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Wednesday, August 27, 2003

In friendly fire incident, Truant Texas Dems™ blast ruling made by Reno-era DOJ voting-rights head

The outrage of the Truant Texas Dems™ at Attorney General John Ashcroft and the "US Department of Injustice" for yesterday's ruling by the DOJ's Civil Rights Division was entirely predictable.

But in an apparent episode of "Ready, Fire, Aim!" they've managed to blast a career civil servant who was put into his sensitive executive position not by John Ashcroft, but by Janet Reno.


The background:

Lt. Gov. David DewhurstBefore the second special session of the 78th Legislature, Lt. Gov. David Dewhurst announced that he would not follow the common practice of manipulating the written Texas Senate Rules in a manner that would allow a minority to deadlock the Texas Senate.  Specifically, he said he wouldn't follow the custom of putting a "blocker bill" — a piece of bogus pseudo-legislation rushed through the committee referral and reporting-out process, with no intention that it ever be passed — atop the Senate's legislative calendar. 

As I explained in my post last Sunday, when a "blocker bill" is atop the calendar, Texas Senate Rule 5.13 requires a two-thirds vote to consider any other bills "out of order" — meaning that as a practical matter, nothing can pass the Texas Senate without at least a two-thirds super-majority vote when the "blocker bill" manipulation has been performed. 

Given the inability of the 77th Legislature to agree on a redistricting bill in 2001, and the inability of the 78th Legislature to agree on one during its regular session or the first special session, Lt. Gov. Dewhurst decided that using a "blocker bill" in the second special session was simply a courtesy that the Senate could no longer afford.  Indeed, the Texas Senate has dispensed with using the "blocker bill" manipulation during redistricting in prior years when the Senate was controlled by a Democratic Lieutenant Governor and a Democratic majority. 

Thus, no written rules were changed or abolished or ignored; rather, the decision made was to enforce the rules exactly as written, without using the "blocker bill" technique to artificially manipulate the Senate calendar.

As reported Tuesday evening by the Austin American-Statesman, the Department of Justice has therefore promptly confirmed that the decision whether to use or not use the "blocker bill" practice is "an internal legislative parliamentary rule or practice — not a change affecting voting — and therefore is not subject to the preclearance requirement" of the Voting Rights Act of 1965.

The Truant Texas Dems™ immediately reacted with predictable outrage, according to that same news story:

Sen. Royce West, D-Dallas, said he was not surprised because Republicans run the "Department of Injustice."

"I was hopeful they would set aside partisan politics and hear input from us before making a decision," he said.

And they worked up even more condemnatory zeal, as reported in the El Paso Times:

"We are disappointed, but not surprised, by the abrupt action of a Bush-Ashcroft Justice Department that has consistently put politics above the voting rights of Americans," said Sen. Royce West, D-Dallas.

Sen. Royce West"We always assumed justice would have to be found in the courts, not a department inappropriately named Justice."

The Democrats' lawyer, Gerald Hebert, who is a former director of the Justice Department's Voting Rights Division, also blasted the decision [by] Attorney General John Ashcroft's office.

"The unusual expedited handling of this matter and the timing of their release of the letter confirms what many of us who have previously worked in DOJ have known for some time — that the Bush-Ashcroft Justice Department is the most politically corrupt ever to administer the Voting Rights Act," Hebert said.

And West is quoted in the Fort Worth Star-Telegram as saying, "The Ashcroft Justice Department has spared no injustice in its pursuit of an ideological, racist agenda. We call the president to get his right-wing troops under control now."

But about three minutes with Google reveals that lawyer Joseph D. Rich has been with the Justice Department since at least 1987, and that in February 2000 he was speaking on behalf of Clinton Administration Attorney General Janet Reno as the new "acting chief of the department's Voting Section" in approving "Arizona Democrats' plan to vote online in the March 11[, 2000] presidential primary."

D'oh!  For the second time this month, I find myself defending a Clinton Administration Justice Department official!  Who'da thunkit?

