Outgoing Virginia Attorney General Leaves Progressive Legacy

Falls Church, VA: Critics of outgoing Virginia Attorney General Mark Herring say he twisted the law to suit his political goals. Herring, not surprisingly, sees it differently.

“I’ve always tried to use the powers of the office for good and to be as good as I can for the people, so I’m making the most of my tenure as attorney general,” Herring said in a phone interview.

In fact, the state’s top law enforcement official has been recognized for pushing to legalize same-sex marriage, even before the US Supreme Court backed then-President Donald Trump’s defeat of travel restrictions that have been imposed on Muslim countries. and to secure the return of a student who was barred from re-entering the country from Turkey.

Herring has made a flurry of announcements in the final days of his term. Most notably, on Thursday he completed a detailed review of legal opinion issued by attorneys general over the past century, and officially overturned 58 opinions from Jim Crow and the mass resistance era that advocated legal segregation and other racist policies. were used to strengthen

Herring was elected to the seat in 2014 by the narrowest margin over her Republican rival, surviving a recount by only 907 votes out of more than 2.2 million ballots.

At the very beginning of his tenure, he was faced with an important decision. The attorney general’s office was defending a state law banning same-sex marriage. Herring reversed the state’s legal stance, telling the judge that the law should be struck down.

The law was reversed, a milestone for a southern state, and a few months later, the US Supreme Court ruled nationally that same-sex marriage restrictions were unconstitutional.

Herring says the win is one of many that allowed him to leave office with a sense of satisfaction. He also cited his success with legalizing marijuana, eliminating a backlog of more than 2,600 untested rape kits, and, along with other state attorneys general, defending the Affordable Care Act.

Keith Ellison, Herring’s counterpart in Minnesota, says that Herring was a pioneer in many multistate legal actions. In particular, he cites Herring’s efforts to defeat then-President Donald Trump’s travel restrictions that focus heavily on Muslim countries.

Ellison, who is Muslim, said, “When Mark got out there and got the first preliminary injunction, it was a very important statement for human rights in America for equal protection. It was an amazing thing and he led it.” And they did an amazing job.

Herring says his efforts to fight Trump’s Muslim ban were particularly satisfying. He visited Dulles International Airport after the first sanctions went into effect to see what was happening and was struck by the suffering of the families who were being held apart.

He also recalls how his office successfully fought to secure the return of a George Mason University student who was stuck in Turkey after the US blocked his re-entry.

When we were finally able to get him back, I met him at the airport, Herring said. And he said it was something he thought might happen in his home country of Libya, but never in the United States.

Ultimately, two versions of Trump’s travel ban were lifted; A third edition, revised and weakened, was allowed to stand. Herring acknowledged that the legal victory was not complete, but said he also sent a message to my fellow Virginians that they were living in a Commonwealth with an attorney general who was going to stand up and fight for them.

As he leaves the office, Herring admits that his work is unfinished. In particular, he cites ongoing legal efforts to implement the Equal Rights Amendment. Virginia’s legislature adopted the amendment in 2020, which in some cases made Virginia the 38th and last state to be enacted under the Constitution. So far, however, courts have held that Virginia’s ratification came well after the deadline set by Congress for adoption.

It is unlikely that Herring’s successor, Republican Jason Miares, will continue to push for the amendment’s enactment. In fact, Herring accepts the risk that Miares will reverse many of the stances he took, just as Herring reversed the position of Jim Crow and his predecessors from the mass resistance era.

If he changes positions on a case, he’ll need to explain this to the Virginians, Herring said.

Herring was preceded by Ken Cuccinelli, a Republican who later served as a high-ranking official in the Trump administration.

Cuccinelli blames Herring, as have other Republicans, for using the post to signal disobedience to the law. His refusal to defend the same-sex marriage ban approved by voters in a 2006 referendum serves as an example.

The AG should not legislate, Cuccinelli said in a phone interview. I don’t think Mark Herring shares my reservations in this regard.

Herring says he followed the law, but with the enthusiasm of a lawyer.

It was always about how I can use the powers of the law, how can you use the law to help people and make their lives better, he said.

The biggest controversy of Herring’s tenure came in 2019, when he and Virginia’s entire Democratic leadership were embroiled in scandal. It began with the discovery of a photograph in the yearbook of Gov. Ralph Northams Medical School, showing one man in blackface and another in Ku Klux Klan garb.

Several Democrats, including Herring, quickly demanded Northam’s resignation. But then Herring was forced to admit that he wore blackface once in college. He apologized but the incident has not been forgotten.

I’ve talked about it a lot, Herring said, adding that he should ultimately be judged by his actions in the pursuit of racial justice.

The position of attorney general has long been a stepping stone to higher office in Virginia, and Herring surprised many when he twice passed on a gubernatorial bid to seek reelection. Now 60 years old, he remains non-committal about his plans for future political office.

I know there are going to be a lot of great options out there for me, he said. I’m really excited to write what the next chapter will be.

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