The Lonely Centrist

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Wednesday, February 01, 2006

DOJ Voting Rights Section - Are Civil Servants Really Non-ideological?

I wanted to quite writing about the Department of Justice Voting Rights Section and the likely political/ideological leanings of its staff, after a series of posts here, here, here, here, and here. But now and then folks just won't let you move on.

In the first of the posts linked above, I noted that of late there has been much criticism alleging that the Bush Administration is policiticizing the application of the Voting Rights Act (imagine - a law being applied for political advantage! Do we have another contender for most naive man?). This criticism has relied heavily on information of former lawyers in the Voting Rights Section at the Department. The critics have relied on the alleged disinterested of the career "professionals" (these are not scare quotes - I use quotes because it is the term used so often by these critics) to suggest that their views are entitled to special weight - that is, those they criticize are motivated by politics and ideology, but they are not. That first post merely listed some of the political activity in which various career employees of the Voting Rights Section have engaged, through their political contributions, their post-DOJ employment, and through a Federal Court's damning indictment of the career DOJ employees' ideological approach in the case of Johnson v. Miller.

This sent many of these same DOJ employees over the edge - their reactions ranged from indignation to apoplexy. But they did not question the accuracy of the Centerman's post. (See the other links above).

Now today, courtesy of Ed Still's Vote Law blog, our attention is called to a study by one of the former DOJ employees, Mark Posner, produced for the American Constitution Society. One doesn't have to get past the introduction to find the thesis:

There is a real and significant, but at the same time limited, concern that the Justice Department's Section 5 decision making has in the past, and may potentially in the future, be guided by political considerations.

What to do?

Congress should enact a statutory underpinning for the procedures
historically used by the Justice Department to guard against political decision making. These procedures grant significant authority and
responsibility to the Department's career staff, which in turn places a major constraint on any desire or tendency of the political staff to decide submissions based on political considerations.

p. 3. (emphasis added)

Later, we learn that,

Traditionally, the sole aim of the career staff has been to utilize its
experience and expertise to enforce Section 5 so as to fulfill the congressional mandate of remedying ethnic and racial discrimination in voting. ... There historically have been few if any allegations that the career staff has ever sought to advance a partisan political agenda.


The Bush Administration is then accused of having made changes which

have the potential to significantly undercut the independent, non-partisan status of the Division's career staff in general and the Voting Section's staff in particular.

First, of course, note the confusion between "non-partisan" and non-ideological. It is not necessary to suggest that the staff is overtly partisan to suggest that they bring a political ideology to their work - and it is fair to cite their political contributions as one indicator (and I cited them as just one indicator) of what the career staff's ideological leanings are.

More to the point, Posner's study does exactly what the Centerman noted in his earlier posts: it suggests that in any dispute between political and career appointees at Justice, it must be the career staff whose interpretation of the law is probably correct, because they are not influenced by partisanship and ideology. Posner's study does little to argue why specific recommendations of the career staff that were not adopted were correct, or why decisions of the political appointees were incorrect, as a matter of law. Rather, his study operates on the assumption that career civil servants are obviously less ideological, if not non-ideological, in their work.

I think that this is probably not true. Thus, I think there is little or no reason to give special weight to the recommendations of career staff over those of the political appointees - indeed, one might go further and suggest that it is contrary to democratic accountability in government to do so.

I stress again that I do not suggest that the employees have acted improperly, or that their patterns of political giving and post-DOJ employment mean that their interpretations of the Voting Rights are incorrect. I do suggest, however, that we be skeptical about any approach that suggests that the recommendations of career staff are somehow entitled to a presumption of validity over the decisions of the political appointees who are entrusted with responsibility for the agency.

I think most folks around Washington who are familiar with DOJ's Voting Rights section know that the career staff tilts well to the left, but as the reaction to my little post suggests, it's one of those dirty little secrets one is not supposed to mention.

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