The Senate Judiciary Committee
today held an oversight hearing on the Department of Justice’s Civil
Rights Division. Below is Senator Leahy’s statement from the
hearing, followed by the list of witnesses who appeared before the
panel.
Statement Of Sen.
Patrick Leahy,
Ranking Member, Judiciary Committee,
On Department Of Justice Civil Rights Division Oversight
November 16, 2006
Today, the Committee is holding a
long-awaited oversight hearing on the Civil Rights Division of the
Justice Department. More than a year ago, the
Washington Post ran two
front page articles detailing how President Bush’s political
appointees within the Division were overriding career litigators’
recommendations on crucial voting rights cases. Other newspapers
like the Boston Globe
have been investigating related issues, as well. A number of us
have raised concerns for some time. I regret that it has taken so
many months to schedule this hearing with the Assistant Attorney
General of the Civil Rights Division, and that it has been delayed
until this lame duck session.
For almost 50 years, the Civil Rights
Division has stood at the forefront of America’s march toward
equality. Founded in 1957, the Division vigorously implemented
civil rights laws during the turbulent era of the Civil Rights
Movement. Its attorneys participated in landmark cases that helped
transform the legal landscape of our country and brought us closer
to the ideal of a “more perfect union.” These cases included
successfully prosecuting the murderers of civil rights workers,
eliminating voter disenfranchisement laws, and battling
discrimination in education and government services throughout the
nation.
There are several reports from former
career attorneys that under the current Administration the Civil
Rights Division is retreating from its historic roots. I am
concerned that President Bush’s political appointees have reversed
longstanding civil rights policies and impeded civil rights
progress. There are disturbing reports that career lawyers have
been shut out of the Division’s decision-making process, that the
Division’s civil rights enforcement on behalf of racial minorities
has sharply declined, and that the Department has packed the
Division with attorneys who have no background in civil rights
litigation.
UNDUE POLITICAL
INFLUENCE
Just a few months ago, President Bush
signed into law the reauthorization of the Voting Rights Act (VRA).
He proudly declared that “[m]y administration will vigorously
enforce the provisions of this law, and we will defend it in
court.” We need to ensure that is so.
I fear that the Bush Administration
may, in this instance as in so many other instances, be saying one
thing, but doing another. Press accounts
indicate that this Administration used weak enforcement and partisan
manipulation to undermine the VRA in connection with last week’s
election. The Associated Press reports that the FBI
is looking into complaints that callers tried to intimidate or
confuse Democratic voters in the bitter contest between GOP Sen.
George Allen and Democratic challenger Jim Webb. In Maryland, a
state where Democrats outnumber Republicans by nearly 2-to-1, sample
ballots suggesting Republican Gov. Robert L. Ehrlich and Senate
candidate Michael Steele were Democrats were handed out by people
bused in from out of state. The Associated Press reports that the
ballots were paid for by the campaigns of Mr. Ehrlich, Mr. Steele
and the Republican Party. Perhaps most disturbing, the
Arizona Republic reports
that in Tucson, three vigilantes, one
man carrying a camcorder, one holding a
clipboard, and one a holstered gun, stopped Hispanic
voters and questioned them outside a Tucson polling place.
This
manipulation has been most evident in Section 5 preclearance. The
Supreme Court repeatedly has held that covered jurisdictions have
the burden to prove that voting changes will not harm minority
voters. If the jurisdiction failed to meet that burden,
preclearance of the proposed electoral changes must be denied.
Press reports indicate that contrary to the law, the Bush
Administration has turned this principle on its head. Political
appointees endorsed redistricting plans or restrictions on the
franchise – in Arizona, Georgia, Texas, and Mississippi – despite
the strong objections of career lawyers who expressed concerns about
the potential for those plans to discriminate against minority
voters.
Career attorneys in the Voting Section
recommended that a Georgia law requiring a photo identification to
vote not be precleared because it would reduce black voters’ access
to the polls and therefore harm minority voters. The career
attorneys also found that
state officials in Georgia failed to
introduce key evidence regarding the racial impact of the law. Yet,
political appointees overruled the career attorneys and approved the
law. The Dallas Morning News
broke a story that the Department adopted a new policy banning staff
attorneys’ opinions in voting rights cases. Under the new policy
the career attorneys’ “recommendation was stripped out of that
document and was not forwarded to higher level officials” in the
Division. This
marked a significant change in an institution that once took pride
in insulating itself from politics. I note that a majority of
Republican-appointed judges on a federal appellate court agreed with
the career attorneys in this case when they later enjoined Georgia
from enforcing the law, labeling it a “poll tax.”