[sarcasm on]  I do sniff a whiff of potential scandal here, however.  Lawyer Hebert apparently was at DOJ not only during the early Clinton Administration, but also during the Reagan and GHW Bush Administrations.  It's not clear whether he had Mr. Rich's job during a Democratic or Republican regime.  Regardless, however, let's hope that before he started taking fees from the Truant Texas Dems™, he fully disclosed to them that he had worked during a substantial portion of his career for Ed Meese's DOJ. [/sarcasm off]

Posted by Beldar at 07:08 AM in Texas Redistricting | Permalink


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(1) Edward Still made the following comment | Aug 31, 2003 6:06:55 AM | Permalink

This is an interesting "guilt by association" charge against Hebert (who is a close friend). So, he must be suspect because he has worked for BOTH Republican and Democratic administrations? I have found that most of the folks in the Voting Section try to do their job in the same way whoever the President is.

(2) Beldar made the following comment | Aug 31, 2003 1:16:50 PM | Permalink

Mr. Still, thanks for commenting!

Sometimes irony and sarcasm are lost in the blogosphere, and such appears to the be case here. I'll edit my original post accordingly. And in what I am about to write now, I'm deadly serious and intend no irony or sarcasm:

I agree entirely with you that "most folks ... try to do their job in the same way whoever the President is." In fact, what I fault Mr. Hebert for is his failure to give the benefit of that doubt to Mr. Rich. Rather, it appears that Mr. Hebert's invective — his startling charge of "political corruption" against DOJ's Mr. Rich — has as its sole factual basis (a) a prompt response by the DOJ, (b) a ruling against the Dems, and (c) John Ashcroft's occupancy of the Attorney Generalship.

Prompt service is no indicator of corruption, nor is a ruling against Mr. Hebert's client on the merits (one with which Judge Kazen apparently agrees, by the way). No, for a Bush-hater, simply invoking the President's name — and better still, his and John Ashcroft's together — is evidence enough because in the eyes of these haters, a general presumption of "political corruption" attaches to everything they touch. Those must be Mr. Hebert's intended audience in his comments to the press on the steps of the Laredo federal courthouse, because he certainly didn't offer any additional evidence to back up the rather personal charge he was making against Mr. Rich, who now holds (via appointment during the Reno regime) the section chieftainship Mr. Hebert himself once held.

I strongly dislike that sort of presumption or, as you put it, "guilt by association." I disliked it when it was used to tar associates of the Clintons by Clinton-haters when there was no independent evidence against such associates, and I dislike it now enough that I find myself defending Mr. Rich — whom I've never met, and who I suspect is more likely to share the personal politics of Mr. Hebert's clients than my own.

I'll give Sen. West the benefit of the doubt and grant that despite his membership in the bar, he was speaking purely as a politician. Mr. Hebert, however, clearly is subject to the Canons of Ethics that bind our profession and the more formal regulations that are based upon the Canons. Unless Mr. Hebert has, and is withholding, solid evidence of "corruption" on the part of Mr. Rich, then I believe that Mr. Hebert has violated the Texas Disciplinary Rule relating to "Judicial and Legal Officials" that provides:

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Tex. Gov't Code Ann. art. 10, § 9, Rule 8.02(a) (emphasis added.) The notes to this provision make clear that attorneys-general are among the "public legal officers" referenced in the rule.

In fact, as someone admitted to practice in the US District Courts for the Southern District of Texas, I seriously considered filing an opposition to Mr. Hebert's application for admission to practice here "pro hac vice" in the Barrientos v. Texas case, and/or making a formal complaint to the District of Columbia Bar Association. I haven't done that for three reasons:   first, I don't know for certain that Mr. Hebert lacks any additional evidence; second, I don't want to create any more of a circus atmosphere in those proceedings; and third, I don't want to raise the risk of embarrassment to Mr. Rich (who, as Mr. Hebert well knows, is hamstrung from publicly defending himself by the rules of his public office).

But I frankly think Mr. Hebert should be ashamed of himself. If you are indeed his friend, I invite you to bring this issue to his attention. If he has any actual evidence of "political corruption" — for instance, the taking of a bribe, or the soliciting or acceptance of a promotion, in connection with the DOJ's ruling — then Mr. Hebert should go public with it. Otherwise, he should make a public apology to Mr. Rich, the DOJ, and Mr. Ashcroft.

But I shan't hold my breath.

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