Monday, March 19, 2007

Don't Say "Political." Say "Partisan."

Much of the debate about the Gonzales Eight Massacre has been muddied, sometimes through deliberate obfuscation, because the word "political" has several different meanings. When we say that U.S. Attorneys are "political" appointees, we mean that they get their jobs through political connections and that once in office they can be required, even by threat of firing if necessary, to adopt the policy priorities of the administration in Washington. A U.S. Attorney who resisted the White House decision to seek the death penalty with greater (or lesser) frequency, or to devote prosecutorial resources to drug cases rather than insider trading cases, could be legitimately sacked for reasons of politics in the sense of policy. A U.S. Attorney cannot legitimately be fired for failure to prioritize corruption cases of Democrats over Republicans (or vice-versa). The distinctions can blur where a seemingly legitimate policy objective is used as a pretext for partisan aims. Democrats tend to be the target of voter fraud prosecutions (because of the assumed preference for Democrats of the new voters likely to register en masse, i.e., immigrants, the poor, and minorities), while Republicans tend to be the target of bribery and extortion prosecutions because supporters of Republicans tend to have more money than supporters of Democrats. These are broad generalizations which may not even be true, but to the extent that they are, a policy of targeting a particular kind of corruption case could be pretextual and would, if so, be highly problematic.

The underlying distinction between politics as policy preference and partisanship is broadly familiar from the controversy over Bush v. Gore. Some hard-core legal realists (I have in mind Jack Balkin and Mark Tushnet but there were others) took the case as simply confirming what they had always thought: that judges make political decisions. But most critics of the decision did not endorse this sweeping critique. They thought that there is a difference between a judge deciding a case involvingthe constitutionality of abortion restrictions or affirmative action in a way that lines up with her policy views on these issues, and a judge deciding a case based on which political party would benefit in the particular case---as many of the academic critics and even more of the general public thought the Supreme Court did in Bush v. Gore.

It's possible that I'm over-reading the reaction to Bush v. Gore. Perhaps the public generally hold a highly formalist view of the law but don't pay much attention to Supreme Court decisions. Then, they tune in and observe partisan politics and are horrified, but had they tuned in sufficiently for other cases they would have been almost equally horrified by the ordinary politics of judging. That's possible but I actually give the public more credit. The periodic references to the judicial appointment power in Presidential campaigns suggest that at least a substantial portion of the public are at least aware of the difference that individual values make to judging. Yet (rightly or wrongly) they sensed that something different was happening in Bush v. Gore. If that's right, then the public can be made to understand the difference between politics as policy choice and politics as partisanship. But to make it work in the current context, Democrats and other critics of the Gonzales Eight Massacre need to stop calling the firings "political" --- a word that invites double-talk from the likes of Tony Snow, FoxNews et al --- and start referring to the firings as "partisan."


egarber said...

One battle for clarity pits the Gonzales scenario against the total purge that can occur when power shifts -- i.e, Clinton fired all 93 attorneys when he took office, so what's the big deal?

I think Schumer answered that pretty well yesterday on MTP:

MR. RUSSERT: Mr. Rove's point is that President Clinton dismissed all 93 U.S. attorneys. President Bush can fire any U.S. attorney he wants, and you're just simply making a political stink about it.

SEN. SCHUMER: Well, I think Karl Rove doesn't get it. Here's the problem. Of course, every president has the right to hire and fire U.S. attorneys at will. Every president, when they come in in a new term, like President Clinton did, basically cleans house and puts in new U.S. attorneys. Ronald Reagan did within his first year, George Bush, the first, did within his first year, and this president, Karl Rove's employer, George Bush, our present President George Bush did it. All the U.S. attorneys were replaced. What's different here is not simply that the president wanting this choice, not that choice, but, in these instances, the evidence is becoming more and more overwhelming that certain U.S. attorneys, and only certain ones, not all of them, but certain U.S. attorneys were fired because either they wouldn't prosecute a case that was politically advantageous to the White House or they were prosecuting a case that was disadvantageous to the White House. Every legal commentator, left, right, center, says you can't do that, that's the one thing you can't do.

Neil H. Buchanan said...
This comment has been removed by the author.
Unknown said...

Would it be permissible on your view to fire US attorneys who themselves exhibit partisan priorities in the cases they bring?

Michael C. Dorf said...

In response to Carl, of course. A prosecutor who exhibited partisan bias (either for or against the party of the President who appointed him or her) not only could legitimately be fired, but should be fired, or at least disciplined so that the pattern ceased.

