LAW AND POLITICS

Brian Landsberg blandsberg at pacific.edu
Sat Dec 10 14:33:45 PST 2005


Section Five of the Voting Rights Act requires the entity seeking
preclearance to show that the proposed change does not have the purpose
and would not have the effect of discriminating based on race.  I am at
a loss to picture a staff memorandum that reviews the evidence without
reaching some sort of conclusion, either explicitly or implicitly.  When
I worked at Justice, from the Johnson administration through much of the
Reagan administration, the career and political staff managed to work
together.  Of course, we sometimes differed, but, with few exceptions,
each recognized and respected the legitimate areas of competence of the
other.  I have written about the end runs that political staff sometimes
employed during the Reagan administration, but never did they strip
career staff of their basic functions.  The news articles of the past
two days make it appear that the Gonzalez Justice Department has
deprived itself of an essential law enforcement tool in the preclearance
arena: reasoned explanations of the law and the facts relating to
preclearance requests.

>>> "Matthew J. Franck" <mfranck at radford.edu> 12/10/2005 12:11:23 PM
>>>
I will gladly march arm-in-arm with Sandy in defense of the 
proposition that there is "a serious distinction between law and 
politics."  But here is the lead sentence of the story that sent him 
into medium dudgeon:

"The Justice Department has barred staff attorneys from offering 
recommendations in major Voting Rights Act cases, marking a 
significant change in the procedures meant to insulate such decisions 
from politics . . ."

Surely it is naive to suppose that those procedures have actually 
succeeded in insulating staffers' VRA case recommendations from 
politics.  Even the Post, devoted to ginning up an air of scandal 
here, manages to report that "John K. Tanner, the voting section 
chief, who is a career employee," was responsible for reining in his 
fellow careerists in the section, and that he "criticized the quality 
of work done by staff members analyzing voting rights cases."

At the end of the story we see that AG Gonzales says "that politics 
play no role in civil rights decisions" at DOJ.  I see no reason to 
give less credence to the statements of Mr. Gonzales than to those of 
the disgruntled careerists who've had their leashes jerked.

Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu 
www.radford.edu/~mfranck 
***************************

At 02:29 PM 12/10/2005, Sanford Levinson wrote:
>I'm not sure I'm in "high dudgeon."  My question was really quite 
>serious:  i.e., does anyone any longer believe in a serious 
>distinction between law and politics?  I think elections are 
>important, also, and there is much to be said for letting winners do 
>whatever they want (there's also much to said against it, depending 
>on the meaning of "whatever").  I also have no doubt that members of 
>the civil service have their own political agendas.  But I haven't 
>gotten the impression in the past that Matt is a devotee of critical 
>legal studies or high post-modernism who reduces all proclamations 
>of "law" or "expertise" to assertions of political preference.  Have 
>I misread past postings?
>
>sandy
>
>
>----------
>From: owner-lawcourts-l at usc.edu [mailto:owner-lawcourts-l at usc.edu] 
>On Behalf Of Matthew J. Franck
>Sent: Saturday, December 10, 2005 11:17 AM
>To: conlawprof at lists.ucla.edu; LawCourts-L at usc.edu 
>Subject: RE: LAW AND POLITICS
>
>I really do not understand Sandy's high dudgeon.  He writes:
>
>"So what is our reaction to the Post story, the beginning of which 
>is found below?  Can there be any doubt that the current 
>administration has absolute contempt for anyone who does not share 
>their political agenda?"
>
>I don't know what "our" reaction is, but mine is that this is a very 
>good-news story about the importance of elections, and the recovery 
>of democracy from the clutches of civil-service-protected legal 
>bureaucrats, who have so succeeded in recent decades that they have 
>apparently persuaded a man as intelligent as Sandy Levinson that 
>they haven't any "political agenda" of their own.
>
>Matt
>***************************
>Matthew J. Franck
>Professor and Chairman
>Department of Political Science
>Radford University
>P.O. Box 6945
>Radford, VA 24142-6945
>phone 540-831-5854
>fax 540-831-6075
>e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu 
>www.radford.edu/~mfranck 
>***************************
>At 10:36 AM 12/10/2005, Sanford Levinson wrote:
>>Content-class: urn:content-classes:message
>>Content-Type: multipart/alternative;
>>         boundary="----_=_NextPart_001_01C5FD9E.FD7FDD19"
>>
>>  From today's Washington Post:  full article 
>>
<http://www.washingtonpost.com/wp-dyn/content/article/2005/12/09/AR2005120901894.html?referrer=email&referrer=email>http://www.washingtonpost.com/wp-dyn/content/article/2005/12/09/AR2005120901894.html?referrer=email&referrer=email

>>
>>
>>Surely it is time to divest ourselves of the Holmesian view that 
>>law is only a prediction of what courts will do.  What goes on in 
>>the executive branch (including, e.g., the OLC) is surely as 
>>important as litigation, probably moreso with regard to the actual 
>>fate of people.  So what is our reaction to the Post story, the 
>>beginning of which is found below?  Can there be any doubt that the 
>>current administration has absolute contempt for anyone who does 
>>not share their political agenda?  But what is to be said of this 
>>analytically?  Is this simply the ultimate triumph of legal realism 
>>and its denial that there is any difference at all between law and 
>>politics (a position that I have certainly taken on occasion)?  I 
>>presume that the Administration would simply like to fire everyone 
>>in Justice and replace them with dependable graduates of "safe" law 
>>schools recommended by "dependable" faculty, but, for better or 
>>worse, that is illegal, given the Pendleton Act of 1886.  So the 
>>next best thing is to pretend that the civil service doesn't exist 
>>and to express contempt for them at every opportunity.  See also 
>>the freezing out of everyone except the dependable Jay Bybee, John 
>>Yoo, and their immediate associates from the preparation of the 
>>Feb. 1, 2002 memoradnum on torture.
>>
>>Again, the meta-question is whether this is just another "partisan 
>>rant" or, rather, a genuine inquiry about what it possibly means to 
>>take law (and ultimately the Constitution) seriously in a
post-realist world?
>>
>>sandy
>>
>>
>>
>>Staff Opinions Banned In Voting Rights Cases
>>
>>
>>
>>
>>
>>
>>
>>
>>Criticism of Justice Dept.'s Rights Division Grows
>>
>>
>>
>>
>>
>>By Dan Eggen
>>Washington Post Staff Writer
>>Saturday, December 10, 2005; Page A03
>>
>>The Justice Department has barred staff attorneys from offering 
>>recommendations in major Voting Rights Act cases, marking a 
>>significant change in the procedures meant to insulate such 
>>decisions from politics, congressional aides and current and former 
>>employees familiar with the issue said.
>>
>>Disclosure of the change comes amid growing public criticism of 
>>Justice Department decisions to approve Republican-engineered plans 
>>in Texas and Georgia that were found to hurt minority voters by 
>>career staff attorneys who analyzed the plans. Political appointees 
>>overruled staff findings in both cases.
>>_______________________________________________
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>
>   


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