By Joseph Williams, Globe Staff
WASHINGTON -- When the confirmation hearing for Eric Holder, President-elect Barack Obama's choice for attorney general, begins this morning, the expected battle will be over more than whether Holder is the right man to rebuild the Justice Department.
The anticipated grilling of Holder, a former federal prosecutor and judge who was the department's top deputy under President Clinton, is the latest example of the polarization of the Senate Judiciary Committee, a powerful panel locked in a cycle of tit-for-tat partisan conflict over past judicial nominees, years-old confirmation fights, and breaches of long-standing protocol.
The confirmation fight over Holder, expected to be the most contentious of Obama's cabinet nominations, could also set the parameters for his future judicial appointments, including potential vacancies at the Supreme Court, and demonstrate the strength of the new Republican minority on Capitol Hill.
The "payback for the payback," as one analyst called it, will take the form of Republicans attacking flaws in Holder's resume during the two-day hearing -- specifically, his role in several politically-tinged presidential pardons that Clinton issued. Besides testing Holder's credibility, however, the GOP assault will also avenge Democrats' rough treatment of former Attorney General Alberto Gonzales, who won unanimous Republican support in his 2005 confirmation but resigned under fire two years later.
In a floor speech in the Senate last week, Arlen Specter of Pennsylvania, the committee's ranking Republican, threw down the gauntlet, questioning whether Holder would be an independent law officer or simply "a yes-man" for the incoming administration.
The nation's top prosecutor must have "a critical qualification of character" and avoid the temptation to "yield to expediency ... to please a superior or to accommodate a friend," Specter said. Under Clinton, he added, some of Holder's decisions "raised concerns about his ability to maintain his independence from the president."
Specter also threw a jab at Obama, suggesting that Obama's decision not to consult him before nominating Holder was a mistake.
Democrats are swinging back, declaring in a series of high-profile political events that Holder is eminently qualified to become the nation's top prosecutor and more than capable of cleaning up the mess Gonzales left behind. They say that any Republican who voted for Gonzales but challenges Holder for a perceived lack of independence and judgment will be guilty of a double standard.
"I think Senator Specter has always carried himself as an independent person. It may be just a coincidence that his positions are the same as Karl Rove's," said Senator Patrick Leahy, a Vermont Democrat, referring to the former Bush political adviser and chief GOP strategist who was the first to publicly criticize Holder's nomination. Specter helped Gonzales become attorney general, "and that turned out to be a disaster," Leahy added.
The looming partisan fight over the Holder nomination is further evidence of a deep divide on the committee, said Robert Alt, a senior fellow at the Heritage Foundation, a conservative-leaning Washington think tank.
"You begin with the fact that the Judiciary Committee is generally believed to be one of the most polarized bodies in the Senate," Alt said. "You've certainly had a great deal of contention over judiciary nominees in the past, and a goodly number of nomination hearings in that committee are pretty prickly."
Given that, Alt said, committee Republicans want to flex enough political muscle to make the incoming administration think twice about future judicial nominations, including the Supreme Court.
Obama, who toured the high court Wednesday at the invitation of Chief Justice John G. Roberts Jr., could have several appointments to the court during his term. John Paul Stevens, considered the cornerstone of the court's liberal wing, is the oldest justice at age 88, but four other justices are in their 70s.
Nevertheless, Alt said he expected Holder will be confirmed.
William Marshall, a law professor at the University of North Carolina and a former Justice Department official under Clinton, agreed that Holder will ultimately be confirmed, but said Republicans want to retaliate for Democrats' rough treatment of Gonzales during his confirmation, their harsh criticism of the Justice Department under President Bush, and their use of procedural tactics to stall some of Bush's nominees for federal judgeships.
"Payback for the payback is an unfortunate dynamic that has take over Capitol Hill," said Marshall.
For his part, Holder has apologized for his recommendation that Clinton give a last-minute pardon to Marc Rich, a billionaire fugitive wanted for tax evasion whose ex-wife donated hundreds of thousands of dollars to Clinton's presidential campaign.
But Republicans point to other controversies on Holder's record, including his refusal to appoint someone to investigate allegations that then-Vice President Al Gore violated campaign finance laws -- and suggestions that Holder abused his authority to win clemency for convicted members of a militant group that used bombings to demand Puerto Rican independence.
In a conference call with reporters Tuesday, Leahy said Holder should have an easy confirmation, especially since Republicans -- in the majority at the time -- closed ranks to vote for Gonzales. "I would think many of them would want to redeem themselves," Leahy said.
About Political Intelligence
Glen Johnson is Politics Editor at boston.com and lead blogger for "Political Intelligence." He moved to Massachusetts in the fourth grade, and has covered local, state, and national politics for over 25 years. E-mail him at firstname.lastname@example.org. Follow him on Twitter @globeglen.