By Daphne Eviatar
After 29 years enforcing the civil rights laws at the Department of Justice, in 2002 Richard Ugelow was abruptly transferred from his position as deputy chief of employment litigation to an administrative job in the civil division, which defends the government against, among other things, claims of civil rights violations. Ugelow was just one of many highly experienced justice department lawyers who, beginning in the early years of the Bush administration, were transferred, demoted or otherwise pushed out of their positions at Justice because their aggressive enforcement of federal laws didn’t match the new administration’s conservative ideology.
That’s just one of the many serious problems at the Department of Justice that the incoming Obama administration will have to rectify, say former Justice Department employees, law professors and civil rights advocates. As internal government reports and congressional hearings have documented, the Bush Justice Department over the last eight years expelled or ignored attorneys that it didn’t agree with and replaced them with inexperienced lawyers hired more for their ideology than their qualifications. Many of those promoted and implemented conservative agendas that in some cases turned out to be illegal. Those lawyers who were given career positions can’t simply be pushed out by a new administration, however – and they could make it difficult for Obama to implement a new agenda.
Under President Bush, “there was a total disregard for the career attorneys,” said Ugelow, who now teaches at American University’s Washington College of Law. “When they initially came in they stopped all enforcement activities. The administration came in with the attitude that we’re not going to use the courts to enforce the law.”
The result, says Jon Greenbaum, a former senior attorney in the Voting Section of the Civil Rights Division at the Justice Department, was “you had people in charge who didn’t know what the heck they were doing. At the civil rights division, you had some of the people who were most hostile to civil rights running things.”
In fact, as an inspector general’s report revealed, potential new hires during the Bush administration were disqualified for jobs if in the past they’d worked for Democrats or organizations with “liberal affiliations” – such as civil rights groups. The inspector general concluded that “political or ideological affiliations were used to deselect candidates” applying for entry-level attorney positions and internships.
The Inspector General is still investigating a separate set of allegations that DOJ lawyers hired attorneys for the civil rights division based on ideology in violation of the civil service laws.
Not surprisingly, during the Bush years, civil rights enforcement on behalf of minorities dropped dramatically. From 2000 to 2006, for example, the Equal Employment Opportunity Commission referred more than 3200 individual charges of discrimination to the civil rights division, yet the division filed only seven cases (pdf) on behalf of African-Americans or Latinos. And of only seven cases (pdf) alleging systemic racial discrimination brought by September of 2007, two were reverse discrimination cases — alleging systemic discrimination against whites.
The department’s enforcement of the Voting Rights Act, meanwhile, essentially came to a halt, says Greenbaum, as political appointees refused to bring new voting rights cases recommended by longtime career attorneys and at times ignored their legal judgments.
In 2003, for example, voting division lawyers and analysts unanimously warned that a Texas redistricting plan spearheaded by Republican Rep. Tom Delay would violate the voting rights act by by diluting black and latino voting power. They were overruled by political appointees. In 2006, the US Supreme Court held that the redistricting plan was unconstitutional.
Similarly, when Georgia sought to pass a voter ID law, career staff objected that the law would effectively discriminate against minority voters, many of whom would not have the kinds of identification cards required. “Again, the front office just didn’t care. They pretty much ignored it,” says Greenbaum, now director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law. Although Justice Department senior officials signed off on the Georgia law, it was eventually ruled unconstitutional by a federal judge, who likened the ID requirement to a poll tax from the Jim Crow era.
Obama will soon have the opportunity to hire his own political appointee to lead the Civil Rights Division. Still, “[t]he overall damage caused by losing a large body of the committed career staff and replacing it with persons with little or no interest or experience in civil rights enforcement has been severe and will be difficult to overcome,” Joseph Rich, the former chief of the voting section at Justice from 1999 to 2005, told a congressional committee in 2007.
