Obama and the Inevitable Fight Over Holder

For an opposition party looking for respect from a new president, the best advice is the same advice that might be given to a freshly arrived prison inmate: Find someone – anyone – and throw a punch. Right away.

And so it’s become something of a tradition for one cabinet nominee in every incoming administration to be targeted by the other party. Whether the nomination ends up being rejected by the Senate isn’t always the point; the idea is to create a public controversy that will disrupt the new president’s honeymoon and to make it clear to him that he won’t be able to roll over the opposition party.

This year, the role of targeted nominee seems to have fallen to Eric Holder, Barack Obama’s nominee for attorney general. Their ranks devastated by the last two elections, some Republicans spy a grandstanding opportunity in the role Holder, a deputy attorney general under Bill Clinton, played in the last-minute pardon of Marc Rich in January 2001.

For what it’s worth, Holder conferred with Rich’s lawyer numerous times in the year leading up to the pardon, ultimately telling the White House that he was “neutral, leaning toward favorable” on the idea. Rich had fled the country after being indicted on tax evasion charges in 1983 and was living in Switzerland at the time the pardon was issued.

Whether Holder’s actions were right or wrong isn’t exactly relevant, though. That they can be so easily spun into controversy, especially one that evokes memories of a scandal that angered so many Americans eight years ago, is all that really matters to Republicans. As a general rule, cabinet nominees sail through the Senate and into office. Being presented one with Holder’s baggage is, for the G.O.P., an irresistible change to make noise.

The Judiciary Committee is slated to take up Holder’s nomination on Jan. 15. Not surprisingly, Republicans on the panel already requested more advance time to review Holder’s background. As that date draws near, two questions loom: How serious will the opposition to Holder be? And is there a fallout risk for Obama?

On the first matter, the math of the Senate, where Republicans barely control 40 seats, makes it unlikely that Holder’s nomination will actually be killed, barring any new revelations. Republicans can and will raise the Rich pardon, but that alone doesn’t seem likely to cause any Democratic defections. Moreover, it’s far from clear that even a majority of Republicans will end up opposing Holder. Most likely, Holder will be confirmed by a comfortable margin, although with a fair number of dissenters. (Still, his will almost certainly be the closest cabinet confirmation vote.)

If this is the case, the damage to Obama would be negligible. An inexact parallel can be drawn to George W. Bush’s nomination of John Ashcroft for attorney general in 2001. In Ashcroft’s strident social conservatism, Democrats saw an opening to rally public opposition and hand the new president an embarrassing defeat. Using old Ashcroft votes and quotes, they painted him as a dangerous reactionary utterly ill-suited to enforce the nation’s laws – essentially a repeat of the strategy they used to kill Robert Bork’s Supreme Court nomination in 1987.

But it didn’t work with Ashcroft, in part because Democrats just didn’t have the votes. The 2000 election had left them with 50 in the Senate, but some of them were conservatives, like Georgia’s Zell Miller and Nebraska’s Ben Nelson. With Republicans holding rank, Ashcroft ended up winning confirmation, 58 to 42.

The bigger factor, though, was that the Democrats’ objections failed to ignite a popular uprising. Outside of liberal interest groups, their complaints were mainly seen as ideologically motivated and old news. Ashcroft helped his cause by presenting himself as a calm and reasonable man, defying the Democrats’ caricature and making it easy for Republicans to stand by him. Democrats created some headaches for Bush, but the long-term damage to him was minimal. For now, that seems to be the worst-case scenario for Obama with the Holder nomination.

There have, though, been occasions when the opposition party has used confirmation battles to inflict serious damage on a new White House.

The gold standard, at least in the modern era, may be Bill Clinton’s experience with Zoe Baird, his initial pick for attorney general in 1993. Baird, it was revealed after Clinton nominated her, had employed illegal aliens as household workers. The resulting controversy, which Clinton and his team initially thought would die down quickly, did resonate with the public, and opposition quickly built in the Senate. Republicans, for the most part, did their best to fan the flames, but with voters across party lines outraged by the Baird scandal, Democratic senators began peeling off. Even though the party enjoyed a 57-seat majority, Democratic leaders went to Clinton on his second night as president to tell him that Baird could not be confirmed, and her nomination was promptly withdrawn.

From the Baird debacle, there was clear fallout for Clinton (which was compounded when his second A.G. pick, Kimba Wood, was also forced to withdraw after it turned out she had hired an illegal alien as well), because the episode fostered the perception of a chaotic and amateurish White House, an image that Clinton reinforced over and over during his first two years in office.

In many ways, those politically disastrous first two years of the Clinton presidency, which culminated in the Republican revolution of 1994, were kicked off by the Baird fiasco.

Obama, like Clinton in ’93, seems convinced that Holder can ride out the controversy surrounding his nomination and win confirmation easily. He’s probably right. But if the confirmation hearings yield any surprises, it could be a gamble Obama ends up paying for.