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Every Single One: The Politicized Hiring of Eric Holder’s Appellate Section

All seven new hires to the Justice Department's Appellate Section have far-left resumes — which were only released following a PJMedia lawsuit. (This is the eleventh of a series of articles about the Justice Department's hiring practices since President Obama took office. Read parts one, two, three, four, five, six, seven, eight, nine, and ten.)

by
Hans A. von Spakovsky

Bio

September 19, 2011 - 12:00 am

Today represents the eleventh installment of PJMedia’s expose into the heavily politicized hiring practices of the Civil Rights Division in the Obama Justice Department. The series has exposed the obvious liberal litmus test applied to the hiring of all new career attorneys since Eric Holder and liberal appointees such as Assistant Attorney General for Civil Rights Thomas Perez took the reins.

It has also revealed a stunning degree of hypocrisy (even by liberal standards) by Department leaders, especially Holder himself. The attorney general, after all, trashed the Bush administration and came into office promising that neither political affiliation nor ideology would play any role in hiring at the supposedly “reinvigorated” Civil Rights Division.

If these articles have shown nothing else, they have demonstrated the hollowness of Holder’s rhetoric. He and his colleagues owe a sincere apology to those who were wrongfully criticized during the prior administration.

It is disappointing, but not altogether surprising, that it took a federal Freedom of Information Act lawsuit to pry the resumes of the new career attorney hires out of the hands of the self-styled “most transparent administration in history.” Holder and his ilk knew full well that the resumes would prove politically embarrassing and would reveal the extent of the political shenanigans going on in the Civil Rights Division. They were right. The effort to fill every last corner of the Division with left-wing partisans, militant activists, and other committed liberals has been unprecedented.

In contrast to its Bush predecessors, who filled the career ranks of the Division with attorneys from across the political spectrum, the Obama political leadership has firmly slammed the door on conservatives, sanctioning ideological discrimination.

Today’s final segment focuses on the Appellate Section. This Section handles the appeals for all sections in the Civil Rights Division, and its work thus touches on every statute within the Division’s jurisdiction. It also files amicus curiae briefs in courts throughout the country, setting forth the Division’s position on various legal and policy matters. In essence, when it comes to articulating official policy, the Division often speaks through its Appellate Section.

The Section is headed by Obama contributor Diana Flynn, who went by the name David Flynn until commencing a sex change process. Flynn is assisted by two of the most fiercely partisan individuals in the Division — Mark Gross and Jessica Silver — which is quite a feat in that hotbed of craziness. The Section is perhaps second only to the Voting Section in terms of its concentration of liberal political activists. In fact, during the Bush administration, the political leadership was confronted on numerous occasions with career attorneys refusing to sign briefs because they disagreed with the positions being advanced by the administration on an ideological (not legal) basis. I’m certain there are no longer any such reservations with Eric Holder now at the wheel.

Seven new career attorneys have been hired into the Appellate Section during the Obama administration. Just as is the case with each of the other nine sections covered in this PJMedia series — the Voting Section, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, the Special Litigation Section, the Education Section, the Employment Litigation Section, the Coordination and Compliance and Section, the Housing and Civil Enforcement Section, the Disability Rights Section, and the Criminal Sectionevery single one of these Appellate Section lawyers easily passes the Civil Rights Division’s liberal litmus test. The resumes tell the story:

Thomas Chandler: Mr. Chandler joined the Section after an eight-year stint as the chief of the Disability Rights Office at the Federal Communications Commission, a barren wasteland in terms of conservatives or even apolitical individuals. This is his second tour of duty in the Section; he previously served for 12 years in the Section but, in a common theme among many of the Division’s career lawyers, opted to leave (along with the Democratic political appointees) as soon as the Bush administration came to power. On his resume, he proudly highlights the fact that he helped develop many of the Division’s most radical positions on Title VII (including its policies endorsing racial preferences in employment) during the Clinton administration.

Erin Flynn: Ms. Flynn was hired into the Section as part of Attorney General Holder’s Honors Program, and her militantly activist background must have made her one of Holder’s top candidates. As a law student at Penn, she was the project manager of the “Reproductive Rights Clinic, Judicial Bypass Project,” which “coordinates with the Philadelphia Public Defender’s Office to assist pregnant minors in accessing Pennsylvania’s judicial bypass system” to attain abortions without parental consent.

She also worked as a fellow at the Juvenile Law Center in Philadelphia, where she “explored the admissibility of mental health evidence” to help plead insanity defense in juvenile proceedings.” Before that, she was a paralegal at the Legal Aid Society of New York.

Her activities are conspicuously redacted from her resume; no doubt the Justice Department felt that disclosing them would prove even more politically embarrassing to both Ms. Flynn and the attorney general.

