When Virginia Attorney General Mark Herring (D) represented parts of Loudoun and Fairfax counties in the state legislature, he was so cautious and colorless that a colleague described him as someone “as bland as a plain bagel.”
What a difference today. In less than four months in office, the 52-year-old lawyer from Leesburg has unexpectedly emerged as the new face of crusading liberalism in the Old Dominion.
A pair of politically gutsy legal decisions favoring illegal immigrants (on Tuesday) and same-sex marriage (in January) have established Herring as the left’s answer to his conservative predecessor, Ken Cuccinelli II (R).
As Cuccinelli’s activism aroused Democrats’ fury, so now is Herring vexing Republicans. His decision to support granting in-state tuition to some children of illegal immigrants led House Speaker Bill Howell (R-Stafford) and other GOP leaders to declare ominously that Herring had demonstrated “blatant disregard” for nothing less than “the rule of law.”
That’s baloney, according to two immigration law experts I consulted.
Partly because the state statute in question was vaguely worded, Herring had plenty of legal authority to say that more than 8,000 “dreamers” were eligible for lower tuition if they met certain requirements.
“He was perfectly within his rights to make that determination,” said University of Virginia law professor David A. Martin, a specialist on immigration and constitutional law.
“He is certainly making pretty ambitious use of the powers of the office, generally, and he’s quick with the press release on it,” Martin said. “But this decision seems like a pretty solid part of what attorneys general are supposed to do.”
Herring took a similar approach earlier in supporting same-sex marriage. His decision was legally justified, but it also conveniently reflected his own political views and those of his party.
Despite his profound ideological disagreements with Cuccinelli, Herring has copied his predecessor’s activist approach and thus elevated the importance of the attorney general’s office.
“I think it’s a sea change,” said University of Virginia law professor A.E. Dick Howard, who played a leading role in drafting the current Virginia Constitution. “We now have probably the most robust use of the office of attorney general in our time.”
But Herring’s performance differs from Cuccinelli’s in two ways — one positive and the other negative.
To Herring’s credit, he hasn’t used his office so far to advance petty, partisan missions. Cuccinelli drew deserved criticism for harassing a University of Virginia scientist who believed in climate change and for pressuring the state board of health to rule his way on abortion clinic regulations.
On the other hand, Herring said nothing during last year’s campaign to alert voters that he would assert his authority as forcefully as he has. After eight, low-profile years in the Virginia Senate, he promised a pragmatic approach different from Cuccinelli’s.
“I’m running for attorney general to take politics out of the office,” Herring wrote in a guest column in the Richmond Times-Dispatch 12 days before the election.
Personally, I support Herring’s actions and hope the courts ultimately vindicate him. But I also think the voters had a right to know his plans beforehand, as they did with Cuccinelli because of his record as a firebrand.
Herring offered a fuzzy explanation when I pressed him about this contradiction in a telephone interview Wednesday.
On one hand, he stressed that his legal moves were based on the law. But he also defended them as being in line with Virginia’s political mainstream.
“When I make these decisions, I’m following the law,” Herring said. “The positions are also good policy. They’re consistent with where I think a majority of Virginians are. . . . That stands in stark contrast with Ken Cuccinelli, whose views were far to the right.”
Herring said his new job demands that he get involved in big, hot-button topics. That contrasts with his time in the Senate, when constituents wanted him to focus on improving roads, creating jobs and strengthening schools.
“I’m the attorney general now, and a lot of issues are coming at you, and you’ve got to take them up,” Herring said.
Herring insists that a possible desire to run for governor didn’t prompt his step into the spotlight. That’s what they always say.
Nevertheless, a record of militant support for high-profile, progressive causes would surely be helpful in the 2017 Democratic primary.
I discuss local issues Friday at 8:50 a.m. on WAMU (88.5 FM). For previous columns, go to washingtonpost.com/