[Senate Hearing 109-1034]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1034
OVERSIGHT OF THE CIVIL RIGHTS DIVISION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
----------
NOVEMBER 16, 2006
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Serial No. J-109-120
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Printed for the use of the Committee on the Judiciary
OVERSIGHT OF THE CIVIL RIGHTS DIVISION
S. Hrg. 109-1034
OVERSIGHT OF THE CIVIL RIGHTS DIVISION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
NOVEMBER 16, 2006
__________
Serial No. J-109-120
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
44-236 PDF WASHINGTON DC: 2009
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 7
prepared statement........................................... 263
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 6
prepared statement........................................... 265
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 294
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Carvin, Michael, Partner, Jones Day, Washington, D.C............. 32
Driscoll, Robert N., Partner, Alston & Bird, LLP, Washington,
D.C............................................................ 30
Kim, Wan J., Assistant Attorney General, Civil Rights Division,
Department of Justice, Washington, D.C......................... 8
Rich, Joseph, Director, Housing and Community Development
Project, Lawyers' Committee for Civil Rights Under Law,
Washington, D.C................................................ 30
Shaw, Theordore M., Director-Counsel and President, NAACP Legal
Defense and Educational Fund, Inc., (LDF), New York, New York.. 27
QUESTIONS AND ANSWERS
Responses of Wan J. Kim to questions submitted by Senators Leahy,
Specter, Kennedy, Feingold, Schumer and Durbin................. 39
Responses of Joseph Rich to questions submitted by Senators Leahy
and Kennedy.................................................... 242
Responses of Theodore M. Shaw to questions submitted by Senators
Leahy and Kennedy.............................................. 249
SUBMISSIONS FOR THE RECORD
Carvin, Michael, Partner, Jones Day, Washington, D.C., prepared
statement...................................................... 260
Driscoll, Robert N., Partner, Alston, & Bird, LLP, Washington,
D.C., prepared statement....................................... 262
Kim, Wan J., Assistant Attorney General, Civil Rights Division,
Department of Justice, Washington, D.C., prepared statement.... 267
Rich, Joseph, Director, Housing and Community Development
Project, Lawyers' Committee for Civil Rights Under Law,
Washington, D.C., prepared statement........................... 298
Shaw, Theordore M., Director-Counsel and President, NAACP Legal
Defense and Educational Fund, Inc., (LDF), New York, New York,
prepared statement............................................. 311
OVERSIGHT OF THE CIVIL RIGHTS DIVISION
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THURSDAY, NOVEMBER 16, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:34 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Grassley, Leahy, Kennedy,
Feingold, and Schumer.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Judiciary Committee will now proceed with this oversight
hearing on the Department of Justice Civil Rights Division. A
prime responsibility of the Civil Rights Division is to oversee
the Voting Rights Act, to see to it that citizens have a right
to vote. We had a very major election 9 days ago where the will
of the people was expressed, marking perhaps a significant
change in United States policy in a number of directions. And
to carry out the will of the people, obviously, the citizenry
must be able to vote, and voting rights have been a source of
contention and disagreement and violation for decades, going
back into the last century. So these are really very, very
important issues.
Beyond the voting rights aspect of civil rights are the
constitutional rights of citizens in many other contexts, and
one context which has been the subject of considerable
controversy has been the constitutional rights of detainees at
Guantanamo where we have recently had action by the Congress in
eliminating habeas corpus, a legislative enactment which, in my
opinion, will be overturned by the courts. But there has been a
Department of Justice position taken and legal briefs filed
that people subject to interrogation may not even say what
techniques were used against them out of concern that al Qaeda
will find out what those techniques are and train people to be
able to respond and to avoid being induced to talk by those
techniques. Kind of a curious situation if someone claiming a
violation of rights, perhaps claiming a violation of torture,
which is against U.S. law, cannot even recite what happened to
the individual. When we move through the voting rights issues,
which are paramount, as I say, we will be taking up some of
those questions.
There has been a consistent pattern of reports in the media
which raise questions as to the objectivity of the Civil Rights
Division. There have been reports about a significant decrease
of civil rights enforcement action from 85 in 1999 to 49 in
2003, and we are trying to get up-to-date statistics as to what
happened in 2004 and 2005, which apparently are not available.
But the media has reported that, as they put it, the permanent
ranks of the Civil Rights Division have been filled with
political appointees instead of the people who are career. The
reports in the media have contended that Congressional aides
and current and former employees familiar with the issue claim
that the Department of Justice has barred career staff
attorneys from offering recommendations in major voting rights
cases, making a significant change in the procedures intended
to insulate the career people from political considerations.
Further reports in the media that the Justice Department has
forced career staff to move to other divisions or to handle
cases unconnected to civil rights, that the Department has
discarded the established hiring practice which used a
commission of career staff members to evaluate and recommend
new staffers, and instead has given that responsibility to the
political staff.
These are all issues which we have noted raised in the
media. We look to you, Mr. Kim, for an authoritative evaluation
as to underlying facts on these matters.
The media has further reported that there has been a very
substantial loss in staff, about a third of the three dozen
lawyers over the past 9 months. We will ask you to respond to
that.
Aside from the media reports, which we take as allegations,
subject to finding out the detailed facts, there have been
three major decisions which suggest that the Civil Rights
Division has not been doing everything that it should. There
was a case where the Civil Rights Division is said to have
delayed for 3 months on granting or denying preclearance to the
Mississippi State court's Congressional redistricting plan, and
then that plan was superseded by a Federal court's provisional
plan. So that the Federal court ought not to have to step in,
the Civil Rights Division ought to be making a determination on
preclearance without waiting for a judicial determination.
In a second litigated case, there was an issue of granting
preclearance to the mid-decennial census of the Congressional
redistricting in Texas, which involved an issue of regressive
dilution of Hispanic voting strength, and that matter was
reversed in part this year by a Supreme Court decision.
And a third case involved the preclearance of Georgia's
photo identification requirement in only 7 hours, and that
determination was later enjoined on constitutional grounds by a
Federal court in Georgia. So these are all matters which we
want to take a close look at.
In my home town of Philadelphia, a report issued by the
American Center for Voting Rights found that there was violence
against Republican volunteers at polling stations by union
members, that there were 15 newly registered voters determined
to be deceased--a longstanding practice in Philadelphia for
graveyard voting--and voter rolls with nearly the same number
of voters as there were voting age adults.
I might comment briefly, when I was district attorney in
1968, the State senator physically assaulted a candidate for
the State legislature, resulting in criminal charges. In 1972,
a State court judge came to work at 5:30 in the morning, signed
in on the City Hall register, and issued an injunction barring
poll watchers of Senator McGovern, who was running for
President. And on a deal in South Philadelphia--South
Philadelphia notorious for such deals--where the politicos gave
the top of the ticket, President Nixon, to the Republicans and
the rest of the ticket to Democrats, resulting in the
prosecution of the State court judge, city councilmen, and
quite a number of other people. So that Philadelphia is not
alone. Some of the briefing materials relate to Missouri, and
then there is always Chicago. So you have a big job, Mr. Kim.
We have been joined by our distinguished Ranking Member,
not ranking for very much longer, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. I am glad we are
having this hearing on the Civil Rights Division, and I am glad
that you are doing this, and, of course, having Senator Kennedy
here as somebody who has had an interest in this long before
you and I and Senator Grassley even came to the Senate.
For 50 years, the Civil Rights Division has been at the
forefront of America's march toward equality, a march that
sometimes stutters and staggers, but should be going forward.
Founded in 1957, it vigorously implemented civil rights laws
during the civil rights movement. Its attorneys participated in
landmark cases to help transform us into what we should call a
``more perfect union.'' These cases included successfully
prosecuting the murders of civil rights workers, eliminating
voter disenfranchisement laws, battling discrimination in
education and government services throughout the Nation.
But there are several reports from former career attorneys
that under the current administration the Civil Rights Division
is retreating from its historic roots, and I am concerned that
President Bush's political appointees have reversed
longstanding civil rights policies and may have 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.
Just a few months ago, President Bush signed into the law
the reauthorization of the Voting Rights Act, and he proudly
declared, ``My administration will vigorously enforce the
provisions of this law, and we will defend it in court.'' I
applauded the President for saying that, but we need to ensure
that he does that. I fear that in this, as in many other
instances, the administration may say one thing and do
something else.
Press accounts indicate this administration used weak
enforcement and partisan manipulation to undermine the Voting
Rights Act 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 Senator
George Allen and Democratic challenger Jim Webb in Virginia. In
Maryland, a State where Democrats outnumber Republicans by
nearly 2 to 1, sample ballots suggesting Republican Governor
Robert Ehrlich and Senate candidate Michael Steele were
Democrats were handed out by people who were bused in from out
of State. And the Associated Press reports that these ballots
were paid for by the campaigns of Mr. Ehrlich, Mr. Steele, and
the Republican Party. If so, this is the kind of sleazy, sleazy
thing that we might have seen a generation ago, but we should
not see in America today. Perhaps most disturbing, the Arizona
Republic reports 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.
