In particular, Holder’s 22-page Q&A with Sen. Arlen Specter (R-Pa.), the committee’s ranking Republican, touches on federal judicial nominations, executive power, detention policy, corporate prosecutions, and Holder’s representation of Chiquita Brands International while a partner at Covington & Burling.

On judges, Specter noted that President Barack Obama has said he’ll look for judges who have “the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.” He asked Holder whether “it’s ever proper for judges to indulge their own subjective sense of empathy in determining what the law means?”

The attorney general nominee, subtly distancing himself from Obama’s statement, replied, “It is important for judges, as for all public servants, to bring to their jobs an ability to understand the life experiences of the people who appear before them, but judges should make their decisions based only on the facts presented and the applicable law.”

Holder was also asked to explain a memo he drafted as deputy attorney general in the Clinton administration, which sets guidelines for the prosecution of corporations. The memo has become highly controversial over the years, as successive DAGs have added their own tweaks. But Holder’s memo was the first to suggest that a waiver of attorney-client privilege could be used as a measure of a company’s cooperation in a criminal investigation. The memo, Holder wrote, has been misinterpreted and, in some cases, abused.

“We did not contemplate nor envision what the practice in the field appears to have become in certain jurisdictions or by certain prosecutors, namely the blanket demand that corporations waive their attorney-client privilege as a litmus test of the corporation’s good citizenship,” Holder wrote. “The disparity between our practice and what has developed over the ensuing nine years in the field is significant.” Holder promised to review the policy, if confirmed.

Specter also asked Holder to reconcile statements he made in 2002 that detainees were not entitled to the protection of the Geneva Conventions and a speech last year, in which Holder said, “I never thought I would see the day when a Justice Department would claim . . . that the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Conventions.

Holder stood by both. “I said that we have authority to detain enemy combatants under the law of war; that we need not treat detainees as POWs under the Geneva Conventions; but that we must treat them humanely and that we cannot torture them or hold them in dark places beyond the rule of law,” Holder wrote. “There is a difference between adhering to the Geneva Conventions, which have broad application to armed conflicts, and adhering to the special provisions of the Conventions that apply to prisoners of war, a narrow subset of persons engaged in such conflicts.”

Specter was also curious about Holder’s work for Chiquita. In a 2007 settlement with the Justice Department, the company agreed to pay a $25 million fine for payments it made to a Colombian terrorist group to protect its workers. The senator wondered whether Holder’s “zealous advocacy on behalf of a client” would affect his willingness to use all tools available to combat terrorism. Holder discussed the case, defending his client to the last, but refused to answer the question directly.

In other questions, Republicans expressed concerns about the possibility that the Justice Department could pursue prosecutions for waterboarding and other Bush-era programs.

“Please investigate the relevant records and determine whether the United States has, in fact, prosecuted individuals in the past for waterboarding (rather than only for water torture),” Sen. Jon Kyle (R-Ariz.) wrote. “Please also provide relevant documents that answer this question. (Please feel free to answer this question after the Senate considers your nomination.)”

Holder replied, “I appreciate very much the invitation to respond to this question in the future, after the Senate has considered my nomination, because a complete answer will require substantial research and analysis that would be more appropriate for me to conduct after I assume my office, if confirmed.”

In response to a similar question from Sen. Jeff Sessions (R-Ala.), Holder wrote in part: “It is, and should be, exceedingly difficult to prosecute those who carry out policies in a reasonable and good faith belief that they are lawful based on assurances from the Department of Justice itself.”

Three other witnesses have submitted nine pages of questions and answers, on topics such as the pardon of fugitive commodities trader Marc Rich and the clemency granted to 16 Puerto Rican nationalists.

The delay carries at least one benefit for Holder. The Senate has since approved resolutions reorganizing itself for the next two years, and the reshuffled Judiciary Committee has a bigger Democratic majority.

BRAIN TRUST

Lately, the “brain” of the Justice Department—as the Office of Legal Counsel is known—appears to be more open-minded about Congress’ ability to regulate presidential wartime powers.

As academics, Martin Lederman and David Barron thoroughly examined the subject in “The Commander in Chief at the Lowest Ebb—A Constitutional History.” The article became a must-read for presidential powers scholars, after it was published in the Harvard Law Review last February.

Now, it’s a measure of two newly appointed Justice Department lawyers whose primary job is to provide legal advice to a president who just inherited two wars.

