June 14, 2007

Mike Pitts on Von Spakovsky Nomination

Mike Pitts, a professor at Indiana University School of law and former DOJ voting rights attorney, sent an email to the election law listserv opposing the nomination of Hans von Spakovksy for a full term to the FEC. The archive of the list is not working right so I can't link, but Mike has given me permission to reprint the email in its entirely. To read it, click below. (When you are done, check out Joseph Rich's reactions to yesterday's testimony by von Spakovksy.)

Unlike some of my distinguished former colleagues from the Justice Department's Voting Section, I have previously remained silent regarding the nomination of Hans von Spakovsky to the Federal Election Commission. In truth, I remain somewhat ambivalent about whether or not he should be confirmed, in part because of my view that not all of the examples of partisanship, most notably the Department's decision regarding the Texas re-redistricting, represent a clear case of partisan law enforcement. However, after reading the letter from my former colleagues and listening to today’s confirmation hearing, I think Hans should not be confirmed.

There are three reasons I question Hans' fitness to serve on the Federal Election Commission. The first reason is a lack of open-mindedness. In my experience, Hans has a particular world view that generally aligns itself with the views of the Republican Party when it comes to voting rights and election law. In my interactions with Hans, I found him to be highly ideological and someone who was typically less than willing to hear opinions and engage evidence that did not correlate with his predetermined world view. In my opinion, the hastily made Georgia voter ID preclearance decision presents a concrete instance of this unwillingness to countenance contrary ideas. On the other hand, my impression is that such closed-mindedness probably should not in-and-if-itself disqualify him to serve on the Federal Election Commission--an agency that, it seems to me (as well as apparently to Senator Bennett, who made this point during the confirmation hearing today (at :10)), has often been staffed with commissioners from both political parties who have predetermined views of the issues that come before it.

The second reason I question Hans' fitness to serve is his managerial style. In my view, Hans was needlessly antagonistic in his managerial style (an antagonism which, in my experience, stood in contrast to his affability on a more personal level). During my tenure in the Voting Section, I saw copies of a number of the e-mails he sent to my superiors, the career managers in the Voting Section. Far too often those communications were hostile and unprofessional. It's just not true as Hans said in his testimony today (at 1:48) that he was merely the "messenger" for the decisions of his superiors. If one were to subpoena the e-mails Hans sent to career lawyers it would be clear from a number of those e-mails that he was typically an advocate for a particular viewpoint, actively worked to convince his superiors (to the extent they needed to be convinced) of his viewpoint, and did this in a very hostile, adversarial, and slash-and-burn manner. When Senator Feinstein asked Hans why so many career lawyers had signed a letter opposing his nomination (at 1:47), in my opinion, a truthful answer would have been: "Because I was a real jerk to a lot of career people."

But, again, just being a jerk in the role of government manager should probably not serve as a disqualification for a position on the Federal Election Commission. I presume there have been many difficult personalities who have served on that body. What’s most damning and what represents the third and ultimately most compelling reason I question his fitness for the Federal Election Commission is the way Hans targeted those who disagreed with him. In particular, the search of e-mails in order to try to generate a complaint against an employee who reached an opposite conclusion with regard to the Georgia voter ID decision, the changing of attorney performance evaluations because he did not like the views of certain lawyers, and the involuntarily removal of managers who did not share Hans' views. At the end of the day, Hans was not just an abusive manager who had substantive disagreements with career officials--he actively tried to suppress and marginalize the voices of those with whom he disagreed.

I'll relate a personal anecdote, one that is admittedly minor in the large scheme of things, that I think is indicative of his instinct to suppress dissenting voices. I wrote several law review articles during my tenure in the Voting Section. As Hans correctly explained during the hearings today (at 1:02), the rule for career officials was that a career official could write a law review article as long as the article did not reveal any confidential information and included a disclaimer that the views expressed were not those of the Justice Department. Informally, though, there was a pre-publication review process where career managers and political appointees would review an article, ostensibly to ensure confidential information remained secret.

In February of 2005, I was about to submit for consideration by law reviews an article that discussed the potential for partisanship in the administration of Section 5 of the Voting Rights Act. The Article included the requisite disclaimer and clearly did not rely on any confidential information. I submitted it to the career managers in the Department who reviewed it and forwarded the article to several attorneys in the front office of the Civil Rights Division, including Hans.

Hans did not take kindly to the views expressed in the article. In particularly, he took offense to the discussion of partisanship in Section 5. He sent me an e-mail and we had a phone conversation during which he expressed the view that I should not be allowed to publish the portion of the article discussing partisanship. In response, I told him that the piece complied with the Department’s guidelines for writing law review articles. Ultimately, Hans backed off and, in fact, a few months later he published his own law review article under a pseudonym. Again, though, I think it provides another (albeit less compelling) instance in which Hans appeared to want to suppress a voice of someone with whom he disagreed.

At the end of the day, it's not his closed-mindedness or his ideology or his politics or his opinions on the substantive law or his managerial style that lead me to oppose the nomination. Ultimately, it's the manner in which he targeted dissenting voices.

Best,

Mike Pitts
Associate Professor of Law
Indiana University School of Law -- Indianapolis

Posted by Rick Hasen at June 14, 2007 02:26 PM