Saturday, March 13, 2010

Meet Your Political DOJ Leaders

The gentlemen in the photo are not the lawyers in important posts in the Department of Justice, but some of their friends are. President Obama and his Attorney General have put some of the worst leftist doctrinaire politicized lawyers in history in charge of major positions within the Department of Justice.

As we've discussed before, the president is entitled to have his nominees confirmed where confirmation is required, but we have also discussed the major exceptions to that simple political principle. When a nominee for office can't separate his personal (and often radical) beliefs from his official duties, and worse yet, has a paper-trail or public record which indicates that he will try to circumvent prevailing law, that changes the formula. When the office is of a level requiring a confirmation vote, he should not be confirmed. When it is an office which doesn't require a confirmation vote, but is still of sufficient importance to require public scrutiny, there should at least be full hearings. We've already seen the caliber of candidate Obama will put into office without proper vetting (Van Jones, anyone?).

First of all, let me be clear about this post. It is not a discussion of the Notorious Nine (the Al Qaeda lawyers) who are already ensconced in the DOJ. Those are the lawyers who represented Al Qaeda and other terrorist detainees and insisted that they had the same rights as any domestic criminal. RINO Lindsey Graham has joined the liberal Democrats in drawing all the wrong conclusions about them. Liberals never read a solid history book, but love to make statements about history that are totally wrong.

Graham and his friends have brought up the John Adams defense of the British soldiers involved in the Boston Massacre as an example of a lawyer doing his job and protecting the legal system as if that were proof of anything even faintly relating to the Al Qaeda lawyers in the DOJ. Unlike the Al Qaeda lawyers currently in the DOJ, Adams did not seek the job, the soldiers were not foreign terrorists posing as civilians, and we were not at war. Good lawyers are ethically bound to take bad clients in domestic civilian criminal matters, unless to do so would be so antithetical to their personal belief and morality as to render them incapable of mounting an adequate defense. I only encountered that situation once in my entire career (a child-molestation case).

Enough said about that. The debate in Congress and the press will go on for months, and by Obama standards, it's already old news. If something actually comes of the whole thing, I'll do a full post on it. The Democrats (and Graham) are wrong in their defenses of the Notorious Nine, but they're already in place, the damage is done, and unless they abuse their office in a manner contrary to law, it's too late to do anything about it anyway.

As for the Civil Rights Division, the situation is slightly different. Some Congressional Representatives and many citizens are asking serious questions about the behavior of the Holder/Obama appointees. What got it all started was the DOJ's dismissal of the already-proven cases against the New Black Panther Party's clear and illegal voter-intimidation cases in Philadelphia. The action by the DOJ political lawyers is absolutely inexplicable logically or legally. The career DOJ lawyers did a fine job of obtaining the judgments of civil rights violations, only to have their new doctrinaire bosses destroy their work. When one of those careerists objected, he was re-assigned to a different legal post, comparable to being sent to Siberia. There is good reason to believe that there may have been ethical and/or legal hanky-panky involved in those decisions. At the very least, there are valid charges of politicization and incompetence.

The biggest cases of politicization of the Justice Department include, but are not limited to, the aforementioned Black Panthers cases, the objections raised by the DOJ to Georgia's requirement that new voter registrants be able to prove their citizenship, and the slapping down of a township in North Carolina that wished to hold non-partisan elections but were prevented by the DOJ from doing so under an ancient and inoperative consent decree controlled solely by the whims of the DOJ. Their reasoning in the latter case was that nonpartisan elections would prevent the election of black leaders to important posts. In fact, the population of the township is heavily black, and all the candidates for important offices are black. But the current arrangement favors Democratic candidates, so the DOJ won't allow the change to nonpartisan elections. It's not a civil rights matter at all. It's a matter of party politics, which the DOJ is specifically forbidden to regulate.

I had been researching the Obama appointees behind these decisions for some time now, but Hans A. Von Spakovsky got to press ahead of me at National Review Online. Since we reached the same conclusions about most of the appointees, I'll feel free simply to comment. But he did pick up a few I was unaware of or had not yet thoroughly examined, and where that's the case, I will point them out.

In order of influence and rank, let's start with Assistant Attorney General Thomas Perez. A Democratic activist and former staffer for Senator Ted Kennedy, Perez has long advocated the living Constitution, circumvention of procedural guarantees in the pursuit of "doing the right thing," and ignoring the concept of a government of law not of men by favoring "oppressed" groups and individuals. Before assuming those positions, Perez was known as a poverty pimp, and even after taking office, he declared that Republicans do not care about the poor.

