Politicizing the Law

COMMENTARY Political Process

Politicizing the Law

Jan 12, 2010 10 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

Eric Holder’s Justice Department has exiled Christopher Coates to South Carolina.

Coates, you may recall, is a career attorney at Justice, the chief of the Civil rights Division’s (CRD) Voting Section. More to the point, Coates recommended that the CRD file a lawsuit for voter intimidation against the New Black Panther party and several of its members, who were in paramilitary uniforms (one of them waving a nightstick) threatening elderly white voters at a polling station in Philadelphia during last year’s elections.

Political appointees at the Justice Department overrode Coates’s recommendation. They ordered him to dismiss the lawsuit against all but one of the defendants, even though they were in default because they did not defend themselves. The eventual injunction against the defendant with the weapon was laughably weak.

The U.S. Commission on Civil rights has opened an investigation of the unexplained dismissal. It has subpoenaed Coates, but Justice has ordered Coates not to appear before the panel. Indeed, the partisan Democrats running the Civil rights Division have barred Coates and another career lawyer, Christian Adams, from providing any assistance to the commission or the Republican congressmen investigating the matter. What are they so afraid will be revealed?

The decision to reassign Coates more than 450 miles outside the Capitol Beltway (and possibly out of range of that subpoena) was made by Assistant Attorney General Thomas Perez, an Obama political appointee. It’s virtually inconceivable that the move was made without consultation and approval from the highest offices of the Justice Department.

Washington today is infested with advocacy groups run by radicals who view the law -- particularly federal civil-rights statutes like the Voting rights Act -- as a weapon to be used to further ideological goals, cement political control, and demonize political opponents. By contrast, fair-minded liberals and conservatives -- at least those with whom I worked in the Civil rights Division during the Bush administration -- saw their duty as one of enforcing the law in a neutral manner within the narrow and objective strictures of federal statutes and case law. They did not assume the federal government had a monopoly on civil-rights virtue. They insisted that career attorneys recognize the proper role of the judiciary in what they asked courts to do. They recognized the need for restraint in certain investigatory activity lest the threat of federal power produce results that the law would not command.

Despite this conscious, principled adherence to “blind justice” and the constitutional role of the judiciary, some in the Bush Department of Justice found themselves accused of “politicization” when they tried to hire lawyers who would respect and carry out these principles. The radical Left simply could not tolerate a system in which the liberal ideologues who already predominated the career ranks in the CRD were not replicated in all hiring decisions.

The recent personnel action against Coates exposes the injustice (and hypocrisy) of the Left’s demagoguery. For all intents and purposes, the transfer was a demotion. A demotion for doing the right thing.

I got to know Coates well while I worked as a career lawyer in the Civil rights Division. Given his liberal background and experience, you would think the ideologues now running the CRD would be happy with him.. For many years, Coates was a staff attorney for the ACLU’s Voting rights Project. There, he filed numerous lawsuits on behalf of minority voters across the South under the Voting rights Act in the 1970s and 1980s. The civil-rights establishment so admired his work that he received the Thurgood Marshall Decade Award from the Georgia NAACP in 1991 and the Environmental Justice Award from the Georgia Environmental Organization in 1994.

The Voting Section hired Coates as a career trial lawyer in 1996. Clinton DOJ officials promoted him before they left office. Perhaps unfortunately for Coates, the Bush administration also promoted him -- to chief of the Voting Section. That may have tainted him in the eyes of über-liberals.

Probably the most experienced trial attorney in the entire Civil rights Division, Coates has argued before the U.S. Supreme Court. At the Justice Department, he has brought numerous cases on behalf of Americans from every walk of life and every religious and ethnic background. In 2007, he earned the division’s second-highest award, the Walter Barnett Memorial Award for Excellence and Advocacy. He received numerous Special Achievement and Meritorious Performance Awards -- some during the Clinton administration.

Despite his unmatched experience and the accolades earned, January 5 was Coates’s last day as the chief of the Voting Section. An outsider who attended Coates’s going-away party the day before reports that a letter from the section’s historian read at the event said Coates deserved to be on a short list of the most well-known and well-respected civil-rights attorneys in the United States.

