Fairfax vs Herring: The Most Interesting Guys in VA Dem Politics.

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    by Paul Goldman

    Until Ken Cuccinelli became Attorney General, the office had historically only one major role to play in Virginia politics: A political one, namely a good spot from which to resign, and then run for Governor!. The last time anyone cared about the opinion of the Attorney General of Virginia on just about anything was 1967. Back then VA’s AG supported the state law against interracial marriages. The Supremes, without Diana Ross singing, told the AG to go back to law school and read the Constitution of the United States. In the case of Loving v Virginia, they declared Virginia’s law unconstitutional.

    Basically speaking, prior to Cuccinelli, the VA AG has not been a leader in any fight for individual rights: nor has the VA AG been a leader in the fight for what I would call the fight for economic rights. Rather, the MO of previous DEM and GOP AG’s has been to lay low politically, and not be seen as an “activist.”

    As a political matter, they believed taking the lead on individual rights – civil rights, women’s rights, gay rights – risked making you into a big time SOCIAL LIBERAL. As a political matter, fighting for economic rights – such as siding with homeowners against unconscionable mortgage provisions, against rip-offs in commercial contracts, etc – made you a big time GOVERNMENT LIBERAL.  

    Better, went the political theory, to stay in the background, handle the safe legal stuff, stay near the fifty yard line and run for Governor. Moreover, to be super-safe, better to RESIGN to run, so that way you got out of the job without having actually done anything!.

    In the modern age, AG’ Andrew Miller, Marshall Coleman, Jerry Bailies, Mary Sue Terry, Jim Gilmore, Mark Early, Jerry Kilgore and Bob “Can you pick up the tab for my kids wedding” McDonnell have run for Governor. NONE  ran for Governor on his or her record as AG. Indeed, I defy anyone to tell me what major mark any of them made or tried to make on the state as a whole while AG.

    This isn’t a criticism, we are talking 200 proof politics here. They all viewed the job the same way: it is a ticket to the dance, but not a dance move itself.

    Ken Cuccinelli – for the better in my view – has potentially changed the expectations from the AG forever forward. He has totally broken with the “I can’t remember what the AG did” image to a new “Can Your Friggin’ believe what the AG did this time” posture. Whatever you may think of his tenure, the fact is: He didn’t see the job as a ticket to the dance, but as the dance itself.

    Enter, then, Mark Herring, the favorite and establishment choice, and Justin Fairfax, the underdog and anti-establishment choice. They want to be the DEM nominee for Attorney General. While both hold Mr. Cuccinelli in “maximum low regard” as we say in the politics, they do agree with the KMAN on this fundamental change: the days of the sleepy AG, the days of “This ain’t the New York AG’s office” is over. Kaput. Done. Gone. History. Whatever. The want to put the AG on the side of the people. After three centuries, it kinda is about time don’t you think?

    They are not running as your father or mothers AG. Rather, they are running as post-Cuccinelli 21st century guys who agree the AG has to be a leader in the fight, not just run for Governor, but be the champion of the people. That’s to say: They are not afraid of the being labeled SOCIAL OR GOVERNMENT LIBERALS. The winner will be: that’s a guarantee. Should they worry about it? No, they shouldn’t. They are doing what they should be doing, taking the AG’s office to the next level, long overdue.

    THIS IS HUGE. Even the Republicans who want to succeed Cuccinelli don’t want to take the office back to the days when the AG was seen –  at political events – but not heard for the people in the halls of justice. They too want to be activist AG’s only from a different point of the political spectrum. The public will have to choose what he wants policy wise, But activist wise: these boys are all promising that a new day has arrived at 900 East Broad Street in Richmond, VA. The AG’s office has a terrific view of the State Capitol grounds. Now it will have terrific view of the state constitution as well. The AG is suppose to be a leader, not a follower.

    Politically speaking, it took a conservative GOP AG to alter the fundamental approach of the office. No one can call KMAN a liberal.  Moreover, he has actually done a few things which are not well-appreciated in certain areas of individual and economic rights. Small steps perhaps but necessary ones. Instead, however, he has decided to use the new “activist role” of a VA AG in law suits and policies far and wide, falling along an ideological axis. In his mind, he is fighting for individual and economic rights through his concept “liberty”, from the “we hold things self-evident” approach – life, liberty, pursuit of happiness – of , Patrick Henry. That’s right: Jeffersonian really took a lot of stuff from Patty Boy.

    But at the same time: Notice I didn’t say Cuccinelli got his liberty form Thomas Jefferson, which is key. In the end, Patrick Henry tried to scuttled the U.S. Constitution, almost succeeding in Richmond at the fateful Constitutional Convention. In the end, Thomas Jefferson made his peace with the U. S. Constitution, not happy about a lot of it, indeed fearing the Judicial Branch.

