Today’s news that late last night a federal judge issued a ruling that the Newman-Marshall Amendment of 2006 was unconstitutional is a mixed bag for many. For Shaun Kenney, he dissents. For me, it’s a hope that gay rights becomes null and void, so we don’t risk making the Republican Party look any more out of touch, or letting an idiot in Richmond make us all collectively look bad (if you want to see it in action in response to last night’s decision, read his Facebook rant)
However, for Attorney General Mark Herring, the ruling is a political disaster.
It’s clear from the timing and speed of the judicial decision that Herring’s manipulation of Virginia law had little if anything to do with the judge’s ruling. There was nothing gained by the plaintiffs having Herring switch sides in the courtroom. It let the news reports puff and posture and giving Herring a microphone for three weeks, but other than that, not much. The decision was going to come quickly (and the day before Valentine’s Day no less, which only the deepest believer can believe THAT wasn’t political) regardless of Herring joining the plaintiffs.
What it did is gain Herring some political points with the left, while costing him virtually all his political capital with the right.
It didn’t have to be done. Herring could have sat on the sidelines, or appropriately followed Virginia precedent that he so ardently cites, backing out of a defense for a law he deemed unconstitutional. Appoint or offer to appoint special counsel (as mandated by Virginia law), and be done with it. This decision was always going to come before the end of February; all Herring’s pontificating did was give it a higher profile in the run-up, while contributing little if anything to the legal proceedings.
But Herring is a political animal* and he couldn’t pass up the chance to solidify himself with the left, so worried about Lieutenant Governor Ralph Northam (not exactly a darling of the progressive movement) that shortly after taking his oath of office, he made a blatant political move in the gay marriage debate.
*(albeit, not a very good one; any strength on the Republican statewide ticket and we’re talking about Attorney General Obenshain. Herring almost lost in a year that should have been cakewalk for Democrats.)
Herring campaigned on the ‘let’s get politics out of the Attorney General’s office!’, then about-faced so historically quickly that even the Washington Post called him out for his bold-faced lie.
Nonetheless, many Democrats expressed concern and indignation that former attorney general Ken Cuccinelli II, a Republican, had politicized his office by engaging in numerous partisan crusades. Now Mr. Herring seems to be taking his lessons from Mr. Cuccinelli.
Ever want to piss off a Democrat? Not only should you compare them to Cuccinelli, but tell them they’re following the Cuccinelli model. Hilarious.
Now that the decision has been made, there’s nothing else for Herring to do, there’s no future court case beyond the appeal, no doubt another instance where he’ll dredge up his ‘historic’ positioning and attempt to fire up the left again. But while this was happening in Richmond, Herring has pushed himself to the margins, on the outside looking in. With a Republican supermajority in the House of Delegates, and everything from Herring’s agenda to his budget being fair game for them to politically punish him, Herring is likely relegated to being the least legislatively successful Attorney General in the last thirty years. It’s one thing to opt out of a case, it’s another to tell the General Assembly 1) you’re wrong 2) I won’t defend you 3) I’m going to argue against you in court 4) you don’t need special counsel. Herring put himself out on a political limb here, and while it achieved nothing in court, it hurt him standing with the General Assembly considerably.
Each year the AG’s office releases their legislative agenda, similar to the Governor. In years past, Cuccinelli, McDonnell, Kilgore, Early, Gilmore, etc have all requested (and received) legislative fixes to a number of issues, some big, some small.
Herring has next to no chance to see anything as a result of his foolhardy decision to subvert the Virginia judicial process. By gaining a few political points, he has cost himself dearly, losing any political capital he would need to achieve anything in the General Assembly. It’s clear now that Herring’s positioning on the case did nothing to influence the judge and in no way changed the outcome.
The same can’t be said for Herring in Richmond, where his brand of getting politics out of the AG’s office is in tatters, and an openly hostile House of Delegates awaits him.
It’s going to be a long four years for Herring, on the outside looking in. And all he gained is a talking point for his now-inevitable gubernatorial run.
