Monday, January 23, 2006

DOJ staff and appointees' tension rises

For whatever reason the Washington Post is one of the few nationally-influential dalies to note the degree of growing conflict between the permanent legal staff in the DOJ Voting Rights and Civil Rights divisions and the political appointees higher up in the department, the overwhelming majority of whom were put in place by the G.W. Bush administration.

Part of this conflict has resulted in much higher turnover in the career legal staff during this administration.

Another symptom has been the disagreement in advised action between the senior (appointed) staff and the “on the ground” (career) staff in the these divisions in the department. This was painfully evident with the highly publicized cases where three recommendations by the career lawyers tasked with analysis of Section 5 legislative proposals have been overruled by the appointed higher-ups in the department, in Texas, Mississippi and Georgia.

In the Georgia voter’s ID case, senior officials overrode the staff recommendation the very next day without offering countering evidence (a DOJ spokesperson later characterized the staff recommendation memo as being an “early draft”).

In the Mississippi case, in 2002, the career staff recommended approval of a redistricting plan that, as a byproduct of giving minorities more “solid” representation, appeared to favor more Democratic constituencies over Republicans. During the delay over the Department issuing any recommendation, either for a preclearence of or an objection to the plan, a three-judge panel (all judges who were GOP nominees) approved a rival plan that had the opposite effect. Because the DOJ had not precleared the redistricting plan, the federal court made it’s own choice, stating that, because DOJ had not “precleared” the plan, there was, in effect, no “plan” under DOJ approval. (see “Mississippi Congressional Redistricting”) There was further controversy when the redistricting appeal went before the U.S. Supreme Court, as Supreme Justice Antonin Scalia was a personal friend of both the Republican congressman whose seat was in question, Charles Pickering, and that congressman’s father, Charles W. Pickering, Sr. (the senior Pickering was appointed to the U.S. Court of Appeals in a controversial recess appointment by President G.W. Bush), yet Scalia refused to recuse himself. Scalia, In explaining his ruling against a 1993 precedent he authored, cited the lack of a decision by the DOJ in the case.

In the Texas redistricting case an initial appeal by the Democratic party was unsuccessful, but the DOJ refused to allow the documentation by the career staff lawyers who recommended objection to the Tom Delay-engineered gerrymandering to be presented at the hearings. That redistricting plan is now scheduled for review by the U.S. Supreme Court.

The Washington Post noted this tension in an article in Sunday’s edition (“Politics Alleged In Voting Cases”) that posits the case that the upper management at DOJ wants to remove the influence of long-term staff from voting and civil rights cases, on the grounds of ideological conflict. This means that the long-term staff, who owe their positions to continued competence rather than political patronage, are also being shut out of affording the department the advice that the accumulated years of experience affords. This practice was formalized in a memo written in November of 2005, and was the impetus to remove the staff recommendation in the Georgia voter-id case, where the career staff recommended rejection of proposed legislation, from the analysis document before that document was passed higher-up within the department. (see “Staff Opinions Banned In Voting Rights Cases”) .

Lawyers in the Civil and Voting Rights divisions have also been reassigned from that division, or assigned to cases in other divisions, and reports from at least as far back as 2002 have indicated that aides of the Attorney General have been moving to limit career legal staff influence and input, in some cases meeting with defendants in civil rights cases without informing the career lawyers handling those cases or allowing them to be present.

Restructuring of the enforcement priorities also means that the Department is prosecuting far fewer “traditional” civil rights cases but is prosecuting far more cases in human smuggling and defending deportation orders – which indicates a much higher emphasis on illegal immigration concerns than on investigating concerns of discrimination against women and minorities who are U.S. citizens.

According to a Washington Post article in November (Civil Rights Focus Shift Roils Staff At Justice), almost 20% of the career legal staff in the Civil Rights division have left the department, and those remaining have been excluded from any input on hiring of replacements, leaving the impression that selection of new hires is being weighed more by their ideology than their competence and experience.

The overall impression one is left with is that the Department of Justice, under both former AG Ashcroft and current AG Gonzales, is more concerned with momentary ideological issues (such as a much heavier emphasis on immigarion issues, as shown by the increase of cases in human smuggling and defense of deportation orders), partisan politics (as shown in the redistricting shuffles and the Georgia voter-id law) and a deemphasis on “more traditional” civil rights cases (the DOJ over the last 5 years has initiated only a handful of discrimination cases, and none involving African Americans).


See also:

03/15/2002 - Ashcroft's Civil-Rights Office Being Politicized, Critics Say
See earlier commentary on the Texas and Georgia cases here:
“U.S. Supreme Court to hear Texas Redistricting Challenge”
"Sometimes It Really *Is* A Poll Tax"
"DeLay's Redistricting Master Stroke illegal? **Gasp!!**"
"Memo? What Section 5 Memo?"
"About that DOJ memo..."

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