Members of the staff commented on how much they had learned about civil-rights laws under his guidance and expressed their appreciation for his tutelage, specifically mentioning his “fairness” and “impartiality.” Assistant Attorney General Perez called Coates a “remarkably seasoned litigator.” So why would Perez send a “remarkably seasoned litigator” and “an attorney’s attorney” (as another lawyer said at the farewell) to South Carolina?

I would trace it to his mistake of enforcing civil-rights laws even-handedly. In 2003, while I was still at the CRD, we received complaints that black officials in Noxubee County, Miss., were discriminating against white voters. Coates went down and investigated. He found blatant racial discrimination occurring in the polls. The discrimination was organized, led, and orchestrated by the black head of the local Democratic party’s executive committee, a two-time felon. A federal district court found “improper, and in some instances fraudulent conduct . . . for the purpose of diluting white voting strength.” The Fifth Circuit Court of Appeals, when it upheld the judgment against the defendants, found there was intentional discrimination against white voters in violation of Section 2 of the Voting rights Act.

Coates’s audacity, first in investigating this case and then in recommending that a lawsuit be filed, made him many enemies. Previously, he had spent his entire career filing lawsuits on behalf of minority voters who had suffered discrimination. But in Noxubee, the white voters being discriminated against were the minority, representing only about 30 percent of voters. Their race made no difference to Coates, but based on what I observed, it made a big difference to ultra-liberal lawyers inside and outside the Justice Department.

When Coates first went to Noxubee to investigate the complaints, a number of the Voting Section’s career lawyers expressed disgust that we would bother to protect white voters. Coates was astonished by the blatantly illegal behavior he saw going on in the polls, but many of his colleagues wanted to ignore it. Several career lawyers in the section flatly refused to work on the case.

I discovered that the chief of the Voting Section, Joe Rich, actually deleted from Coates’s initial memorandum to the Front Office the recommendation that an official investigation be opened. Rich’s blatant political activism dumbfounded Bush’s political appointees. Ironically, Rich later became one of the most prominent critics of the supposed “politicization” of the CRD during the Bush administration.

Despite the sneering from the CRD’s liberal majority, some career lawyers agreed to work the Noxubee case with Coates. They found themselves immediately consigned to “untouchable” status. One of them was Christian Adams, one of the Voting Section’s hardest-working attorneys. Adams had filed numerous cases on behalf of minority voters, and he earned a special award for his protection of black voters in Georgetown, S.C. Yet MainJustice (an amateurish, left-wing website that shills for Eric Holder and the Obama administration) has tried to paint him and Coates as right-wing ideologues.

Coates and Adams are, unlike so many of their colleagues, professionals who try to enforce the law, no matter what the political or ideological consequences may be.

That brings us to the real bone of contention, the final reason Coates has been transferred: the voter-intimidation case against the New Black Panther party. NBPP members were hurling racial epithets and threatening voters at a polling place in Philadelphia. It was among the most blatant cases of voter intimidation the CRD had seen in decades. Adams was one of three lawyers assigned to the case by Coates, no doubt because, unlike the other career lawyers in the Voting Section, Adams would not refuse to sue non-white perpetrators of voter intimidation. The other two lawyers on the New Black Panther party case were Robert Popper and Spencer Fisher, both highly dedicated voting-rights attorneys as well.

The evidence in the case was overwhelming. It included a video of the intimidation. Millions of Americans saw that video. It sparked a huge outcry for DOJ to enforce the federal prohibitions against voter intimidation.

The lawyers also interviewed numerous eyewitnesses and secured affidavits from some. Witness Bartle Bull, a former civil-rights lawyer, called it some of the worst intimidation he had ever seen, including when he was a volunteer in Mississippi in the 1960s. Coates and the three other attorneys (who have 75 years of combined experience among them) recommended a lawsuit. Assistant Attorney General Grace Becker approved, and the suit was filed just before the Obama administration took over.

The New Black Panthers responded by defaulting: They did not even bother to answer the lawsuit. That put the CRD in the unprecedented position of being able to easily obtain a judgment and an appropriate injunction against future NBPP campaigns of intimidation. But the CRD didn’t do that. Instead, the Washington Times reported, the new Democratic appointees ordered Coates to dismiss all but one small part of the case.

The NBPP case had ignited the same fury among the civil-rights establishment that Noxubee had sparked six years earlier. Liberal activist lawyers, including those in the CRD, were outraged that the Voting rights Act was being applied to black defendants.

