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Report: DoJ Wrong to Bless Admin Civil Rights Panel Stacking Scheme
Back in November, The Boston Globe's Charlie Savage reported on how the Bush administration had stacked the U.S. Civil Rights Commission with Republicans -- two GOP commissioners had switched their registration to independents after being appointed, clearing the way for the administration to appoint two more Republicans. The scheme was entirely legal, the administration said, and the Justice Department, in a memo from the Office of Legal Counsel, had said so. But now a report by the nonpartisan Congressional Research Service has found the OLC memo "problematic" and says that if someone were to challenge the arrangement in court, the administration would probably lose.
You can read the report, which was prepared at the request of counsels on the Senate Judiciary Committee staff, here.
The commission was created by the Civil Rights Act of 1957 and is supposed to serve as a watchdog for discrimination. But there hasn't been much of that during this administration. Savage reported that the coup shifted "the commission's emphasis from investigating claims of civil rights violations to questioning programs designed to offset the historic effects of discrimination."
Here's how the scheme works. The commission has eight members. By law, no more than four of them can be from any one party -- usually meaning that there are four Dems and four GOPers. But since two of the commissioners changed their party affiliation to independents after they were appointed, the commission now has only two Dems, two "independents," and four Republicans.
The whole thing unfolded in December of 2004. After two of the Republican commissioners re-registered as independents, Daniel Levin, then head of the Office of Legal Counsel, signed a memo finding that what really mattered for the political balance of the commission was "the party affiliation of the other members at the time the new member is appointed." So it was a-ok if the president tapped two more Republicans, even if they were joining four others who were Republicans at the time they were appointed. That was ancient history. Right after the memo was issued, Bush appointed the two Republicans, creating a 6-2 GOP balance.
The CRS report, prepared by a legal specialist, finds that the OLC memo ignored a whole lot to get that conclusion. Perhaps most importantly, the report points out that the law governing the commission had been changed in 1983 when President Ronald Reagan tried to stack the commission with his own appointees. The law was specifically tailored to prevent such scheming. But Bush found a way anyway. And so the report concludes: "it is likely that a reviewing court would find the OLC opinion unpersuasive and the recent appointments violative of the political balance requirements of the statute."
Update: We've add the original OLC memo to our document collection.
Josh
Zachary
So..any money on nothing happening? The excuses of 2008 will no longer be crying and belly aching but saying "he will be out soon"..nothing will happen. Pathetic!
January 8, 2008 3:17 PM | Reply | Permalink
John Edwards is right - there is no negotiating with these people - getting them out and/or in jail is the only way to go. You can't trust a word they say, and if there is a way to cheat, they will ferret it out. They have no honor, no conscience, they are all sociopaths.
How can anyone who is NOT a sociopath still be a Republican?
January 8, 2008 3:19 PM | Reply | Permalink
As with the EPA decision against California, we have a legal maneuver that even the government's lawyers are now pretty sure will lose in court. But does anyone in the executive care? By the time any such court case made it to completion they'll all be out of office or nearly out of office anyway.
I am beginning to suspect the present white house governing philosophy can be entirely summarized in one word: STALL.
January 8, 2008 3:21 PM | Reply | Permalink
Thanks for bringing this up - just another example of corrupt republicans bending and breaking the rules of our democracy. The arrogance and lack of repect for democratic government is shown again here - along with the manipulation of the justice department, the justifications for torture, the ingoring of scientific evidence in the EPA and on and on....this administration is crooked to the core and has no regard for the constitution or the rule of law. They like to invent their own rules...it is called the John Yoo rule..
January 8, 2008 3:38 PM | Reply | Permalink
Wow. Just, wow.
January 8, 2008 3:43 PM | Reply | Permalink
Powkat: "How can anyone who is NOT a sociopath still be a Republican?"
I was about to say that my Repuke inlaws aren't technically sociopaths, but, um, er, uh... (hoping my wife isn't reading this thread ;-)
Seriously, my mother-in-law is a one-issue anti-choice voter. She claims that because she had a miscarriage before delivering my wife and sister-in-law, she has the right to say on behalf of ALL women that abortion is wrong in all cases, no matter what, the end. That's just one of the sparkling holiday conversations I've had with them over the years.
January 8, 2008 3:45 PM | Reply | Permalink
BTW, I realize my comments were off-topic, but my mother-in-law's way of thinking closely matches that of other goopers I've dealt with. Their logic does not resemble our Earth logic.
