Our View: AG pick could have been worse

There are concerns about Eric Holder, who served as deputy attorney general during the Clinton administration and is President-elect Barack Obama's choice to serve as U.S. attorney general, which will be probably be and should be properly aired during his confirmation hearings. Given the choices available to Obama, however, Holder doesn't seem like a bad choice.

A prominent objection raised is Holder's involvement in the "midnight pardon" of fugitive financier and Democratic donor Marc Rich during the final moments of the Clinton administration. As deputy attorney general, Holder is said to have participated in a phone call with the White House concerning the pardon and after a cursory review gave the idea a "neutral, leaning toward favorable" sign-off. He later averred that this was a bad call, which it was. It is likely, however, that Clinton would have pardoned Rich in any event.

Holder, who graduated from Columbia Law School in 1976, has a mixed record on some of the more aggressive "anti-terrorism" steps undertaken by the Bush administration. Shortly after the 9/11 attacks, he argued on cable news that prisoners at Guantanamo were "people not entitled to the protection of the Geneva Conventions," a position later rejected by the Supreme Court.

Later, however, he came to more critical conclusions about the abuses of the Bush administration, arguing in a speech this June that "we authorized torture, and we let fear take precedence over the rule of law." He called for an end both to "rendition" of suspects to countries that use torture and to warrantless wiretapping and declared that the next president must move quickly "to reclaim America's standing in the world as a nation that cherishes and protects individual freedom and basic human rights."

The most critical issue for the next attorney general will be restoring the idea that the Justice Department retains a certain independence from the president and the willingness to counter him when he oversteps on matters of executive privilege or executive power. In 2006 Holder told the National Journal that "the attorney general is the one Cabinet member who's different from all the rest. The attorney general serves first the people, but also serves the president. There has to be a closeness at the same time there needs to be distance."

That's an insightful statement, recognizing an inevitable ambivalence. Holder would do well to stress the distance.

During his career at the Justice Department he built a record of prosecuting corruption cases against Democratic members of Congress.

As Roger Pilon, who heads constitutional studies at the libertarian Cato Institute, said, "Obama could have done much worse." Absent any unforeseen scandals, we're inclined to agree.