In fact, as the Los Angeles Times noted: “David Maume, a sociologist at the University of Cincinnati, testified that demographic data demonstrated that a disproportionate number of Republican challengers would be placed in precincts that were predominantly African American. Maume told the judge that his analysis found that 77 percent of black voters in Hamilton County, where Cincinnati is the largest city, could face a Republican challenger on Election Day, while only 25% of white voters could encounter a challenger.”
Alphonse Gerhardstein, the civil rights lawyer who represented Donald and Marian Spencer, told reporter Henry Weinstein in 2004 that the letter was “highly irregular” and noted that “the Justice Department is not a party to the case. They have not filed a motion to intervene in the case or filed an amicus brief.… They volunteered information that goes beyond any federal interest. It’s startling to say that challengers can bring information to [the official] poll watchers. That presumes they will bring in outside information. If you are a poll watcher, how are you going to evaluate that information on the spot?”
In 2007, the former chief of the voting section of the Department of Justice’s Civil Rights Division, Joseph Rich, referred to the 2004 moves by the Ohio Republicans as a “vote caging” scheme. (The Brennan Center referred in its 2007 guide to voter caging that the practice is “a notoriously unreliable means of calling the voter rolls into question [that] can lead to unwarranted purges or challenges of eligible citizens. When it is targeted at minority voters [as it often is, unfortunately], it is also illegal.”)
Robert Kengle, the deputy chief of the voting section, explained to Talking Points Memo in 2007 that he left his position because of the politicization of the department during the time of Acosta’s leadership. It was Kengle who complained that the controversial letter brief in the Ohio case amounted to “cheerleading for the Republican defendants,” and told the McClatchy newspapers in 2007 that “it was doubly outrageous because the allegation in the litigation was that these were overwhelmingly African-American voters that were on the challenge list.” He was not alone in expressing concerns. McClatchy reported that “former Justice Department civil rights officials and election watchdog groups charge that [Acosta’s] letter sided with Republicans engaging in an illegal, racially motivated tactic known as ‘vote-caging’ in a state that would be pivotal in delivering President Bush a second term in the White House.”
“Acosta’s letter,” the McClatchy coverage explained, “is among a host of allegedly partisan Justice Department voting rights positions.”
The issues raised by “challenge statutes” and “voter caging” remain a profound concern, and the subject of legal debates, as does Acosta’s tenure with the Department of Justice’s Civil Rights Division. Minutes after Trump announced Acosta’s nomination to serve as labor secretary, Wade Henderson, the president and CEO of the Leadership Conference on Civil and Human Rights, said: “It is incumbent upon the Senate to conduct a thorough review of Alexander Acosta’s record.”
In a February 2017 statement released by the Lawyers’ Committee for Civil Rights Under Law, the group’s president and executive director, Kristen Clarke, said she was “astonished by the nomination of Alexander Acosta to serve as Secretary of the US Department of Labor.” “Mr. Acosta led the Civil Rights Division at a time that was marked by stark politicization, and other improper hiring and personnel decisions that were fully laid bare in a 2008 report issued by the Office of Inspector General (OIG),” said Clarke. “The OIG found that actions taken during Mr. Acosta’s tenure violated Justice Department policy and federal law. Political and ideological affiliations were used as a litmus test to evaluate job candidates and career attorneys, wreaking havoc on the work of the Division. This egregious conduct played out under Mr. Acosta’s watch and undermined the integrity of the Civil Rights Division. It is hard to believe that Mr. Acosta would now be nominated to lead a federal agency tasked with promoting lawful hiring practices and safe workplaces.”
Critics also pointed to a 2008 Justice Department inspector general report, which determined that, when Acosta was in charge of the division: “Attorneys hired by [one of his deputies] were more than twice as likely to be Republican or conservative than those attorneys [the deputy] was not involved in hiring.” The inspector general’s report concluded that the Civil Service Reform Act and DOJ policies that barred hiring discrimination based on political and ideological affiliations had been violated. Acosta and his fellow Civil Rights Division managers were singled out for failing to “exercise sufficient oversight” to guard against “inappropriate hiring and personnel practices.”
