Revenge of the Liberal Bureaucrats
A new report on Bush administration hiring practices at Justice.
11:00 PM, Jan 22, 2009 • By HANS A. VON SPAKOVSKY
Naturally, Fine and Jarrett relied heavily on these same liberal partisans/career attorneys in preparing their deceptive report. It's not like these "witnesses" are beyond reproach. In fact, one of the primary attorneys cited in the report is a defendant in a federal discrimination lawsuit. Her reputation for verbally abusing her staff is legendary (or infamous) in the Division and her exploits have been chronicled on the blog, "Above the Law." One of the Appellate Section attorneys who figured prominently in the report -- a Clinton political appointee who burrowed into the career civil service and then claimed she was victimized by the Bush political appointees -- was promoted to a policymaking counsel position in the Division's new front office on the very first day of the Obama Administration. This is a slot normally reserved for political appointees. You just can't make this stuff up.
Admittedly there were some insensitive comments in some of the emails cited in the report and some inappropriate humor, too. But the report blows them out of proportion. Schlozman was too brash at times and could have chosen his words more wisely. But it is obvious to anyone who knows him -- and it should be transparent to rational individuals who do not know him -- that Schlozman was simply engaging in the type of e-mail humor and rhetorical banter that many in Washington (and much of the country for that matter) participate on a daily basis. The poor jokes don't establish that hiring improprieties occurred, and seem to be offered more to poison the well.
Flawed Legal Analysis
The report is also simply wrong in its legal analysis. It wrongly conflates political affiliation with ideology. It mistakenly claims that hiring on the basis of "ideology" is illegal under the Civil Service Reform Act (CSRA). There is absolutely no case law to support such an interpretation, nor would it make sense for there to be.
What is illegal under the CSRA is hiring on the basis of "political affiliation," which is not at all the same as ideology. In fact, the single appellate opinion cited in the report emphasizes that only political affiliation is an illegal consideration. Of the more than 200,000 emails the report claims were reviewed, investigators reference not a single one that showed that any individual was hired or fired for a career attorney position because of his or her political affiliation as a Republican or a Democrat. The only emails highlighted in the report are emails in which comments were made regarding individuals' ideologically liberal or conservative views of the law.
This is not to say that all ideologies are acceptable. The Inspector General or Office of Professional Responsibility would certainly not find any wrongdoing if the Civil Rights Division refused to hire an otherwise qualified lawyer who was an avowed racist (or who refused to follow the Brown v. Board of Education decision). It would be eminently appropriate to discriminate against such an individual -- based on his ideology -- because he could not be trusted to properly enforce the panoply of anti-discrimination statutes falling with the Division's bailiwick. Such consideration is not only legal, but it is often quite necessary in a Division where the opportunity to abuse the federal government's enforcement authority is so significant and where the historical evidence of such abuse is so acute.
Political ideology can also have significant consequences in litigation policy. When liberal career lawyers had free rein during the Clinton administration, the Division was penalized over $4.1 million in costs and attorneys' fees for pursuing frivolous, vexatious, and unwarranted litigation. That's $4.1 million of your taxpayer dollars. This figure is not the least bit surprising based on my experience. I found that many of the career lawyers in the Civil Rights Division gave grossly flawed legal positions in which they sought to expand the statutes within the Division's jurisdiction far beyond their lawful reach. Too many of these attorneys allowed their political views to permeate their legal judgment and to override their professionalism. The conduct of some may have been unintentional, but others were simply partisan advocates masquerading as career civil servants.
I shook my head in agreement -- as did many others I know -- when I read an email cited in the report where Schlozman lamented about certain Criminal Section prosecutors who were "big libs [who] would enforce certain of our statutes only with great reluctance." Schlozman was almost certainly referring to the fact that the Division had problems with career lawyers in its Criminal Section who resented the Division's dedication of substantial resources towards human trafficking cases over police misconduct cases, or who refused to pursue death penalty cases based on their personal opposition to capital punishment. The bottom line is this: lawyers are tasked with zealously representing their clients and pursuing cases -- within the limits of the law -- whether or not the lawyers like their clients or agree with their positions.
Too many of the liberal career staff simply refused to follow those precepts. When the Voting Section commenced its first case against black officials in Noxubee, Mississippi, for discriminating against white voters, some liberal career lawyers weren't just reluctant to work on the case, they refused to work -- despite evidence of blatant and intentional discrimination. In fact, the career section chief sought to suppress the lawsuit recommendation and would have been successful but for a diligent line attorney who advised the front office of the chief's duplicity. The Section won its discrimination case, but the line attorney was ostracized by other career lawyers.
During my time in the Division I saw more than one memorandum where liberal lawyers would leave out key facts, misrepresent applicable case law, and otherwise manipulate their legal opinions to match their political views -- all because they did not agree with the Division's priorities. For example, they did not believe in enforcing a section of the National Voter Registration Act that requires election officials to regularly clean up or "purge" their voter rolls of ineligible voters who have died or moved away. Six liberal career lawyers were so upset when the first NVRA enforcement case was filed, they tried to use my involvement in that litigation to block my nomination to the FEC. They just could not tolerate that we had dared to override their refusal to enforce this federal legal requirement.
It was those kinds of attitudes and those kinds of actions that no doubt led Brad Schlozman to seek to hire individuals who, regardless of their own personal politics, would actually enforce the law according to the policy determined by the administration. Why would he want left-wing ideologues who would try to stop or sabotage such enforcement efforts?
The painfully partisan IG report gives the liberal career lawyers who overwhelmingly populate the Civil Rights Division their revenge against the Bush administration. Now they can go back to running things the way they always have -- at the beck and call of the Democratic party and radical left-wing civil rights organizations.
And for all of the Inspector General's railings against so-called "political hiring," don't bother applying to the Civil Rights Division if you have anything in your background that indicates you are a conservative. You haven't got a chance of being hired by these guys.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation and a former commissioner on the Federal Election Commission. He was also a career Counsel to the Assistant Attorney General for Civil Rights at the Department of Justice where he worked for all three of the assistant attorney generals who served in the Bush administration.