The 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, and if the jurisdiction
failed to meet that burden, preclearance of the proposed
electoral changes must be denied. And press reports indicate
that, contrary to the law--contrary to the law--the Bush
administration has turned this principle on its head and done
it in the Department that is supposed to uphold the law, with
no fear or favor from either political party. 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. But even though the
career attorneys--who are neither Republicans nor Democrats and
have come in there under both administrations, even though this
is what they recommended--the political appointees overruled
them 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. The career
attorneys' ``recommendation was stripped out of that
document....'' Now, this marked a significant change in an
institution that once took pride in insulating itself from
politics. I have been here with six Presidential
administrations. They have always taken pride in being
insulated from political pressure, the five before--President
Ford, President Carter, President Reagan, former President
Bush, President Clinton. Now we find it is changed. And the
irony is that a majority of Republican-appointed judges on a
Federal appellate court agreed with the career attorneys in the
case in Georgia when they later enjoined Georgia from enforcing
the law, labeling it a ``poll tax.'' At least the Republicans
in the judiciary upheld the law, unlike the political
appointees of the administration and the Department of Justice
who were willing to have a dark mark put on what has been
historically a good record.
There is evidence that the Bush Justice Department exerted
undue 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 news 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. And the
Supreme Court, again, where seven out of nine members of the
Supreme Court are Republicans, they agreed with the career
attorney recommendation that the redistricting plan approved by
the political appointees of the Bush administration in the
Division hurt Hispanic voters in Texas and ordered them to
withdraw the plan.
So 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.
I am concerned that political ideology has harmed the Civil
Rights Division's hiring practices and their ability to retain
experienced litigators. In the Voting Section alone, more than
20 attorneys, representing about two-thirds of the lawyers in
that section, have left in the last few years. Over a dozen
have left the section in the last 15 months--the chief of the
section, three deputy chiefs, many experienced trial lawyers,
almost 150 years of cumulative experience.
We have to assure that the Justice Department at least is
upholding its duty to protect the American people, all people,
no matter who they are, no matter what their political party,
no matter where they live, no matter what their color, no
matter what their background, that they are protected from
discrimination.
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.'' Well, accountability is overdue.
We are glad to have you, Assistant Attorney General, back
before this Committee. 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 lawyer
who worked at the Justice Department for 37 years. He had been
the chief of their Voting Section. Ted Shaw, the current
Director-Counsel and President of the NAACP Legal Defense Fund,
began his career as a trial attorney in the Civil Rights
Division.
So, Mr. Chairman, I know I have gone over time, but I think
this is extremely important. I am very concerned. I think that
we--and I would have the same concern if this were happening
under a Democratic administration. We should not have politics
in this branch, or in any branch of the Justice Department,
especially this one.
Thank you.
Chairman Specter. Thank you, Senator Leahy.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Grassley, would you care to make an opening
statement?
Senator Grassley. No. Thank you.
Chairman Specter. Senator Kennedy, thank you for your
leadership in this field, and we turn to you for an opening
statement.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, and I will just take a moment.
I want to thank you, Senator Specter, for having this
hearing. I remember when we talked after that rather extensive
report in the Washington Post. In my own State of Massachusetts
the Boston Globe, Charlie Savage did a very extensive and
thoughtful analysis also about the direction of the Civil
Rights Division of the Justice Department and pointing out a
number of these concerns. And I know that you have scheduled
this hearing a number of different times, but we are very, very
grateful that you have been willing to set this hearing today
because it is of great importance.
Mr. Kim, we want to welcome you. I think you have got the
sense from these opening statements of our strong belief on
this Committee that we need a Justice Department Civil Rights
Division that is going to be beyond reproach in terms of its
neutrality and its commitment to enforcing the law. This has
been, I think, the key and defining aspect of the last really
50 years of our march toward progress in knocking down walls of
discrimination, and this particular agency has just been in the
forefront of that, and they have done it with career attorneys
that have taken great pride, enormous successful, talented
individuals that could have gone to the finest firms in America
and done exceedingly well. But their strong commitment to this
legislation and the concern, as others have pointed out, about
how their professional aspirations have been overridden, and
the general kind of lack of enforcement that I think that we
have seen in Title VII, which is so important. We acknowledge
that there has been an expansion in some of the areas of
criminal prosecutions, but in the core aspects of this, whether
it has been in the hiring, the consideration of political
considerations, and the judgments and decisions of the
Department, enforcement under Title VII provisions, are all
matters of great importance and consequence. We know we have
brought these matters to your attention. We are interested in
hearing your response, and we would like to work with you on
these issues even after this hearing to try and achieve what I
am sure you are committed to, and that is, a Department that is
going to carry forward what has been debated, discussed, passed
in the Congress, signed by the President into law, and is
really, hopefully, the birthright of all Americans.
Thank you, Mr. Chairman.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Kennedy.
We welcome you here, Assistant Attorney General Kim.
Mr. Kim has been in this position for a little more than a
year--November 9, of last year, sworn into office. He is a
graduate of the University of Chicago Law School with honors, a
bachelor's degree from Johns Hopkins University--
Senator Feingold. Mr. Chairman, I wonder if I might have an
opportunity to make an opening statement.
Chairman Specter. Let me finish the introduction and with
your arrival we will turn to you, Senator Feingold.
A bachelor's degree from Johns Hopkins University in
economics. Prior to his nomination as Assistant Attorney
General for the Civil Rights Division, he served as Deputy
Assistant Attorney General. He has been an Assistant United
States Attorney for the District of Columbia, a law clerk to
Circuit Court Judge James Buckley, and a rifle platoon leader
in the U.S. Army Reserve. Phi Beta Kappa, associate editor of
the Law Review at the University of Chicago Law School.
Senator Feingold, do you care to make an opening statement?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Yes, Mr. Chairman, thank you. Thank you
for calling this hearing. I understand this is not only the
first oversight hearing since Mr. Kim took over the Civil
Rights Division about a year ago, but it is also the first
oversight hearing of the Division that this Committee has held
since May 2002.
For the separation of powers designed by the Framers to
work, we in the legislative branch need to take our oversight
authority seriously. While this hearing is a good first step,
it is just a first step. It is clear that the Civil Rights
Division of the Department of Justice requires our attention
and that one hearing will not suffice. So I applaud you, Mr.
Chairman, for holding this hearing, and I look forward to much
more oversight in the next Congress.
The DOJ Civil Rights Division holds a place of special
importance in our Federal Government. Created in 1957, it is
charged with ensuring that the ideals of freedom and equality
that have distinguished our country since its founding are
realities for all citizens.
While the structure of our civil rights laws provides for
individual citizens to operate as private attorneys general,
it, of course, often does fall to the Department of Justice to
litigate the most difficult cases. In order to protect the
rights of all Americans, the Department of Justice must be open
to developing new litigation theories and strategies and to
taking on cases that are too complex to rely on private
enforcement. We depend on the Department to be the leader in
civil rights enforcement. Fulfilling this role means the
Department must sometimes pursue cases that are not guaranteed
or are not easy victories.
Today, and continuing next year, we will consider whether
the Civil Rights Division is living up to this charge. The core
responsibilities of the Division lie in its enforcement of the
civil rights laws, which prohibit discrimination in education,
employment, housing, voting, lending, policing, and
institutionalization. It is essential that the Civil Rights
Division continue to give these responsibilities priority, even
as it finds itself taking on additional areas of enforcement,
such as immigration and trafficking.
I am concerned at what seem to be clear signs that the DOJ
has not found a way to do this and has instead concentrated too
heavily on a few things to the detriment of many others.
I mentioned that voting rights is a core responsibility of
the Division. The just completed elections revealed far too
many instances of what appear to be intentional efforts to
suppress or intimidate voters. This is a serious problem that
requires the Department's serious attention. It is not ``just
politics.'' If voters lose faith in elections, they will lose
faith in their Government. It is as simple as that. I hope we
can all agree that we cannot let that happen.
I just want to say to Mr. Kim that oversight need not be
something for the Division to fear or resist. A cooperative
relationship between the Congress and the executive branch can
make Government more responsive to the people and more trusted
as it carries out its work. Particularly in the area of civil
rights, we should all be on the same side. If we work together,
we can communicate better than we have in the past several
years, and Congress can make sure that adequate funding and
direction is available for the very important work you are
expected to do.
Thank you, Mr. Chairman.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Feingold.
Welcome again, Mr. Kim, and we turn to you for your opening
statement.
STATEMENT OF WAN J. KIM, ASSISTANT ATTORNEY GENERAL, CIVIL
RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Kim. Thank you, Mr. Chairman, and I appreciate the
presence of you, Ranking Member Leahy, and many other
distinguished members of the Committee, and certainly I share
your appeal and your interest in oversight. The time I spent
working on the Senate Judiciary Committee gave me a deep and
abiding respect for this Committee and the work that it does in
making sure that all branches of Government are operating
consistent with the law. It is my pleasure to appear before you
today.
I have served as Assistant Attorney General for the Civil
Rights Division for almost exactly 1 year now. I am honored to
serve President Bush, Attorney General Gonzales, and the
professionals of the Civil Rights Division in this capacity. I
am pleased to report that the past year was full of outstanding
accomplishments in the Civil Rights Division, one in which we
obtained many record levels of enforcement. I am proud of the
professional attorneys and staff in the Division whose talents,
dedication, and hard work made these accomplishments possible.
