Von Spakovsky Concocts A New Legal Standard To Make His Case Against DOJ

Blog ››› ››› BRIAN POWELL

Hans von Spakovsky is continuing the feeble Pajamas Media (PJM) campaign against Attorney General Eric Holder and the U.S. Department of Justice's Civil Rights Division with a fourth column in a series highlighting the allegedly "liberal" resumes of individuals hired by DOJ. PJM's oft-repeated (and just as often unsupported) claim is that Holder and the DOJ are engaged in "politicized hiring" that is "nearly unprecedented in scope and significantly eclipses anything the Bush administration was even accused of doing."

Today, Spakovsky spends five pages tirelessly reciting what he believes are the liberal affiliations of new career attorneys at the Civil Rights Division's Special Litigation Section. He then concludes:

No one is suggesting any of these individuals' activist backgrounds disqualifies them from working as attorneys in the Civil Rights Division. The point is that such liberal bona fides appear to be a prerequisite for employment in the Division -- there is no other explanation for this. These resumes are an example of a legal doctrine that law students learn in their first year: res ipsa loquitur -- "the thing speaks for itself."

Res ipsa? Perhaps Spakovsky has forgotten what he learned in his first year, but res ipsa loquitur is a common law negligence doctrine which presumes that a harmful act could only have occurred as a result of a defendant's carelessness, even if the plaintiff has no direct proof of the defendant's carelessness (one of the prototypical cases is a scalpel left in someone's body while the patient was under general anesthesia).

But Spakovsky isn't accusing the DOJ of negligently filling their rosters with liberals. He's alleging that they purposefully considered a candidate's liberal credentials as a precondition for hiring them into the Civil Rights Division. In his words, "None of this is an accident."

By contrast, the Office of the Inspector General for DOJ and the DOJ's Office of Professional Responsibility found that President Bush's political appointees purposefully "considered political and ideological affiliations in hiring career attorneys" (such as Spakovsky), a violation of the Civil Service Reform Act.

Spakovsky translates the Latin correctly, but his application of res ipsa loquitur is laughably off-base. Because once again, Spakovsky/PJM fails to present any evidence that deliberate political discrimination is taking place at DOJ. He presents no evidence, for instance, that any number of similarly-situated conservative attorneys were rejected by DOJ in favor of liberal attorneys.

Lacking such evidence, he attempts instead to misapply a legal standard to make his facts seem meaningful. How long will they keep up this weary procession of non-news?

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