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Eric Holder’s Bipartisan Rebuke

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Posted on November 24 2010 7:00 pm
J. Christian Adams is an election lawyer and former attorney in the Voting Section at the Department of Justice. He blogs about elections and the laws which affect them at www.electionlawcenter.com.

Although the story was completely ignored by the mainstream media, Attorney General Eric Holder received a rare bipartisan rebuke last Thursday by the House Judiciary Committee.  At issue was Holder’s decision to ignore the committee’s invitation to have a Justice Department representative testify on whether religious organizations may make religious-based employment based decisions while accepting federal funds.

In a joint letter from Reps. John Conyers (D-Mich.), Jerrold Nadler (D-N.Y.), Lamar Smith (R-Tex.), and James Sensenbrenner (R-Wis.), the committee characterized Holder’s action as “inexcusable.”  The committee lectured Holder that,

“[i]t is unacceptable – and flatly inconsistent with the President’s pledge of greater transparency – that the Department of Justice has not made its position clear to the Congress or to agencies and partnering organizations who must understand and comply with the law.”

In other words, does the Obama Administration believe Catholic charities may refuse to hire employees who are open critics of Catholic doctrine, or, must synagogues hire  Palestinians who call for the destruction of the Jewish faith?

Was it political tone deafness that caused Holder to deliberately alienate his congressional guardians?  Or was it mere cowardice? Most likely, it was a bit of both.

It is, of course, well settled that religious organizations may discriminate in hiring on the basis of religion.  The Justice Department’s Office of Legal Counsel (“OLC”) has formally opined that Congress may, consistent with the Establishment Clause, extend the religious exemptions under federal law to faith-based organizations receiving direct payments of federal money under the charitable choice provisions of federal statutes. But for Holder to publicly acknowledge (let alone embrace) these precedents and reiterate the employment flexibility enjoyed by religious institutions would trigger tremendous backlash from the radical non-religious leftist groups that Holder increasingly relies on as his only remaining sources of political support.

Don’t forget as well that the highly partisan Holder has already demonstrated, in contrast to his predecessors, that he does not feel himself bound to OLC’s opinions if he finds it politically expedient to reject them, as he did to his own national embarrassment last year in a matter involving the unconstitutionality of a D.C. voting rights act bill.  Already taking a beating for his actions on detainee prosecutions, racially selective enforcement of civil rights laws, bizarre support of illegal immigration and outrageous attacks on states that are seeking to fill the federal immigration enforcement void, and a host of other excesses, Holder simply cannot afford to lose his militant (albeit completely out-of-touch) base.  After all, if he loses their backing, who — other than perhaps Malik Zulu Shabazz and the New Black Panther Party — is left to support him?

All of this helps explain his decision to blow off the House Judiciary Committee last week.  Washington occasionally has instances of bipartisanship.  But the mainstream media seems reluctant to report when it involves bipartisan criticism of the Obama Administration.

Needless to say, with Republicans slated to take over in six weeks, Eric Holder’s polite declination of invitations will no longer be an option.

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