Unknown said...

Maybe, then, this whole scandal boils down to an inarticulate and perhaps unwarranted attempt by the administration to ensure the even-handed administration of justice. Just a thought, anyway....

Caleb said...

On the question of partisan and political, isn't it a spectrum rather than a binary option?

If the letter and the spirit of the law gives a judge a completely discretionary choice, then it seems like we wouldn't criticize if his choice lined up with his "political" views.

What we might criticize is if he clearly bent the rules in order to achieve his political goals. This would be clear "partisanship".

The problem is (at least, it seems to me) that a lot of the cases the Supreme Court deals with fall in the grey area between these two (Bush v. Gore being a prime example). It seems possible to make a colorable argument for either side. The same might be true for the firings (although public opinion, and my own opinion leans towards labelling it "partisan"). But if that's the case, FOX and others might just be expressing their views as to where it falls on the spectrum.

In that case, it wouldn't be a problem of correcting the nomenclature, so much as one of shifting the public understanding of where the "middle" of the spectrum is.

Sobek said...

I haven't seen any citation to support the claim that all presidents fire all US Attorneys from the outgoing administrations, so I think Schumer is wrong on that point. As far as I can tell, only Clinton did that. Sure, Reagan and Bush I fired some, but not all. If someone has contrary information, please advise.

And I don't see the distinction Prof. Dorf is trying to make between "political" and "partisan" in this instance. If "partisan" simply means "benefitting the party," then of course what Clinton did was partisan. He rewarded loyal party members with prestigious appointments, thus ensuring loyalty and dangling a carrot for the next generation of loyal dems (in that case) who want to enjoy the spoils of some future victory.

egarber said...
This comment has been removed by the author.
egarber said...
This comment has been removed by the author.
egarber said...

Sobek said:

And I don't see the distinction Prof. Dorf is trying to make between "political" and "partisan" in this instance. If "partisan" simply means "benefitting the party," then of course what Clinton did was partisan.

I think it's easy to illustrate the difference in another context.

Suppose President Bush launched an initiative to widen the crackdown on election fraud. He distrusts the previous administration's attorneys -- who he views as too sympathetic with labor unions -- so he cleans house with "political" appointments he can confidently rely on to pursue his broad policy. This is the political use (in the acceptable sense) of law enforcement.

Now suppose President Bush had a further litmus test for appointees: the only way you can be hired is if you promise to crack down on DEMOCRATIC donors at a much higher clip than Republicans. This is the PARTISAN use of law enforcement -- using executive power to DISCRIMINATE against your electoral opponents.

No way these two scenarios are the same, imo.

egarber said...

I said: Suppose President Bush launched an initiative to widen the crackdown on election fraud.

To be accurate, I should have said "crackdown on campaign finance fraud."

Sobek said...

Egarber, phrased that way, I agree with you. I'm not sure that a limited number of firings (as opposed to Clintonesque cleaning house) necessarily constitutes prima facie evidence, given that the administration may very well decide that it does trust some of the previous administration's appointees. But now we're getting into details rather than theory, and I don't know many details.

With that said, do you agree that Clinton's use of the FBI to spy on political opponents was impermissible partisanship? Or that Clinton's use of the IRS to audit political opponents? I don't remember much outrage over those, and certainly no subpoenas.

egarber said...

To Sobek's last question, I absolutely think using the FBI to discriminate against partisan opponents is abusive. Nixon would have been impeached over that very type of abuse.

With Clinton, the evidence was too weak to elevate the case to that level, as I recall. But had it been strong, you bet I would have had a problem with it.

And bear in mind, here Schumer doesn't know whether powers were actually abused; he merely wants to find out.

Sobek said...

"With Clinton, the evidence was too weak to elevate the case to that level, as I recall."

To the level of impeachment, or to the level of subpoenaing White House staff to testify under oath? Or both?

egarber said...

To Sobek's last question:

Correct me if I'm wrong, but I'm almost positive that the IC (Ray?) found that:

1. There was no evidence of criminal wrongdoing.

2. There was no credible evidence of involvement higher up the chain -- president, first lady, etc.

So this is proof that there were no impeachable offenses.

On the subpoena question, you have to remember that the IC statute was still active -- that tells me Ray was in all likelihood issuing them liberally (I welcome corrections). Congress wouldn't have wanted to interfere with the IC investigation (remember that Walsh said Congress got in the way during Iran Contra), so I don't think the question of congressional subpoenas is very relevant as a comparison for the Gonzales 8.

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