Outgoing Virginia attorney general leaves progressive legacy

FILE - Virginia Attorney General Mark Herring speaks during a rally for Democratic gubernatorial candidate, former Virginia Gov. Terry McAuliffe in Richmond, Va., on Oct. 23, 2021. The outgoing Virginia Attorney General on Thursday, Jan. 13, 2022, reversed more than 50 legal opinions issued by predecessors during the Jim Crow and Massive Resistance eras that justified segregation, interracial marriage bans and other racist laws. (AP Photo/Steve Helber, File) (Steve Helber, Copyright 2021 The Associated Press. All rights reserved)

FALLS CHURCH, Va. – Critics of outgoing Virginia Attorney General Mark Herring say he bent the law to suit his political goals. Herring, not surprisingly, sees it differently.

“I have just always tried to use the powers of the office for good and do as much good for people as I can, so that’s why I’m making the most of my term as attorney general,” Herring said in a phone interview.

Indeed, the state's top law enforcement official has been recognized for his push to legalize gay marriage — before the U.S. Supreme Court backed it — to defeat then-President Donald Trump’s travel bans that focused heavily on Muslim countries, and to secure the return of a student who had been blocked from reentering the country from Turkey.

Herring has sprinted through the final days of his term with a flurry of announcements. Most notably, on Thursday he completed an exhaustive review of legal opinions issued by the attorney general over the past century, and officially overturned 58 opinions from the Jim Crow and Massive Resistance eras that were used to bolster legal segregation and other racist policies.

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

He was confronted at the outset of his term with a key decision. The attorney general's office was defending a state law banning gay marriage. Herring reversed the state's legal stance, telling the judge that the law should be struck down.

The law was overturned, a milestone for a Southern state, and a few months later, the U.S. Supreme Court ruled on a national level that gay marriage bans are unconstitutional.

Herring says that victory is one of many that allow him to leave office with a sense of satisfaction. He also cites 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.

Herring's counterpart in Minnesota, Keith Ellison, says Herring was a leader in numerous multistate legal actions. In particular, he cites Herring's efforts to defeat then-President Donald Trump's travel bans that focused heavily on Muslim countries.

"When Mark got out there and got that first preliminary injunction, that 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 led it and he did a wonderful job.”

Herring says his efforts to fight what he called Trump's “Muslim ban” were particularly satisfying. He visited Dulles International Airport early after the first ban was implemented to see what was happening and was struck by the anguish of families who were being kept 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 U.S. blocked her reentry.

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

Ultimately, two versions of Trump's travel ban were thrown out; a third version, modified and weakened, was allowed to stand. Herring acknowledged that the legal victory was not a complete one, but said he also sent a message "to my fellow Virginians that they were living in a Commonwealth that had an attorney general who’s going to stand up and fight for them.”

As he leaves office, Herring acknowledges that he has unfinished business. Specifically, he cites ongoing legal efforts to enact the Equal Rights Amendment. Virginia's legislature adopted the amendment in 2020, which by some counts made Virginia the 38th and final state necessary for enactment under the Constitution. So far, though, courts have said that Virginia's ratification came well after the deadline Congress set for adoption.

It's unlikely Herring's successor, Republican Jason Miyares, will continue to push for the amendment's enactment. Indeed, Herring acknowledges the risk that Miyares will reverse many of the stances he has taken, just as Herring reversed the positions of his predecessors from the Jim Crow and Massive resistance eras.

“If he changes position in a case, then he’ll need to explain that to Virginians,” Herring said.

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

Cuccinelli faults Herring, as other Republicans have, of using the post for “woke virtue signaling” unmoored to the law. His refusal to defend the gay marriage ban that voters approved in a 2006 referendum serves as an example.

“AGs aren't supposed to be making 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 an advocate's zeal.

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

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

Numerous Democrats quickly called for Northam's resignation, including Herring. But then Herring was forced to admit he had worn 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 pursuit of racial justice.

The attorney general post 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 age 60, he is noncommittal about his plans for future political office.

“I know there going to be a lot of great options out there for me,” he said. “I’m really excited about writing what the next chapter is going to be.”