CQ WEEKLY
May 14, 2007 – Page 1416

Courts & the Law: Six Years of Bending

Barely nine months after after he became attorney general, John Ashcroft issued a regulation designed to stop doctors in Oregon from prescribing lethal medications to people hoping to take advantage of that state’s assisted-suicide law, which social conservatives find abhorrent.

That initiative — later struck down by the Supreme Court as beyond Ashcroft’s expertise or statutory authority — got limited attention in the fall of 2001, when the nation was preoccupied by the al Qaeda attacks. But Ashcroft’s effort then was one of the earliest, and clearest, signals that the Bush administration’s Justice Department would gladly bend or stretch the law to advance the president’s ideological, political and policy goals.

And so this spring’s wellspring of outrage at the dismissals of eight United States attorneys is, in one sense, too little and too late. Evidence of the Justice Department’s penchant for politicization has been steadily building for six years. The client-in-chief has had every opportunity to notice; since the pattern continues, the president himself must not be displeased.

In Bush’s first term alone, Justice issued a memorandum, which it later disavowed, claiming a presidential power to torture enemy combatants. The department also devised a policy, repudiated by the Supreme Court, of holding enemy combatants at Guantánamo Bay to try to prevent judicial oversight of the detentions. And it approved the Republican-drawn redistricting of Texas, which the Supreme Court ruled violated federal voting rights by effectively disenfranchising some Hispanics.

Ashcroft, of course, came to the department after 20 years in statewide elected office in Missouri, where he became a favorite of the Christian right nationwide. When he bowed out after the president’s re-election, some expected his softer-spoken successor, the career insider Alberto R. Gonzales, to smooth some of the department’s rougher political edges. But the law continued to take a frequent backseat to ideology or partisanship in many instances. Gonzales vigorously defended the president’s secret wiretapping of U.S. citizens in the face of widespread doubts about its legality. Justice lawyers handling a giant racketeering suit against tobacco companies were ordered to scale back the government’s proposed penalty in the case. Lawyers in the civil rights division were blocked from bringing a challenge to Georgia’s voter ID law.

However controversial, the department’s stances on those issues at least had plausible and ascertainable defenses. But six months after the event, the public record has yet to disclose a coherent explanation, much less a convincing defense, of the reasons for the firings last year of eight federal prosecutors Bush had once picked, an unprecedented move in the middle of a presidential term.

Lucky in Hires

Congressional Democrats have established that the administration began hatching its plan while Gonzales was still awaiting Senate confirmation — and preparing to invite a cadre of his White House counsel aides to join him at Justice. At the time, his chief of staff, Kyle Sampson, who was to become a central figure in the prosecutor purge, dismissed the notion that Gonzales would arrange for a White House mafia to run Justice. “I like to think he just did a dang good job of hiring us all in the first place,” Sampson told The Washington Post in July 2005. Hardly anyone holds that thought today.

In his appearances on Capitol Hill, before the House Judiciary Committee last week and the Senate Judiciary panel last month, Gonzales has insisted that he understands the line between law and politics. But he’s gained almost no congressional support. And the evidence grows that some of the prosecutors made it to the hit list either by pushing corruption cases against Republicans too hard or failing to do the White House’s bidding on dubious voter fraud cases.

Other indications of the department’s deep politicization have also surfaced. Sen. Sheldon Whitehouse, who was the U.S. attorney for Rhode Island in the Clinton administration, has produced figures to show that, in contrast to the tight restrictions under previous administrations, more than 400 people in the Bush White House were authorized to contact Justice officials about pending criminal investigations or cases. The attorney general delegated hiring power for dozens of political appointees to two aides, Sampson and Monica Goodling, with no significant legal experience, according to a memorandum first reported by National Journal. And Justice has disclosed that Goodling, its former White House liaison, is under investigation for possibly taking partisan affiliation into account in hiring career federal prosecutors, which is explicitly barred by law.

The pervasive politicization at Justice is bringing forth some drastic proposals. Arnold Burns, a deputy attorney general in the Reagan administration, wrote a New York Times op-ed proposing that the attorney general be taken out of the Cabinet and hold the job for a fixed 15-year tenure. On the same page, Frank Bowman, a law professor and former federal prosecutor with no political ax to grind, urged Congress to consider impeaching Gonzales.

That is unlikely to happen; the Democrats have made clear they have no stomach to impeach anybody. So Gonzales is likely to stay on serving at the president’s apparent pleasure — if hardly anyone else’s.

Kenneth Jost is the Supreme Court editor for CQ Press.

Source: CQ Weekly
The definitive source for news about Congress.
© 2007 Congressional Quarterly Inc. All Rights Reserved.