WASHINGTON — When President Trump named William Barr as his nominee for U.S. attorney general, the news brought a sense of relief to Republican lawmakers eager for a seasoned leader at the helm of a troubled Justice Department.
Barr, 68, is an experienced corporate lawyer and a committed Catholic who served from 1991 to 93 as U.S. attorney general under President George H.W. Bush. Earlier in his government career, he worked on domestic-policy issues for the Reagan White House, and then, under President Bush, he led the Justice Department’s Office of Legal Counsel, before moving up the chain of command to deputy attorney general and then the top job in the department.
“Barr is a person of tremendous distinction and accomplishment,” said Leonard Leo, the executive vice president for the Federalist Society, the legal organization that has played a major role in the Trump White House’s recruitment of originalist jurists to the federal bench.
As a former U.S. attorney general, Barr “will enter the Justice Department with an awful lot of credibility and respect for the role he previously played,” Leo told the Register.
“He has a candid and no-nonsense management style, which is something the department could benefit from.”
Barr is expected to be confirmed by the Republican-controlled Senate. And Republican Party lawmakers are reportedly very keen for him to take up the reins of the Justice Department during a turbulent period that witnessed the forced resignation of former U.S. Attorney General Jeff Sessions in early November and legal challenges to the appointment of Matthew Whitaker as acting attorney general on the grounds that he cannot lead the department without being confirmed by the Senate.
But Democratic lawmakers and their progressive allies have raised questions about the nominee’s record and public statements on executive power, immigration and separation of church and state, among other issues. They note that Barr has publicly critiqued the special counsel investigation department, and they are worried that he won’t stand up to an autocratic president.
“Mr. Barr must commit — at a minimum — under oath before the Senate to two important things: first, that the special counsel’s investigation will proceed unimpeded and, second, that the special counsel’s final report will be made available to Congress and the public immediately upon completion,” Sen. Chuck Schumer, D-N.Y., said after Barr’s nomination was announced.
Meanwhile, liberal commentators have described the nominee’s beliefs — some culled from speeches that date back a decade or more — as “extreme.”
“Theocracy alert: Trump’s Attorney General Pick William Barr is a Catholic conservative who rejects the separation of church and state, calls secularists ‘fanatics,’ and blames secularism for ‘moral decline,’” warned Michael Stone, who blogs at “Progressive Secular Humanist” on Patheos.com, citing Barr’s 2011 address criticizing the impact of secularization in public schools.
The campaign to present Barr’s legal opinions as outside the political mainstream reflects a strategy by Democrats and their progressive allies, who have sought to make the Obama Justice Department’s policies on immigration, religious freedom, abortion and other hot-button issues the established standard by which Trump’s agenda should be measured and judged.
“William Barr’s nomination sends a message ... [that] the Trump administration will continue to use the Department of Justice to rollback our fundamental rights,” warned NARAL Pro-Choice America in a statement that cited Barr’s past critique of Roe v. Wade.
Defender of Executive Power
John Malcolm, a legal specialist at the Heritage Foundation, agreed that the nominee’s public views on a range of topics, along with his previous tenure as U.S. attorney general, were legitimate subjects for his confirmation hearings. But Malcolm also noted that the attorney general was appointed by the president to implement his agenda.
“Barr has, in the past, espoused the view of broad executive power,” Malcolm told the Register.
“But he has also said that his fidelity is to the Constitution and not the president” when a serious conflict between the two might arise.
“The U.S. attorney general[s] will often try to defend the president whom they serve, but they have to be able to make a good-faith statutory or constitutional argument.”
Barr’s defense of executive power dates back to the late 1980s, when he led the Justice Department’s Office of Legal Counsel under Bush.
“I think Bush felt that the powers of the presidency had been severely eroded since Watergate and the tactics of the Hill Democrats over an extended period of time when they were in power,” said Barr in a 2001 oral history cited by The New York Times.
Barr will be asked to detail how he would likely apply his expansive view of executive power to a very different president beset by a slew of legal and political challenges. Likewise, he will be asked to explain his record on another controversial matter: his campaign as attorney general to restrict the flood of asylum seekers from Haiti, where a violent 1991 military coup forced tens of thousands of Haitians to flee their country.
Initially, the U.S. government directed the Coast Guard to intercept the refugees at sea and evaluate whether they met the criteria for political asylum. When that strategy proved unmanageable, they were sent to the U.S. naval base at Guantánamo Bay, Cuba.
Haitians infected with HIV faced additional scrutiny, and the policy was later challenged in court and blocked in 1993.
Immigration advocates, already angered by Trump’s efforts to block and discourage the flow of migrants at the southern border, have lashed out against Barr.
“The new attorney general nominee has a record in line with this administration’s hard-line immigration views and policies,” Kevin Appleby, senior director of international migration policy for the Center for Migration Studies of New York, told the Register.
The two and a half decades that bridged the Bush and Trump administrations have also witnessed the increased politicization of social issues, from abortion to newfound sexual rights, and U.S. presidents have sought to advance or restrain these shifting norms.
In 2014, for example, Obama Attorney General Eric Holder ordered the Justice Department to incorporate gender identity in federal civil-rights protections against sex discrimination in employment, thus strengthening the rights of Americans who identify as transgender. Last year, Sessions rolled back that interpretation of federal law.
Based on his previous writings and public remarks, Barr can be expected to defend and advance Sessions’ policies, including the expansion of conscience rights for religious believers and pro-life Americans. Indeed, during his 1991 confirmation hearing for attorney general, Barr argued that Roe v. Wade was wrongly decided. He said the scope and limits placed on legal abortion should be left to state legislatures.
Roe v. Wade “foreclosed any kind of role for society to place regulations on abortion, and I don’t think that opinion was the right opinion,” Barr told the Senate in 1991.
At that time, Sen. Joe Biden, D-Del., congratulated Barr for his candid presentation of his views on Roe, in contrast to nominees who sought to skirt the issue. Now, Barr will likely face a much more hostile interrogation by Senate Democrats, in the wake of the acrimonious confirmation hearings for U.S. Supreme Court Justice Brett Kavanaugh.
But if Schumer and abortion activists are eager to challenge Barr’s credentials as the nation’s top law enforcement official, pro-life and religious-freedom advocates are celebrating his nomination.
Gerard Bradley, a professor at the University of Notre Dame School of Law, told the Register that Barr’s nomination was “welcome news,” and he singled out a key speech he gave two decades ago that “spoke frankly about matters of culture, morality and law.”
Barr “criticized the Supreme Court’s ‘wall of separation’ as a judge-made doctrine tantamount to secularism. He was quite right,” said Bradley.
“Barr also criticized the ‘wall’ as a departure from the Founders’ constitutional design, which was to promote religion in order to help the churches cultivate in citizens the virtue necessary to sustain a free society.”
Groups opposing his nomination believe that Barr should “repudiate” his unfashionable opinions, said Bradley, but he hopes that Barr will retain his clear-eyed diagnosis of the problems that beset American culture and the rule of law.
Said Bradley: “It is precisely because he sees so clearly the decay in our culture and the distortions in much of our law that he will make a fine attorney general.”
Joan Frawley Desmond is a Register senior editor.