Perez, an officer of the court (as are all lawyers), has stated that illegal aliens should not speak to or cooperate with police and immigration officials. He supports unrestricted rights to drivers licenses for illegal immigrants. As a former president of Casa de Maryland, he urged the Montgomery County Police Department not to execute federal fugitive warrants, demanded in-state tuition for illegals, and established illegal alien day labor sites. While serving as a city councilman, Perez pushed for the acceptance of matricula consular cards as acceptable ID for all government purposes. Those cards are issued only by Mexico and Guatemala, are rife with fraud and bribery, prove absolutely nothing about the person holding them, and are not even accepted as ID in Mexico or Guatemala for any government or financial transaction.

Perez has also proven himself to be an incompetent and contentious lawyer in the past. As a member of the Obama/Holder team, he has declared that he will "ramp up" enforcement of disparate impact lawsuits. You know, those cases where neither the law nor the Constitution discriminates for any purpose, but unfortunately negatively impacts some of the special pleader groups of which Perez is so fond. Things like having to speak English to hold a government job, or having at least a high school diploma to become a level one clerk in the accounting office. But we don't have to depend on his words to prove the point that he's hopeless on the issue. We have his track record. Perez was a Civil Rights Division careerist during the Clinton administration. He was largely responsible for the Division being hit with over $4.1 million in sanctions for filing frivolous discrimination and disparate impact lawsuits. As a department head today, he can do considerably more damage.

Perhaps most important of all, he has taken it upon himself (without serious objection) to be the ultimate decision-maker on the hiring of all future proposed career lawyers in the Division. He wants to create a whole new permanent class of frivolous lawsuit-filers within the Division who can mimic his habits during the Clinton administration.

And then we have Deputy Assistant Attorney General Samuel Bagenstos. Like many of the Obama/Holder political appointees, Bagenstos has next to no experience as a practicing attorney. He is an academic theorist who passed the Bar, so that makes him a lawyer. Well, only technically. When it comes to the daily give and take and realistic compromises that have to be made in a real courtroom, Bagenstos got everything he knows from books and an occasional law school lecture. He is an unabashed political liberal who clerked for the Constitution-tossing Ninth Circuit judge Stephen Reinhardt (one of the most frequently-reversed judges in American history, and the partial subject of yesterday's post on the Newdow/"Under God" case), and his fellow ACLU member and activist Supreme Court Justice Ginsburg.

In a 2004 Ohio case, he argued that the Bush Civil Rights Division was clearly wrong and out of control when it attacked the right of individuals to sue under the provisions of the Help America Vote Act. He called the Division's brief an "Alice in Wonderland" argument. But the appellate courts and the Supreme Court came down strongly on the side of the Bush lawyers. I guess he's right and all the rest of the legal community is nuts.

Von Spakovsky caught a recent federal court decision in New York that I missed, and it's a beaut. Bagenstos's people had filed another one of those frivolous discrimination suits. In arguing against a motion to dismiss the suit, Bagenstos himself took on the job of presenting the Division's case personally. The judge ruled that the pleadings were so badly written under Bagenstos that they were comparable to that of a pro se litigant. As Von Spakovsky points out, "that's a close as a federal judge can come to calling you incompetent."

My favorite incompetent political appointee is Deputy Assistant Attorney General Loretta King. Von Spakovsky calls her a political hack. I've called her a political whore. But we're on the same track. She was smack-dab in the middle of the Black Panthers case. During the fiasco, she frequently discussed her desire to make her point so she could run for office in a black Democratic district in Maryland (what's with all the legal cuckoos from Maryland anyway). The courts' criticisms of King's lawyering makes the previous two sound like mere gentle tsk-tsking. In a notorious Civil Rights Division re-districting case against Georgia, headed by King, the Supreme Court found that King and her team had conspired to engage in "presumptively unconstitutional race-based districting." The team was hit with over a half-million dollars worth of court sanctions for misbehavior. The federal court which first heard the case called the Division's conduct disturbing and an embarrassment. The judge questioned whether the Division was taking its marching orders directly from the ACLU political action committee. His formal decision asked if "the Department of Justice could really be so blind to this impropriety, especially in a role as sensitive as that of preserving the fundamental right to vote."

Then there's Perez's Chief Deputy, Mark Kappelhoff. Kappelhoff is a political activist and leftist propagandist, and incidentally a lawyer. He has practiced law, but in that caricature-like way that Robert Redford and his ilk love to portray as the heroes of the legal profession. He was first a public defender (or as we private attorneys call them, "counsel for the undeserving"). Unlike private counsel who actively and vigorously defend their criminal clients because we believe in the Constitution, public defenders largely represent their clients zealously because they identify with them. Then he served for two years as legislative counsel for the ACLU.