Politicizing policies and hiring practices are a big deal in any circumstance, but they are an especially big deal when they threaten the Labor Department, which has long been under attack by conservatives. The Department of Labor is powerful, with a budget in excess of $12 billion, more than 17,000 employees, and a charge to protect the rights of more than 125 million workers and to assure that 10 million employers respect those rights. It is a defining agency that sets not just the specific standards of regulations and mandates but a societal standard that is, at best, an extension of the vision former labor secretary Frances Perkins outlined when she explained in her 1934 book People at Work: “Very slowly there evolved from these conferences certain basic facts, none of them new, but all of them seen in a new light. It was no new thing for America to refuse to let its people starve, nor was it a new idea that man should live by his own labor, but it had not been generally realized that on the ability of the common man to support himself hung the prosperity of every one in the country.”
At a time when the nature of work is being transformed by globalization, a digital revolution and automation, when wage stagnation remains an issue, when discrimination in the workplace is a pressing concern, the Department of Labor needs to be strengthened. Instead, the Trump administration has sought to cut the department’s funding by $2.5 billion, or 21 percent. When the budget plan was announced in March 2017, the National Employment Law Project issued an assessment in which the cuts were described as “draconian” and Christine Owens, the project’s executive director, said: “The Trump budget would gut the very job-training programs workers need to develop the skills required to compete in emerging fields and fill many of the high-paying jobs available now and projected for the future.” With Alexander Acosta at the helm, a man who drew sharp rebukes for politicizing the management and work of another federal agency is positioned to make the Department of Labor more vulnerable than it has ever been in its history. Working Americans today should feel every bit as threatened as did those voters in Ohio back in 2004.
— 26 —
PUTT-HEAD
Andrew Giuliani
Associate Director for the Office of Public Liaison
Meet Andrew, a high-spirited young man from New York City who dreamed of being a professional golfer. Andrew’s father was very powerful, very connected, very wealthy. And that was very fine for Andrew. He did not need a scholarship to play college golf. His way was paid to go to an elite university: “$200,000 in tuition and fees across four years” at Duke, according to Golf Digest. Andrew joined the Duke Blue Devils golf team, with its spiffy golf bags, spiffy leather golf club covers and color-coordinated outfits. Unfortunately, he ended up ranking twelfth out of fourteen players. And it did not help that Andrew was kind of a jerk. A teammate told Sports Illustrated that the kid was “rude, impolite and a disturbance to our team.” The teammate recalled “a series of events, of him being rude to me and talking to me a certain way, and when I finally told him I didn’t appreciate it,” well, then came what Golf Digest called “The Flying Apple Incident.”
“He threw an apple at me point-blank, and it shattered on my face,” the Duke teammate said of Andrew. He threw the apple so hard that it reportedly “exploded.” It was, lawyers would later argue, a “physical assault” that fit into a pattern of sometimes destructive, sometimes simply bizarre behavior.
That was it: Andrew was off the varsity golf team. This upset him. It upset him so much that he sued the university and the head golf coach for, as the New York Times delicately explained, “dashing his dreams.”
Andrew’s lawyers demanded monetary damages from the university and argued in legal filings that the coach who dismissed Andrew had stolen a page from William Golding’s The Lord of the Flies.
The legal gambit did not end well. U.S. magistrate judge Wallace Dixon reached the conclusion that Andrew’s claim “slices far from the fairway” and recommended its dismissal in a ruling that included a reference to the movie Caddyshack. A federal judge agreed.
Because Andrew’s father was famous, having just finished a run for the presidency of the United States, the story went national, as did the ridicule. Golf.com announced that the “lawsuit against the school did not make par.” The New York Post referred to Andrew as a “Putt-Head.”