My prepared written statement details the accomplishment of
each section of the Division, and I will only address portions
of it here. Mr. Chairman, I would ask that the entirety of my
prepared statement be placed into the record.
I will take just a brief opportunity to highlight some of
the Division's more notable accomplishments during the past
year.
The Voting Section has filed 17 new lawsuits this year,
more than doubling the average number of lawsuits filed during
the preceding 30 years. Just last week, we successfully mounted
the largest election-monitoring effort ever conducted by the
Department of Justice for a midterm election. Earlier this
year, the administration strongly supported passage of the
voting rights reauthorization legislation. Last year, we
obtained a record number of convictions in the prosecution of
human-trafficking crimes--deplorable offenses of fear, force,
and violence that disproportionately affect minorities and
women.
Last year, the Employment Litigation Section filed as many
lawsuits challenging a pattern or practice of discrimination as
during the last 3 years of the previous administration
combined.
Last year, the Housing and Civil Enforcement Section filed
more cases alleging sexual harassment in violation of the Fair
Housing Act than in any year in history. Last year, pursuant to
the Attorney General's Operation Home Sweet Home Initiative,
the Housing and Civil Enforcement Section conducted
significantly more tests to ensure compliance with the Fair
Housing Act, and we are working to achieve an all-time number
of such tests this year.
Last year, the Disability Rights Section obtained the
highest success rate to date in mediating complaints brought
under the Americans with Disabilities Act. In the past 6 years,
the Disability Rights Section has reached more than 80 percent
of the agreements obtained with State and local governments
under Project Civic Access, a program that has made cities more
accessible and made lives better for more than 3 million
Americans with disabilities.
In the past 6 years, we have ensured the integrity of law
enforcement by more than tripling the number of agreements
reached with police departments across the country and
convicting 50 percent more law enforcement officials for
willful misconduct, such as the use of excessive force, as
compared to the previous 6 years.
Before I close, I would like to note that the Division will
be celebrating its 50th anniversary next year. And as this
milestone draws near, I have reflected upon the work of the
Division not only during my short time of service but over the
past half-century.
Since our inception in 1957, the Division has accomplished
a great deal, and we have much to be proud of--sentiments that
were echoed by many of the members of this Committee. While
citizens of all colors, from every background, living in all
pockets of the country--North and South, rural and urban--have
seen gains made on the civil rights front, one need not look
back very far to recall a far different landscape. This point
was made more vivid for me when I had the opportunity to travel
with Attorney General Gonzales to Birmingham, Alabama earlier
this year. We were there to attend the dedication of the 16th
Street Baptist Church as a National Historic Landmark. In 1963,
racists threw a bomb into this historically black church,
killing four little girls who were attending Sunday school.
Horrific incidents like this sparked the passage of the Civil
Rights Act of 1964--the most comprehensive piece of civil
rights legislation passed by Congress since Reconstruction.
While much has been achieved under that piece of legislation
and other civil rights laws passed by Congress since then, the
Division's daily work demonstrates that discrimination still
exists in our country. And so our work continues.
Thank you, Mr. Chairman, thank you, members of the
Committee, for the opportunity to appear here before you today.
I look forward to hearing your thoughts and to answering your
questions.
Chairman Specter. Thank you very much, Mr. Kim. We will now
proceed to questions by the Senators with rounds being 5
minutes in duration.
Mr. Kim, last year when you were here, you were asked about
the Georgia State voting law requiring identification for a $20
fee, and at that time you responded that you were not a part of
the decision. What has happened with that matter, as you see
it?
Mr. Kim. Senator, that preclearance decision was made in
August of 2005. Since that preclearance decision was made, the
State of Georgia amended that law, and it amended the law in
two significant--well, three significant ways. The first way
was it made all photo identification cards completely free to
the person who needed it. Second, it increased the number of
venues by which a person who did not have an identification
card could--
Chairman Specter. Mr. Kim, come to the point about the
Federal court declared the Georgia photo identification--it was
enjoined on constitutional grounds. What was the essence of
that judicial decision?
Mr. Kim. Sir, it was enjoined several different times by
several different courts. The most recent ruling is that it was
enjoined by a federal district court on equal protection
grounds, I believe, 14th Amendment issues.
Chairman Specter. How do you account for the judicial
decision striking down the judgment of the Civil Rights
Division?
Mr. Kim. It did not strike down the judgment of the Civil
Rights Division, with respect, Senator. What it did was it
ruled that it was unconstitutional, and it is important to
understand--and this is a point that is glossed over by the
media--that the Civil Rights Division--
Chairman Specter. Hadn't the Civil Rights Division approved
the--
Mr. Kim. Yes, sir, but the point that I am trying to make,
Mr. Chairman, is that under Section 5 review, as delineated by
the Supreme Court of the United States, constitutional
considerations may not be measured in a Section 5 retrogression
analysis. The Section 5 retrogression analysis, as defined by
the Supreme Court, excludes constitutional considerations. So
even--
Chairman Specter. Has to exclude--
Mr. Kim. Yes, sir.
Chairman Specter [continuing]. Constitutional
considerations?
Mr. Kim. That is correct. The Section 5--
Chairman Specter. So if the Department of Justice thinks it
is unconstitutional, they may not consider that but have to
grant preclearance in any event?
Mr. Kim. Yes, sir, unless it is retrogressive. If it is
retrogressive and unconstitutional, then obviously we would
issue an objection. But if it is not--
Chairman Specter. If it is not retrogressive but it is
unconstitutional, you can approve it?
Mr. Kim. Yes, sir. And, in fact, under--
Chairman Specter. That does not make much sense, does it?
Mr. Kim. Senator, that is a decision of the Supreme Court,
and we respect that decision.
Chairman Specter. Well, we can modify the statute. We have
the authority to do that.
Mr. Kim. Yes, sir, you do. In fact, the Supreme Court
issued another ruling in the late 1990's--
Chairman Specter. Well, we will take a close look at that.
It does not sound sensible that the Civil Rights Division would
not be able to consider unconstitutionality in granting
preclearance. But let me move on to the issue of staffing.
When you testified last year, you said that you prided
yourself on maintaining a cohesive congenial staff. Is it true
that there has been a one-third turnover in the staff in the
last 9 months?
Mr. Kim. I do not believe that is correct, Senator. I mean,
I--
Chairman Specter. Well, what is correct?
Mr. Kim. I believe the attrition rate this year and
historically has been approximately 13 percent, and that is
true of the past 12 years. I have seen many reports of a flood
of attorneys leaving and--
Chairman Specter. So the reports are incorrect which
specify that a third of your--36 lawyers have turned over in
the last 9 months?
Mr. Kim. I am not sure which 36 lawyers--the Division has
approximately 350 lawyers, Senator, and the Division attrition
rate for the past 12 years has been about the same historically
over that past 12-year period, and that is, approximately 12 or
13 percent of our attorneys leave each year.
Chairman Specter. Mr. Kim, is it accurate that the Civil
Rights Division had used a commission of professional career
people, to make decisions on hiring and that that has now been
changed, that the Department of Justice has discarded the
existing hiring procedure which used a commission of career
staff members to evaluate and recommend new staffers, and
instead that hiring responsibility is now handled by the
political staff?
Mr. Kim. That is partially true, Senator, and if I could
explain. There are two methods--
Chairman Specter. Tell me which part is true.
Mr. Kim. OK. The part is true that our program for hiring
attorneys to the Honors Program has changed, and it was changed
by order of the Attorney General in 2002 to make it consistent
with the rest of the Department. The process for hiring
attorneys, as I understand it, was never governed by a central
hiring committee. That was always governed by section chiefs
working in conjunction with the Assistant Attorney General's
office, and that is the way that the bulk of attorneys are
hired in the Division. That process has always included the
interplay, as I understand it, of career section chiefs and
leadership of the office of the Assistant Attorney General, and
that is the way it remains today.
Chairman Specter. Mr. Kim, is there any substance to these
repeated media reports that the career staffers have been
transferred and that the career staffers have not had their
views taken into account and they have been superseded by
political appointees?
Mr. Kim. Well, Senator, I believe that there were well-
publicized accounts in the past of some decisions where there
were disagreements. I can tell you that the way I manage the
Division and my approach has always been one of inclusion. I
think that people, if I disagree with them, have a very fair
basis for understanding the reasoned basis for my disagreement,
and I am not aware of many instances at all where I have
disagreed with recommendations, although I have questioned them
and I have probed, and I believe that is my job to do so. But
the decisions that have been brought to bear are decisions that
were made before I came here. And, by the way, I am not
quarreling with the accuracy of the decisions. I have no reason
to believe those decisions were incorrect. But I believe in any
job where you have a bunch of lawyers who are highly
intelligent discussing legal issues, there are going to be
disagreements at times. And I think the onus of making the
final decision is on the person who has to appear before this
Committee, is charged with the responsibility of management,
and has to account for the decision made.
Chairman Specter. Senator Kennedy. Pardon me. Senator
Leahy.
Senator Leahy. We Irish all look alike.
Mr. Kim, one of the things I have enjoyed the most in being
a U.S. Senator, I have been asked by both Republican and
Democratic administrations to go and be an election observer in
other countries when people are basically given the first
chance in an open election. I remember one when I went out at
1:30 in the morning, and I just could not sleep. I was in a
very noisy town. I took my camera and thought I would go out
and take some night shots. And I came by a couple of polling
booths, and there were long lines already there. Some people
had walked for a day to get there.
