April 17, 2007

Justice Being Served?

In American mythology, the part of Justice is often played by a blindfolded woman weighing competing evidence dispassionately. She is to reach her just conclusions without regard to the way an individual looks or what that individual thinks or which party that individual votes for.

At the Department of Justice, the blindfold has apparently been removed.

The recent firing of eight US Attorneys for what appear to be partisan purposes has led to an outright Washington scandal, complete with hearings and testimony and subpoenas. However, the US Attorney firings were merely a continuation of the practice of politicizing the Department of Justice that began the moment the Bush Administration – and with it, Attorney General John Ashcroft – took office.

DOJ is headed by political appointees, like Ashcroft, who serve at the pleasure of the President. These individuals set larger policies to ensure that the DOJ functions as part of the larger presidential administration but typically do not direct the thousands of cases being pursued by DOJ at any time. That task is left to the roughly 300 career attorneys who serve in DOJ regardless of who is in the White House. Through Republican and Democratic administrations past, there has been a mutual respect, if not always agreement, between the political appointees and the career attorneys.

By many accounts, that respect disappeared when the Bush Administration began shaping its Department of Justice, most significantly in the DOJ’s Civil Rights Division. The mandate of the Civil Rights Division is to enforce the nation’s civil rights laws, whether by suing an employer for a pattern or practice of employment discrimination or enforcing voting rights laws against a state that is disenfranchising minority voters. Through changes in the procedures for hiring new attorneys and shifts in the types of cases it undertakes, the Bush/Ashcroft/Gonzales DOJ has transformed the Civil Rights Division into a partisan tool.

Prior to 2001, job applicants would be hired by career attorneys subject to approval from the political appointees. Under Ashcroft, this practice was abolished in 2003 as career attorneys were removed from the hiring process completely. The results were predictable. According to the Boston Globe, only 42% of the career attorneys hired in the two years after 2003 had civil rights litigation experience, compared to 77% in the two years prior. In addition, of those 42% who had civil rights experience, half had gained it by defending employers against discrimination or arguing against affirmative action policies.

Similarly, the perspective of the career attorneys has been minimized in selecting the cases and positions taken by the Department. Despite career attorneys’ recommendations to the contrary, the DOJ has come out in favor of redistricting efforts in Mississippi and Texas that have benefited Republican candidates and recommended approval of a Georgia voter identification law that the career attorneys concluded would disenfranchise minority voters. The number of enforcement actions being brought for employment and voting discrimination is down, while the number of cases brought on the theory of “viewpoint discrimination” (i.e., cases claiming discrimination on the basis of religious beliefs) is up.

Career attorneys have been resigning in protest of these policy shifts throughout the Bush reign, but are only now gaining an audience in Congress. Last month, a House Judiciary subcommittee held hearings on the Civil Rights Division. At the hearing, Joe Rich, a 37-year veteran and a former chief of the Voting Rights Section in the Civil Rights Division who left in protest in 2005 testified that “the political decision-making process that led to the questionable dismissal of eight United States Attorneys was standard practice in the Civil Rights Division years before these recent revelations.”

In this context, the firing of US Attorneys who were reluctant to pursue a partisan agenda makes perfect sense. This Administration has never made it the goal of the DOJ to pursue justice, but has used the Department as part of a larger effort to create a permanent Republican majority. Only time will tell if it has succeeded in permanently removing the blindfold from DOJ.

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