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Rewarding Legal Misjudgment



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As regular readers of NRO know, I have devoted considerable space to illuminating the unfortunate but obvious politicization and shameless hypocrisy of the Civil Rights Division of the Obama Justice Department. While often deplorable and deeply troubling, the behavior can also be simply laughable. Consider, for example, the strange case of Lisa Stark.

At the division’s annual employee-awards ceremony last October, Ms. Stark received a “special commendation award” for her work in a case before the Ninth Circuit Court of Appeals. The case here was United States v. Cha, a human trafficking case. Stark, an appellate career attorney, had filed an interlocutory appeal of the district court’s decision, arguing that evidence buttressing the prosecution’s case had been improperly suppressed.

The awards ceremony booklet noted that Ms. Stark’s “tireless efforts” convinced the “skeptic[al]” solicitor general to approve the appeal. Beyond that, it said, Ms. Stark had “filed an excellent brief.”

Why would the division issue such a prestigious award before the appeal had even been argued, let alone decided? It seemed odd at the time, so I even spent time listening to the oral argument on the Ninth Circuit website and, to put it charitably, the advocacy was not exactly the high-water mark of DOJ representation. Now that the Ninth Circuit has issued an opinion unanimously rejecting Stark’s award-winning appeal (see here), the award seems even odder.

In this case, the Civil Rights Division was trying to justify police actions that the Court found to be not only “reckless” but “deliberate and culpable.” The police had barred someone entry to his own house for almost 27 hours until they could get a search warrant. They weren’t having trouble getting the warrant; they just weren’t trying. The police apparently felt no urgency in getting the paperwork together. The magistrate judge admonished the government for its lame excuses regarding the delay in seeking a warrant, noting that “a detached magistrate may be located at any hour to approve a warrant application.”

Of course, the Ninth Circuit is the most liberal appeals court in the country. But here, its unanimous ruling was entirely reasonable and appropriate.

Certainly the fact that a court rules against your client does not mean your position lacked merit. But it’s not every day that you see the Justice Department giving an award to a losing attorney who couldn’t garner even one vote for her position from an appellate court. No wonder the solicitor general’s office was skeptical; they should be embarrassed for caving into Stark’s “tireless effort.”

How is it that the division now finds itself with egg all over its face? Given all the liberal apparatchiks who inhabit the division, the smart money says the award was all about politics, not merit.

Stark was a leading critic of the Bush administration and (not coincidentally) a contributor to the Obama campaign. Her boss, the “career” appellate section chief who recommended her for the award, was also a major contributor to President Obama. That chief has also been an outspoken critic of the conservative legal positions taken during the prior administration. The division’s political leadership seems to like rewarding career lawyers who have shown support for Democrats and disdain for Republicans.

None of this should surprise any of NRO’s readers. But it does underscore once again that any time you hear the political leadership of this administration’s Civil Rights Division claim that it is “above politics” or that its legal judgment is beyond reproach, it’s really just so many empty words.



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