Eric Holder on the Arc of Justice
HOST: Soon after Eric Holder was confirmed as attorney general of the United States in 2009, he gave a speech for Black History Month that set off a whirlwind of both praise and criticism.
[clip from speech: “Simply put, to get to the heart of this country, one must examine its racial soul. Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and I believe continue to be, in too many ways, essentially a nation of cowards.”]
Holder’s “nation of cowards” speech was a controversial start to his six-year tenure as the first African American to head the Department of Justice. He went on to take up civil rights issues, directing the department to stop defending the Defense of Marriage Act in court, and he sued the state of Arizona over an immigration law that the Supreme Court later struck down.
Holder also focused on voting rights, an issue central to his work today as chairman of the National Democratic Redistricting Committee. That’s a partisan group that combats gerrymandering.
But what about racism today? Does Holder still consider us a nation of cowards?
This is Tell Me More, the Tufts University podcast where we catch up with our favorite guest speakers on campus. I’m Anna Miller.
This episode, we listen in on a conversation recorded back in November between Holder and 2009 Tufts alum Jake Maccoby, a speechwriter and communications strategist who has worked with Holder, as well as Barack Obama and Hillary Clinton.
In this conversation, Holder talks about being smart on crime, the hardest decisions he ever had to make during his job, and what the average person can do to make our nation a little bit better.
JAKE MACCOBY: You had a very close personal relationship with President Obama while you were before, and then while you were at the Department of Justice. But you also were very committed to an independent Department of Justice, you were coming off of a very politicized Department of Justice in administration prior. And now, if it’s possible, we’ve headed into an even more politicized one than that.
ERIC HOLDER: I may have to go back.
MACCOBY: Yeah. I don’t know if they’ll take you.
HOLDER: Not this administration. No, no, no, no, no.
MACCOBY: I think we’re in exile. But, why was it so important to you to have that independence? And how did that impact your relationship with the president?
HOLDER: I mean, the Justice Department is a fundamentally different cabinet agency than any other department in the executive branch. You have the power to put people in jail, you have the power to take people’s property away. You have the power to take the life of people. Those are the toughest decisions that an attorney general has to make. Literal life and death decisions on whether or not the Justice Department’s going to seek capital punishment.
And given all that power, you have to try to insulate the Department of Justice from politics. And it means that there has to be a distance between the Justice Department and the White House. A distance between the attorney general and the president that you serve. And Barack Obama and I were friends before. We were friends and colleagues during—we are friends now, and yet, our relationship changed, when I became attorney general, I guess, in February of 2009.
There were certain things I could not share with him, and he didn’t expect, I think, to be shared. For instance, when I made the decision that we were not going to defend the Defense of Marriage Act, we weren’t going to defend DOMA, that’s a decision that was made in the Justice Department by me, after we had all kinds of discussions, the Justice Department was split. And I said, “All right, we’re not going to defend it.”
Now, this is something that I didn’t want him to read about in the papers. And so, I said, “All right,” we were at a Super Bowl party at the White House. Now, this is going to be humblebrag here, right? So, I was at the Super Bowl party in the residence, and I said, “Hey, I need to talk to you about something.” And I said, “Here’s the deal, I have made the decision and we’re not going to defend DOMA.” And he said, “Boy, I’m glad to hear you say that.” This is him. “I’ve been trying to think of ways which I could convey it to you. I didn’t want to have DOMA defended.” But that shows you how he respected and understood the need for an independent Justice Department, and how I thought that was also something that was important.
You had two people who were friends, sharing similar views about a particular policy determination, and yet, we were both struggling with how we could help inform, how he could share his views, how I can inform him of my decision. The justice departments, the attorneys general that forget that, are the ones who tend to get in trouble.
MACCOBY: For people in this audience, who look at the very slow pace of change, and the challenges and obstacles that we have to confront today and maybe frustrated by the enormity of some of those challenges, what advice do you have for people to stay energized, to stay hopeful, to keep at it, even during really challenging circumstances?
