Partisan Entrenchment in the Civil Rights Division

JB

I had wanted to mention last week's article the ideological takeover of civil service positions in the Justice Department earlier, but so many interesting issues have been coming out of the Bush Administration these days that it's hard to blog about them all. In any case, once again Charlie Savage of the Boston Globe uncovers what the Bush White House has been doing behind the scenes:

The Bush administration is quietly remaking the Justice Department's Civil Rights Division, filling the permanent ranks with lawyers who have strong conservative credentials but little experience in civil rights, according to job application materials obtained by the Globe. . . .

In an acknowledgment of the department's special need to be politically neutral, hiring for career jobs in the Civil Rights Division under all recent administrations, Democratic and Republican, had been handled by civil servants -- not political appointees. But in the fall of 2002, then-attorney general John Ashcroft changed the procedures. The Civil Rights Division disbanded the hiring committees made up of veteran career lawyers. . . . Now, hiring is closely overseen by Bush administration political appointees to Justice, effectively turning hundreds of career jobs into politically appointed positions.

Why is this story important? Well, as Sandy Levinson and I have pointed out, constitutional revolutions often occur through a process we call "partisan entrenchment:" a relatively coherent political coalition stocks the courts with its ideological allies, and when you get enough like-minded judges deciding cases, constitutional doctrine tends to shift accordingly. In previous work Sandy and I explained how this process works with judicial appointments. But because constitutional law is made and enforced in many other places in government, there are actually many other opportunities for partisan entrenchment. For example, we've seen how stocking the Office of Legal Counsel with conservative legal scholars like John Yoo produced OLC opinions that promoted fairly radical theories of Executive power. In fact, because much of what the Executive branch does is never tested in the courts, there are many, many areas of law in which the Justice Department, and in particular the OLC, is the key player in interpreting and applying the Constitution. If the President stocks the OLC with ideological allies, they will, over time, push the Constitution-in-practice strongly to the right.

More generally, the Justice Department is particularly important in how it enforces (or chooses not to enforce) a wide variety of constitutional and civil rights provisions. That's because many civil rights statutes make the government the primary enforcer of civil rights. Even when that is not the case, the practical enforcement of many federal rights depends largely on how much time and attention the Justice Department devotes to them. What the Department chooses to enforce and what it chooses not to enforce can make all the difference in how people actually enjoy a wide range of federal rights. During the middle part of the 20th century the Justice Department was at the forefront of promoting worker's rights and racial desegregation; later the Justice Department was heavily involved in promoting voting rights, the rights of women and the rights of the disabled through enforcement actions and law suits that led to judicial enforcement and consent decrees. If the Justice Department, and in particular, the Civil Rights Division had not stepped up when it did, much of what we today call the Civil Rights revolution would not have happened. We would have much weaker commitments to constitutional equality than we do today.

For many years now the Justice Department's integrity has been secured in part by the work of career civil service attorneys who are non-political appointments and whose central job is to uphold federal rights. The Bush Administration wants to change all that. It seeks to make lasting changes on what the law is in practice, by flooding the Justice Department with reliable ideological allies in positions that were traditionally staffed by non-political career appointments. The Administration expects that if enough ideological allies fill these positions, they will routinely interpret and apply law in ways that conservatives like; that is, they will narrowly apply, interpret and enforce federal equality guarantees as well as federal consumer protection, environmental law and labor law guarantees. These new conservative appointees will spend less time investigating and prosecuting violations of federal rights that liberals consider important. Conversely, and equally important, they will spend more time investigating and prosecuting violation and suspected violations of federal rights that conservatives think are important, like challenging affirmative action programs, or loosening restrictions on religious activities that make use of government funds. (Charlie Savage offers a few examples of the new kinds of cases the Bush Justice Department has been focusing on and the new group of Justice Department attorneys who are bringing them here)

In the long run, control over law enforcement will have significant effects on what our civil rights are in practice. And with Justice Department attorneys at every level repeatedly pushing courts for conservative interpretations of federal laws, over time the law will more and more resemble what conservatives say it should be.

The mass media tends to pay the most attention to an administration's judicial appointments, particularly at the Supreme Court level. That is because it is easier for people to recognize that stocking the courts with the President's ideological allies affects the law. Nevertheless, people need to pay attention to other Presidential appointments that may be equally effective in giving the law a hard shove to the right. Silently and methodically, the Bush Administration is decimating a long tradition of non-partisan civil service appointments to the Justice Department, replacing an older tradition of professional loyalty with a new ethos of ideological loyalty. That policy, performed largely behind the scenes, may have an even more profound effect on our rights in practice than the Administration's conservative judicial appointments.

Posted 8:00 AM by JB [link]