By 10 o'clock that morning, there was nobody there because
every single person on the checklist had voted. And I asked
several of them through a translator why, and they said they
had heard from their grandparents when they had a chance to
vote, and now they were getting the chance themselves to vote
for the first time in their lives and they wanted to be there.
And the vote is such a really--it is the absolute most
important thing in democracy.
I hear about so many candidates and political parties
trying to interfere or intimidate people so they will not vote.
According to press accounts, right-wing radio host Laura
Ingraham had urged listeners of her radio show to jam a phone
line set up by Democrats to investigate alleged voting
irregularities. She told her listeners, ``Everybody call that
voting line all at the same time,'' and basically make it
inoperative. Is that something that your Division investigates?
Mr. Kim. Senator, that is a very good question, and I share
your concern about any sort of dirty trick or scheme to tell
people not to vote or have people not vote, because I agree
with you that voting is the essence of our society, our
democratic society, and everyone who can vote should get out
there and vote on election days.
Historically within the Department of Justice, we have
divided responsibilities between the Civil Rights Division to
enforce voter access and the Criminal Division to police voter
fraud and voter fraud schemes like the one you mentioned. For
example, it is the Criminal Division that has spearheaded--
Senator Leahy. Voter access, but if you are jamming the
things that enable voter access, does that come under your--
Mr. Kim. No, Senator. An example I might give is the New
Hampshire case where there were some phone-jamming schemes that
would prevent people from getting to the polls, that is
typically policed by the Criminal Division and the Public
Integrity Section.
Senator Leahy. Well, let me ask you about that. Three
people have been convicted in that phone-jamming, including two
high-ranking Republican officials and a Republican business
person who ran a company called GOP Marketplace and another has
been indicted. But at the trial, it turned out that 115
outgoing phone calls in connection with this were made from the
White House, the office then headed by outgoing Republican
National Committee Chairman Ken Mehlman. Is that going to be
investigated?
Mr. Kim. Senator, I am not aware of that. It does not fall
within my jurisdiction. But I will certainly communicate that
question to the head of the Criminal Division.
Senator Leahy. Well, last week, as I discussed earlier,
Republican leaders in Maryland have now admitted that part of
the election day strategy was to bus in hundreds of poor
African-Americans from Philadelphia to hand out misleading
fliers in African-American communities in Maryland. These
fliers falsely suggested that prominent African-American
Democrats supported the Republican candidates for the U.S.
Senate and for Governor.
Does the Justice Department have a role in looking at
things like that?
Mr. Kim. Senator, I do believe the Justice Department does
have a role in policing the Federal laws that would prohibit
that type of behavior, and, again, that type of conduct would
fall within the rubric of the Criminal Division and it has
historically been so.
Senator Leahy. Do you know whether they are?
Mr. Kim. Senator, I do not know, but that is something I
certainly will take back and follow up on.
Senator Leahy. We understand the FBI is investigating
allegations in Virginia that many voters in heavily Democratic
precincts received calls directing them to the wrong polling
sites or giving them false information about their eligibility
to vote or even encouraging them not to vote on election day.
In the 9th precinct in Tucson, Arizona, as I mentioned, the
vigilantes, the gun, the clipboard, the camcorder, stopping
Latino voters.
Does this come under your jurisdiction?
Mr. Kim. Senator, it does not. It falls within the
jurisdiction of the Criminal Division, and it is something that
I will personally communicate with the folks in the Criminal
Division to make sure that they understand your concerns and
they police the criminal laws that prohibit such behavior.
Senator Leahy. Well, let me ask you another one. Senator
Kennedy and I sent the Attorney General a letter on October
20th about the activities of Tan Nguyen, a Republican
Congressional candidate. He sent out 73,000 letters, letters to
73,000 households with misinformation about voting
requirements. Everybody admitted, both Republicans and
Democrats, that this was designed to suppress Latino voter
turnout. And he finally admitted his campaign was involved.
The Justice Department, in a rare occurrence of actually
responding to one of our letters, stated that it had launched
an investigation. Do you have any idea what the status of that
investigation is.
Mr. Kim. Senator, I can tell you and I can assure you that
that investigation is ongoing and that we are working closely
with the California Attorney General's office on that very
issue.
Senator Leahy. And then, last--if I might, Mr. Chairman?
Chairman Specter. Of course.
Senator Leahy. I am worried, as I said earlier, that the
Civil Rights Division find their permanent ranks being filled
with lawyers with strong political backgrounds but little civil
rights experience. Career jobs in the Civil Rights Division
have been handled by--in recent administrations, both
Democratic and Republican, they have been handled by civil
servants, not by political appointees. According to the Boston
Globe, in fall 2002 then-Attorney General John Ashcroft changed
the procedures. The Civil Rights Division disbanded the hiring
committees made up of veteran career lawyers, and since 2003,
the administration changed the rules to give political
appointees more influence in the hiring process.
Why was the career lawyer hiring Committee done away with?
Why are we having now political or ideological considerations
overtake career and competent considerations?
Mr. Kim. Senator, I do not hire people based on ideological
considerations. I hire people based on their talent, their
excellence, and their commitment to the work that we do in the
Department of Justice Civil Rights Division.
With respect to the question that you posed directly, there
was a career hiring Committee that was formed for some time, I
understand, with respect to Honors Program hires, not with
respect to every person hired in the Civil Rights Division.
There was a distinction between lateral attorney hires, which
formed the bulk of the hires in the Civil Rights Division, and
Honors Program hires. Honors Program hires are people such as
me, when I was hired out of my clerkship, to join the Criminal
Division back in the early 1990s.
In a typical year, we will hire eight, nine, or ten people
through the Honors Program, and we hire the bulk of our hires
through lateral hiring.
Now, it is my understanding that in the Civil Rights
Division there was never a centralized committee formed to hire
lateral attorneys, the bulk of attorneys hired in the Civil
Rights Division. With respect to the Honors Program, Attorney
General Ashcroft in 2002, as I understand it, centralized the
process for hiring Honors Program attorneys throughout the
Department, and he did so in a manner which involved the
participation of both political appointees and career
attorneys. And we are now in the process of hiring Honors
Program attorneys throughout the Department, and I can assure
you--
Senator Leahy. Well, the reason I ask, on July 23rd, the
Boston Globe article said that only 19 of the 45 lawyers hired
in the Division's Voting, Employment, Litigation, and Appellate
Sections since 2003 had any experience in civil rights laws;
nine gained their experience by defending employers against
discrimination lawsuits or by fighting against race-conscious
policies; but that lawyers hired with conservative credentials,
membership in the Republican National Lawyers Association, the
Federalist Society have risen sharply. Are you saying ideology
is not a factor in the hiring process at the Civil Rights
Division?
Mr. Kim. Senator, ideology is not a factor in my hiring
process. I will also say that the Boston Globe article only
compared people hired during this administration. I mean, the
only people that it looked at were people hired throughout this
administration, and we have hired people from all ideologies,
from all backgrounds in this administration, and I make you
that pledge. When I look at a candidate, there are three things
that I measure when I evaluate whether he should be hired in
the Civil Rights Division or she should be hired in the Civil
Rights Division: whether they have a demonstrated record of
excellence, whether they are talented lawyers consistent with
that excellent record, and whether they share a commitment to
the work that we do in the Division. And we hire people from
all types of backgrounds, and I hire people from all types of
backgrounds, and that is a commitment I make to you today.
Senator Leahy. Well, Mr. Kim, I will submit my other
questions for the record, and I suspect during the coming year
I will still be on this Committee, and I suspect we will
probably chat some more.
Mr. Kim. Mr. Chairman, I appreciate the opportunity to
appear before you.
Senator Leahy. Thank you.
Chairman Specter. It sounds like a well-founded suspicion
to me, Senator Leahy.
[Laughter.]
Chairman Specter. Just a few more questions, Mr. Kim.
Mr. Kim. Yes, sir.
Chairman Specter. The Civil Rights Division, charged with
upholding constitutional rights, they have a little different
perspective than other branches of the Department of Justice,
certainly a different perspective than the Department of
Defense. We have had the decision by the Supreme Court of the
United States in Hamdan that detainees, aliens, noncitizens do
have constitutional rights under habeas corpus, and we do have
laws against torture, which are firm, and the administration
has been explicit in articulating its policies to respect those
laws.
Now you have a situation where Congress has stricken the
habeas corpus provisions of the law, inexplicable in my legal
judgment in the face of the constitutional provision that you
can suspend habeas corpus only in the time of an invasion or
rebellion. There is a contention, I think a flimsy contention,
that the procedures to have the Combatant Status Review
Tribunal take a look at what has happened and then an appeal to
the Court of Appeals for the District of Columbia as a
substitute for habeas corpus seems so transparent as hardly to
be worth analysis.
But the Combatant Status Review Tribunal does not look at
what has happened to the detainees. The determinations of enemy
combatant status have been characterized as being
``laughable.'' In one Federal court decision, which I cited in
the floor agreement, an individual was claimed as associating
with al Qaeda and asked, ``Whom was I supposed to have
associated with? What is the name of the person? '' And nobody
could provide the name. According to the report in Fed. Supp.
the Federal judge wrote, it produced laughter in the courtroom
to hear a man was charged with being an al Qaeda associate and
nobody could tell him whom he was supposed to have associated
with.