The Holder/Obama Justice Department is not to be condemned for putting political appointees in place for those non-career positions. Every administration does that. What is different is that this administration has taken the practice to all new heights. To a point where a change in form has become a change in substance. Kappelhoff's main qualification for his high post is that he personally contributed $3,000 to Obama's presidential campaign and over $5,000 to other Democratic candidates in the past election cycle. Not one of the political appointees in this administration has given a dime to a single Republican (that information comes from the Federal Elections Commission). Bush's appointees were almost evenly divided, though the Democrats who received funds from the appointees were classified as conservatives or moderates.

Rivaling King for leftist partisanship, but not for influence is Deputy Assistant Attorney General Julie Fernandes. She was a left wing political activist during her college and law school years. Upon receiving her law degree, she immediately took a job with the ACLU emphasizing race and poverty issues. She never stopped being political at any time in her legal career, and her position in the Civil Rights Division hasn't slowed that political activity one bit. Her specialty is filing phony lawsuits against police agencies. She is an advocate for illegal immigrants receiving voting rights. She can't wait to file a police misconduct charge and loves to call every arrest of a black or Hispanic criminal "racial profiling." She first worked in the Civil Rights Division during the Clinton administration, but left to go to work directly in the White House as part of the Clinton Domestic Policy Council.

At the end of the Clinton administration, she became a member of the Leadership Conference on Civil Rights where she was senior policy analyst and special counsel. She was responsible for a multitude of preposterous initiatives, most of which came to nothing or were ultimately found to be unconstitutional. But now she's back at home in the Justice Department. Just before being appointed this time, she made a speech admonishing the Department not to treat the Civil Rights Division "like a buffet line at the cafeteria, cherry-picking which laws to enforce." Hypocrisy like that deserves reward, and her re-appointment was precisely that. Immediately upon taking office, she called the entire Voting Section of the Department into a meeting at which she announced that the administration would not enforce Section 8 of the National Voter Registration Act requiring the regular purging of voter rolls of citizens who have died or are no longer living in the particular district. Chicago is notorious for getting its highest Democratic voter turnout from the local cemeteries. Thus, she is not only "cherry-picking," she is cherry-picking in order to determine which valid laws she is going to defy for political purposes.

And speaking of politicization, Fernandes claims she hates it. After all, some years back, she testified before the House Judiciary Committee that she despised the politicization of the Department by the Bush administration. But in practice, she makes the Bush appointees look like rank amateurs. When the career senior lawyer in the Voting Section objected to her announcement about Section 8 and dropping the Black Panther case, he was summarily removed from all managerial duties and exiled from the DC office.

Fernandez's husband Avner Shapiro (yeah, they're Democrats, hence the different last name) was a line attorney in the Voting Section during the Bush administration. He regularly kept her apprised of confidential information about the investigations into the background of applicants for career positions with the Division. Those applicants are now the attorneys that Fernandes is bullying. According to Von Spakowsky, sources have said that during the Bush administration, Fernandes was allowed to take Division files out of Shapiro's office. She was doing her homework for a day when she would be the one in charge of those very lawyers on whom she had gotten confidential information. She also has information from that time which would indicate which applicants were rejected for their overtly-political agendas who would now be perfect candidates to work for her.

Von Spakowsky picked up on two Division honchos that I had not gotten to yet. So as to them, I give the entire credit to him and National Review Online. The first is Senior Counsel Les Jin. He first came to prominence as staff director of the U.S. Commission on Civil Rights and the personal favorite of the execrable chairwoman, Mary Frances Berry. He earned his cred for the position after being the executive director of the National Asian Pacific American Bar Association which actively opposed the appointment of Justice Alito because he was not on board with race-based affirmative action.

There was a serious movement to have Jin removed from the USCCR position because he supported Berry's lawless attempt to remain as Commission Chair after her term had expired and her successor appointed but not yet confirmed. He was also instrumental in Berry's publication of a Commission Report which had not been seen by the minority members of the Commission and which contained none of the minority positions. If there is a dissent from the minority, it must be published with the Report. Abigail Thernstrom and Russell Redenbaugh had written dissents regarding the Florida presidential election, but first saw that the Report had been published, sans dissent, when it hit the New York Times.