HOLDER: I mean, I think we have to remember that, change—positive change—doesn’t happen overnight. This nation is better now than it was fifty years before, and better than it was fifty years before that, but not as good as it will be fifty years from now. But change doesn’t happen like that. Segregation didn’t end like that. Women didn’t get the right to vote like that. Any number—the LGBT community—I’m still in the process of trying to acquire all the rights to which that community is entitled. Now, it’s fifty years ago, Stonewall, 1969. And so, you should be impatient. And I think, we should all be impatient for positive change. I mean, given a speech where I talk about Dr. King had the source of his success in being a positive change-maker was as much rooted in impatience, as it was in faith.
And so, I think we should be impatient, but we should also be realistic. That letter from a Birmingham jail is where he’s taking to task ministers in Birmingham, who ordered him to take it easy, let things develop. And he’s, “No, I want this thing, we want, how long should we have to wait?” So, there’s that struggle between impatience and being strategically sound in your approaches.
I think we made, over the course of those six years, we made a lot of progress. We left maybe some things undone, but I’m proud, and I think history is going to treat Barack Obama quite well. I think he’s going to be seen as a very, very good president. But my advice to people would be to identify issues that matter to you, commit yourself to solving them, and try to get as much done as you possibly can.
And if you can’t get it done, certainly leave a foundation for somebody who will follow you to perhaps get that baton over the line. I think about my dad, who comes to this country as an immigrant, who served proudly in World War Two and while in uniform, while in uniform, was discriminated against in North Carolina at Fort Bragg.
Was told to get to the back of a bus or a train in Oklahoma, and he was told to go to the back of a lunch counter so he can get a hamburger or something. And he didn’t grow up with this experience. He’s from the West Indies, in Barbados. And I think about the America that he had, and the sacrifices that he made, so that his son might have chances that he did not. His son got to be attorney general of the United States.
So, he wasn’t satisfied with the status quo, did what he could, and we should all understand. We all have the ability to be change-makers. And young people need to understand something that you all have the ability to be change-makers. If you look at the founding fathers, they are incredibly young people, except for Benjamin Franklin.
They are incredibly young people, who took on the mightiest empire in the world, and created a new nation. And so, age, youth, is not an excuse for inaction. Youth actually, given the vitality that you have, the good backs that you have. You don’t have bum knees and bum hips and all that stuff, you all have a responsibility in a way that, I hope that you will shoulder.
MACCOBY: We used to play a worst day, best day, when we left a role. So, what was your worst day at the Department of Justice? And what was your best day?
HOLDER: Best day would be hard. Let me think about that one. Worst day is easy. Worst day was the day that I went to Sandy Hook, Newtown, and met with the first responders there, and the crime scene search officers, after those little angels had been murdered, killed, that massacre there. And it was, they showed me around, took me into the classroom, and it was a real juxtaposition. You saw on the ceiling, kids will write, “What I want to do this year.” And first graders, you’ll transpose a K, the K goes that way, instead of this way, and it was a very cute and little stick figures and all. And then you saw blood on the bottoms of the walls.
And I remember looking at the carpet, and carpet was kind of pulled up, and I said to one of the crime scene search officer, “What’s that?” And he said, “That’s where the bullets had gone through.” And I pulled up the carpet. I leave there, crime scene search officers one side, first responders on another side, they’re crying, they’re crying, I’m crying. And that was clearly the worst day that I had. And the thing that got me about that day, is that, in spite of what I saw, we were unable to convince people in the legislature, in Congress, to pass sensible gun laws. I think, if America had been with me, if I had somehow been able to take 300 million Americans with me on that tour through that classroom that day, we would have gotten to a better point when it comes to gun safety law. So, that was easily the worst day.
Best days, there was just a whole bunch of best days. You give a good speech, you get a good decision from the Supreme Court. There’re way more good days than bad days. I liked the job. It was a good job.
MACCOBY: Let’s talk a little bit about the National Democratic Redistricting Committee, which you’re chairing and which you stood up after your time as attorney general. So, tell us a little bit about that. Why gerrymandering was an issue that you decided to get involved in? What the NDRC does, and why it’s important?
