Some of the lawyers who left the U.S. Department of Justice’s Civil Rights Division during George W. Bush’s presidency and complained they were the target of ideological warfare have returned during the past two years as part of a wave of hiring.
The hiring decisions signal not only that the department’s leadership is trying to restock its ranks, but that it’s trying to do so with lawyers who have worked for traditional civil rights organizations, like the American Civil Liberties Union or the NAACP Legal Defense and Educational Fund.
At least 14 lawyers have come back to the division since the January 2009 presidential transition, according to records and résumés reviewed by The National Law Journal. They’ve rejoined some of the sections, including those dealing with voting rights and employment discrimination, that were the subject of an internal DOJ probe in 2008. The investigation concluded that political appointees had improperly used political considerations in hiring people for career jobs and assigning work. One appointee compared career lawyers to “mold spores.”
In between their civil rights work, the 14 lawyers pursued an array of jobs, including with the North Carolina-based Southern Coalition for Social Justice and the corporate employment practice of Kirkland & Ellis. Some took positions elsewhere in the Justice Department.
The National Law Journal requested information in November about DOJ’s civil rights hires since President Barack Obama took office. The Justice Department provided a response this month under the Freedom of Information Act. Though the department redacted much information about professional memberships, the résumés detail the employment history of new hires.
The résumés open a window onto the wider group of lawyers who have moved into the division. The shift in control of the White House has meant few if any jobs for members of the conservative Federalist Society, who according to the 2008 DOJ probe enjoyed extra consideration. And it’s meant lawyers with experience working for traditional civil rights organizations are being welcomed.
For example, of 19 lawyers hired into the voting section through November, 13 had experience working for a civil rights group such as the ACLU or the NAACP Legal Defense and Educational Fund. Their positions with those groups ranged from intern to senior counsel.
Joseph Rich, who served as chief of the voting section until 2005, when he resigned, praised the experience of those who have gone back. He said their return backs up the allegations that they were improperly forced out. “The reason they left is because of the way the division was being managed, and the people who were managing it made life miserable,” said Rich, who now runs the Fair Housing Project at the Lawyers’ Committee for Civil Rights Under Law.
Some of those who returned are in senior posts. Aaron Schuham, a deputy chief of the employment litigation section, rejoined the Civil Rights Division in November after serving as legislative director for Americans United for Separation of Church and State. He was a senior trial attorney in the division when he left in 2002.
Republicans who drove changes in the division during the Bush administration aren’t cheering the lawyers’ return. “They were willing to shade their analysis to try to achieve the outcome they wanted in a case, even if that meant they inaccurately cited court decisions,” said Hans von Spakovsky, who was counsel to the division’s head and is now at the conservative Heritage Foundation.
The Justice Department declined to make the returnees or other career civil rights lawyers available for interviews. Assistant Attorney General Thomas Perez, who is Obama’s appointee to head the Civil Rights Division, declined interview requests through a spokeswoman.
A July 2008 report from DOJ’s inspector general and Office of Professional Responsibility made clear how unwelcome those in the Civil Rights Division could be if they came from certain backgrounds. The report focused on Bradley Schlozman, a former Howrey litigation associate in Washington who joined the division as a political appointee and rose to be acting assistant attorney general.
Schlozman was skeptical of those who had worked at groups such as the ACLU or the Lawyers’ Committee. In an e-mail on May 27, 2005, according to the report, the division’s chief employment lawyer asked Schlozman if he was aware that a new attorney had worked for the Lawyers’ Committee. Schlozman responded that he “kn[e]w all about him. He will be okay. (He worked as intern in W[hite] H[ouse] Counsel’s Office.) But he was forced on us anyway and got the nod over my objection. Still, I expect you to monitor him very, very carefully.”
The report concluded that, during Schlozman’s tenure, 64% of the hires he would have been involved in vetting had ties to conservative or Republican groups, compared with 31% of the hires he had not been involved in vetting during the same time period. Schlozman resigned amid congressional pressure and is now of counsel to the Hinkle Law Firm in Wichita, Kan. He declined to comment for this story.
Records since Jan. 20, 2009, show that hiring has swung back to patterns typical of Democratic administrations. Of the 118 résumés for section lawyers provided to The National Law Journal, at least 60 worked for a traditional civil rights organization. Twenty-four worked for the ACLU or a local chapter, 15 worked for the Lawyers’ Committee or one of its local chapters, 10 worked for the NAACP or the NAACP Legal Defense and Educational Fund and three worked for the Mexican American Legal Defense and Educational Fund (MALDEF). Some worked for more than one, especially if their experience came during internships.
“They are doing the right thing: hiring people with experience, and who are committed to enforcing the Voting Rights Act,” said Laughlin McDonald, the director of the ACLU Voting Rights Project. Two lawyers, Meredith Bell-Platts and Bryan Sells, who worked for McDonald in Atlanta and litigated voting cases there, left to join DOJ’s voting section in November. (The section is one of 11 within the Civil Rights Division, along with sections for employment, housing and other subjects.)
Robert Driscoll, who was a deputy assistant attorney general from 2001 to 2003, said the numbers make him wonder whether Obama appointees are considering ideology when hiring. “If the numbers indicate that you’re getting candidates from only one type of ideological background, it raises the inference that you’re taking ideology into account when you’re hiring,” said Driscoll, a partner in Alston & Bird’s Washington office.
The division has switched back to a process for hiring nonentry-level lawyers that dates to the 1980s, one that creates a buffer between applicants and political appointees. A committee of at least three section lawyers conducts interviews, in contrast to the Bush-era practice of some political appointees doing so, and the career section chief makes a recommendation. Perez, like his predecessors, has the final say on hiring decisions. Supporters say the change empowers people on DOJ’s front lines, while conservative critics say the outcome is still preordained.
The overall pattern among hires is clearest in the voting section, one of the areas Schlozman was most interested in and a highly charged office because of its potential influence on voting maps and elections. Bell-Platts, one of the two recent hires from the ACLU Voting Rights Project, is a deputy chief of the voting section. Two lawyers, Bradley Heard and Elizabeth Westfall, joined the section from the Advancement Project, a civil rights and voting nonprofit in Washington.
Others worked for the ACLU, MALDEF, the NAACP or Equality Florida, a gay-rights group — making 13 of 19 with experience working for civil rights groups. Of the other six: One had two internships for union-backed organizations; one volunteered for the Obama campaign in 2008; one worked on civil rights in the U.S. Department of Education; and two are returnees to the voting section. The 19th, who had no experience in civil rights, was hired during the Bush administration but didn’t start until after the presidential transition, according to J. Christian Adams, whom Schlozman hired and who now writes for the conservative outlet Pajamas Media.
Von Spakovsky, who clashed with career lawyers when he was at the department, said Perez’s staff could be looking elsewhere, such as state-level election offices. “There are plenty of lawyers who have experience in voting laws and voting cases who don’t work for or who haven’t worked for the ACLU and the NAACP,” von Spakovsky said. He also said he worried about coordination between DOJ trial attorneys and their former employers in cases where their interests don’t necessarily align.
Rich, the former voting chief, said the new section lawyers will help the enforcement of voting laws as Congress intended, and that their hiring is as natural as the Internal Revenue Service hiring tax lawyers. “Anybody that has experience in public-interest law, whatever kind, is valuable for civil rights enforcement. It’s a public interest kind of job,” he said. “Most importantly, I think it’s important to have people who have done the work, who have experience doing the work, have familiarity in the legal issues.”
David Ingram can be contacted at email@example.com.