What’s an aspiring athlete to do? Andrew went pro. But that plan petered out eventually. So Andrew became a thirtysomething “sales intern” for CapRoc Capital in Rye, New York, where one of the “founding principles” is “understanding and managing one’s liquidity is paramount.”
This young man so needed a break. Something new. A job where he could realize his full potential, a job with status, a job with a title like “Associate Director” in the White House Office of Public Liaison. And so it was.
On March 6, 2017, as the Trump administration rushed to “staff up” key White House positions, the president officially announced that Andrew Giuliani would be joining a White House office that had previously employed future cabinet secretaries and U.S. senators, like Alexis Herman and Elizabeth Dole. The same office that Margaret “Midge” Costanza used in the 1970s to raise awareness about, and engagement with, a still-young LGBTQ rights movement; the same office that became Faith Ryan Whittlesey’s vehicle for aligning the Reagan administration with the religious right in the 1980s; the same office that served as Valerie Jarrett’s base of operations through the two full terms of Barack Obama’s presidency. The announcement made headlines—bigger ones in at least some papers than for a few of Trump’s cabinet picks. Unfortunately, the headlines somewhat diminished Andrew’s accomplishment:
Politico: “Trump hires Rudy Giuliani’s son for White House role.”
New York Daily News: “Rudy Giuliani’s son takes job with Trump administration.”
New York Post: “Trump picks Giuliani’s son for WH job.”
Well, yes, Andrew is the son of former New York City mayor Rudy Giuliani, the one-time presidential candidate who threw his considerable energy into getting Trump elected in 2016. Rudy Giuliani was angling for a big job in the Trump administration, like secretary of state. But that didn’t happen. All he got in the early stages of the Trump presidency was an informal assignment as Trump’s “cybersecurity adviser”—and a lot of grief for going on Fox News and saying something that would come back to haunt the administration in courts of law and in the court of public opinion: “I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban.’”
But, Andrew is not Rudy. Andrew is his own man. So why the dad-referencing headlines?
It was almost as if the media was suggesting that Andrew did not get a White House position, with an office and a title and a good bit of authority to influence politics and policies, based on his own merits.
But at least the independent daily newspaper at his alma mater recognized Andrew Giuliani as more than just the son of the most shameless of Donald Trump’s high-profile apologists during the 2016 campaign. The Duke Chronicle headline on the day after it was revealed that another sinecure had been found for another family member of another Trump associate announced: “Former men’s golfer who sued Duke joins Trump administration.”
— 27 —
THE PRODUCT OF A JUDICIAL COUP
Neil Gorsuch
Associate Justice of the Supreme Court
Neil Gorsuch’s nomination to serve on the U.S. Supreme Court was born in politics. But it was not just any politics; it was a corrupt politics that sinned against tradition and the Constitution. Nothing in Gorsuch’s record of judicial service could alter the facts. Nothing in his mild-mannered “Oh goodness” testimony to the Senate Judiciary Committee could change the circumstances of his selection on January 31, 2017, as Donald Trump’s nominee to serve an open-ended term on the highest and most powerful court in the land.
Gorsuch entered the process a marked man.
He was marked not by the Democrats who challenged his nomination but by the Republicans who broke the rules, corrupted the process and lied to the American people in order to make Gorsuch’s nomination possible.
By all rights, Gorsuch’s nomination belonged to another man, Judge Merrick Garland, the distinguished chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Able and reasoned, fully qualified in every sense, Garland was nominated on March 16, 2016, by President Barack Obama to fill the vacancy caused by the death of Associate Justice Antonin Scalia. Garland was denied proper consideration by the U.S Senate after Senate majority leader Mitch McConnell and Senate Judiciary Committee chair Chuck Grassley determined to put politics ahead of their constitutionally defined duty to provide advice and consent regarding judicial nominations.
