Politicization at DOJ, Professor Hasen, and the Anonymous Blog

For Rick Hasen, it seems to be very important to learn the Centerman's background, so that he can pigeonhole the Centerman as actually being a "conservative." See his posts here and here. Today he's upset about my post on the possible politicization of civil servants in the Department of Justice.

I appreciate Professor Hasen's link to the post. But his reaction is interesting. Hasen writes:

It would be nice to be able to look at the career path of the Lonely Centrist as well to ferret out any potential bias. But we can't, because he or she chooses to blog anonymously

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He goes on to suggest that this is somehow dishonorable:

To paraphrase Justice Scalia from his dissent in McIntyre, "I can imagine no reason why an anonymous [blog post] is any more honorable, as a general matter, than an anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is ordinarily the very purpose of the
anonymity."

Let's start with the anonymity.

First, what bias needs to be "ferreted out?" My post on the disgruntled employees criticizing Justice does nothing more than report facts about some of the former employees at the Department of Justice who have left the agency. As Hasen notes, I specifically do not accuse them of having been wrong in their judgments about the law. Rather, I simply recite facts to suggest that they may not be so unbiased as they claim to be. As for me, I have never claimed to be unbiased. People can judge my writings for what they are. In other words, if Hasen knew more about the Centerman, would any of the facts in that post be different?

Professor Hasen has this urge to brand me as a "conservative," as noted in the above links. Fine, if that floats your boat, call me conservative. As I've said, when I'm around people who call themselves conservative, I don't usually feel like one of them. Now, let's debate whether or not we are putting too much stock in the alleged nonpartisanship of the folks at the Department of Justice. I've thrown out some facts, and suggested that they indicate that the Civil Rights Division may be a bit more ideological and partisan than it has claimed. Argue against that position.

Second, an anonymous smear piece might be dishonorable, but who is smeared by the Centerman? I don't spread rumors about any of the people formerly at Justice. I present a few bits of evidence - which Hasen doesn't claim are inaccurate - so others can draw conclusions about a claim that the disgruntled former employees have made.* Specifically, that claim is that their views should be given respect because they are especially non-ideological and non-partisan. Thus they have invited scrutiny. Giving facts about their background is certainly better than an argument that relies on "are too,"/"are not" assertions.

I don't think that Madison, Hamilton, and Jay were being dishonorable, or seeking to avoid accountability, when they wrote the Federalist Papers unders pseudonyms; or that such other anonymous writers who wrote in opposition, men such as Richard Henry Lee, James Winthrop, and Robert Yates, were dishonorable. I think they had good reasons to protect their anonymity, including the simple desire to force others to address their arguments, rather than engage in ad hominem attacks. The Supreme Court, of course, has recognized the value of anonymous speech - Justice Scalia was dissenting. We protect anonymity in many contexts, including voting. As a professor, Mr. Hasen probably grades anonymously. Why? So that he must deal with the work before him on its own merits.

I blog anonymously because I want these posts to be taken on their own merit; because I want to be free of possible retaliation from people in positions of power; and because I just want to.

So, you don't like my post? Take it apart. Make the case that we should be, as I put it earlier, "dewey-eyed" about "the impartial civil servants of the Voting Rights Section."

Which brings us to the merits of the post itself.

First, let me stress again that I voice no opinion about whether the recommendations of the career staff, overruled by political appointees, were right or wrong as a matter of law. I voice no opinion about their critiques of the Bush Administration. But many people have attempted to bolster the force of these former employees' arguments by claiming that their backgrounds give them particular credibility. Should others just accept that? Or should they be prepared to scrutinize those backgrounds?

Those who are being critical of the Department of Justice's political leadership want it both ways. These former employees say that the political appointees are politicizing a formerly non-political department. Rather than (or perhaps in addition to) defending their view on legal grounds, they (and some others advancing their arguments) essentially assert, "You must believe us and give special weight to our comments, because we are non-ideological and non-partisan. We have worked under past Republican administrations. We are career officials. So clearly we are right, and the political appointees wrong." I merely offer some evidence to be skeptical of their claim of complete impartiality. I think that doing so contributes to the debate. I would like to see knowledgeable persons debate the merits of their arguments, but these former employees and their allies seem intent on cutting off that debate by assertions of superior impartiality. They have chosen to base some of their argument on their alleged special status. The rest of us are not required to take that on faith.

The Centerman, on this blog, has never tried to base his credibility on his background. Many, such as Professor Hasen in one of the links above, have concluded that I know a lot about election law. He concluded that from my arguments and comments, not my background, and I am pleased that my arguments and comments have given me some credibility.

Though I have chosen not to do so in this blog, it is also legitimate to cite factors in one's background that one believes gives arguments special credibility. But if you are going to base the credibility of your arguments on your allegedly impartial background, rather than the merits of the arguments you raise, you invite scrutiny of that background.

No harm in that.

*Joe Rich, one of the former DOJ employees involved, comments at the Hasen link above that he has never made one of the contributions I cited, a contribution to the liberal group Americans Coming Together. If you go to the FEC web site and search individual names for Joe Rich, you will find that contribution listed, with the person's occupation listed as Attorney at the Department of Justice. Rich says that this is an error on the FEC's part. Wouldn't be the first time.