HOLDER: NDRC was formed in January of 2017. We announced it to the world and it was to get at this whole problem of gerrymandering. Where, lines are drawn unfairly, district lines for Congress, for state representatives. Where one party gets way too much power, given the number of votes that they have gotten.
Disproportionate amount of power, given the votes that they have gotten. And that has an impact beyond just the political or the mathematical. There’s a whole range of negative things that flow from gerrymandering. You end up with people who are in these safe seats, who don’t represent necessarily their constituents, take views inconsistent with what their constituents want to do, but then don’t suffer any political consequence, because they’re in a gerrymandered seat.
It leads to gridlock, because people are not concerned about a general election, they’re concerned about a primary. And so, if you’re a Republican, you drift further and further to the right and to be fair. In the Democratic Party and progressive you tend to drift maybe a little to the left. Compromise is seen as a weakness and invites a primary challenge.
And therefore, you don’t have compromise and you have gridlock, which leads to cynicism in the population. But chief among the concerns I have about gerrymandering is the lack of progress on issues that the American people are relatively unified about. Ninety percent of American people want expanded background checks before you can buy a weapon. And we see a Congress that does nothing, nothing.
We’ve seen the House, this new House passed some things, but Senate’s not doing anything. We see people who are, tend to share, not towards the same degree, but views about a woman’s right to choose. And yet, we see, in some states, these heartbeat bills coming out of places like Georgia and other places, where, again, not supported by the people of Georgia, but supported by a gerrymandered state legislature.
We don’t see progress one climate that we would otherwise see. People who are in these gerrymandered seats tend to serve special interests, as opposed to, again, the people they’re supposed to represent. We don’t see Medicaid expansion in certain states, which is really, why wouldn’t you do that? Why wouldn’t you expand Medicaid? Why wouldn’t you have more people covered by health insurance and save rural hospitals? There’s a whole range of things.
There’s a whole range of things that are directly connected to gerrymandering. Lack of progress in really critical areas. And so, that’s one of the reasons why I decided that I wanted to focus on something that seems a little arcane, a little wonky, but really has an impact on issues that I think people care a great deal about. It seems to me that if we have a fair system in 2021, unlike the one that we had in 2011, that we’ll have a more pure democracy government that will reflect the desires of the people.
MACCOBY: How do you go about making that change, especially now, since Supreme Court handed down a case in a hand down decision in June, to keep federal courts out of gerrymandering decisions? Does that change the way that you think about it? Does it change the way that you work on that problem? What’s the way forward?
HOLDER: Well, when we stood up the NDRC, we said, “All right, we’re going to have a four prong strategy. We’re going to file lawsuits,” and I’ll get back to that, “We’re going to elect candidates, support candidates who will stand for fair redistricting. We’re going to support reform efforts.”
And that really means putting our weight behind these efforts to take it out of the hands of politicians all together. Don’t let politicians pick their voters or draw the lines. Let’s put this in the hands of these nonpartisan commissions. Let them do all the lines. They have it in California, have it in Arizona. We supported ballot measures in four states where they now have them: Colorado, Missouri, Michigan, and Utah. They now have those in place.
And then we have a big component is our advocacy program—we’ve got hundreds of thousands of people around the country advocating for fair redistricting. When it comes to the litigation component, it would have been good to get a good decision—I think an appropriate decision out of the Supreme Court, as opposed to the five-four bad one that we got.
But that only closes the federal courts to partisan gerrymandering cases. We can still bring racial gerrymandering cases in federal court, and a lot of times, those things are on top of one another. But it also means now that when we bring partisan gerrymandering case, we have to bring them in the state courts, and use the state constitutions as we just did in North Carolina, where we got a three-judge panel there, applying the North Carolina Supreme Court to say that the state legislature was unconstitutionally gerrymandered and that the congressional delegation in North Carolina was unconstitutionally gerrymandered. So, that’s what we’re going to have to do.
We’ve done it in Pennsylvania, we’ve done it in North Carolina, and look, it’s a slog, we’ll just have to go state by state, when we’re bringing partisan gerrymandering cases.