Now you have the Department of Justice filing briefs saying
that someone who claims that he has been tortured cannot say
what has happened to him on the ground that if the
interrogation techniques are disclosed, al Qaeda will find out
what they are and will be able to precondition their people to
withstand those kinds of interrogation techniques.
How can that possibly be a tenable position, Mr. Kim, if
somebody cannot raise a claim of torture, if he cannot describe
what has happened to him?
Mr. Kim. Senator, Mr. Chairman, as a former prosecutor
facing two former prosecutors, I know that ignorance of the law
is not a defense. That being said, this is an issue that has
been assigned to other component heads at the Department of
Justice. It is not one that has been vested within the Civil
Rights Division.
I know that you have heard many times from the Attorney
General on this issue, from the head of the Office of Legal
Counsel on this issue. I also know that the head of the Civil
Division has been deeply enmeshed in this issue. It is not an
issue that I am familiar with sufficiently to address it today.
Chairman Specter. Well, why is that, Mr. Kim? I think by
the definition of the Civil Rights Division primary
responsibility should fall to you. You have the specialized
responsibility to handle civil rights.
Mr. Kim. Senator, I do, and I enforce the laws that have
been committed to the jurisdiction of the Civil Rights Division
by the Attorney General or especially assigned to the Civil
Rights Division by Congress.
Chairman Specter. Well, has the Attorney General told you
to stay out of that field?
Mr. Kim. No, sir. No, sir.
Chairman Specter. Well, then, why don't you get into that
field?
Mr. Kim. Senator, if the Attorney General asks my advice on
an issue, I certainly will provide it to the best of my
ability.
Chairman Specter. Well, I am asking you for your advice.
Mr. Kim. Senator, I am not in a position to differ with the
position of the administration today. I simply am not well
versed enough in the issue. I have not been steeped enough in
the issue. I know this--
Chairman Specter. Well, how well versed do you have to be
if somebody makes an allegation of torture, which is against
the law of the United States, and is not permitted to say what
happened to him?
Mr. Kim. Senator--
Chairman Specter. I think that is a question for an eighth
grader.
Mr. Kim. Senator, I know that this has been an issue that
has come up before the Committee many times. I know that other
members of the Department of Justice have spoken on this issue.
And I also understand that this has been a live policy debate.
Chairman Specter. Well, that question is really a very,
very fundamental one, and unless the men in charge of civil
rights, like you, Assistant Attorney General Kim, are willing
to tackle it or at least give some sort of a response to the
Judiciary Committee, I do not see how we can tolerate that as
an administration position. But we have had a whole series of
cases by the Supreme Court where the Court has had to say to
the President, ``You do not have a blank check.'' And when you
take away habeas corpus in the Detainee Act of 2005, they
brushed it aside without even an analysis. The administration
ought not to have to wait for the Supreme Court to tell it what
is obvious constitutional law, Mr. Kim.
Senator Leahy, do you have further questions?
Senator Leahy. No. I will submit mine for the record, but I
am going to want to follow up on this with you, Mr. Kim. We go
back and forth, and I realize the difference between the
Criminal Division and Civil Rights Division. But I have found,
and I know the Chairman found, when we were prosecutors, if you
had something that was being done wrong and suddenly people
realized that they may end up in the slammer for it, that was
an incentive to change. And if people are being intimidated
from voting, whether they are Republicans or Democrats being
intimidated, to the extent that people can be prosecuted, have
to face criminal charges as well as whatever appropriate civil
charges, but certainly criminal charges, I think we have to do
that.
It is discouraging enough that in this, the freest country
in the world, that we have such a distressingly low number of
people who vote. Now, maybe that is part of the problem with
those of us who run for office, but I think that then to put
barriers in front of people who want to vote is just awful.
So we will continue the discussion because I think some
well-placed prosecutions of a few people that might be facing
severe penalties in a criminal court, that word gets around
pretty quickly.
Thank you.
Chairman Specter. Senator Schumer.
Senator Schumer. Thank you, Mr. Chairman, and thank you for
having this hearing. And I want to thank you, Mr. Kim, for
coming.
Let me just say that I am here to talk about something that
Patrick Leahy mentioned as well, which is what happened in
these elections, which is happening all too much, and that is,
just blatantly despicable practices which discourage people
from voting by trickery and other things. And it is unfortunate
that we have overlooked this for too long in terms of
oversight, and I think we have to get working on it. It is
particularly unfortunate because the work of the Civil Rights
Division is so important.
So this election, as I said, was marred by many instances
of misleading, threatening, and downright criminal behavior
that should have no place in our democracy. Things like this
get at the well spring of our democracy. And when somebody
calls up and says, ``Your polling place has been changed,'' and
just one party, the Democratic registered voters were called,
the person who does that should go to jail for a long period of
time. The person who organized that should go to jail for a
long period of time. It just burns me.
And this has happened in several elections, and while maybe
there are instances of Democrats doing it, there have been many
more instances of Republicans doing it. I do not want to inject
that, except that is the facts. And I am not saying it is the
mainstream Republican Party, but it is somebody out there who
is doing it. Let me give you some examples.
In Maryland, people from out of State were bused in to
distribute sample ballots that suggested that the two
Republican candidates are Democrats. This flier, let me show it
to you, sir: ``The Ehrlich-Steele Democrats Official Voter
Guide,'' and then lists three Democrats, including Kweisi
Mfume, and says, ``These are our choices.''
And this was not just some local group that did it because
it was a group of people bused in from Pennsylvania to give
these out. That is not just--that is beyond the First
Amendment. That would be political libel in the highest sense,
and I think it ought to be, if it is not now, there ought to be
a criminal penalty.
In Arizona, three men were observed intimidating Hispanic
voters by stopping and questioning them outside a polling
place.
In Virginia, the FBI is now investigating telephone calls
that falsely told voters they were not registered and would
face criminal charges for going to their polling place.
The list goes on and on. I mentioned the one where they
called up and said, ``Your voting place has been moved.'' There
were reports that in the 2004 election Democrats in inner-city
Pittsburgh were called and told, ``If you are a Democrat''--or
voters were called and said, ``If you are Democrat, you are
going to vote Wednesday; if you are a Republican, vote
Tuesday.''
So these examples of voter intimidation and voter deception
are disgusting. That is how I feel. They turn my stomach,
preying on the poorest of people. The one little bit of power
that we give them is the right to vote. And they are being
trifled with, played with. So here are some points I would like
to ask you in reference to this.
First, I hope the Department of Justice is acting speedily
to investigate and address all of these incidents. It is my
understanding that the Civil Rights Division protects voter
access to the ballot and the Criminal Division enforces Federal
election fraud statutes. That is correct, isn't it?
Mr. Kim. That is correct, Senator.
Senator Schumer. Thank you. The events of this midterm
elections and many elections past make me think that the line
between voting access and voting integrity can be difficult to
draw, but let me find out what you are doing about this
decision. So here are my questions.
First, how many attorneys in your Division are addressing
the misleading ballots passed out in Maryland? Are any?
Mr. Kim. Senator, I believe that is being investigated by
the Criminal Division. I am not 100 percent sure about that. I
am certainly aware of--
Senator Schumer. No one in the Civil Rights Division?
Mr. Kim. Senator, the Civil Rights Division certainly has
knowledge of it, but we, again, have tried to respect the line
between the criminal enforcement and the civil access under the
Voting Rights Act and the other acts that we enforce.
For example, Senator, just to follow up on that point for a
second, we send out some 900 monitors and observers on election
day, and they have to be able to work through some of these
problems on election day.
Senator Schumer. Did they find these?
Mr. Kim. Senator, I am not aware. I have not--
Senator Schumer. Well, sir, those answers are not good
enough. This was notorious. It was reported in all the
newspapers. It affects the well spring of democracy. For you
not to be aware of whether something is going on in either your
Division or the Criminal Division. Can you find out and call me
this afternoon?
Mr. Kim. Yes, sir.
Senator Schumer. Thank you. I would like to know how many
attorneys in your Division or in the Criminal Division are
addressing the misleading ballots passed out in Maryland. As I
said, this was not just one person somewhere doing it. This was
a large operation.
And, again, the same I would like to know--I guess you do
not know--how many attorneys are addressing the Arizona
situation? Are you familiar with that?
Mr. Kim. Senator, I know that on election day many of our
observers were in Arizona, and they were able to ward off some
of those problems by communicating with State and local
officials.
Senator Schumer. But how about investigating the people who
do it? The only way this is going to stop, sir, is when some
people get some jail time.
Mr. Kim. Senator, I will followup with you on that.
Senator Schumer. OK. Overall, how many Civil Rights
Division attorneys are assigned to address these kinds of
tactics that occurred during the midterm election?
Mr. Kim. Senator, I will tell you that on election day--
Senator Schumer. No, no. I am asking now, followup.
Mr. Kim. Oh, Senator, I--
Senator Schumer. Because you did not prevent them all,
obviously.
