The last attorney general to seek re-election was Mary Sue Terry in 1989. She won with 63 percent of the vote. Before that, Andrew Miller sought re-election in 1973. He won with 71 percent of the vote.
We can guarantee one thing about Tuesday’s election: If Mark Herring wins re-election as attorney general, it won’t be with a figure anything like that.
For one thing, the times are probably too polarized for that kind of landslide now — and state attorneys general have become some of the most polarizing figures in the country.
There was a time when the attorney general was a staid figure who advised state agencies and little else. Now, if you were to give a political partisan on either side the choice of winning either the governorship or the attorney general’s office, they might have to think about their answer. And some might pick the latter over the former.
A governor deals with state policy. But the state attorney general? He (or she) deals not just with state policy but also with federal policy — which is a nice way of saying he can sue the federal government. And, increasingly often does, especially if one party controls the state attorney general’s office and another controls the White House.
State attorneys general first became legal activists in the 1990s when 46 states sued the nation’s big tobacco companies to recover health costs that states were running up to care for patients with tobacco-induced diseases. As the number of plaintiffs indicates, that was a fully bi-partisan legal maneuver, driven by bottom-line considerations rather than ideology. (In Virginia, it also resulted in the endowment for the state’s tobacco commission, charged with trying to create a new economy in the tobacco-growing regions of Southside and Southwest.)
In the years leading up to the financial crisis of 2008, some Democratic attorneys general sued various banks over what they considered predatory lending practices.
However, it was during the Obama administration that the legal actions coming out of state capitals spiked — driven by Republican attorneys general who routinely sued the federal government. Over the Affordable Care Act. Over the Clean Power Plan. Over lots of things.
Now that we have a Republican president, it’s Democratic attorneys general who are busy using that same playbook to sue the Trump administration. Over the travel ban. Over immigration policy. Over, well, lots of things.
That’s the essence of the campaign we’re now seeing between Herring — a Democrat seeking re-election — and Republican challenger John Adams.
Adams says that Herring has been too political. The irony, of course, is that Herring ran for office four years ago vowing to “take the politics out of the office.” At the time, that was a swipe at outgoing Attorney General Ken Cuccinelli, the very model of an activist Republican. Now, Adams uses the same language against Herring.
Among other things, Adams cites Herring’s decision not to defend the state’s ban on same-sex marriage — and instead file a brief with the Supreme Court arguing against such bans. “Once the people of Virginia make a decision and laws have been passed, it’s not the job of an attorney general to second-guess those laws or fail to defend them in court,” Adams says.
Herring’s counter is that an attorney general shouldn’t be expected to defend something that he believes is unconstitutional. Still, this created a unique situation in which the state’s top lawyer was arguing against his own state — specifically that a provision of Virginia’s Constitution violated the U.S. Constitution. Depending on your point of view, Herring is either a civil rights hero — or used his office to attack a constitutional amendment that voters had put in place.
All that, of course, raises the question: Is it really possible to go back to the days of non-political attorneys general? Have things become so politicized that even the decision not to sue the federal government over a particular policy is, in effect, a political decision of its own? Perhaps the choice in this election isn’t between a political attorney general and a non-political one, but a choice between which kind of politics we want practiced.?
Adams says that’s not so, but you don’t have to look far to find Republicans who very much believe the attorney general’s position should be a political one, provided those politics are conservative. Here’s how Greg Abbott — now the governor of Texas — described his tenure as that state’s attorney general during the Obama years: “I go into the office, I sue the federal government, and I go home.” When Scott Pruitt was attorney general of Oklahoma, he made a name for himself suing Obama’s Environmental Protection Agency. His reward: He’s now the EPA director . . . and finds himself on the receiving end of lawsuits from Democratic attorneys general. The Democratic attorney general of Washington state, Bob Ferguson, says this is simply “just the new normal.”
Here’s a question we haven’t heard people ask: Why do we elect the attorney general? At the federal level, the attorney general is a presidential appointee. So why do 43 states elect an attorney general? Five states follow the federal system and make the attorney general a gubernatorial appointee. In Tennessee, the attorney general is appointed by the state Supreme Court. In Maine, the attorney general is elected by the state legislature.
Some have proposed that we elect the attorney general at the federal level, as well. That would really make things . . . interesting. President Trump is unhappy that Jeff Sessions has recused himself from the Russia probe. Imagine if he had to contend with a Democratic attorney general. (Four times Virginia has had governors and attorneys general of different parties, most recently from 2010-2014 when Democrat Tim Kaine was governor and Republican Bob McDonnell was attorney general.)
Mark Totten, a Michigan State law professor (and a former Democratic candidate for his state’s attorney general’s office) says it’s a good thing that attorneys general are so political. “State AGs are providing a critical check on presidential power, which matters regardless which party holds the Oval Office,” he writes in The Hill. In fact, there’s a word for that sort of thing, a word that conservatives normally like. It’s called federalism.