Posted by: Amelia | June 11, 2007

Cronyism in the Court

That civil servants and political appointees in the Department of Justice have had an uneasy relationship during the Bush administration is more of an ongoing story than breaking news. In the Civil Rights Division, for instance, there has been a troubling conflict between those in charge, whose allegiance may lie with a partisan agenda, and the career lawyers whose allegiance is to the law. And Monica Goodling, of course, rather baldly sought to populate the civil service with Republican loyalists by asking about applicants’ favorite president or Supreme Court justice and nixing résumés that looked too Democrat-friendly.

Goodling’s testimony led to the revelation that partisanship also affected the appointment of immigration judges, during and even before her tenure. Today, the Washington Post has numerical evidence to back up the revelation.

“At least one-third of the immigration judges appointed by the Justice Department since 2004 have had Republican connections or have been administration insiders, and half lacked experience in immigration law, Justice Department, immigration court and other records show.”

Of the judges who did have experience in immigration law, the article states, all were former prosecutors or enforcers of immigration law, and none had represented the immigrants’ side. The effects may be long-lasting:

“These appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers — deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney. The judges do not serve fixed terms.”

By injecting party loyalists into career-track jobs that are meant to be nonpartisan, the Bush administration ensures that its legacy in the Department of Justice will last beyond its own January 2009 expiration date. This is, of course, standard practice for certain parts of the American judicial system. With Senate approval, Presidents install nominees in the Supreme Court, the thirteen appeals circuits and the many district courts, all of which grant lifetime tenure. Bush-appointed Supreme Court Justices John Roberts and Samuel Alito appear suitably plucky and could anchor a conservative court for two or more decades.

But we know all that. Judicial nominations are a quadrennial part of the Presidential campaign discussion (though perhaps not to the extent that they should be). The DOJ stuff is a newer phenomenon – at least, I think it is. When Monica Goodling testified last month, I wondered whether Democratic administrations had committed the same sins, but perhaps to a lesser enough extent as to avoid getting caught. It’s hard to know.

For the Civil Rights Division, at least, it sounds like there has been a major break in political-civil servant relations. In a 2005 panel, law professor Richard Ugelow described his many years of experience as a civil servant at DOJ:

“Up until the Bush administration [the tensions between career and political lawyers] worked themselves out. The political leadership learned that they could trust the line attorneys – the career people – and the career people learned that they could trust the political people. And we worked on compromises on policy. Every administration, Republican and Democrat, would come in with its own policy initiatives. The one thing you could always count on was a discussion on the change in policy. And that’s what you’re not seeing today. There’s no buy-in by the career staff to the change in policy of the political decision-makers.”

Faced with hostility and muzzled from going after real civil rights violations, many of the career lawyers simply left. Now, given what we know about hiring practices under Attorneys General Ashcroft and Gonzales, the successors of these departed civil servants were likely of a more partisan ilk. I can only hope that future administrations avoid temptation to overcompensate by injecting partisanship of their own, even if it happens to be my favored brand.

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