I know who should replace Eric Holder as Attorney General, I just don’t know his or her name

Attorney General Eric Holder is undoubtedly a fine person, although I was and remain plenty critical of him. His refusal, for the sake of political expediency, to deal with and set right the clemency process in a timely fashion ruined lives. His goofy rejection of empirical data on risk assessments for criminal sentencing purposes is inexplicable unless viewed through a partisan lens. These are just two of the reasons why I am not sad to see Mr. Holder go. But the question remains, who should replace him?

I think I know who should replace Holder, but I don’t know the name. That person is buried deep in the bowels of the DOJ. He or she knows where the bodies are buried, he or she has been at DOJ forever, he or she is apolitical, and he or she is universally respected for wisdom, fairness, experience and guts. Importantly, he or she does not want to be President Obama’s friend. Rather, he or she is reluctantly willing to undertake the awesome responsibility of becoming the chief lawyer for the United States of America.

Take John “Jack” C. Keeney as an example. On September 24, 2010, at the age of 88, his “swearing-out ceremony” produced the largest-known gathering of attorneys general and deputy attorneys general in Department history. Keeney began his remarkable career in 1951 as an attorney in the Internal Security unit of the Criminal Division, prosecuting conspiracy cases under the Alien Registration Act of 1940. In 1960, he joined the Organized Crime and Racketeering Section, ultimately becoming Deputy Chief and developing a close relationship with Attorney General Robert F. Kennedy. In 1969, he became Fraud Section Chief, where he emphasized white-collar criminal prosecutions. And in 1973, he was appointed Deputy Assistant Attorney General, a position he held until his retirement. In that position, he was responsible for overseeing countless prosecutions of organized crime, racketeering and public corruption.

The appointment of someone like Jack Keeney would cause the pundits, Republican partisans and Democratic partisans to swoon. That would be great for America, assuming the public interest is something we still care about.



28 responses

  1. What you say resonates with me. Kind of reminds me of when Bob Spire took over the Nebraska AG’s office to bring credibility and respect back to that position after some very dark days. Bob Spire was one of those unique fellows who was up to the task.

  2. Judge:
    With the greatest respect I can muster for both you and the office of U.S. Attorney General, I do not share you opinion of General Holder as “a fine person.” While I do not know the man personally, at the very least his infamous “a nation of cowards” comment was a disgrace to the high office he now leaves. I doubt we would be talking about needing a credible successor to Mr. Holder had he distinguished himself in the office in the first place.

  3. Pardon process was already a mess when I worked for Bureau of Prisons 50 years ago. Pardon is a political power easily turned into a congressional football. You are a little too enthusiastic about empirical sentencing for my taste, given some of the problems with result based medicine and the time sensitivity of models in general. Long debate in literature on fairness of statistic in deciding the fate of an individual, famous salt and pepper couple case in LA started it. I think we may need a Daubert for what federal judges read. This nonpartisan AG is nothing US has ever had, though Israel uses the model. Share your regard for Bob Spire but if his political views were well known he could not have been elected to any state wide office.

  4. Robert’s comment demonstrate why supposed apolitical figure is not realistic. I would regard a belief in the truth of that statement about cowards as required for the job of AG. Suspect we would never agree.

  5. I would prefer to see someone as AG who, far from having been a longterm (even career) insider at DOJ, has a healthy understanding based on extensive outside experience of how dangerous the culture of the career insiders can be. I am thinking especially of Public Integrity, where I have seen how the insider culture leads them to completely trust themselves as always (even by definition) wearing the white hats. But I believe that the same culture pervades the Department as a whole – a near-complete lack of ability to see from other perspectives, and to see how the prosecutorial instinct really needs to be strongly checked. The institution needs much more humility. So, I say, give us someone who is outside the prosecutorial world, and even outside the revolving door of “back and forth between DOJ and biglaw DC.”

  6. To be fair, the context of the “nation of cowards” remark is a contentious one, that many could argue is a valid point. We need to have frank discussions about things issues that pervade our society.