Mr. Kim. That is true, Senator. With respect to followup
activities, I know that many Voting Section attorneys are in
the process of gathering information of complaints that we
received on election day, as well as debriefing the monitors
and observers who were out--
Senator Schumer. I would just--I am not asking you to come
to a conclusion yet. I am asking you how many attorneys--is it
one? Is it five? Is it 20? Can you get me an answer this
afternoon--in your Division are investigating this right now?
Mr. Kim. Yes, sir.
Senator Schumer. OK. Thank you.
Now, are attorneys from your Division communicating with
attorneys in the Criminal Division who work on voting problems?
Mr. Kim. Yes, sir, they are.
Senator Schumer. OK.
Mr. Kim. There is a constant communication between our
attorneys and--
Senator Schumer. OK. And who is ultimately responsible to
protect the right to vote in America? Is it the Civil Rights
Division or the Criminal Division? Where is the line? Because
all too often we have had a little bit of Abbott and Costello
where each Division sort of points to the other.
Mr. Kim. Senator, it depends on the statute. We do not
enforce any criminal statutes with respect to voting.
Senator Schumer. Understood. But you can investigate?
Chairman Specter. Senator, you are 2 minutes over. How much
longer--
Senator Schumer. I would say another 5 minutes, sir. This
is important to me. I will ask for a second round and wait, if
you would like to do that.
Chairman Specter. Well, this is the second round. We have
already had a second round. All right. Proceed.
Senator Schumer. Thank you.
I understand that when it is a criminal case, it is the
Criminal Division. I also understand that in all kinds of
instances, there is cooperation.
Mr. Kim. Yes.
Senator Schumer. If it is a criminal antitrust violation,
it may start in the Antitrust Division and then be referred. So
I would like to know the line here because it seems to me that
when I try to delegate a job even to my much smaller staff than
yours, I give the responsibility to one person. And it seems to
me that the Civil Rights Division should be the one that is
passionate about voting rights. They may make referrals to the
Criminal Division, but the Criminal Division is covering
everything criminal in every part of America. And the Assistant
Attorney for Criminal Affairs may not be interested in this,
but the head of the Civil Rights Division should be interested
in this almost by definition.
So can you tell me, can you give me some idea? Is the major
responsibility for investigating these things yours or theirs?
Mr. Kim. Senator, with respect, I would believe that it
would be the Criminal Division's responsibility to investigate
these--
Senator Schumer. OK. Do you think it would be a good idea
to unify the Justice Department's voting-related activities in
a coherent and programmatic way so that you would not say to me
here, ``I believe that there is something going on in the
Criminal Division,'' but you obviously have no specific
knowledge of it?
Mr. Kim. Senator, that is something I would be happy to
discuss with the leadership of the Department of Justice, but I
can tell you the reason why historically the Division exists is
because of concerns that Federal prosecutors being involved in
voter access issues would lead to intimidation of voters at the
polls. And so that is why the Civil Rights Division has focused
exclusively on voter access issues and has not followed up with
FBI agents.
Senator Schumer. Well, let me just tell you--and I am
exploring legislation in this regard, and the whole panoply of
things. I am doing it, frankly, with my colleague, Congressman
Emanuel, because he found the same thing in the House races
that we found in the Senate races. And we have heard about them
in the past, but we are going to do something about it. And I
would tell you--I would ask you as a representative of the
Justice Department to give us your ideas to make the
enforcement better. I would ask you: Should there be a unified
control somewhere? Should there be a separate unit that just
does this on both sides? And I would also ask you maybe what we
need is much stiffer criminal penalties as well as new statutes
to aid the prosecution of these kinds of despicable acts. And I
will ask you in writing to get me back on those.
But I would like by this afternoon answers on the number of
attorneys in either your Division or the Criminal Division
currently investigating how many incidents.
Mr. Kim. Very good, Senator.
Senator Schumer. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Schumer.
Senator Kennedy had to depart to go to a hearing on the
FDA. He is the Ranking Member on that Committee. He said he
would try to come back.
Senator Feingold was here and raised some concerns that
we--does Senator Feingold care to question the witness?
Well, I was commenting about--is Senator Feingold in the
rear room?
He had raised a concern that we have not had sufficient
hearings on these issues. We had a whole series of hearings on
the Voting Rights Act when we reauthorized it. But if Senator
Feingold wishes to utilize the presence of the Assistant
Attorney General, who is here now available to answer
questions, this is a hearing.
One question before Senator Kennedy begins, and I just
said, Senator Kennedy, that you had to be over at the FDA
hearing where you are Ranking Member and that you intended to
come back.
Senator Kennedy. Yes, thank you.
Chairman Specter. Are you aware, Mr. Kim--we had talked
about Section 5. You said that the Civil Rights Division could
not reject preclearance because it was unconstitutional. Are
you aware that we changed that in the reauthorization of the
Voting Rights Act?
Mr. Kim. Senator, I have to be a little bit careful here
because the terms of Section 5 and the amendments to Section 5
are under litigation right now in the United States District
Court for the District of Columbia on a challenge to its
constitutionality, among other things.
That being said, my understanding of the changes to Section
5 as enunciated in the purpose provision of the reauthorization
is it was intended to overrule Georgia v. Ashcroft with respect
to redistrictings and influence districts. It was intended to
overrule Bossier Parish II with respect to discriminatory
purpose and not Bossier Parish I, which was the one which spoke
about incorporating Section 2 standards in Section 5 and other
standards, such as constitutionality standards.
Chairman Specter. I do not understand your reluctance to
answer a legal question as to whether the reauthorization cured
the problem. I do not understand that at all. I am not asking
you about any case. I am asking you about a legal conclusion.
Mr. Kim. Senator, the short answer is I do not believe it
did, but I will certainly be happy to go back and check the
statute again with my staff.
Chairman Specter. You do not believe that it did?
Mr. Kim. That is not my understanding of it.
Chairman Specter. Are you familiar with what we did on the
reauthorization?
Mr. Kim. Yes, sir. Yes, sir.
Chairman Specter. Well, let us have your judgment on that,
if you would, please, in the next 7 days.
Mr. Kim. Of course, Senator. I would love to have a chance,
again, to talk to my people and re-read the statute, but my
understanding is the amendments to Section 5 were limited to
Bossier Parish II and Georgia v. Ashcroft, and Bossier Parish
is the one that made it very clear that other--
Chairman Specter. If you need to re-read or talk to, OK,
just let us know.
Mr. Kim. Yes, sir. Thank you.
Chairman Specter. Senator Kennedy.
Senator Kennedy. Thank you. Thank you, Mr. Chairman.
We were just having, as the Chairman pointed out, the
hearings on the Food and Drug Administration safety issues,
which are enormously important.
Mr. Kim, I know that Chairman Specter asked you about the
Department's approval of the Georgia voter photo ID law. You
acknowledged that a Federal court in Georgia blocked the law as
an unconstitutional burden on the right to vote. You explained
to the Chairman the Department does not take constitutional
concerns into account when reviewing a voting change under
Section 5. But under the Voting Rights Act, in deciding whether
to preclear a voting change, the Division has to make the
determination, as I understand it, of whether the proposed
change makes minorities worse off in terms of their ability to
elect candidates of their choice, and a disproportionate number
of Georgia's minority citizens live in poverty and far fewer
minorities than whites have photo IDs.
So given those facts, how could the Division conclude that
requiring voters to purchase the photo IDs and pay for the
documents needed to obtain them wouldn't make it harder for
minorities to elect their chosen candidates?
Mr. Kim. Senator, as I understand the decision, which was
rendered in August of 2005, the first decision, the decision
was based upon a statistical analysis and other analyses of the
actual voters in the State of Georgia and the number of ID
cards that would qualify under the law and the number of ID
cards currently existing back in August of 2005 was somewhere
in the neighborhood, I believe, of 6.5 million; the number of
registered voters in Georgia, I believe, was somewhere in the
neighborhood of 4.5 million. There was no evidence that there
was a disparity in racial terms with regard to the number of
IDs that had been issued. There were mechanisms for voters to
vote without presenting an ID, such as through absentee
balloting mechanisms. And the law was since amended to make the
provision of all IDs free and to expand the number of areas in
which one could get an ID card that did not already have one.
So I understand that the sum total of all the analyses
conducted led people to believe that there was no retrogression
with respect to that law.
Senator Kennedy. Well, I remember--I haven't got the chart
right here, but I remember looking at where those locations
were and also where the poverty areas were in Georgia, and also
seeing the various statistics on this. Obviously, the courts
themselves came to that conclusion later on. The court found
the law was acting as the un-constitutional poll tax, and that
was certainly--I would have thought just looking at the--as I
said, looking at both the--looking at the State, looking where
the new registration areas were, looking where poverty was
grouped, and also the racial sort of patterns in that, it was
pretty obviously discriminatory on the face of it. The courts
found that, in conflict with what you have said.
After the Georgia photo ID was precleared, the Washington
Post reported that the Division ended a longstanding practice
of having career lawyers make recommendations in their memos on
Section 5 submissions. Is that true?
Mr. Kim. Senator, I do not believe so. Every memo that I
receive that comes from any of my sections has a
recommendation, and that is the recommendation of obviously the
career attorneys in that section making the recommendation.
Senator Kennedy. So the answer is, to your knowledge, it is
not so.