    But TJ figured, all things being equal as they were going to get back then, it was a step forward, not backward, we needed to a country, the Articles of Confederation had failed, we had to start with what we could agree on. At the time, most of Americans were not allowed to vote, and most were considered property, either of a slave owner or husband or a merchant.

    A handful of white guys with the right genes and some land, could vote. Probably half of them met in Philly to write the document. [Just kidding, it wasn’t half, but it was the representatives of the few].

    Whatever you think of them from the safety of 20/20 200 year hindsight, they didn’t do a bad job for a bunch of white guys right? It took the Civil War to fix a few things, and add a few key constitutional provisions. And then the men had to relent to give women the vote, and then together they had to end segregation. It took way too long.

    But the point being: Activism is a good thing, without it, we don’t have this country. To me, that is where Patrick Henry screwed up big time. You just can’t complain about everything and then ride your horse back to Hanover County. He fought for freedom from England, but then couldn’t figure out how to fight to ensure freedom at home. Freedom without security may not be any freedom at all. You need to figure out a way to balance the two at some point. He never could do it in my view. He needed to try harder.

    Now comes Herring and Fairfax. They meet at a cross roads of AG politics. So let’s examine their fight in historic terms.

    Herring is running for AG on a promise to be a SOCIAL LIBERAL activist Attorney General. He has pledged to put the weight of the office behind the fight for individual rights. This is why gay activists, women’s activists, have basically backed him over Fairfax. Both guys are roughly the same on these issues, the same with civil rights. But women’s rights and gay rights are bigger issues inside the DEM party now in terms of political “juice.” Herring is promising to be “their guy.”

    Fairfax is running for AG on a promise to be a GOVERNMENT LIBERAL activist Attorney General. He has pledged to put the weight of the office behind the fight for economic rights. This is why he has been surprising with a lot more grass roots support than the establishment forces have expected. Fairfax basically supports the Herring individual rights agenda. But he identifies more with AG’s in other states who have been leaders on economic rights.

    As they say in the news business, there can only be “one lead.” Same in politics. Every candidate tries to have a “brand” as the adage goes. You try to pick that one thing you want people to remember when heading to the polls.

    Herring wants people to know that if elected, he is going to be a kick-ass socially liberal AG as we ain’t never seen before in Virginia. Fairfax wants people to know that if elected, he is going to be a kick-ass government liberal AG as we ain’t never seen before in Virginia.

    Now, to be sure, each might take issue with the term “liberal.” I use it in the historic context of Virginia politics since this column is aimed at putting the race for AG in such a context. They had better get used to it as I say above. They called Wilder a liberal. So what? They called Kaine a liberal. So what? Give the voters credit. They called Jefferson a radical. Didn’t hurt him any getting elected.

    Just as Cuccinelli broke the mold, so would Herring or Fairfax as AG.

    Politically speaking, the economic rights message works better in a general election than primary based on recent history. This is why Herring has to be considered the favorite right now for June.

    What should Fairfax do? Stick to his guns, he has a very powerful message but he is up against a powerful Herring message. Herring has a more top down endorsement strategy. Fairfax needs a more bottoms-up message strategy. It is a fascinating strategy battle.  

    Again, I am talking from my 200 proof vantage point. When it comes to the votes that Herring can get, his individual rights message makes sense for his candidacy. When it comes to the votes Fairfax can get, his economic rights message makes sense for his candidacy. Also, based on what I know about each guy, the message is the one they are most comfortable articulating.

    This makes them the most fascinating faces in DEM politics today, with all due respect to Terry and the LG guys and our Senate twins, whatever.

    The AG’s office in Virginia needed to be shaken out of it’s sleep.

    I will give Cuccinelli his due in that regard, he got people to realize the office had a lot of potential to champion rights and remedies the people need. It is not a criminal prosecutor’s job.

    Cuccinelli would be a sure winner this year had he used the activism far differently: but then, he wouldn’t be Ken Cuccinelli now would he?

    The people will get to cast a verdict this year on his tenure, especially since he isn’t going to resign. I have some strong views on that. But it is a little early in season for that column. .

    Today, we analyze only one thing: the coming of age for the Office of Attorney General of Virginia.

    Herring and Fairfax have made it official: we agree with the Republicans, there ain’t no going backwards.

    Moreover, the GOP can no longer complain about activist AG’s.

    So if the Democrats win the AG’s office this November, it will be an historic moment, a Rubicon finally crossed, a new politics etched in stone for the most powerful legal job in the Commonwealth.

    Free at last, free at last, the AG’s office enters the modern era.