DOJ's War on Competence

Larry Schwartztol Bio

DOJ's War on Competence

With the plot to unload disfavored U.S. Attorneys largely exposed, Alberto Gonzales' grip on his job seems increasingly tenuous. But a parallel story of troubled governance at the Justice Department illustrates even deeper institutional damage: Gonzales and his predecessor, John Ashcroft, have populated key components of DOJ with partisan operatives, many of whom lack substantive qualification for their jobs.

And unlike the president's political appointees, who will presumably depart when the administration ends, this cadre of bureaucrats will remain embedded in the government--and shielded by civil service protections against new bosses who want to oust them.

The emerging story centers on the Department's Civil Rights Division, which enforces the nation's anti-discrimination laws. Several veterans of the Division have spoken out recently, describing imperious political appointees who obstruct prosecution of civil rights cases and re-route the Division's staff to other types of work. According to a working paper by Joseph Rich, who spent almost 37 years in the Division's voting rights section, this internal sabotage has "resulted in an alarming exodus of career attorneys--the longtime backbone of the Division that had historically maintained the institutional knowledge of how to enforce our civil rights laws." Numerous reports have suggested that those chased out are being replaced by political loyalists who mostly lack civil rights experience: according to an investigation by the Boston Globe, only 42 percent of the lawyers hired between 2003 and 2006 had civil rights backgrounds, whereas 77 percent of those hired in the preceding two years had such backgrounds.

It's not just that the administration exiles career attorneys by making their work unpalatable. Since at least 2002, Justice Department higher-ups have meddled with the processes for hiring new lawyers and evaluating current employees. William Yeomans, who served in the Division for 24 years, has written that Ashcroft transformed the Division's participation in DOJ's prestigious "honors program." Previously, a committee of career lawyers searched for young attorneys with sterling credentials and demonstrated commitment to civil rights; now, political functionaries select ideological compatriots and disregard standard markers of merit. And Rich, in rather shocking testimony before Congress last month, recounts being "ordered to change standard performance evaluations of attorneys under my supervision to include critical comments of those who had made recommendations that were counter to the political will of the front office, and to improve evaluations of those who were politically favored." Similar assaults on competence have been reported in other segments of the Justice Department, and throughout the government. Last year, an article in the Nation reviewed trends at the Federal Drug Administration, Environmental Protection Agency, and Interior Department, as well as Justice, and found that ideological aggressiveness was driving out experienced and committed professionals, resulting in "rudderless, demoralized agencies bleeding institutional memory."

Efforts to quietly colonize the Executive Branch's professional corps are less visible, but arguably more pernicious, than the mischief surrounding the mass firing of U.S. Attorneys. When an appointing president's term ends, his slate of U.S. Attorneys can be replaced wholesale. But federal civil service protections--which exist to insulate bureaucrats from politics and cronyism--prevent subsequent administrations from revamping the career staff. Recruiting lawyers broadly sympathetic to the administration's views is certainly legitimate. But draining the Department of seasoned, committed experts and replacing them with inexperienced loyalists has the potential to undermine the Department's work, even after the administration ends. Even if a new administration realigns the Department's priorities, an entrenched career staff may obstruct those efforts through a combination of intransigence and incompetence. In other words, the Bush administration may succeed in permanently de-activating laws it disagrees with by smashing the machinery for enforcing them.

If Gonzales resigns, it won't be because of his complicity in shredding the Department's merit system. But it may give Congress an opportunity to limit the damage by making the issue central to its examination of the president's next nominee. Any confirmation hearings should focus sharply on preventing civil rights law from being undermined by officials who quietly disable unloved divisions. If asked to confirm a new Attorney General, senators should insist on a commitment to reinstate merit-based hiring by non-political officials and insulate performance evaluations from political meddling. And any nominee should be asked how she plans to reinvigorate sections that have atrophied, preserve substantive expertise, and ensure that the DOJ actively engages in efforts to end discrimination and protect equal justice.

Restoring the professional corps at DOJ is about much more than sound personnel policy. The Department has historically played an indispensable role in instituting civil rights guarantees across the country. This administration, like any other, may implement its vision of civil rights policy. But it should not be able to dismantle the equipment that has been built over decades to competently enforce the law.