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Not a Superior Type of Judge

Should a lawyer who has participated in unprofessional conduct be awarded with a judgeship? Consider the nomination of Justice Department official Donna Murphy to be a superior court judge in the District of Columbia.

by
Hans A. von Spakovsky

Bio

March 31, 2011 - 12:03 am

Should a lawyer who has participated in unprofessional conduct be awarded with a judgeship? Consider the nomination of Donna Murphy to be a superior court judge in the District of Columbia.

The president, of course, is responsible for nominating lawyers to be judges in our federal courts. But he is also responsible for picking the local judges with jurisdiction over the District of Columbia, which is a federal enclave. However, those superior court nominations are approved by the Senate Committee on Homeland Security and Governmental Affairs (chaired by Sen. Joseph Lieberman, I-Conn.), not the Senate Judiciary Committee that approves nominations to all other federal courts.

Donna Murphy has spent almost her entire career in the Civil Rights Division of the Justice Department. She started off as a trial lawyer and was eventually promoted to be a deputy chief in the Voting Section. It was while she was a supervisor there that she was involved in a case, Miller v. Johnson, which cost the American taxpayer almost $600,000 in attorneys’ fees and costs.

Miller v. Johnson involved the Voting Section’s frivolous objection to a proposed legislative redistricting plan in Georgia. Not only was the objection thrown out, but the defendants were awarded a total of $597,000. A federal court found that the Section had no actual evidence of discrimination when it pursued this unwarranted lawsuit and instead tried to force the state of Georgia to implement a racially discriminatory “max-black” redistricting plan.

In fact, DOJ was acting at the direction of an ACLU attorney as if it were representing the ACLU instead of the American people. The court remarked that “the considerable influence of ACLU advocacy on the voting rights decisions of the United States Attorney General is an embarrassment. … It is surprising that the Department of Justice was so blind to this impropriety, especially in a role as sensitive as that of preserving the fundamental right to vote.”

The misbehavior of DOJ lawyers in the case was such that the court found their “professed amnesia [about their relationship with the ACLU attorney] less than credible.” There were “countless communications” between the ACLU and DOJ line attorneys including maps, telephone calls, mail and facsimiles, and yet the two trial attorneys on the case “lacked any significant memory” of those communications and couldn’t recall basic details of important meetings.

Murphy was not one of the trial attorneys who the court strongly suggested were lying under oath about their dealings with the ACLU. But she was the supervisor of those trial attorneys — which is even worse in many ways — and she is prominently listed as representing the Justice Department in this embarrassing decision issued by a federal district court at 864 F.Supp. 1354.

No supervisor reviewing the extensive internal file in this case could have possibly doubted that the trial lawyers’ professed amnesia was false testimony. Yet Murphy not only did nothing to remedy the situation, she was responsible as one of the counsels of record for presenting that false testimony to a federal district court, a disbarrable offense. And when she was supervising the lawyers working on the redistricting review before it ever got to court, she did nothing to stop the “inappropriate” dealings of DOJ with the ACLU, or to stop the racially discriminatory requirements being imposed by DOJ on Georgia.

Murphy also worked as the deputy chief of the Special Litigation Section (which is responsible for investigating allegations of wrongdoing by local police) in the Civil Rights Division. Her hostility to law enforcement was legendary in the Division when I worked there from 2001 to 2005. If Murphy is confirmed as a judge, there will never be a better time to be a drug dealer in D.C. Because Donna Murphy has never met a search that she would be unwilling to suppress.

As a deputy in the Special Litigation Section, Murphy would continually demand that law enforcement officials take steps that the law did not require. She had no practical experience whatsoever in law enforcement but consistently tried to force local police to conform to her own subjective standards – not the constitutional standards in the law. Murphy’s approach to enforcing the law and the demands she made on local police were extreme.

Murphy viewed the Special Litigation Section not as the federal prosecutorial agency tasked only with enforcing violations of the law, but as a regulatory agency of all police behavior, whether it violated the law or not. Based on her history in the Division, there is little doubt that Murphy will be a results-oriented judge, doing what she thinks is best from her own subjective policy perspective regardless of the applicable law.

Murphy is being rewarded with a judgeship despite condoning unprofessional behavior and misjudgments that cost the American taxpayer a great deal of money. Only in Washington would someone with such a work record as a government employee be promoted to become a judge. It is a sad comment on the qualities that President Obama believes are important for his judicial picks. And it is one that should concern not just the residents of the District of Columbia, but all Americans who believe in the rule of law.

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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