There is also evidence that the Bush
Justice Department exerted undue political influence in cases that
consistently favored Republicans. In a 2002 Mississippi
redistricting case, the Voting Section stalled the redistricting
process for so long that a pro-Republican redistricting plan went
into effect by default. In the recent Texas redistricting case, the
Washington Post noted
how “highly unusual” it was for political appointees to overrule
career attorneys’ unanimous finding that a redistricting plan put
the voting rights of minority citizens at risk. The
Supreme Court recently agreed with the career attorney
recommendation that the redistricting plan approved by the political
appointees in the Division hurt Hispanic voters in Texas, and
ordered Texas to redraw its plan.
All of these cases demonstrate the
need for oversight at the Civil Rights Division, and the restoration
of the principle that partisan politics has no place in the
administration of justice.
DISMAL ENFORCEMENT
RECORD
The Bush Administration has compiled
one of the worst civil rights records in modern American history.
Over the last five years, the Civil Rights Division has filed only
two disparate impact cases under Title VII. Vote dilution claims
have come to a grinding halt. Only
four Section 2 VRA suits have been filed by this Administration on
behalf of any
minority group. The Division’s Appellate Section –
which historically has intervened in key discrimination cases –
filed only six amicus briefs in the courts of appeal in 2004, a
number that represents less than a third of the 22 briefs that were
filed in 1999. Even the number of criminal prosecutions brought by
the Justice Department for violations of civil rights laws
diminished from 83 in 2000 to 51 in 2003.
The lack of cases filed by the Bush
Administration falsely gives the impression that overt
discrimination against minorities is a thing of the past. In nearly
six years of power, the Bush Administration has filed only
one suit on
behalf of African-American voters. Until July of
2006, the Division’s only case alleging racial discrimination in
voting sought to protect white voters in Mississippi. During the
entire tenure of the Bush Administration, the Division has brought
only seven pattern or practice employment discrimination cases,
only three of which alleged claims of racial or national origin
discrimination--
and one of those was a case challenging the affirmative action
policies of Southern Illinois University as discriminatory.
Regrettably discrimination against racial and ethnic minorities
persists. The Department must fulfill its duty to enforce the law
in these cases as well.
POLITICS IN HIRING
AND FIRING
I am also concerned
about reports that political ideology has harmed the Civil Rights
Division’s hiring practices and ability to retain experienced
litigators. In the Voting Section alone, more than 20 attorneys,
representing about two-thirds of the lawyers in the section, have
left in the last few years – over a dozen have left the section in
the last 15 months. Included in this talent drain were the chief of
the section, three deputy chiefs, and many experienced trial
lawyers, representing almost 150 years of cumulative experience in
civil rights enforcement.
The departures are not
my only cause for concern. The Bush Administration’s political
appointees implemented a major policy change in its hiring process.
Until 2002, hiring for career jobs in the Civil Rights Division
under all administrations, Democratic and Republican, had been
handled by civil servants, not political appointees. After the Bush
Administration disbanded the hiring committees – comprised of
veteran career lawyers – a noticeable shift in backgrounds of its
attorneys emerged. According to internal documents obtained by the
Boston Globe, “only
42 percent of the lawyers hired since 2003 . . . have civil rights
experience” which is a downward turn as compared to two years before
the change where “77 percent of those [] hired had civil rights
backgrounds.” The Civil Rights Division apparently hired lawyers
with strong conservative credentials but little experience in civil
rights. Sound familiar? It should, this is the same hiring
philosophy that brought us the disastrous aftermath of Katrina.
Over the past couple of years, we have
witnessed a radical assault by the Bush Administration on
fundamental assumptions about the exercise of power in our
constitutional system. Neither Congress nor a majority of the
American people favor radical departures from our nation’s
time-honored tradition of civil rights enforcement.
A TIME FOR
ACCOUNTABILITY
As the Committee responsible for
overseeing the Justice Department, we must ensure that the
Department is upholding its duty to protect the American people --
all the people -- from discrimination. Our civil rights laws
provide our Federal Government with the authority to impose criminal
and civil sanctions against individuals and institutions that
violate our peoples’ civil rights. They provide meaning to our
constitutional guarantees. If civil rights laws are ignored –
particularly by the federal agency charged with their enforcement –
discrimination will flourish, and the consequences for our nation
will be great. The great civil rights champion Representative John
Lewis rightly noted that “American citizens have a right to know
whether the Justice Department is ignoring the law and bending to
the will of politics.” Accountability is overdue.
CONCLUSION
We welcome Assistant Attorney General
Wan Kim. We are glad to have you back before this Committee so that
we may more fully explore these issues with you.
We also welcome the testimony of
several practitioners who have served in the Civil Rights Division.
We will hear from Joe Rich, a well-respected civil rights attorney,
who worked in the Justice Department for 37 years and, until last
year, served as Chief of the Voting Section. We are also pleased to
hear from Ted Shaw, the current Director-Counsel and President of
the NAACP Legal Defense Fund, who began his career as a trial
attorney in the Civil Rights Division.
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