Facing South

Politicizing civil rights enforcement

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The recent scandal and cover up surrounding fired U.S. Attorneys who turned out to not be "loyal Bushies" highlights a growing concern about the Justice Department's enforcement of civil rights.

As Chris Kromm noted here last week, there are questions about voter suppression and enforcement of voting rights. Before that there was the DOJ Civil Rights Division investigation which concluded Georgia's proposed voter ID law was discriminatory and recommended against approving it -- a finding that was http://southernstudies.org/facingsouth/2005/11/doj-voter-rights-investig... ">overridden by higher-ups in the Justice Department. And before that, a 2004 Southern Studies investigative report (PDF format) found that creative interpretation and selective enforcement of election laws benefited Republican candidates.

But the problems at the Justice Department appear to go far beyond enforcement of Bush loyalty and non-enforcement of voting rights.

The House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties recently held an oversight hearing on the DOJ's Civil Rights Division. They heard testimony from the head of the division and civil rights leaders.

In his opening statement, Subcommittee Chairman Jerrold Nadler (D-NY) said:

The recently released report by the Citizens' Commission on Civil Rights, "The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration," documents a very troubling pattern of the politicization of the Division's work. The findings, by this bi-partisan group of career civil rights professionals, are very troubling. They reflect concerns that have been raised for several years, and which, until now, have not been subject to the scrutiny of this Subcommittee.

Allegations of the politicization of law enforcement are certainly not new to the members of this Committee. An extremely disturbing pattern is emerging from this administration of relentless political interference in the basic enforcement of our laws.

In areas, such as the Voting Rights Act - which this Committee just reauthorized - we have received allegations that political considerations have trumped the recommendations of career staff. In these cases, the courts have upheld the recommendations of the civil rights professionals in the Division, and have struck down the political decisions imposed by what some have called the Shadow Civil Rights Division.

If the rule of law is to have any meaning, if the civil rights laws this Committee produces are to have any value, then we must be assured that those laws will be enforced without fear or favor.

Of course the head of the Civil Rights division, Wan J. Kim, defended the DOJ's record, citing specific case examples intended to portray vigorous enforcement of civil rights laws. You can read his full testimony http://judiciary.house.gov/media/pdfs/Kim070322.pdf ">here (PDF format).

Civil rights leaders, though, paint a somewhat different picture.

William L. Taylor, Chairman of the Citizens' Commission on Civil Rights, http://judiciary.house.gov/OversightTestimony.aspx?ID=801 ">testified:

...as the Division approaches its 50th anniversary, it is in deep trouble because the Bush Administration has used it as a vessel for its own political objectives, often disregarding the law and sullying the group's reputation for professionalism and integrity.

[..]

The assault of the Administration on the Civil Rights Division, taken together with the nomination of judges who are hostile to the enforcement of laws that ban discrimination, has left many persons without the protections of law on which they have relied.

Joseph D. Rich, Director of the Fair Housing Project, Lawyers' Committee for Civil Rights Under Law, http://judiciary.house.gov/media/pdfs/Rich070322.pdf ">testified (PDF format):

Given the passions that civil rights enforcement generates, there has always been potential for conflict between political appointees of the incumbent administration, who are the ultimate decision makers within the Division and the Department, and the stable ranks of career attorneys who are the nation's front line enforcers of civil rights and whose loyalties are to the department where they work. Career attorneys in the Division have experienced inevitable conflicts with political appointees in both Republican and Democratic administrations. These conflicts were almost always resolved after vigorous debate between the career attorneys and political appointees, with both learning from the other. Partisan politics was rarely injected into decision-making [...]

During the Bush Administration, dramatic change has taken place. Political appointees made it quite clear that they did not wish to draw on the expertise and institutional knowledge of career attorneys. Instead, there appeared to be a conscious effort to remake the Division's career staff. Political appointees often assumed an attitude of hostility toward career staff, exhibited a general distrust for recommendations made by them, and were very reluctant to meet with them to discuss their recommendations. The impact of this treatment on staff morale resulted in an alarming exodus of career attorneys -- the longtime backbone of the Division that had historically maintained the institutional knowledge of how to enforce our civil rights laws tracing back to the passage of our modern civil rights statutes.

Compounding this problem was a major change in hiring procedures which virtually eliminated any career staff input into the hiring of career attorneys. This has led to the perception and reality of new staff attorneys having little if any experience in, or commitment to, the enforcement of civil rights laws and, more seriously, injecting political factors into the hiring of career attorneys. The overall damage caused by losing a large body of the committed career staff and replacing it with persons with little or no interest or experience in civil rights enforcement has been severe and will be difficult to
overcome.

Wade Henderson, President and CEO of the Leadership Conference on Civil Rights testified (PDF format):

Revelations indicating that the U.S. Department of Justice may have fired eight U.S. Attorneys to further a political agenda were surprising to many; to those of us who have been watching the Civil Rights Division, they were not. Over the last six years, we have seen politics trump substance and alter the prosecution of our nation's civil rights laws in many parts of the Division. We have seen career civil rights division employees - section chiefs, deputy chiefs, and line lawyers -- forced out of their jobs in order to drive political agendas. We have seen whole categories of cases not being brought, and the bar made unreachably high for bringing suit in other cases. We have seen some outright overruling of career prosecutors for political reasons, and also many cases being "slow walked," to death.

In general, the concerns that we have with the enforcement within the Civil Rights Division fall into three broad categories: (1) a significant drop off in the number of cases brought overall; (2) a shifting of priorities away from traditional enforcement areas, where the 3 Division has long played a unique and significant role, and (3) politicization of personnel decisions and substantive decision-making within the Division.

Are we seeing an emerging theme yet?

Among the specific concerns cited, Joseph D. Rich notes:

• Removal and/or reassignment of section chiefs and deputy chiefs by political appointees, something that rarely occurred under previous administrations.

• Limited communication between section chiefs and political leadership.

• Case assignments made by political appointees, including a shift of focus to deportation cases at the expense of other civil rights cases.

• Mass exodus from the voting section, with over 54% leaving or being reassigned to other divisions since 2005, including the section chief and three of four deputies.

• Mass exodus from the employment section, with over 65% leaving or being reassigned since 2002, including the section chief and three of four deputies.

• Loss of 12 paralegals, many with over 20 years experience.

• Only 19 of 45 of lawyers hired since 2003 in the appellate, employment, and voting sections have civil rights background or experience, and some of that was defending employers in discrimination lawsuits.

Regarding enforcement, Wade Henderson notes:

• The Bush administration has filed only 35 Title VII employment cases, as compared to the previous administration which filed 92 cases.

• The number of housing cases has fallen from 53 in 2001 to 31 in 2006. Cases involving discrimination have fallen by 60%.

• Shifting of resources to "reverse discrimination" cases on behalf of whites.

• The voting section filed no discrimination cases on behalf of African American voters between 2001 and 2006, and none on behalf Native Americans.

Based on the testimony at this hearing, it appears that a great deal of damage has been done to the DOJ's Civil Rights Division in just six short years under the Bush administration. We can only hope that it won't take 50 more years to undo it.

For further reading:

The Bush Administration Takes Aim: Civil Rights Under Attack

The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration (Chapters 1 and 2)

The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration (Chapters 3 through 7)

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