Mr. Kim. No, sir, and I certainly would never impose such a
standard. I actually very much encourage diverse viewpoints,
and I very much encourage a healthy, robust exchange of ideas.
I think it helps me to make better decisions.
Senator Kennedy. Well, will you find out whether that is so
or not? I mean, that is your understanding, but could you find
out if that is so?
Mr. Kim. Yes, sir. Yes, sir. But I will tell you, Senator
Kennedy, I have seen a lot of memos. Every single one has a
recommendation.
Senator Kennedy. OK. But if you could be good enough to
check.
Mr. Kim. Of course.
Senator Kennedy. Now, Bob Berman was the long-serving
career Deputy Chief of the Voting Section who supervised
Section 5 enforcement. He oversaw the career team that
recommended objecting to the Georgia photo ID. Shortly after
the law was precleared, he was involuntarily transferred. Was
Mr. Berman's transfer retaliation for his recommendations on
the Georgia and Texas submissions?
Mr. Kim. Senator, the Privacy Act forbids me from going
into personnel decisions, but I will tell you, Senator, I do
not make decisions based on retaliation or ideology. I make
staffing decisions based upon talents and interests and the
needs of the Department of Justice Civil Rights Division. And
so those are the criteria that I use in making hires--
Senator Kennedy. The question was: Was he transferred in
retaliation? What you are telling me is that you didn't do it,
but do you know whether he was transferred?
Mr. Kim. Senator, I would be happy to followup with you on
that.
Senator Kennedy. This is both on the Georgia and the Texas
submissions. Information about those submissions has been
printed in both the Post and other newspapers. Our own
newspaper, I believe, the Boston Globe, had a similar story, so
we just want to find out the facts.
Mr. Kim. Just to be clear, Senator, you are asking me
whether Mr. Berman was involuntarily transferred as a
retaliation for his work on Georgia--
Senator Kennedy. That is right, on Georgia and the Texas
submissions.
Mr. Kim. I will follow up as much as I can, Senator.
Senator Kennedy. Thank you.
Since 2001, the Division filed only one case to protect
African-Americans from racial discrimination in voting under
Section 2. How do you explain the fact that in nearly 6 years
this administration has brought only one case to protect
African-Americans from racial discrimination in voting under
Section 2?
Mr. Kim. Senator, when I came before the Committee to be
confirmed about a year ago, I made a pledge to take my cases
where I find them and to bring any case where I found
recognizable violation of the law based upon the facts that
would be sufficient for us to prove that violation in court.
That is the pledge that I make and that is the pledge that I
reiterate today.
Earlier this year, I authorized a case involving Euclid,
Ohio, and the at-large scheme of elections there, which I
believe under Section 2 of the Voting Rights Act violates the
right of African-Americans in that city. I will continue to
authorize and bring those kinds of cases where the facts and
the law warrant.
I earlier this year authorized two pattern or practice of
employment discrimination lawsuits involving African-American
victims, applicants for police departments in two Virginia
jurisdictions. I will continue to authorize such cases where I
find the facts and the law to warrant them.
When I was a young prosecutor, I remember reading a passage
from Berger v. United States, a Supreme Court case which said,
``The obligation of the United States as a sovereign to bring
cases impartially is as compelling as the obligation to bring
cases at all.'' I took that very seriously when I was a
prosecutor. I continue to take it very seriously as the head of
the Civil Rights Division, and I will continue to bring cases
on an impartial basis.
Senator Kennedy. Well, that is good. You might bring us up-
to-date just with the recent record since you have been there
about the cases that you have brought, if you would.
Mr. Kim. Yes, sir. Absolutely.
Senator Kennedy. You have also said, Mr. Kim, that you do
not consider ideology in hiring. I guess my colleague, Senator
Leahy, went through this to some extent with you. Mr. Driscoll,
who will testify later, has said that under Ralph Boyd, they
consciously set out to hire less of what they called liberal
career lawyers. Do you repudiate that prior practice? And how
can we be sure we will get the kind of selection based upon
merit and quality?
Mr. Kim. Senator, my hiring criteria are based on
demonstrated talent, excellence, and commitment to the work
that we do in the Civil Rights Division, and that is the reason
why I hire people.
I will also say, as another point that I think is very
important to mention, in every hiring decision that I have
made, in every hiring decision that I have been party to when I
was a deputy and advising the previous Assistant Attorney
General to make, they have come with the concurrence, if not
the overwhelming and enthusiastic support of the section chiefs
for which those people would work. And so I view this as a
collaborative process. My management style is not one of
exclusion. My management style is not one of division. I think
there are plenty of talented attorneys out there, and I believe
that we can all agree upon the ones that would do the work of
the Civil Rights Division well. And so I cannot recall a single
instance where I have hired somebody or recommended someone for
hire that has not come with the recommendation and endorsement
of the career section chief to whom that person would be
working.
Senator Kennedy. Mr. Chairman, I have just one final one,
if I might.
Chairman Specter. Proceed, Senator Kennedy.
Senator Kennedy. This is on the employment cases. As I
understand, of the 33 cases the Division has filed under the
administration, only four involve race discrimination against
African-Americans, an average of less than one each year. Out
of almost 400 discrimination charges the Division receives each
year from the EEOC, and with its nationwide authority to
investigate systemic race discrimination, the Division files
less than one case a year alleging race discrimination against
African-Americans in employment.
Is that really reflective of what the reality is out there
in the work force and what the EEOC is finding out?
Mr. Kim. Senator, I appreciate that question, and I would
note that historically 707 pattern or practice of employment
discrimination cases have been--we have not brought a great
number of them in any year. During the past 3 years of the
previous administration, they brought a total of three cases
involving a pattern or practice of employment discrimination.
This past fiscal year, we brought three cases, and two of those
that I authorized were on behalf of African-American applicants
in violation of Title VII, 707. And I will continue--again, you
have my pledge to continue to bring cases involving a violation
of Title VII, involving a violation of the Voting Rights Act,
involving violations of CRIPA, of criminal civil rights laws,
where I find facts to meet the high legal standard set by
Congress, and that is my pledge.
Senator Kennedy. What is your own sense from looking at
those EEOC cases, the numbers that they raise, 400, and you
bring one or two or three involving African-Americans? Are you
suggesting that those other cases are not substantive or they
just don't meet the criteria? Or what should we conclude from
that?
Mr. Kim. Well, Senator, I mean, I think it is fair to say
that historically the EEOC has made many times the number of
cases that the Department of Justice has actually filed, and
that has to do with the standards that we have to meet when we
prove these cases in law. And I do not believe that the current
rate of bringing cases given the number given to us by the EEOC
is inconsistent with past practice.
I think I would leave it at that. I think that we try to
bring and I try to bring aggressively as many cases as the
facts and the law will support.
Senator Kennedy. Thank you very much.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Mr. Kim. We did not get your
testimony until 8 o'clock last night. We have a rule,
longstanding, well-known, 24 hours in advance. This hearing has
been scheduled a long time ago. Why did you not submit it until
8 o'clock at night? That means these staffers have to work
after they find--when your statement comes in, they have to go
read it. They have to summarize it. They have to inform the
members. Why can't a professional like you, Mr. Kim, heading
the department, lots of people to help you, submit your
statement on time?
Mr. Kim. Senator, Mr. Chairman, I extend my apologies.
There was a clearance process. It was a lengthy statement. I
was trying to be exhaustive in covering--
Chairman Specter. We know there is a clearance process. You
know that in advance, that it takes time. How long does the
clearance process take? Whatever it takes, you ought to
anticipate that and build it in.
Mr. Kim. You are absolutely right, Mr. Chairman. I take
full responsibility for not submitting it on time.
Chairman Specter. I am not interested in your full
responsibility. I am interested in having your statement on
time.
Mr. Kim. Yes, sir.
Chairman Specter. I have been waiting for Senator Feingold
to return, if he is going to come and question. He raised a
complaint about not having enough hearings on civil rights, but
here we are having a hearing and we are waiting for him to
return.
You have been here for about an hour and half, Mr. Kim. We
are not going to keep you any longer. But if you would respond
to the open questions, we would appreciate it.
Mr. Kim. Yes, sir.
Chairman Specter. And we would appreciate it if you would
get your statement in on time.
Mr. Kim. Yes, Mr. Chairman, I will.
Chairman Specter. Or if you need an additional
appropriation, let us know.
Mr. Kim. Thank you, Mr. Chairman.
[The prepared statement of Mr. Kim appears as a submission
for the record.]
Chairman Specter. I will call the second panel now:
Mr. Shaw, Mr. Driscoll, Mr. Rich, Mr. Carvin. And let me
begin with this panel, the statement of Mr. Shaw was submitted
at 4:30 yesterday; the statement of Mr. Driscoll was submitted
at 4 o'clock yesterday; the statement of Mr. Rich was at 4:30
yesterday; and, Mr. Carvin, your statement was submitted at 8
a.m. this morning. Did you work on it all night, Mr. Carvin?
Mr. Carvin. When the staff called me at around 6:30--
Chairman Specter. Turn your microphone on so I can hear
your answer.
Mr. Carvin. When the staff called me around 6:30 last
night, I did bang something out and got it to the Committee.
Chairman Specter. Staff called you at 6:30 last night?
