Politicizing Justice

The Washington Post has an article today alleging that the Bush administration has politicized the Voting Section of the Department of Justice. The Post reports that:

The section also has lost about a third of its three dozen lawyers over the past nine months. Those who remain have been barred from offering recommendations in major voting-rights cases and have little input in the section's decisions on hiring and policy. "If the Department of Justice and the Civil Rights Division is viewed as political, there is no doubt that credibility is lost," former voting-section chief Joe Rich said at a recent panel discussion in Washington. He added: "The voting section is always subject
to political pressure and tension. But I never thought it would come to this."

The obvious theme is that evil Bush people are distorting the law, over the valiant objections of impartial, disinterested career civil servants.

But let's look at the record at SectionVoting Rights - let's see who has departed, and where they have gone (this is not a complete list):

1. Let's start with the above quoted Joseph D. Rich, a member of the Division for 37 years, and former head of the Section. In 1997, one Joseph D. Rich, a lawyer who identified his home as Washington, D.C., and his employer as the Department of Justice, contributed $500 to Democrat Bob Rush's campaign for Congress. In 2004, DOJ Attorney Joseph Rich contributed $455 to the left-wing activist group, Americans Coming Together.**[Note, Jan. 27: In comments to this post at Rick Hasen's Election Law Blog, Mr. Rich claims that he has never contributed to ACT, and that the FEC's database is in error. He does not dispute that the database shows him making the contibution. If the Centerman relied on faulty data from the FEC, we are sorry.] Rich now works for the Lawyers Committee for Civil Rights Under Law, a left wing group that opposes Sam Alito's nomination to the Supreme Court (the American Bar Association gave him its highest rating, so the LCCRUL's opposition appears to be purely political. It's report reads more or less the same as anything put out by People for the American Way and other far left groups.) According to an earlier article in the Post, the LCCRUL includes "a number of former Justice lawyers."

2. Also quoted in the article is William Yeomans. In August of 2004, Yeomans sent $250 to the Democratic National Committee. Yeomans left DOJ to work for the American Constitution Society. Like the Lawyers' Committee for Civil Rights Under Law, there is nothing wrong at all about working for the ACS. But it, too, clearly tilts left, describing itself as "one of the nation's leading progressive legal organizations." It is no more a bastion of dispassionate analysis than is the Federalist Society, the conservative organization it was formed to counter.

3. Another critic of the "politicization" of DOJ's voting rights section, noted in this earlier Post piece, is Richard Ugelow. Ugelow left the Voting Division in 2004. In 2004, he contributed $500 to John Kerry and another $500 to Eva Bacal, a Democrat running for Congress in Arizona.

4. In the November Post article that quotes Ugelow, former DOJ attorney Stephen Pershing is also quoted. His only reported federal political contribution was made in 1999, to Bill Bradley, for $250. He was working in the Division at that time. Pershing now heads the Center for Constitutional Litigation, another liberal group which made its first splash earlier this year fighting tort reform.

5. Mark Posner left Justice in 2003. He had previously been a Visiting Fellow at the Center for Law and Public Interest in Los Angeles, another liberal legal group.

6. Stephen Mulroy left DOJ in 2000 to become a professor at Memphis State. He has published arguing that the "Butterfly Ballot" in Florida's 2000 election was illegal, a position even Gore chose not to argue in court. Substantial Noncompliance and Reasonable Doubt: How the Florida Courts Got it Wrong in the Butterfly Ballot Case, 14 Stanford Law and Policy Review (2003).

7. Gerald Hebert left DOJ's Voting Rights Section back in 1994. Hebert is now Executive Director of the Campaign Legal Center, a group that lobbies for more campaign finance regulation. Hebert, an old friend of Lani Guinier, has also surfaced recently representing the Texas Democratic Party in challenging redistricting in that state. Gerry's bio indicates that he spent two years working for the Lawyers' Committee for Civil Rights Under Law.

8. Jon Greenbaum spent 7 years in the Voting Rights Section before joining the Lawyers Committee for Civil Rights Under Law.

9. Tricia Jefferson joined LCCRUL after leaving the Voting Rights Section. Tricia contributed $250 to Wesley Clark's presidential campaign. Like all the others in this list, there is no record of any contribution to a Republican.

10. And then there is the case of Johnson v. Miller, 864 F. Supp. 1354 (S.D. Georgia 1994). In an extraordinary opinion, the Court castigated the Voting Rights Section for effectively allowing themselves to serve as an arm of liberal lobbying groups, and making clear that it believed that DOJ career civil servants then lied to the Court (in the excerpt below, Ms. Wilde is the attorney for the ACLU and the Georgia Black Caucus):

During the redistricting process, Ms. Wilde was in constant contact with both Keith Borders and Thomas Armstrong, the DOJ line attorneys overseeing preclearance of Georgia's redistricting efforts. See Tr. IV, at 39, 231. There were countless communications, including notes, maps, and charts, by phone, mail and facsimile, between Wilde and the DOJ team; those transactions signified
close cooperation between Wilde and DOJ during the preclearance process. The Court was presented with a sampling of these communiques, and we find them disturbing.

It is obvious from a review of the materials that Ms. Wilde's relationship with the DOJ Voting Section was informal and familiar; the dynamics were that of peers working together, not of
an advocate submitting proposals to higher authorities. See, e.g., Pltf.Exh. 57H, 57I. DOJ was more accessible-and amenable-to the opinions of the ACLU than to those of the Attorney General of the State of Georgia. See Pltf.Exh. 52, 54, 57, 57A-M, 165; Tr. V, at 3-4. It is clear from our proceedings that Ms. Wilde discussed with DOJ lawyers the smallest details of her plan, constantly sending
revisions, updates, and data throughout the period from October, 1991 to April, 1992; she occasionally sent documents to DOJ lawyers “per your request.” Ms. Wilde worked with DOJ in other ways: During the reapportionment process for Georgia's House districts, DOJ attorney Nancy Sardison told Mark Cohen, the Senior Assistant Attorney General for Georgia, to meet with Ms. Wilde to revise
a majority-black House district. Mr. Cohen had presumptuously thought the district satisfactory, but was dutifully informed by Ms. Sardison that Ms. Wilde was “still having some problems with it.” Tr. V, at 3.

Contrary to Mr. Armstrong's claims at trial, the max-black
proposal was not merely “one of the alternatives [DOJ] considered,” and Ms. Wilde was not simply one of various advocates. Her work was of particular importance to DOJ lawyers, whose criteria for and opinions of Georgia's submissions were greatly influenced by Ms. Wilde and her agenda.Alas, it is true that none of the DOJ
attorneys testifying at trial admitted to the influence of Ms. Wilde and her max-black plan on their preclearance deliberations. This Court finds it distressing that Messrs. Borders and Armstrong lacked any significant memory of important elements of the 1991-92 preclearance saga. Both of them-especially Mr. Borders-intimately involved with the redistricting for months, just “don't recall” basic details of either important meetings or the preclearance process. See, e.g., Tr. IV, at 8-51; 145-150. Those in far more peripheral roles had no great difficulty remembering the events central to our inquiry. Frankly, based on the factual record and trial testimony, the Court finds Borders' and Armstrong's professed amnesia less than credible. Luckily, the surrounding evidence speaks quite clearly.

The Court finds it particularly difficult to believe that Borders simply
“doesn't remember” why the Voting Section would have told the General Assembly to extend the Eleventh District all the way down to Chatham County.

None of this is to say that these folks are wrong on the merits in the current dispute. But let's not have a bunch of dewey-eyed odes to the impartial civil servants of the Voting Rights Section.