Also during his tenure at the USCCR, Jin was a major player in the advice team that resulted in the Commission not paying $75,000 in rent and instead diverting the funds to favorite causes of Berry's, refusing to pay out the $188,000 judgment money to the successful applicants in a discrimination case the Division actually won on their behalf, and underfunding the Commission's employee benefits package, When it looked like a serious criminal investigation might be underway, the Commission's ledgers disappeared. As the rightful Chairman of the Commission later said to a Congressional subcommittee, "if a private company didn't have a ledger, then somebody goes to jail."

Another deputy is Marisa Chun. I'm very familiar with her name. After leaving the Civil Rights Division the first time around, she took up private advocacy in the civil rights forum in (where else?) San Francisco. But while still with the Division during the Clinton administration, she filed a discrimination suit against the City of Torrance, California, because the police and fire department entrance exams had a disparate impact on minorities. This was the case that was the precursor to the Newark Firefighters case that was denounced by the U.S. Supreme Court for its lack of factual evidence, terrible legal reasoning, and affirming appellate decision rendered by one Sonia Sotomayor (later Obama's first appointment to the very court which had called her pretty much everything except a lawyer).

Chun's case never made it to the Supreme Court, so the honor of dragging a ridiculous disparate impact case all the way to the nation's highest court went to New Jersey instead. Chun did such a bad job, and was so egregiously lacking in evidence, law or constitutional theory, that even the much-reversed Ninth Circuit Court of Appeals smelled a rat. The court held that the Division "had an insufficient factual basis for the lawsuit, and continued to pursue the claim long after it became apparent that the case lacked merit." That all cost the taxpayers $1.7 million. Plenty of practice to be the current chief deputy in charge of launching Perez's disparate-impact war on the law and the Constitution. Obama and Holder didn't miss a trick. If this is the first post-racial administration, I'd hate to see the racist one.

Like the Al Qaeda Nine, these politicized lawyers are already in place. Unless criminal or ethics charges can be successfully launched against them (and that's not out of the realm of possibility), we're stuck with them, and all the damage they can do. So this is a call to Congress to wake up, use the confirmation process to stop appointees like this, and when it is not a cabinet-level appointment to conduct full investigations and vetting of future potential lawyers in the Justice Department (particularly the Civil Rights Division).

Having a personal view of race-relations which is left-skewed is not necessarily a full disqualification, however loathsome it may be. But declared willingness to use that view to distort, dishonor, skirt, misapply, openly defy and rewrite the law from the Justice Department, particularly if accompanied by a paper-trail of just such activity, should disqualify any appointee from taking office in a Division designed specifically to uphold the sanctity of the voting booth and the equality of opportunity for everyone regardless of race, ethnic background, religion or national origin. And it is not a license to spend the taxpayers' money on racist litigation and hugely expensive frivolous lawsuits hoping to wear down the courts and popular opposition. It is most certainly not a process which should allow for installing lawyers into a Division based on their reputation for losing lawsuits and dismissing cases they've already won.


Writer X said...

LawHawk, is this related to the Liz Cheney situation where she petitioned for more info concerning the DOJ attorneys who've represented terrorists (or something like that?).

Anyway, this is troubling. How could any of these lawyers represent all American interests fairly when their motivations/actions are so clear? I'm glad there are at least a few Congressman asking questions. Do we know who, though?

Once again, Lindsey Graham puts his foot in it. He's nothing if not predictable.

AndrewPrice said...

It is so typical of Democrats to politicize the Justice Department. If there is any agency that should be beyond politics, it's DOJ. But it's not. The Dems see that as just another weapon to be used against Americans to remake the country in their twisted image.

BevfromNYC said...

Great article. Though I hesitate to want to go so far as to change the system of appointments. It just seems to be a Democrat political tactic to try and change the rules when we don't agree with the appointments. The pendulum will swing back one day to our idea of reason. In the mean time. we can only hope that there are enough reasonable judges who can see through any obvious political shenanigans.

On a side note: I don't understand how under any law any non-citizen, especially an illegal immigrant, would ever have the right to vote? That's one of the great priviledges of citizenship, isn't it? I was shocked the first time I voted in NY that I not only was not asked to show my voter's registration card, but I wasn't even asked show any form of id.

StanH said...

I love your articles Lawhawk, but damn…sometimes the anger factor overwhelms me. It’s further proof of a stat that I heard earlier in Barry’s administration that 93% have never had any real private sector experience, your post further illustrates that fact. We are in heap big trouble, and unfortunately changes happen at the executive level at the DOJ. We are stuck with this gaggle of professorial eggheads until 2012…God help us!

Anonymous said...

WriterX: The attorneys Liz Cheney asked about are the ones in the opening paragraphs (the "Notorious Al Qaeda Nine"). I've been asked about them more than once, so I may yet do a separate post on them. I have a lot more background with the Civil Rights Division, which was the thrust of this post. But those in the terrorist prosecution (?) arena are equally dubious.

