Ex-Justice Dept. lawyer can't recall his role in controversi

Perhaps all Bush administration employment candidates should be required to pass good memory tests. ---BBB

Posted on Wed, Jun. 13, 2007
U.S. ATTORNEYS
Ex-Justice Dept. lawyer can't recall his role in controversial policies
By Greg Gordon
McClatchy Newspapers

WASHINGTON - Another former Justice Department lawyer went before Congress on Wednesday with few answers for his Democratic interrogators and a spotty memory.

Hans von Spakovsky, who's seeking a full six-year term on the Federal Election Commission, deflected questions about whether he undermined voting rights laws, saying, "I was not the decision maker in the front office of the Civil Rights Division."

Time and again during his confirmation hearing, he cited either the attorney-client privilege or a cloudy memory for his purported role in restricting minorities' voting rights.

Von Spakovsky couldn't remember blocking an investigation into complaints that a Minnesota Republican official was discriminating against Native American voters before the 2004 election.

Under oath, he also said he didn't recall seeing data from the state of Georgia that would have undercut a push by senior officials within the Civil Rights Division to approve the state's tough new law requiring photo IDs of all voters. The data showed that 300,000 Georgia voters lacked driver's licenses. A federal judge later threw out the law as unconstitutional.

Von Spakovsky was among four nominees to the bipartisan FEC, which regulates federal campaign finance laws, to appear before the Senate Rules and Administration Committee. He and two of the others have had presidential recess appointments since early last year.

Nearly the entire two-hour hearing focused on von Spakovsky and on allegations from former career Justice Department lawyers that he was the administration's "point person for undermining the Civil Rights Division's mandate to protect voting rights" of minorities during his more than four-year tenure.

Citing a scathing letter from six former senior officials of the Voting Rights Section, Committee Chairwoman Sen. Dianne Feinstein, D-Calif., told him bluntly: "It is really a problem for this body to vote for someone with this letter on the record."

Illinois Democratic Sen. and presidential candidate Barack Obama said this week that he thought that von Spakovsky should be rejected "unless he can provide legitimate explanations for his conduct." Sen. Edward Kennedy, D-Mass., expressed similar misgivings.

Whether Democrats can derail von Spakovsky's appointment is unclear.

Feinstein cautioned that "a very serious situation could develop if the Senate fails to confirm at least some" of the four nominees by fall because none of the current commissioners has won Senate approval for a full six-year term.

Another problem for foes of von Spakovsky is that Senate Majority Leader Harry Reid is pushing a home-state candidate, recess appointee Steven Walther of Reno, Nev., and Republicans are likely to put a retaliatory hold on Walther if von Spakovsky is rejected.

Feinstein and Illinois Democratic Sen. Richard Durbin peppered von Spakovsky with questions Wednesday about his Justice Department service.

Asked about the Georgia ID law, von Spakovsky declined to disclose the legal advice he gave his superiors, saying it was privileged, but he maintained that the department took the correct position because the courts didn't find that the law violated the federal Voting Rights Act. In overturning the law, the federal courts cited the 14th and 24th Amendments to the Constitution, he said.

Feinstein questioned von Spakovsky about allegations that he impeded an investigation of allegations that Minnesota Secretary of State Mary Kiffmeyer had wrongly interpreted a new state ID law to bar 200,000 Native Americans from using tribal ID cards to vote.

"I don't remember that complaint at all," von Spakovsky said.

Durbin, after listening to von Spakovsky's memory lapses, remarked that it was "an affliction to which many people in the Department of Justice suffer." He referred to recent testimony by other department officials who are facing allegations of partisanship.

Durbin asked von Spakovsky about a controversial article he wrote for a Texas law journal in 2005 under the pseudonym "Publius," expressing strong support for voter ID laws.

Weeks after its publication, von Spakovsky reviewed the newly enacted Georgia law requiring every voter to produce a photo ID. He testified Wednesday that he'd received clearance from a department ethics officer to write the article. He also cited a 1994 legal opinion by the department that said employees had a First Amendment right to author articles.

Von Spakovsky revealed his authorship of the article on the FEC Web site in 2006, but later deleted mention of it.

When Durbin asked why, he replied: "I took it off because the controversy was, frankly, interfering with my work at the FEC."

Feinstein said the committee would accept comments on von Spakovsky's confirmation until June 20, and she directed von Spakovsky to deliver a point-by-point rebuttal to the six-page letter signed by former Voting Rights Section chief Joseph Rich and five of his senior aides.

The other nominees are Republican David Mason, who's already served a full FEC term and whom Bush nominated for a second term in 2005, and Democrat Robert Lenhard, a former general counsel of the American Federation of State, County and Municipal Employees. Mason also has a recess appointment.