MACCOBY: Well, thank you so much for answering my questions. And now, I’ll open it up to folks in the audience.
AUDIENCE MEMBER: Hello. On this campus and in the hearts of activists everywhere, the ideas of restorative justice, as opposed to punitive justice, have definitely been spoken about. And with your vast experience, I was wondering if you had any ideas on whether that could be popularized in American discourse, or what obstacles might stand in the way of more sort of a fair justice system?
HOLDER: Yeah, I mean, that’s actually one of the things—I hope we talked about legacy, I hope people will look at my time at the Justice Department and in the Obama administration to see that we stood for and made meaningful changes, at least, with regard to the system that we could control—a federal criminal justice system—and that we introduced measures there that were significant when it comes to criminal justice reform. That we had an administration that, for the first time, reduced the federal prison population, at the same time that the crime rate went down. It was first time that happened in forty years.
And that was because, I think, we came up with ways in which we said, “We’re not going to be tough on crime, we’re going to be smart on crime, and make it, not only finding people, trying people, giving them the longest sentences that you possibly could, but to come up with prevention activities, so that people would not become involved in the criminal justice system in the first place. Don’t warehouse and forget people who are in the system—deal with the deficits that they have, that probably got them involved.
And then, on their way out, give people the ability to function in the world that they will confront once they leave the system. One of the things that always amazes me is that, we think we can take people who have these issues, warehouse them, take them out of the system, and then put them right back in the same places where they come from, and expect a different result.
So, our view was that, it was not only the Justice Department that had to be involved in this, the Labor Department had to be involved, the Education Department had to be involved. We had tried to remove barriers that were put in place for people to live, for instance, in public housing. Simply because you have a criminal record, you can’t get access to federally subsidized public.
What does that mean? If you’re not a danger, and you have served your time. Or job barriers, checking the box, and trying to ban the box. All those kinds of things. We can have a more fair criminal justice system that keeps the American people safe. And that’s the thing that’s got to be job one. We can keep the American people safe, that we can do it more efficiently, and we can do it more fairly.
AUDIENCE MEMBER: I was wondering what was the hardest decision that was brought to you while you were attorney general? And what process did you take to work through all those options and figure out the decision?
HOLDER: The toughest decisions I think were not only the Awlaki matter, but also just the death penalty determinations. I’m a person who’s personally opposed to the death penalty. As attorney general, you have to apply the law. And for certain offenses, the death penalty is available. And so, there’s a process that you go through in the department, as a capital case committee that listens to the defense attorneys, listens to the prosecutors and sends memos up, that have to be signed off on by the assistant attorney general, the Criminal Division, the deputy attorney general. But ultimately, it’s the attorney general who makes a go, no-go decision.
And those are the hardest decisions, because you know that if you say, “We’re going to seek the death penalty,” and in most cases, the overwhelming number of cases, the justice is probably just going to win the case. Now, it’s not as totally as clear that you’re going to get the death penalty in a case where you have convicted somebody in a capital eligible case, but that possibility is certainly there. And the notion that, when I put my signature on a piece of paper, means that I’m potentially going to sanction the extinguishing, the state extinguishing of a life, those are the toughest decisions.
Those are decisions that I never made in the office. I will always take the recommendations home, the papers home, and in the still of the night, everybody’s gone to bed in my house, I’d put them on this big table we have in our kitchen, and that’s where I would make the decision.
But those are tough, tough, very tough decisions. I had to make one up here, with regard to the marathon bombing. A young man, very young man, a teenager, and had some people who were victims, or relatives of victims, who said, “Do not seek the death penalty.” People in law enforcement said to seek the death penalty.
And that was one where I decided that seeking the death penalty was appropriate. It was a tough decision, the really tough, tough decision. And one, and I would say it, I mean, if I’d gotten any indication, any indication of remorse from the defense attorneys, any indication of remorse, because I had to factor in a whole bunch of things. This is a young guy, this is a kid, but they could, and I’m going back to them, two, three times, “Give me anything.” And just never came. And I thought, given the nature of the harm, that seeking the death penalty in that case was appropriate. Those are the ones, as I said, that still... There’s a lot about the department, then what I did, I can’t remember. There were those things that still stick with me.
