Virginia’s outgoing attorney general leaves a progressive legacy

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FALLS CHURCH, Va. (TBEN) — Critics of incumbent Virginia Attorney General Mark Herring say he skirted the law to meet his political goals. Herring, unsurprisingly, sees it differently.

“I’ve always tried to use the powers of the office for good and to do as much good for people as possible, which is why I’m making the most of my tenure as attorney general,” Herring said during an interview. a telephone interview.

Indeed, the state’s top law enforcement official has been credited for his efforts to legalize same-sex marriage — before the U.S. Supreme Court backed it — to defeat bans on marriage. travel of then-President Donald Trump, which had a strong focus on Muslim countries, and to secure the return of a student who had been prevented from returning to the country from Turkey.

Herring navigated the final days of his tenure with a flurry of announcements. Most notably, on Thursday he completed a comprehensive review of legal opinions issued by the Attorney General over the past century and officially rescinded 58 opinions from the Jim Crow and Massive Resistance eras that were used to entrench legal segregation and other racist policies.

Herring was elected to his Republican opponent’s seat in 2014 by the narrowest of margins, surviving a recount by just 907 out of more than 2.2 million votes cast.

He was confronted at the start of his mandate with a key decision. The attorney general’s office was defending a state law banning same-sex marriage. Herring reversed the state’s legal position, telling the judge the law should be struck down.

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The law was struck down, a milestone for a Southern state, and months later the United States Supreme Court ruled nationwide that the same-sex marriage ban was unconstitutional.

Herring says the victory is one of many that allows him to leave office with a sense of satisfaction. He also cites his success with legalizing marijuana, clearing a backlog of more than 2,600 untested rape kits and, along with other state attorneys general, advocating for the Affordable Care Act.

Herring’s counterpart in Minnesota, Keith Ellison, said Herring was a leader in numerous lawsuits in multiple states. In particular, he cites Herring’s efforts to defeat then-President Donald Trump’s travel bans, which focused heavily on Muslim countries.

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

Herring says his efforts to fight what he called Trump’s “Muslim ban” have been particularly satisfying. He visited Dulles International Airport shortly after the first ban was implemented to see what was happening and was struck by the anguish of families who were separated.

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 United States blocked her reentry.

“When we were finally able to pick her up, I met her at the airport,” Herring said. “And she said that was something that she thought could happen in her home country of Libya, but never in the United States of America.”

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In the end, two versions of Trump’s travel ban were overruled; a third version, modified and weakened, was authorized. Herring acknowledged the legal victory was not complete, but said he also sent a message “to my fellow Virginians that they lived in a Commonwealth that had an Attorney General who was going to stand up and fight for them”.

Leaving office, Herring acknowledges that he has unfinished business. Specifically, he cites ongoing legal efforts to enact the Equal Rights Amendment. The Virginia Legislature passed the amendment in 2020, which in some respects made Virginia the 38th and final state needed for enactment under the Constitution. So far, however, courts have said Virginia’s ratification came well after the TBEN set by Congress for adoption.

Herring’s successor, Republican Jason Miyares, is unlikely to continue pushing for the amendment’s passage. Indeed, Herring recognizes the risk of Miyares reversing many of the positions he took, just as Herring reversed the positions of his predecessors from the Jim Crow and Massive resistance eras.

“If he changes his position on a matter, then he will have to explain it to the Virginians,” Herring said.

Herring was preceded in office by Ken Cuccinelli, a Republican who later served as a senior official in the Trump administration.

Cuccinelli faults Herring, like other Republicans, for using the post to “signal the awakened virtue” unmoored to law. His refusal to defend the ban on same-sex marriage approved by voters in a 2006 referendum serves as an example.

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“GAs aren’t supposed to make laws,” Cuccinelli said in a phone interview. “I don’t think Mark Herring shared my reservations in that regard.”

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

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

The biggest controversy over Herring’s tenure came in 2019, when he and all of Virginia’s Democratic leadership were mired in scandal. It all started with the discovery in Governor Ralph Northam’s medical school yearbook of a photo showing a black-faced man and another in a Ku Klux Klan robe.

Many Democrats were quick to call for Northam’s resignation, including Herring. But then Herring was forced to admit he once wore blackface in college. He apologized but the incident was not forgotten.

“I’ve talked about it a lot,” Herring said, adding that he should ultimately be judged on his actions for racial justice.

The job of attorney general has long been a stepping stone to higher office in Virginia, and Herring surprised many when he twice forwarded a candidacy for governor for re-election. Now 60 years old, he is not committed to his plans for a future political office.

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

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