Eric Holder Was Correct on D.C. Voting Rights and the Office of Legal Counsel

By Robert Schlesinger, Thomas Jefferson Street blog

The news that Attorney General Eric Holder sought other advice regarding the D.C. voting rights bill after his Office of Legal Counsel said the bill was not constitutional brings mixed feelings. On one hand, the notion of the AG taking such an unusual step is disturbing. On the other, I want the bill to pass and clear the constitutional barrier.

It may not be constitutional, but the Office of Legal Counsel is, the last time I checked, not the ultimate arbiter on that score, which is why I'm not ready to throw Holder under the bus as being a Bush-like politicizer of Justice. (That and his exoneration of Ted Stevens.)

Marc Ambinder has a smart post delineating the differences between the Holder DOJ and Bush DOJ. And I would add two things: First, there is a difference between, on the one hand, listening to OLC advice and ignoring it, and, on the other hand, pressuring the OLC to reach specific conclusions in the first place (thus obviating the need to find other advice). One way acknowledges differences of opinion, the other attempts to quash them. It's a small difference, but not an unimportant one.

Second, as I said above, the OLC is not the Supreme Court. Its opinions are not legally binding and it works for the attorney general—not vice versa. He knows the law as well, and in a case that really is not clear cut either way (the American Bar Association and conservative luminaries say it passes constitutional muster, the Congressional Research Service and the OLC say it doesn't), it's his prerogative to seek other counsel.

If the bill passes, the Supreme Court will get its crack at it, and Holder won't be able to ignore the justices—and that's the way the system should work.

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