Gorsuch knew of this wrongdoing when he was nominated; indeed, shortly after Donald Trump announced his decision, Gorsuch called Garland “out of respect.” Gorsuch would later avow that he believed Garland to be an “outstanding judge” whose opinions he read “with special care.”
Yet, Gorsuch sacrificed his own self-respect on March 21, 2017, when he refused to answer a simple question about the shameful treatment of Garland by the lawless partisans who had corrupted the confirmation process in order to steal a Supreme Court nomination.
The senior Democrat on the Judiciary Committee, Senator Patrick Leahy of Vermont, asked Gorsuch a simple question about Garland: “Do you think he was treated fairly by this committee, yes or no?”
“Senator,” Gorsuch replied, “as I explained to you before, I can’t get involved in politics. There’s judicial canons that prevent me from doing that, and I think it would be very imprudent of judges to start commenting on political disputes between themselves, or the various branches.”
That was a legalistic and, at the same time, shamefully dishonest answer.
When Minnesota senator Al Franken raised the issue, Gorsuch said much the same thing, adding: “There is a reason why judges don’t clap at the State of the Union, and why I can’t even attend a political caucus in my home state to register a vote in the equivalent of a primary.”
Franken pressed him on the matter, explaining that “I think you’re allowed to talk about what happened to the last guy that was nominated in your position. You’re allowed to say something without getting involved in politics. You can express an opinion on this.”
The senator pointed to the legitimate constitutional concerns that had been raised by the failure of the Republican-controlled Senate to even consider the Garland nomination. But Gorsuch steadfastly refused to respond.
“Senator,” said Trump’s nominee, “I appreciate the invitation, but I know the other side has their views of this, and your side has your views of it. That, by definition, is politics. And Senator, judges have to stay outside of politics.”
True enough. Sitting judges are expected to stay out of electoral politics. But this is not about attending a caucus or writing a campaign check. This is about respect, or disrespect, for the process by which judges are nominated, how those nominations are reviewed and the standards by which they are confirmed or rejected. Gorsuch is not a stupid man. He knew the question he was being asked and he refused to address it, not with the purpose of avoiding politics but because his own nomination was marinated in politics.
Gorsuch’s refusal to acknowledge that corruption that cleared the way for his nomination diminished him. “Jud
ge Gorsuch himself should understand the precedent his nomination risks setting and not hide behind statements about the need to avoid politics,” explained former U.S. senator Russ Feingold, a three-term veteran of the Senate Judiciary Committee who weighed the nominations of six Supreme Court justices during his eighteen years in the Senate. Of Gorsuch, Feingold said: “He should have refused the nomination. He reportedly called Judge Garland after he was nominated. If he had truly understood what is at stake, he would have called Judge Garland to say he had turned down the nomination in solidarity—not with Judge Garland personally, but with the Supreme Court and the U.S. Constitution that he says he holds in such high regard.”
This was not a small matter. This was the essential matter regarding Gorsuch’s nomination to serve on the nation’s highest court.
The issue was not one of ideology or partisan balance.
It is true that Gorsuch is a rigid conservative—a little to the right of Scalia, but not so far off the deep end as Justice Clarence Thomas, according to analyses of their opinions. Gorsuch’s roots are on the right wing of the Republican Party. His mother served as a Colorado Republican legislator in the 1970s, aligning with what at the time was described as “a group of conservative lawmakers intent on permanently changing government.” A corporate lawyer, Anne Gorsuch Burford went on to serve as Ronald Reagan’s much-criticized Environmental Protection Agency administrator. As a young lawyer, Neil Gorsuch was an active supporter of Republican campaigns, especially the 2000 Bush-Cheney campaign. He was active with the Republican National Lawyers’ Association, a group that says its mission involves “advancing Republican ideals.” Gorsuch served in George W. Bush’s Department of Justice and Bush appointed Gorsuch to serve as a judge of the United States Court of Appeals for the Tenth Circuit.