On the day President Barack Obama took his (first) oath, Barron and Lederman took over as the top political appointees in OLC. Barron, the office’s new principal deputy assistant attorney general, arrived via a professorship at Harvard Law School. Lederman, who was tapped as deputy assistant attorney general, made the shorter trip from Georgetown University Law Center. They’ll report to Dawn Johnsen, a professor at Indiana University School of Law, if she’s confirmed by the Senate to head the office.

Barron’s and Lederman’s article takes a dim view of the last eight years. For more than a century, they write, presidents have typically accepted certain statutory limitations to their wartime powers or found clever ways around them, but the Bush administration was the first to embrace “the practice of defiance and disregard.”

Without getting too specific, they disclaim “the unreflective notion that the ‘conduct of campaigns’ is for the president alone to determine” and note with dismay that it has gradually been invoked to ignore heaps of congressional regulation, “from requirements to purchase airplanes, to limitations on deployments in advance of the outbreak of hostilities, to criminal prohibitions against the use of torture and cruel treatment.”

Barron and Lederman embrace the president’s power to make “distinctly military judgments,” such as tactical, strategic, and on-the-ground decisions in war. But if he has objections to statutory restrictions on his war powers or seeks to clarify a law to allow for unforeseen exigencies—such as a terrorist attack—the president should either negotiate a resolution with Congress or build public support around his proposal, Barron and Lederman write.

Attorney General-designate Eric Holder Jr.’s views on presidential power appear to be in the same vicinity. Quoting Justice Robert Jackson during his confirmation hearings, Holder said that the “president’s powers are . . . at their lowest ebb when he acts in a manner that conflicts with a congressional enactment.”

Barron and Lederman warn that if the current trend (of defiance) persists, congressional restraints on the president’s wartime powers could become “a faint memory, recalled only for the proposition that it is anachronistic.”

Barron and Lederman call on legislators and—wait for it—“those attorneys helping to assure that the president takes care the law is faithfully executed” to reclaim Congress’ voice in the conduct of war.

Whether Obama listens to “those attorneys” is another matter entirely, but at least we know who they are.

UNFINISHED BUSINESS

In those hectic pre-inauguration days, Justice Department lawyers were scrambling to fend off what appeared to be a high-profile match looming between a federal judge in D.C. and then-Attorney General Michael Mukasey.

U.S. District Judge Emmet Sullivan set the stage with a rare directive and a tight deadline in the waning days of the Bush administration.

Sullivan ordered Mukasey to write up a declaration detailing how Justice handled a whistle-blower complaint alleging prosecutorial and FBI misconduct in the Ted Stevens case. At a hearing Jan. 14, the judge accused Public Integrity Section prosecutors of intentionally misleading him about whether the whistle-blower, FBI Special Agent Chad Joy, was afforded protection. The dust-up occurred after two top public integrity officials sprang new information on the judge at the hearing—leading Sullivan to point his finger and raise his voice as he excoriated Brenda Morris, the principal deputy chief, and William Welch, chief of the section.

In arguing to keep Joy’s complaint under seal, Morris said in December that Joy was a federally protected whistle-blower. But at the hearing Morris and Welch told Sullivan that Joy actually had no protection and that the judge should release the complaint.

Stevens’ lawyers at Williams & Connolly, led by partner Brendan Sullivan Jr., have made the whistle-blower complaint part of its motion for a new trial.

A befuddled and irate Sullivan went straight to the top for answers about when Justice officials learned about the whistle-blower complaint and how the department responded to it. Sullivan called his Jan. 14 order the most important thing on Mukasey’s desk despite the fact that his service was ending in less than a week.

Sullivan demanded Mukasey provide the information by noon on Friday, Jan. 16.

That sent Public Integrity officials scrambling for cover. They urged Sullivan to reconsider, arguing that the Stevens case did not present the extraordinary, rare circumstances that might justify a high executive official to participation in the case. They also fell upon their swords a bit—Morris and Welch said they misspoke when they said earlier that Joy was not entitled to protection.

Sullivan retreated, extending the deadline by a day and saying either Mukasey or a designee—only Deputy Attorney General Mark Filip fit the criteria set by the judge—must respond.

Still, he chided prosecutors for “what has become a pattern of belated revelations followed by unsatisfactory, and possibly false, explanations from the government.”

Justice lawyers appealed—and in a rare Saturday order, U.S. Court of Appeals for the D.C. Circuit Judges Merrick Garland and Judith Rogers issued a temporary stay. A briefing schedule was put in place.

But then, a day after Obama was sworn in, Sullivan threw a curveball.

In a complete reversal, Sullivan vacated his demands of Mukasey and Filip. The judge noted the change in administration and the potential for further delay stemming from “multiple anticipated changes” in personnel at Justice.