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Transcript: Former Attorney General Eric Holder on "Face the Nation," July 2, 2023

Former AG Holder on recent Supreme Court rulings
Former AG Eric Holder says "affirmative action is to take into account one of many things" 08:09

The following is a transcript of an interview with former Attorney General Eric Holder that aired on "Face the Nation" on July 2, 2023.

MARGARET BRENNAN: Welcome back to Face The Nation, we want to go back to the Supreme Court. Joining us now is former U.S. Attorney General Eric Holder, who is now head of the National Democratic Redistricting Committee, which was involved in two election related cases before that court. Good morning to you. You know, I'm sure there are a lot of things to talk about in regard to what you don't agree with the court on, but you did have two victories here, sir. The state of Alabama will now have to redraw its congressional map to include a second majority Black district as a result of this five, four ruling that the state discriminated against Black voters. What's the political and legal impact of this ruling?

FORMER ATTORNEY GENERAL ERIC HOLDER: Well, first of all, I think it's an affirmation by the court that there's still a need for a vibrant Voting Rights Act, section two of the Voting Rights Act. What the Republican legislature did in Alabama was clearly inconsistent with precedent, inconsistent with the way in which the Voting Rights Act had been interpreted. Alabama has about 27 percent of its inhabitants who are African American. And yet, if you look at the math, they only got about 7 percent or 14 percent of the congressional seats. That decision will have an impact beyond the state of Alabama, if you look at Georgia, Louisiana, Texas, they also have instances where the lines have been drawn in such a way to dilute the voting power of African Americans, and again, inconsistent with the Voting Rights Act. And so I think that you will also see courts rule consistent with the Supreme Court's ruling that those lines will have to be redrawn in those states as well.

MARGARET BRENNAN: In Moore versus Harper, the Supreme Court voted six-three to reject the theory that state legislatures can decide the rules for federal elections. I know Democrats had feared Republicans might use that to overturn results in 2024, like the former president attempted to in 2020. Does this ruling from the court, does the fact they took on the case at all, make you more confident about the integrity of the upcoming 2024 election?

HOLDER: Yeah, it makes me a lot more confident that we're gonna have a fair election come 2024 and that this ridiculous notion of independent state legislature theory will hopefully just go away. That was a- as fringe a theory as has ever been heard by the United States Supreme Court. The only disappointment I have in that decision is that it was not a nine to zero decision. The notion of the independent state legislature theory was that courts that- that the legislators had the final say, without any involvement of court review. And that's inconsistent with our notion of checks and balances. It will mean that we will have the ability to go before state courts to look at what legislators and sometimes gerrymandered legislatures are doing with regard to redistricting. And just as in any other case, have courts have the- the final say. That's the way our- our system is designed and that is what the Court affirmed through that to the North Carolina case.

MARGARET BRENNAN: The Supreme Court did warn state courts, federal courts could still overrule on cases involving federal elections. Does that concern you?

HOLDER: No, not at all. I mean, I think you want to have that backstop so that if a state court does something that is, you know, egregiously wrong, you want to have the United States Supreme Court have the ability to come in and correct that wrong.

MARGARET BRENNAN: I want to ask you about affirmative action. In this decision, that race cannot be used in college admissions, there was also written by Chief Justice, the Chief Justice's opinion, some detail here that seems a little confusing, frankly, because it says, "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, through discrimination, inspiration or otherwise…In other words, the student must be treated on his or her experiences as an individual, not on the basis of race." So you can discuss race in a college application. But it can't be. How do you understand this?

HOLDER: I don't really understand that. It seems to me, that exception or that caveat, was a little inconsistent with the rest of the opinion. And the other footnote that says, well, this doesn't apply to the military academies, which are, in essence, nothing more than colleges. I mean, you know, colleges with a specialized mission, again, it seems to be inconsistent with the holding. You know, the thing is that, you know, this nation continues to grapple with issues of race and to say that race is not a negative factor for too many people in this nation is inconsistent with just what the facts are. The notion of affirmative action is to take into account just one of many things of- when you look at qualified people, qualified students who are applying to colleges. Look at that one- one or many things and say, Well, you know, for diverse- for the sake of diversity, we're going to take into consideration the fact that we want to have this Black kid be a part of our university. But there's not a tension between the use of affirmative action and excellence. I think people need to understand that you don't, affirmative action doesn't mean you get into a school simply because you're black, it means that you're qualified, and that one of the factors taken into consideration of a qualified student is that person's race.

MARGARET BRENNAN: But one of the complications here in terms of the case brought was the argument being made that affirmative action at Harvard, an elite institution in particular, was hurting Asian Americans. Jay Caspian King, a writer for The New Yorker, writes "affirmative action, it was righteous in concept but hard to defend in practice." And I want to quote, "If a society should make decisions with a clear eye towards history, a sentiment I agree with, shouldn't it also follow that a group who was expelled from the U.S. would at least have the right to not be lumped in with the people who kick them out?" He's referring there, to historic mistreatment by white people of Asian Americans - Chinese Exclusion Act, Japanese internment. How do you respond to that argument?

HOLDER: Well, you know, first off, you're looking at the Asian American community as a monolith. And there are a whole variety of groups that make up the Asian American population in the nation. And you know, what the proponents of this lawsuit did was to try to use- pit one minority group against another so that they can ultimately reach their goal. They've been trying to attack affirmative action since the Bakke Decision back in- in 1978. You know, this notion that somehow some way, I guess, if you think that everybody who has 1600 on their board scores, everybody who has a 4.0 ought to be admitted to a particular school. The reality is, if you just use that as a determinant, there are going to be way too many kids trying to get into these elite schools. And you're still going to have to make determinations based on other factors. And it seems to me that making race one of those factors, just one of those factors, again, with regard to qualified students, but is wholly consistent with our Constitution.

MARGARET BRENNAN: I want- before I let you go, I want to ask you to put on your Attorney General hat again, would you counsel President Biden or the next president, whoever that is, to consider a pardon of the 45th president of the United States, either before or after a theoretical conviction?

HOLDER: I think I'd tell the president, the next attorney general, you know, to let the- let the system do its work, try the cases, see what the results are. And then treat that convicted President or any anybody else who was convicted as any other person would be treated. Pardons generally are for people who express remorse and then who have done things that show that they have turned their lives around. If those kinds of determinations can be made with regard to the former President or anybody else who was convicted. Yeah, I would support that. In the absence of something like that, I don't think that would be a wise thing to do.

MARGARET BRENNAN: Mr. Eric Holder, former Attorney General, thank you for your time. We'll be right back.

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