Hans A. von Spakovsky

Perez now wants to modify this longstanding structure by creating a new “Policy and Strategy Section” that would be comprised exclusively of “career” attorneys. This section would not have any enforcement responsibilities, but would be entrusted with formulating all of the Division’s key “policy” decisions on how to enforce civil rights laws and what the priorities of the Division should be on such hot-button issues as “racial profiling, immigration reform, and domestic compliance with international human rights obligations.”

This proposal is little more than a Trojan horse designed to frustrate future Republican administrations. Policy decisions in the Executive Branch – particularly on the highly divisive political and social issues within the Civil Rights Division’s jurisdiction – rightly belong to an administration’s political appointees. It is those appointees, not career civil servants, whom a president installs to carry out his agenda and who are ultimately accountable to the public. Delegating policy development decisions to the career staff will not make the decisions apolitical; it will simply empower such staff to impede, delay and undermine any policy with which they disagree, something that is already a problem in the federal government, particularly in the Justice Department.

Now Perez may be an unabashed, out-of-the mainstream liberal, but he is no fool. He acutely recognizes that nearly all of the career lawyers in the Division are far left-of-center and in harmony with the Obama/Holder political platform. (Indeed, Perez and his senior advisors have been working overtime to replenish the Division’s supply of sympathetic comrades in the career ranks for the last eight months.) The only real effect of establishing a Policy Section during this Democratic administration, therefore, would be to allow the most militant attorneys in the Division to shed their (entirely sheer) veil of nonpartisanship and openly pursue a radical political agenda. Instead of having to go through the Division’s main switchboard, liberal advocacy organizations could put the Policy Section on their speed dial and thereby have an eager army of ideological apparatchiks to carry out their bidding.

But when a Republican next comes to the White House – and at the rate this country’s going, it could be sooner rather than later – the impact of the proposed Policy Section in the Civil Rights Division would be much more menacing. Any and every effort by the Republican political leadership to pursue a conservative agenda would be met with extraordinary resistance. To the extent there are even any conservatives naïve enough to take a political post in the Division during the next Republican Administration, they better not dare oppose unconstitutional racial preferences, embrace a plain meaning interpretation of the Voting Rights Act in sync with Supreme Court precedent, exercise restraint in pursuing legally dubious disparate impact lawsuits, or enforce voter anti-intimidation laws in the face of violent threats of brutality by paramilitary black nationalists. And if you thought the career attorneys leaked like a sieve during the Bush Administration, the gushing of confidential documents and information emanating from hostile lawyers in a newly created “Policy” Section would make the BP Gulf oil spill seem like a drippy faucet in comparison.

Perez’s transparent effort to permanently institutionalize the Division’s leftward tilt on policy matters was made even more obvious by his decision to appoint Karen Stevens as the Policy Section’s initial chief. Stevens was a Civil Rights Division political appointee during the Clinton administration. As Clinton’s term ended, Stevens burrowed into the career ranks, where she assumed a slot in the Division’s appellate section. After Bush came to power, Stevens opted for a part-time schedule and did the minimum work to pass annual performance evaluations. When Bush political appointees finally tired of her lackadaisical approach and elected to fill her coveted position with a superstar appellate lawyer, she played the political victim card and absurdly insisted that she was a poor career civil servant who had been discriminated against because she was a Democrat. Then – surprise, surprise – on the very first day of the Obama administration, she was promoted to a Division front office position normally reserved for political appointees.

Having seen Stevens in action, I can assure you that having her serve as the Policy Section chief during a Republican administration would be akin to allowing Howard Dean to sit in on every meeting of the Bush White House Domestic Policy Council. But the basic problem is not with Stevens or any other one person. The real dilemma is that, as a result of the politically motivated and mostly ridiculous investigations by the Inspector General of supposedly improper politicized practices hiring at Justice during the Bush administration, Republicans will be largely prevented from hiring and installing individuals into the Policy shop who will carry out the new administration’s agenda. (Unfortunately, as I have written about at length, this is a double-standard because Democrats have no compunction about dispatching section chiefs and other career lawyers who are deemed insufficiently liberal and/or loyal.)

The bottom line is that the damage Perez and his minions are doing to the Civil Rights Division will be nearly impossible to reverse if this new Policy Section comes into fruition. Congress, though, has the power to block it. Rep. Frank Wolf has already expressed his concern over this pernicious plan. Will other lawmakers let it die the slow death that it richly deserves?


Hans A. von Spakovsky

Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation and a former commissioner on the Federal Election Commission.