AUDIENCE MEMBER: Attorney Holder, hello. I’m Charles, and I’d like to know, are we still a nation of cowards?
HOLDER: OK. Well, that comes from a speech that I gave with Black History Month, 2009, where I said that when it comes to things racial, that we are too often a nation of cowards. That we don’t really face racial issues, we don’t have frank conversations with one another about race, that we become expert at avoiding talking about racial issues.
But, I think the speech is actually held up pretty, pretty well. Are we still a nation of cowards? I think we are a nation that’s made progress, but I still think we’re a nation that is uncomfortable with discussing and dealing with issues of race. We are, as a nation, unwilling to understand that the impact of Jim Crow is still felt in the twenty-first century, that the slavery experience is still felt in the twenty-first century. That there are still barriers that people of color have to deal with, that others in this society do not. That, by any number of measures, we are still not at the place where we need to be, racially, whether it’s income measurements, levels of academic achievement, rates of violence.
And we can talk about how economics affects all of that, but race, race is still an issue that is a defining characteristic. I walk into a room, and people, how do you identify this guy that’s walking into the room? “Oh, he’s tall, and he’s thin, maybe not as thin as he used to be, whatever.” You see, and people are just like, “He’s a black man. He’s a black man.” And I get that, we are not at the point where my color of my skin is not a defining characteristic. It still is. And we’re not yet at the place where we need to be.
So, yeah, I’m not sure I’d call us a nation of cowards, as much as a nation of people who are just still too reluctant to engage. Now, I think that given all that we are dealing with now, that conversation, and then action, action based on that conversation is really sorely needed. I think the Obama years gave us a great deal of hope. Not that everything was solved—but hope. I think these last three years have taken us back, in a lot of ways. The divisions that race tends to create, I think have been exploited for political gain. And I think it’s something that we are, as a nation, are going to have to try to correct in the years to come.
So, I don’t apologize for that speech. I don’t apologize for the use of that term. I’m actually proud of that speech. And for all of conservatives who gave me grief about that, is almost as if I got up and said, “America is a nation of cowards,” and sat down. It’s like, “Wait a minute, did you read the speech, congressman? Did you read the speech, senator? You tell me what about that speech it is that you don’t agree with.” So, no, I still, I stand by what I said there.
We’ve had a good conversation here about a whole variety of things. And as I said, I look out at this distressingly young group of people and those who are young at heart, I would urge you all to—it’s kind of consistent with the questions that you’ve asked—ask yourself, “What is it that I can do to make this country better? How do I contribute?” I’ve had a number of titles in my life, and I think I’ve got, in some ways, the most important one now, citizen—citizen. I have to, it’s easy, not easy, but, if you’re attorney general, things are given to you to decide. As a citizen, you have to make the decision of what is it you’re going to be involved in.
And I would urge you all to figure out a way in which you can get involved in that process. Dr. King said that the arc of the moral universe is long, but it bends towards justice. But, that arc doesn’t bend on its own, that arc bends when people like you put their hands on that arc and pull it towards justice. And that’s what I think you have to do. I would urge you at the end of every week, to think about, say Sunday, seven o’clock in the evening, kind of a quiet time, think about, what have you done in the past week, to bend that arc? To make this nation better? To make the society more fair? And at that same time, think, what are you going to do in the week to come, that’s going to make this nation better, make it more fair?
And again, it doesn’t have to be political. It can be involved in youth activities, helping senior citizens. I mean, what is it that you’re doing? How can you use an hour or two, a week? Again, it won’t be easy. I understand that we have very important business lives, academic lives, personal lives. You want to have fun, I get all that. But this will make, it might seem like a burden, but you will ultimately feel better about yourself, and you will have, trust me, you will have a measurable impact on our nation. You’ll make that nation better. So, that’s what I would urge you to do. Find that way, be an active and engaged citizen, and bend that arc towards justice.
MACCOBY: Thank you so much for being here. Thank you all for coming.
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