised when universities give a handful of black or Latino applicants a few points in the admissions process -- or when cities use race as a tiebreaker (after several other factors) for school assignment, etc. But these same people have absolutely no objection to the existence of racially isolated poverty schools, which have a debilitating impact on school children and are as "unequal" as affirmative action (and which lead to much more harmful results).

I believe that we need a conversation on race, class, gender, education, medicine, etc. There are no easy solutions. The emotional responses by all sides of the "conversation on race" issue strongly suggest that we have not retired that issue.

Throughout history, Americans have said that we have fixed the "race" issue. This started immediately after the Civil War, and it has continued throughout history. If you compared contemporary arguments about race with historical ones, you would find some startling similarities.

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