    “Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards. Though race related issues continue to occupy a significant portion of our political discussion, and though there remain many unresolved racial issues in this nation, we, average Americans, simply do not talk enough with each other about race. It is an issue we have never been at ease with and given our nation’s history this is in some ways understandable. And yet, if we are to make progress in this area we must feel comfortable enough with one another, and tolerant enough of each other, to have frank conversations about the racial matters that continue to divide us.” http://www.justice.gov/opa/speech/attorney-general-eric-holder-department-justice-african-american-history-month-program

  7. Let another fox be in charge of the chicken-coop? When is the last time that THAT has worked?

    From top to bottom, the Department of Justice has been a persistent embarrassment since the good old days of John Mitchell. Who can forget Ed Meese’s role in the Iran-Contra and Wedtech scandals? Or Alberto Gonzales and the Monica Goodling witness-tampering affair? Or Clarence Thomas’s fradulent financial disclosure reports? Or Tim Griffin, who was apparently rewarded for (alleged) vote-caging by an appointment as a U.S. Attorney? http://www.gregpalast.com/decision-2010tim-griffin-and-allegations-of-voter-caging/ The list is so long, it is almost comical.

    The non-prosecution of former head of the Civil Rights Division Bradley Schlozman for violations of the Hatch Act is what you can expect from any inescapably political institution with unrestrained discretion. For those who may not recall, Scott Horton of Harper’s summarizes the scandal:

    Schlozman served in a number of senior offices at the Justice Department, including within the Civil Rights Division and as U.S. Attorney in Kansas City. He left the Department under a cloud in 2007 at the height of the U.S. attorneys scandal, and he now practices law in Kansas City with the firm of Hinkle Elkouri. Schlozman is directly connected with a campaign to vet Justice Department staffers for ideological purity in violation of the Hatch Act, talking in emails about hiring “right-thinking Americans” and “comrades” while ridding the Civil Rights Division of “pinkos,” “commies,” and individuals who actually believed in enforcing the nation’s civil rights laws. He also clearly pushed the U.S. attorney in Kansas City to bring a series of politically-motivated legal actions, including a bogus prosecution of a Democratic candidate for mayor of Kansas City. When the sitting U.S. attorney began to balk at some of Schlozman’s more cockeyed political shenanigans, Schlozman pressured him out of office and assumed the post himself. Much of this conduct could easily have justified a criminal investigation and prosecution on its own, but the investigation that Holder just wrapped up had to do with something else—Schlozman’s appearances before Congress.


    The Office of Professional Responsibility issued a scathing public indictment of Schlozman:

    The evidence in our investigation showed that Schlozman, first as a Deputy Assistant Attorney General and subsequently as Principal Deputy Assistant Attorney General and Acting Assistant Attorney General, considered political and ideological affiliations in hiring career attorneys and in other personnel actions affecting career attorneys in the Civil Rights Division. In doing so, he violated federal law – the Civil Service Reform Act – and Department policy that prohibit discrimination in federal employment based on political and ideological affiliations, and committed misconduct. The evidence also showed that Division managers failed to exercise sufficient oversight to ensure that Schlozman did not engage in inappropriate hiring and personnel practices. Moreover, Schlozman made false statements about whether he considered political and ideological affiliations when he gave sworn testimony to the Senate Judiciary Committee and in his written responses to supplemental questions from the Committee.

    Click to access oig-opr-iaph-crd.pdf

    When high and mighty public officials commit crimes, it is the job of the AG to look the other way, and everyone in the Department knows it. The only high officials who ever get targeted are on political “enemies lists” like Don Siegelman. The AG has proven over and over again that s/he can’t be trusted with an exclusive power to prosecute federal crimes, and the best we can hope for is that the odor won’t exceed that of the old Omaha stockyards.

    The only way to clean out that sewer is to bring someone in from the outside (and preferably, not from BigLaw or Harvard), and no President is ever going to nominate such a man or woman.

  8. Goodwin Liu. Never mind that he’s newly appointed to the California Supremes. You heard it here first.

    It’s a hell of a job. I wouldn’t want it.

    I’ll do it. This is a job for a bureaucrat, anyway, not a lawyer. I can be some kind of a bureaucrat.