In both situations, however, the problem is that these politicized lawyers have forgotten whom they represent. They are entitled to their political beliefs, but when they go into court, they represent the People of the United States, not "some of the people in the United States." They are hired to represent the law as it is, not as they think it should be. They take an oath of loyalty to the Constitution, not to their political causes. And zealous ideologues find the transition from defense advocate to federal prosecutor almost impossible. The Obama/Holder ideologues don't even try.

Anonymous said...

Andrew: In most administrations I've had contact with (or at least have plenty of information on), the appointees tried to carry out their duties within the law while favoring those issues most dear to the administration. But they didn't twist the law, ignore it, or use it as a bludgeon against political enemies and a "get out of jail free card" for their fellow travelers. The last time I saw anything this bad was the Nixon DOJ, and at least they weren't actively trying to undermine the entire nation. You and I have both worked with some of those pros in the DOJ, and even when we were on opposite sides, they were worthy and honest opponents. These clowns are in a world of their own.

Anonymous said...

Bev: The appointment process is a frustrating mess right now. Obama has tossed so many dangerous agendas into the political ring that it's extremely difficult to pay proper attention to all of them. Still, the Republicans (and Democrats who might still care about the Constitution) need to pay much more attention to his non cabinet-level appointments. I think that department/division heads should require Senate confirmation, and that wouldn't require much of a change in the rules. But in any event, we must start paying more attention to these dangerous appointees, and a hearing can be held on any appointee if he or she has extremely questionable credentials.

Your question about non-citizens and illegal aliens voting is one of those that leaves anyone with an ounce of sense shaking his head. It's so obviously wrong that I have no way of explaining to you why anyone would think they have any such right. I've heard all the arguments, and not a single one makes any sense at all. That excludes the obvious one, of course. More non-citizens and illegals voting = more Democrats. The Constitution be damned, it's about power.

Anonymous said...

StanH: Amateurism in business and law are the order of the day. Add in the therapeutic view of the world, and you have a recipe for collapse. There is quite literally no substitute for intelligence and education combined with practical experience. When the whole system crashes down around these leftist jerks, it's a little late to be saying "it looked good on paper." Young, idealistic lawyers keep the law alive and evolving, but it takes the experienced realists to keep it from becoming chaos or a tool of special pleaders.

I'm an advocate of the living law, not the "living Constitution." The law is the superstructure we build to conform to the Constitutional foundation. Radical ideologues like the Obama/Holder appointees want to build their legal house on a foundation made of sand.

Joel Farnham said...


Since these guys are political appointees, can't they be fired when Obama is defeated in 2012?

Anonymous said...

Joel: As long as they have not assumed one of the "career" positions (which are protected by Civil Service and other guarantees) they can be summarily dismissed. And then the leftists start talking immediately about "massacres." It has always been routine for the new President and Attorney General to put their own people into those posts, and it is only recently that letting non-career attorneys go so you can have your own people in place has become some sort of "political purge" in the eyes of the left.

That said, it does appear that both Fernandes and Perez, at least, are working on hiring those very careerists who can't be fired easily. That way, when Obama has gone to his well-earned retirement in 2012, those lawyers will remain in place as DOJ internal saboteurs.

MegaTroll said...

What a rogue's gallery. Thanks for keeping us informed Lawhawk. This is just another reason to toss these jerks out of government.

Tennessee Jed said...

Although it pains me to say it, maybe the right has to start playing this game. The left has stocked the State Department and everything they can get their hands on, including the justice department.

I wholeheartedly agree the department of justice (and really all of government) should at least be ethical if they can't be somewhat apolitical. Maybe if there is enough electoral blowback and the right somehow gets control of both houses and the presidency in 2012, legislation could address this mess. If not, sadly we may have to learn to play hardball by the same rules.

Anonymous said...

Mega: We get rid of their bosses, we get rid of them. November is just around the corner, and if Obama wants his future appointments to go through, he will need to evaluate what their chances are with a new and much more conservative Congress (specifically the Senate in regards to cabinet-level appointments).

Anonymous said...

Tennessee: I suppose that some legislation would help, but I think the problem here has been that Obama thought he had an ironclad mandate to turn the country into a politically-correct ideological paradise. And he had numbers in Congress that indicated he was unstoppable. The dew is off the rose, and the next election will disabuse him of his idea that he will be allowed to "fundamentally transform America." The earlier his far-out appointments start getting serious public vetting, the better it will get. We've already allowed too many to get past us, but I think we're learning our lesson.

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