Appellate Section attorneys have considerable latitude in drafting the policy-laden amicus briefs that the Division files in courts across the country, and it’s no surprise that Ms. Flynn has been tasked with authoring the most controversial (and radical) briefs during this administration. For example, she took the lead in the Division joining the ACLU in arguing that school assignment plans that rely on racial demographics to promote “diversity” are perfectly okay and do not demand strict scrutiny. (This position, incidentally, flatly repudiated Supreme Court precedent.) She also authored the amicus brief contending that a school district is liable for damages under Title VI of the Civil Rights Act even after it took disciplinary action against students for racially harassing other students. And she penned the Division’s legally dubious brief insisting that the state of Arizona’s proof of citizenship requirements for voting violate federal law. In short, when it comes time to take positions that have little or no support in law, Ms. Flynn is the go-to person.

Roscoe Jones: Mr. Jones arrived in the Section at the outset of the Obama administration after spending the previous two-and-a-half years as a senior counsel to Senator Patrick Leahy on the Senate Judiciary Committee, where he worked extensively on oversight of the Civil Rights Division. Thus, he is another perfect example of how the Holder Justice Department is burrowing former political appointees into career civil service positions. (As I previously wrote, the Division pulled a similar trick with Karen Stevens, the new head of its Policy and Strategy Section.) Prior to his political slot in Sen. Leahy’s office, Mr. Jones was a fellow at the Public Justice Center in Baltimore, focusing on “impact civil rights litigation” on behalf of organizations and individuals purportedly “denied justice due to discrimination or economic status.”

He also found time to serve as a voting rights commentator for NPR, no doubt providing the kind of fair and balanced presentation for which NPR is so well known (although Juan Williams might disagree).

Earlier in his career, he interned in a political slot at the White House Chief of Staff’s Office under President Clinton. Meanwhile, during law school, he co-founded the Center for the Study of Race and Law, which helps foster a grievance society, and served as editor-in-chief of the Virginia Journal of Social Policy and the Law.

Jennifer Levin Eichhorn: Ms. Eichhorn is another liberal attorney on her second tour of duty in the Section. In her earlier stint, she made little effort to hide her contempt at the policy positions being advanced by the Bush administration. In fact, she decided that she could not stomach such positions and left to join the Justice Department’s Ethics Office. But as soon as President Obama and Eric Holder took office, she decided to return to the Division. On her resume, she proudly highlights her work on a radical task force during the Clinton administration — the “Fairness in Law Enforcement Working Group” — that developed DOJ’s extreme (and since abandoned) policy banning almost any use of race in law enforcement activity.

She also notes that she helped engineer the Clinton administration’s racially discriminatory policies that sought to circumvent the Supreme Court’s Adarand ruling (which limited the ability of the federal government to award contracts on the basis of race) through her participation in the “Post-Adarand Task Force” from 1995-1998.

Sharon McGowan: Prior to joining the Section, Ms. McGowan spent six years as a staff attorney at the ACLU, working on its Lesbian Gay Bisexual Transgender (LGBT) & AIDS Project. Her claim to fame there was that she brought a lawsuit against the Library of Congress on behalf of a Special Forces veteran who was denied a job after announcing his/her intention to transition from male to female. The case resulted in a dubious ruling by a hard-core liberal Clinton appointee (James Robertson, who mercifully has since retired from the bench) that Title VII’s prohibition on sex discrimination also protects individuals who are undergoing sex-change operations. Judge Robertson’s decision notwithstanding, I’m fairly confident that’s not what Congress had in mind when it passed the Civil Rights Act of 1964.

While working at the ACLU, Ms. McGowan co-authored “The Rights of Lesbians, Gay Men, Bisexuals and Transgender People: The Authoritative ACLU Guide.” She also was a contributing author to “Lesbian / Gay Law Notes,” which is published by the Lesbian & Gay Law Association of Greater New York. Earlier in her career, she interned for the National Center for Lesbian Rights. And she remains a frequent speaker on gender identity issues. Here’s a sample of her work.

Sasha Samberg-Champion: Mr. Samberg-Champion is another alumnus of the ACLU, having worked there during law school challenging alleged racial profiling by police, the legality of the federal no-fly-list, and the constitutionality of the Patriot Act. His resume also includes internships at the far left-wing Brennan Center for Justice and the Welfare Law Center in New York, where he worked on “impact litigation regarding entitlement policy.”

Just before joining the Section, he worked as a lawyer in the New York State Attorney General’s Office. There, he proudly notes on his resume, he authored a Supreme Court amicus brief in DC v. Hellerin which he opposed extending the Second Amendment to states. He also prepared a brief in New York state court, arguing that New York must recognize same-sex marriages validly performed in other states and countries. The extremely liberal Judge Robert Katzmann of the Second Circuit — for whom Mr. Samberg-Champion once clerked — would be most proud.

Last term in the Supreme Court, he authored a brief on behalf of the Civil Rights Division in Sossamon v. Texas arguing that states that accept any federal funding necessarily waive their sovereign immunity from suits for money damages, a position the Supreme Court rejected 6-3 (with even Ruth Bader Ginsburg joining the majority). Given his extreme viewpoints, here’s hoping his lack of prior success at the Supreme Court continues.