January 8, 2008 3:46 PM | Reply | Permalink
Powkat writes:
"How can anyone who is NOT a sociopath still be a Republican?"
Evidently, we live in a society teeming with sociopaths. They wreak havoc because of the tolerance and good nature of the rest. That dichotomy will always exist. Deal with it.
January 8, 2008 3:59 PM | Reply | Permalink
It's already been established that the current administration is a lying, cheating, dirty sack of turds. But why is no one stopping them? How is Bush continuing to get away with illegal conduct week after week?
Can we still call ourselves a democracy with all of the injustice at the highest levels of government?
January 8, 2008 4:28 PM | Reply | Permalink
But see here is a great example of getting bit in the ass by your own dog. When the presumed democratic president comes to office and puts "independents" and democrats that are rabid and vengeful on that commission, whats a poor GOP racist to do?
When the newly reconstructed EPA keeps GOP criminal mine owners in court for eight years, then in prison for more, does the GOP have a right to complain?
I could go on and on... If you think the GOPs' weak attempt at "can't we all get along?" is anything more than an attempt to diffuse the retribution thats just over the horizon, I have some toxic landfill sites I can give you a great deal on.
January 8, 2008 4:58 PM | Reply | Permalink
Hold on a second. The statute says that "not more than 4 of the members [of the Commission] shall AT ANY ONE TIME be of the same political party." Doesn't this make it pretty easy to see that OLC was right? We may not like it, but that's the way Congress wrote it. Don't we want the Executive Branch to follow the law? Or are we unprincipled enough that we'll take the "right" answer no matter what the law says? Maybe we just settle for calling the current Administration a "lying, cheating, dirty sack of turds" but if that's all we're doing let's not pretend we think one report or another is better.
January 8, 2008 5:01 PM | Reply | Permalink
It seems like a foolproof scheme to have someone change their registration to whatever it takes to get a job, but the real measure of a person's party is his/her last vote in a primary election. That is the only time we demonstrate publicly what our party preference is. The Bush criminal conspiracy was wrong, John Yoo was wron, and the "lawyers" advising the administration were wrong.
January 8, 2008 5:16 PM | Reply | Permalink
And the fact is, most Republicans go along with this sort of thing because they are absolutely sure they're right. They're so sure, they believe the ends justify the means.
Let's all remember that it's not just Republicans who are prone to this kind of thinking (though indeed, it seems that way these days). Even if our cause really IS right, the ends do not justify the means. It is something that Democrats would be wise to remember, especially after the 2008 elections (Obama is going to upend the political landscape, absolutely flattening the Republicans and dragging other Democratic officeholders along on his coattails).
January 8, 2008 5:36 PM | Reply | Permalink
To 5:01. It is rarely as simple as reading "the statute". The Senate Judiciary Committee memo reads the statute and also validly take into account the act as a whole, the history of amendments, testimony by legislatures, and court rulings relevant to the question. The OLC memo ignores these. In my opinion, the SJC memo more accurately predicts how a federal court would rule on the question.
Quite often, just reading one statute, as the OLC memo does, can be misleading. Maybe the SJC memo is wrong, but its legal research is far superior.
January 8, 2008 6:53 PM | Reply | Permalink
Everything is A-OK for the USSA apparatchick. IOKIYAR.
January 8, 2008 8:47 PM | Reply | Permalink
I wonder what it's like to be so ethically corrupt that you can pass off a memo like Daniel Levin's as being a proper legal analysis of the situation?
I am intrigued by the footnote on page 1: "We do not address what the appropriate remedy would be should a change in affiliation result in more than four members from the same political party." The memo looks at the Admin's question about "the proper interpretation of the statutory provision" for no more than four members of the same party at the same time. The Admin's excruciatingly narrow question about if WHEN the party affiliation exists affects the statute begs for Levin's interpretation. I guess more than two pages of analysis would open it up to easier deconstruction.
But Levin's footnote feels like a CYA for him, if and when the memo's validity gets questioned. The ass he's covering is his own.
I guess that's another aspect of being ethically corrupt: Even when you're willingly doing your boss's dirty work, you make sure that when (and it will inevitably be when) he falls, you can claim you were just doing your job.
January 8, 2008 9:36 PM | Reply | Permalink
vee were youst folowing orders.. bs then..bs now!
January 9, 2008 2:01 AM | Reply | Permalink
Imagine if Clinton did this. Newt's panties would've been bunched so tight he couldn't breathe.
January 9, 2008 11:38 AM | Reply | Permalink