One former Voting Section career lawyer who had left the Justice Department to go to work for the NAACP, Kristen Clarke, admitted to the Washington Times that she talked to the new political leadership after Obama was inaugurated, berating them for not dismissing the case. Sources at Justice tell me Clarke made an identical pitch to her former colleagues in the Voting Section once Obama and Eric Holder came to power.

The entreaties proved productive. According to the Washington Times, Loretta King, whom Obama named the acting assistant attorney general of the CRD, ordered Coates to dismiss the case against three of the defendants despite their default. King apparently received approval from Associate Attorney General Thomas Perrelli to do so. Who else Perrelli spoke with in the Justice Department and the White House is the subject of continued stonewalling in response to the subpoenas served on Justice by the U.S. Civil rights Commission

Meanwhile, the forced dismissal of the New Black Panther case turned out to be just the beginning of the misery heaped on Coates. According to multiple sources at Justice, King and the political appointees who came in soon after Obama’s inauguration -- particularly Julie Fernandez, an ideological firebrand and former lawyer for the Leadership Conference for Civil rights -- put severe restrictions on Coates almost as soon as they arrived and began micromanaging all of his work. The new political apparatchiks stripped Coates of virtually all discretionary authority, delegated responsibility for most decisions to more “results-oriented” underlings in the Voting Section, and rendered him a virtual figurehead.

No objective lawyer could support the politically motivated decisions that have come out of the section since Coates was marginalized. Case in point: the Section’s outrageous objection to allowing Kinston, N.C., to switch from partisan to nonpartisan elections. I strongly suspect such warped decisions were taken over Coates’s strong objections -- if he was allowed to comment at all.

When asked about Coates’s transfer to Charleston, a Justice spokesman said it was based on discussions initiated by Coates. Given his prior and likely future treatment by the CRD, that may well be true. It was clear that Obama’s political appointees would try to remove him as soon as they thought they could do so. (There is a 120-day “cooling off” period imposed on all new assistant attorneys general during which terminations are prohibited. The new assistant attorney general was not confirmed until Oct. 6, 2009). Frankly, the new Democratic political leadership had already achieved most of their aims by essentially putting Coates on ice as soon as they took possession.

Coates could see the writing on the wall. It would only make sense to try to get the best deal possible before they demoted him further or put him in an empty office. Apparently, he agreed to go quietly if they detailed him someplace where he could continue to do actual work.

Coates has refused to talk to reporters about the NBPP case or his transfer. But several sources at Justice and elsewhere have confirmed what happened in this case. The source of mine who attended Coates’s going away event told me it was clear from Coates’s speech to the assembled staff that the criticism had hurt him greatly. In his rather blunt remarks, Coates emphasized that as a DOJ attorney and enforcer of these laws, it was not his right to create unwritten exceptions or to ignore the plain language of the statute.

Like Coates, Adams and the entire New Black Panther party trial team are consummate professionals who seek to enforce the laws without political or ideological considerations. Unfortunately, such lawyers are a rarity within the Civil rights Division, which is without doubt one of the most insidiously partisan places I have ever worked, inside or outside of government.

Over the past year, all hiring within the CRD has been done on a purely partisan, ideological basis. Doubtless that will continue to happen over the next three years.

The new leadership has trumpeted the fact that hiring has been returned to “career attorneys.” But the unspoken and undeniable fact is that every single lawyer on the new hiring panel is a staunch, results-oriented ideologue. These ultra-Leftists will seek to replicate themselves, just as they did prior to the arrival of the Bush administration. They may couch their hiring standards in neutral terms, like “demonstrated commitment to civil rights,” but the upshot is that conservatives (or even fair-minded Democrats who believe in objective legal standards) need not apply. And the handful of fair and objective lawyers who remain will be encouraged (by all sorts of coercive means) to move on.

Meanwhile, the CRD can be expected to use its enforcement power to benefit Democrats and their political allies to the greatest extent possible. Its attorneys will push their ideological goals with the force of federal law.

I suspect that neither the mainstream media nor the DOJ inspector general will demonstrate any interest in addressing the blatant politicization pervading the CRD, other than to praise it as “reinvigorating.” And if Holder is correct that the CRD is the “conscience of the Justice Department,” God help us all.

-- Hans A. von Spakovsky is a senior legal fellow at the
Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department.

First Appeared in National Review Online