    Eric Hines

  9. Mr. Jennison:
    I thank you for providing the context in which this comment was made. Nonetheless, I must point out that the salutary end of seeking a better dialogue amongst our countrymen on the topic of race relations (“we, average Americans, simply do not talk enough with each other about race.”) is, I would respectfully suggest, not achieved by calling out Americans as “a nation of cowards.” After all, it was Americans–mostly Caucasian ones–who were the only people in world history to fight a bloody civil war that had the effect of ending slavery in our country. It was Americans–some of whom were Caucasian–who fought for (and still fight for) civil rights for all. It was Americans–a majority of whom were Caucasian–that elected the first African-American president. And it is Americans–almost exclusively Caucasians–who are asked to bear the guilt of past injustices for which they had no connection. I would respectfully suggest that it is not for the Nation’s chief law enforcement officer to pander to those within his “tribe”, i.e., others of his race celebrating African-American history month, by citing to the purported cowardice in all of us. Instead, Mr. Holder should have left to others the invective about a lack of frank discussions about race, and concentrated instead on the application of the rule of law to all. That he did not is the reason why Mr. Holder’s successor should be cut from a different cloth.

  10. If only… but who knows if he’d get confirmed by the Senate in a lame duck, given his trouble with confirmation to the 9th Circuit.

  11. Liu would be an idiot to take it, his troubles at confirmation demonstrate the partisanship of the current confirmation process and would be a foretaste of the confirmation process.

  12. Comment about odor of Stockyards rather upper crust for such an obvious Democrat, Do not see the smoking gun of corruption in any of your examples. Have trouble figuring out where you would vest authority to prosecute, something like UK CPS? Arguably in light of history discretion to prosecute is part of take care power, though with Thomas on your list of sins that approach may not be your cup of tea.

  13. There is a nice short article in Sidebar the on line journal at Columbia by Reynolds of Tennessee Law on prosecutorial discretion in July 2013,, famous case in federal system is United States v Cox,342 F 2nd 167 out of 5th Cir. Shocked myself by remembering after more than 45 years. Thank you Judge for giving me a place for my cesspool of legal knowledge in my “Golden Years.” Scare quotes.

  14. Judge, with all due respect, get serious. AG is the most important job in the Obama Administration as job one is to protect the President and destroy the Rule of Law. A politcal crony is a sure thing.

  15. repenting lawyer,

    I read the Cox opinion. It is fascinating. Enjoy your “Golden years,” and if this blog provides an opportunity to display your “cesspool” of legal knowledge, then I am very glad. All the best.


  16. Eric,

    I think you would be great. Good judgment does not necessarily reside only in those who have a law degree.

    All the best.


  17. RL, do you actually intend to suggest that a brilliant (Judge Kopf’s words) Yale-trained tax lawyer (his own admission) honestly did not know (a) the difference between investment and non-investment income and (b) that wages are non-investment income?

    Canada vests the power to prosecute in the Crown Prosecution Service, but permits individual citizens to prosecute if the Crown refuses. As near as I can tell, the world hasn’t stopped on its axis. If we had their system, even if Holder refused to prosecute, some private individual would have.

  18. If someone can make a credible argument as to why Clarence Thomas was not prosecuted for his false financial disclosures, I will withdraw my admittedly harsh comments.

  19. The Absinthe-Minded Perfesser,

    You know very well why he was not prosecuted for submitting an inaccurate financial disclosure statement. The government couldn’t prove the intent necessary to make out a criminal prosecution. I was embarrassed for the Justice because he should have had an accountant fill out the form for him just like a tax return. In these days of “gotcha,” making a mistake on a financial disclosure form, particularly about someone else’s income (your wife’s), comes nowhere close to criminal behavior.

    Let me give you a personal example. In the “nuke dump case,” where I made the State of Nebraska repay about $150 million ’cause it had acted in grotesque bad faith, a local yokel reporter for Nebraska Public television, acquired a copy of my financial disclosure statement from Washington. As is the practice, I was notified of the disclosure. In turn, I notified the parties that a party, the State of Nebraska through Nebraska public television, had sought the disclosure. It certainly looked to me like a state agency was trying to influence my judicial behavior. The problem for the reporter was that my disclosure form, which I presonally publish each year on our web sit even though I have no obligation to do so, revealed no investments whatever in corporations. Indeed, I am “poor” and I also disclose far more than I am required to disclose just to avoid crap like the innuendo you raise.

    All the best.


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