And it’s not just the civil rights division that’s been damaged, lawyers warn. Attorney General Alberto Gonzales’s dismissal of seven US Attorneys in 2006 allegedly based on ideology is now under investigation by a special prosecutor. And at the Office of Legal counsel, Assistant Attorney General Jay Bybee and his deputy John Yoo advised the president in 2002 that he had unprecedented executive authority to ignore federal and international law. Those opinions – later sharply criticized and partly withdrawn by Jack Goldsmith, Bybee’s successor — led President Bush and his senior officials to authorize the torture, abuse and humiliation of detainees in violation of the Geneva Conventions and US anti-torture law, and to permit warrantless wiretapping of US citizens. Civil rights advocates are now calling for criminal investigations into those who authorized those acts – including the lawyers.
Looking forward, advocates and former career lawyers hope the new Obama administration will change that. But it won’t be easy. Although Obama will make new political appointments, such as the heads of the Office of Legal Counsel and of the civil rights division, he’s stuck with many of the career attorneys that some say are unqualified.
“You can’t get rid of the career people,” says Michael Ratner, president of the Center for Constitutional Rights and professor at Columbia Law School. “They have civil service protections. To fire them for political reasons would be the equivalent of hiring them for political reasons. On the other hand you don’t have to let them run their politics on the case.”
In fact, say legal scholars and advocates, the most important change Obama can make at Justice is to eliminate ideology from decision-making and return the department to its tradition of fairly enforcing the law.
“For me, the structural issue is the independence of the office of legal counsel,” says Ratner. “OLC got utterly maligned and controlled by [Dick] Cheney and [David] Addington. So restoring the office of legal counsel to an independent voice is absolutely crucial.”
Advocates such as Ratner are pushing for prosecutions of Cheney, Addington, Rumsfeld and others, insisting that only by prosecuting such abuses can the new justice department prevent their recurrence. Obama has not said whether he will initiate a criminal investigation, although he hasn’t ruled it out.
But there are also actions a new administration can take short of prosecution that could go a long way toward restoring respect for the rule of law, say legal scholars.
Making all the legal memos public is an important first step, said Sharon Kelly, a campaign manager at Human Rights First. The new administration should also review all of those memos and refute those that promote an unlawful view of unbridled executive power, says Ratner, who notes that although Goldsmith refuted the infamous “torture memo” written by John Yoo, he’s “never refuted the broad views of Yoo that the executive can do whatever is necessary to protect the country in war. I would want to see the justice department pull in the broad statements by affirmatively saying the president cannot violate the law in the name of national security.”
As for the civil rights division, it will have to get the lawyers hired under the Bush administration to begin vigorously enforcing the civil rights laws. In the area of voting rights, for example, the 2010 Census data is expected to lead to a flood of proposals for redistricting in 2011 and 2012, many of which will require review under the Voting Rights Act.
Ugelow is optimistic: “I’m hoping they’ll put somebody in charge who will have some gravitas and be well respected and appoint subordinates around him or her who will set a tone where enforcement is the order of the day.”
Other than Eric Holder, Obama’s pick for the next attorney general, the president-elect hasn’t yet announced his choices for who will lead key divisions at Justice. But David Ogden, former assistant attorney general for the Civil Division under President Clinton and now a partner at the law firm Wilmer Hale, is considered a likely pick for Deputy Attorney General. Ugelow said he thinks Holder will be “terrific” and that Ogden “has a wonderful reputation as a straight shooter.”
Washington lawyers say that Tom Perez, a former Justice Department lawyer, now secretary of labor in Maryland and serving on Obama’s transition team, is a possible pick for the Civil Rights division.
Potential leaders for Office of Legal Counsel include Martin Lederman, a former OLC attorney now teaching at Georgetown University Law School, and Dawn Johnsen, a law professor at Indiana University and former acting assistant attorney general of the office. Both are on Obama’s transition team.
“The next AG is going to have his work cut out for him,” warns Kelly of Human Rights First. “The Department of Justice needs strong leadership to put things back on track. Hopefully, it will go back to being a place more interested in upholding the law than in finding ways to skirt it.”
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