Tipping back the scales: how Obama can reverse justice's long slow slide to the right.

• Author: Morris, Rachel
• Position: Barack Obama

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In 2003, a thirty-two-year-old lawyer named Bradley Schlozman became deputy assistant attorney general of the Civil Rights Division of the Department of Justice. He wasn't very popular--career lawyers called him "The Schloz" behind his back. But that didn't matter, because Schlozman was their boss, and he didn't like them either. Voting rights attorneys were "mold spores," he complained to an associate. "My tentative plans are to gerrymander all of those crazy libs right out of the section." What he wanted instead was to recruit some "good Americans."

So Schlozman took control of the hiring process, screening all of the applications for career positions. Senior managers in the department soon spotted a pattern in the resumes he selected. His candidates were often poorly qualified--one was only a paralegal--but they were affiliated with conservative groups like the Federalist Society, the Heritage Foundation, or the Republican National Lawyers Association. In fact, one senior lawyer wondered whether Schlozman knew that it was illegal to hire or fire career lawyers for political reasons--he kept appending applications with chirpy notes like: "this has lib written all over it. let's discuss," or, "just spoke with [the attorney] to verify his political leanings and it is dear he is a member of the team." In particular, Schlozman frowned on candidates who had experience with civil rights organizations. "When we start asking about what is your commitment to civil rights ... how do you prove that? Usually by membership in some crazy liberal organization or by some participation in some crazy cause," Schlozman explained to a senior staffer in a voicemail message. "I just want to make sure we don't start confining ourselves to, you know, Politburo members because they happen to be a member of some, you know, psychopathic left-wing organization designed to overthrow the government."

Schlozman's influence wasn't confined to personnel--it infected policy, too. The division vets election legislation to make sure that it complies with the Voting Rights Act, and Schlozman approved a Georgia voter identification law and Tom DeLay's redistricting plan for Texas over the objections of career staff. Both plans benefited Republicans at the polls, but (as courts later found) they illegally disadvantaged minority voters. Morale in the division plummeted, and in 2005, nearly 20 percent of the career staffers left. The following year Schlozman moved on as well, to become a U.S. attorney in Missouri. He wrote to a friend that he missed "bitchslapping" the voting rights attorneys, but he was proud of what he'd accomplished in Washington. An investigation by the Justice Department's inspector general later found that Schlozman had violated civil service laws, and that sixty-three of the ninety-nine attorneys he played a part in employing were known to be Republicans or conservatives.

Schlozman's ham-fisted quest to pack the Justice Department with Bush loyalists was the crass echo of a project that began nearly twenty-five years ago. When Edwin Meese became attorney general in 1985, he aimed to change America's legal culture so that Ronald Reagan's agenda would thrive long after he left the White House. Meese turned the Justice Department into an ideological patronage machine, providing a generation of young conservative lawyers with the government credentials and intellectual tools they would need to transform American jurisprudence.

The cronyism and ineptitude that pervaded the Justice Department in the past eight years may have dealt this project a mortal blow--thanks to the Schloz, a stint in the Bush DOJ will probably not be considered a stepping stone to greater things. But even if the conservative legal movement advances no further, its successes will reverberate for years to come. Republican appointees now comprise more than 60 percent of appeals court judges, with majorities on ten of the thirteen appellate courts, while Democratic appointees control just one. Many of these Republican appointees are not moderates or pragmatists, but talented, unbendable conservatives. A study by the law professor (and now Office of Management and Budget official) Cass Sunstein found that the judges appointed by Republican presidents from Reagan onward were more consistently conservative in their rulings than those appointed by Eisenhower, Nixon, or Ford. Already the Supreme Court has lurched to the right since the arrival of John Roberts and Samuel Alito, both Reagan DOJ alumni.

Since Barack Obama won the election, many have wondered what he will do to repair the damage that Schlozman and his allies inflicted on the DOJ's integrity. But there is another important question to be asked. Meese's inventive use of the Justice Department ultimately set American jurisprudence on a rightward course. Could Obama use his Justice Department to turn it back?

The story of how conservative lawyers extracted themselves from the wilderness is often cast as a sinister tale, as if the Federalist Society were an affiliate of the hooded and robed cabal that Tom Cruise infiltrates in Eyes Wide Shut. Steven Teles, a political scientist at Johns Hopkins University and a fellow at the New America Foundation, offers a more rational take in The Rise of the Conservative Legal Movement, and in a new article in Studies in American Political Development. However, with Alberto Gonzales's blank stare lingering in the mind's eye, Teles's assessment still sounds quite outlandish: he suggests that the real secret of the movement's success was its thirst for ideas and intellectual debate.

The story begins...