Amos,

I know you rread the article, right?

"In the course of its usual task of reviewing pending legislation to identify constitutional problems, OLC determined that the D.C. voting rights bill, which would give the District of Columbia a voting member in the House of Representatives, is unconstitutional. The acting head of OLC, David Barron -- a liberal Harvard law professor appointed by Holder -- signed an opinion setting forth OLC's conclusion. That conclusion is no surprise, as it has been the Department of Justice's consistent position, under presidents of both parties, at least as far back as Attorney General Robert F. Kennedy in 1963 and as recently as two years ago.

When Holder, a longtime supporter of the voting rights bill, learned of the OLC determination, he acted to override it. He contacted another of his appointees, deputy solicitor general Neal K. Katyal, to ask whether Katyal's office could, under its usual standards, defend the bill in court. Katyal said it could, and Holder then overruled OLC.

Now, it's legitimate, if exceedingly rare, for an attorney general to contest OLC's advice. The office is, after all, exercising the advisory function the attorney general has delegated to it. But there's a right way to overrule OLC, and then there's Holder's way. The right way would have been for Holder to conduct a full and careful formal review of the legal question. If that review yielded the conclusion that Holder's position was in fact the best reading of the law -- an extremely unlikely conclusion, in my judgment -- then Holder would sign a written opinion to that effect.

Holder instead adopted a sham review that abused OLC's institutional role. In particular, the answer he solicited and received from Katyal was virtually meaningless. Holder didn't ask for Katyal's best judgment as to whether the D.C. bill was constitutional. He instead asked merely whether his own position that the bill is constitutional was so beyond the pale, so beneath the low level of plausible lawyers' arguments, so legally frivolous, that the Solicitor General's office, under its traditional commitment to defend any federal law for which any reasonable defense can be offered, wouldn't be able to defend it in court.

Holder hasn't signed an opinion setting forth his grounds for reversing OLC, and he also refuses to make the OLC opinion available.

To test whether your own politics color your perception of Holder's action, consider this hypothetical: It's 2001, and pro-life Republicans in Congress introduce a bill that would purport to overturn Roe v. Wade by declaring that the unborn are "persons" under the 14th Amendment. The Bush administration official heading OLC issues an opinion, consistent with the longstanding position of the Justice Department, that the bill is unconstitutional. Attorney General John D. Ashcroft consults with a lawyer in the Solicitor General's office, who tells him that the office could defend the bill in court. Ashcroft informs OLC that he is overriding its opinion. Wouldn't there be ample reason to be alarmed that Ashcroft was politicizing DOJ's legal positions? Can you imagine the ensuing scandal?

Of course, Ashcroft never did anything like what Holder has done. "