Holly Thomas: Ms. Thomas arrived in the Section after six years with the NAACP Legal Defense and Education Fund (LDF) in its Education and Criminal Justice Practice Groups. There she founded the organization’s “Juvenile Life Without Parole Initiative” in which she argued on behalf of some of the most violent, vicious juvenile criminals in the country. She also penned two articles which are must-reads for advocates well outside the mainstream: “No Chance to Make It Right: Juveniles Sentenced to Life Without Parole in Mississippi,” and “School-to-Prison Pipeline: Litigation Guidance” (in conjunction with the ACLU Racial Justice Project and the UCLA Civil Rights Project). For comparison, read the Heritage Foundation’s publication on the vicious juvenile killers and violent teens that Thomas wants to give “get-out-of-jail-free” cards.

As a law student, she received a scholarship from the NAACP LDF, served as co-director of a clinic that advocated on behalf of convicted murderers on death row, and was the co-chair of a group called “Collective of Women of Color in the Law.” A perfect fit for the racially focused Holder Civil Rights Division.

So there you have it. Seven more career attorneys, every single one of whom is an undeniable liberal. The section names change, but the theme remains constant. Conservatives need not apply.

The final tally in our hiring expose is staggering. Since Barack Obama installed Eric Holder at the Justice Department, there have been 113 new career lawyers hired into the Civil Rights Division. There isn’t even a single token conservative in the bunch. Worse yet, as this PJMedia series has demonstrated conclusively, the breakdown of the new hires reveals that not even moderates are welcome. Here are the numbers:

Liberals: 113

Conservatives: 0

Apolitical Attorneys: 0

As has been said repeatedly, there is nothing problematic with hiring liberals to work in the Division. But contrary to the views of many in the civil rights community — including the current leadership of the Justice Department — there is also nothing wrong with hiring conservative or apolitical attorneys to undertake this work. Yet such professionals have been categorically blackballed from joining the career ranks of the Division. That is not only unjust, it is illegal. Both the legacy media and the Department of Justice’s internal watchdogs, however, stand mute in an imperious silence. It is a sad and tragic reality.

Remarkably, the Department’s leadership is so blinded by its own militant liberal ideology that it is not the least bit embarrassed by the exposure of these biased hiring practices. To the contrary, both Holder and Assistant Attorney General Perez have been publicly exchanging self-congratulatory high-fives with their surrogates on Capitol Hill and in the left-wing advocacy groups about how they have “transformed” the Civil Rights Division back into a liberal bastion where quaint notions like rationality and balance play second fiddle to grievance politics. The mainstream public is increasingly outraged by what it is seeing, but Perez — a self-described “Progressive Democrat” who the Washington Post characterized as “about as liberal as Democrats get” — perceives no problem at all. At least not yet.

Memories and politics being what they are, some members of the public may have either forgotten or deliberately chosen to ignore the extraordinary excesses and abuses by the Civil Rights Division the last time the Democrats were in power and employed a similar liberal litmus test as the price for admission for new career attorneys. Indeed, it was during the Clinton administration that the Division was slapped with more than $4.1 million in sanctions for filing almost a dozen frivolous and unwarranted discrimination claims. This kind of legal chicanery was allowed to occur (and even flourish) because the Division insisted on hiring only zealots who viewed themselves and their work as untethered from the law, precedent, or even basic common sense. Those in charge of the hiring during that era were the same partisan career attorneys who have now been preposterously labeled as apolitical civil servants. Handed the reins of power, they set about on a path of self-replication, offering entry only to those individuals whose backgrounds and world views demonstrated a commitment to enforcing the law from a big government, liberal perspective.

The Bush administration was determined not to let that happen again. Notwithstanding the claims of revisionist historians, the Bush Civil Rights Division hired and promoted lawyers from all across the political and ideological spectrum. Even in the three sections of the Division that were the focus of a libelous report from the DOJ Office of Professional Responsibility and Inspector General, nearly a third of the new career attorneys hired and promoted were clearly liberal and many others were entirely apolitical. Meanwhile, enforcement figures in nearly every section were through the roof (in some cases, such as the Voting Section, putting the Obama administration numbers to shame), while not one nickel had to be paid out in sanctions.

Now, less than three years later, all semblances of ideological balance in the Division have been utterly eliminated, and proudly so. It started with Loretta King. While serving as acting assistant attorney general for civil rights at the beginning of the Obama presidency, she implemented a hiring policy that required the rejection of any applicant who did not possess political or left-wing civil rights experience. Reports from inside the Division by individuals familiar with the work of the hiring committee describe the resumes of one qualified applicant after another being tossed in the “No” file merely because the candidate could not satisfy the newly imposed liberal litmus test. When Thomas Perez was confirmed as the new assistant attorney general, he not only continued this discriminatory policy, he publicly endorsed it.

Each of us responsible for this PJMedia series has repeatedly said that this administration still doesn’t get it. But come 2012, if its practices continue, the administration (and particularly the Justice Department) may learn a hard lesson — that average Americans won’t stand for politicization and corruption of the law enforcement responsibilities of the chief executive. We believe in the rule of law. It is, in fact, one of the most fundamental strictures of our republic. And we expect the president and his political appointees to adhere to that deep-seated and essential principle.

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. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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