Mr. Carvin. That is correct.
Chairman Specter. You did not know you were going to be a
witness here today?
Mr. Carvin. I did. I did not know there was a written
statement required. I had talked to a number of your staffers
prior, and it had never been mentioned to me before.
Chairman Specter. You did not know that there was a
requirement that your statement be submitted in advance?
Mr. Carvin. No. In a number of conversations with your
staff--
Chairman Specter. I cannot hear you, Mr. Carvin.
Mr. Carvin. No. In a number of conversations with your
staff, Senator Specter, it had not been mentioned to me. I had
attended over--
Chairman Specter. They do not have to mention it to you.
There are rules of the Senate. You have been a witness here
before, haven't you?
Mr. Carvin. Yes, and one time I was here that--
Chairman Specter. Well, you know we have rules, don't you?
Mr. Carvin. There was an oversight hearing involving Brad
Reynolds in the 1980's where witnesses were allowed to comment
on the Civil Rights Division's performance without submitting
prior statements. I thought that that was the practice--
Chairman Specter. But now you knew you had to submit a
prior statement, a written statement for this hearing?
Mr. Carvin. Senator Specter, I did not know that. No one on
your staff told me that. When I was informed of that, I
immediately put in a statement. But it is an incorrect
assertion of fact to say that I knew this.
Chairman Specter. There has been a request, Mr. Carvin,
that you not be permitted to testify because you have not
complied with the rules, and I am going to let you testify
anyway. But the statements submitted late just put a lot of
burden on the staff to come in at 4:30 in the afternoon, Mr.
Shaw; 4 o'clock, Mr. Driscoll; 4:30, Mr. Rich. It is pretty
hard on the staff to have to work overtime, and then Senators
would like to know what you are going to testify to so we can
prepare questions.
The floor is yours, Mr. Shaw, for 5 minutes.
Mr. Shaw is a graduate of the Columbia University Law
School, bachelor's from Wesleyan. He is the Director-Counsel
and President of the NAACP Legal Defense and Educational Fund.
Previously, he had been a trial attorney in the Civil Rights
Division of the Department of Justice, was a Charles Edward
Hughes Fellow at Columbia University Law School, currently
serves on the Legal Advisory Network of the European Human
Rights Council based in Budapest, Hungary.
Thank you for joining us, Mr. Shaw, and we look forward to
your testimony.
STATEMENT OF THEODORE M. SHAW, DIRECTOR-COUNSEL AND PRESIDENT,
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. (LDF), NEW YORK,
NEW YORK
Mr. Shaw. Thank you, Senator, and I am properly chastised.
I apologize to you and to the staff.
Chairman Specter. Well, thank you for the characterization
of ``properly.''
Mr. Shaw. I started my legal career in the Civil Rights
Division, and it was one of two dream jobs that I wanted as a
lawyer. The second one was the Legal Defense Fund. I have been
blessed to have them both.
Chairman Specter. How about being on the Judiciary
Committee in the Senate?
Mr. Shaw. Well, that is a great job, but there is a lot of
work to be done yet in the dream jobs to which I aspired.
Chairman Specter. This is a nightmare job, Mr. Shaw?
Mr. Shaw. Oh, I would not say that.
Chairman Specter. Especially on the Judiciary Committee.
Mr. Shaw. I respect the Judiciary Committee--
Chairman Specter. Especially being Chairman all alone,
without any statements, without anybody here to question you.
[Laughter.]
Mr. Shaw. Senator Specter, I have watched you for a long
time, and I know you can handle this, and a lot more.
Chairman Specter. Restart the clock at 5 minutes for Mr.
Shaw.
[Laughter.]
Mr. Shaw. Thank you.
Chairman Specter. In light of his last statement, restart
the clock at 5 minutes.
Mr. Shaw. We at the Legal Defense Fund have a long history
of working closely with the Justice Department under both
Democratic and Republican administrations, and, frankly, we
have had differences and we have had agreements under both
Democratic and Republican administrations.
My concern here is to have the Justice Department as a
vital, healthy partner in the protection of civil rights laws
on behalf of all Americans. I do have great concern about the
personnel issues in the Division, although I will not spend
time addressing that. I ask that my statement be entered into
the record, and we do mention it there.
Chairman Specter. Without objection, your full statement
will be made a part of the record, as will all the other
statements.
Mr. Shaw. Thank you, Senator.
What I want to focus on, Mr. Chairman, is some of the
substantive issues that the Department faces right now, and I
particularly want to talk about the differences in the approach
by the Justice Department on issues of vast importance to
African-Americans, Latinos, and other minorities.
For example, before the Supreme Court currently are two
cases involving the question of voluntary integration of public
schools. That is all that is left of Brown v. Board of
Education. The days of mandatory school desegregation are all
but over. All that is left is voluntary integration, and the
constitutionality of voluntary integration methods is under
attack in the Supreme Court in cases from Louisville, Kentucky,
and Seattle, Washington.
The Department has weighed in against voluntary integration
plans in those two cases, which could have the impact of a
ruling that ends effectively even those modest integration
efforts. That is a reversal of historic proportions. It is
consistent with some of the positions that the Justice
Department has taken in recent years, for example, in a
Michigan case in which it weighed in against voluntary efforts
to provide access to higher education for minority students.
And we believe that the Department has not only substantively
taken positions against the interest of opportunities for
African-Americans, Latinos, and other people of color, but it
has also begun to bring cases affirmatively that weigh in
against those interests. That is a deep concern that we have.
You have heard testimony about the Georgia voter ID
requirements. Suffice it to say that it has been reviewed by a
number of courts, and each court, on different grounds, though,
has struck down the Georgia ID requirements. That is another
reflection of the kind of concern that we have about the
positions that the Department is taking through the Civil
Rights Division.
I understand that political appointees--that
administrations have the prerogative to set policy and
direction, but there have been career attorneys whose advise,
whose expertise act as a basis for informing those decisions
with respect to policy. I am concerned that that no longer
operates in the way it has and that the Department has lost a
great deal of institutional memory and expertise. So I think
these two things interact--the substantive concern and the
concern with respect to the way that the Civil Rights Division
is staffed.
I also express a general concern about the number of cases
that are being brought involving discrimination against
African-Americans, particularly systemic discrimination in
employment. Some of the questions that Senator Kennedy asked go
to exactly that point. Those cases are out there. We are
overwhelmed with requests to do those kinds of cases at the
Legal Defense Fund, and there is no other entity in this
country with respect to resources and with respect to the
weight that the Civil Rights Division has that can bring these
kinds of cases effectively in spite of the private bar or
public interest organizations.
When I stood up in court as a Civil Rights Division lawyer,
a Justice Department lawyer, part of a proud tradition, and
said I represented the United States of America and did so on
behalf of the interests of African-Americans or Latinos or
other minorities who were discriminated against, that was a
kind of weight that is unique. I want to see by the 50th
anniversary of the Civil Rights Division the Department
restored to that kind of role. We need the Department and the
Civil Rights Division as a partner, not as an adversary, in
civil rights litigation on behalf of those who have
historically been and continue to be discriminated against.
Mr. Chairman, thank you for your time.
[The prepared statement of Mr. Shaw appears as a submission
for the record.]
Chairman Specter. Thank you very much, Mr. Shaw.
We turn now to Mr. Robert Driscoll, partner of Alston &
Bird here in Washington, a law degree from Georgetown, cum
laude, bachelor's degree from Georgetown in finance, magna cum
laude; had been one of the chief clerks for Judge Parker,
District of Vermont; and was editor-in-chief of his Law Review.
We appreciate your being here, Mr. Driscoll, and the floor
is yours.
STATEMENT OF ROBERT N. DRISCOLL, PARTNER, ALSTON & BIRD, LLP,
WASHINGTON, D.C.
Mr. Driscoll. Thank you, Mr. Chairman, and, again, accept
my apologies for the lateness of my statement.
I was a Deputy Assistant Attorney General in the Civil
Rights Division from 2001 to 2003, and I suspect the reason I
am here is to answer some questions about things that when on
when I was there. But I thought I would take the time in my
opening statement to put in a plug for you, Mr. Chairman, and
members of the Committee that will read the record, for
enforcement of CRIPA, the Civil Rights of Institutionalized
Persons Act. I know that Congress had increased funding for
some CRIPA positions around the time I was starting, and I saw
the effect of that. I think it is something that is not as
controversial or maybe as exciting as some other things we will
discuss today, but I wanted to compliment the Committee and
compliment the Congress for allocating those resources and
encourage you to continue to look at that statute. It is a very
important statute. It enforces the rights of prisoners, people
in juvenile facilities, nursing homes all around the country.
It is the type of work I think that benefits all Americans and
that all Americans can be proud of.
I know, Mr. Chairman, that you are a student of history and
a scholar about the Constitution, and I think that the CRIPA
enforcement is something you would really enjoy to learn more
about it. So my statement is in the record. I heard you say
that earlier. I will be quiet now and await questions, but I
just wanted to bring that to your attention.
[The prepared statement of Mr. Driscoll appears as a
submission for the record.]
Chairman Specter. OK. Thank you very much, Mr. Driscoll.
Our next witness is Mr. Joseph Rich, Director of Fair
Housing and Community Development, Lawyers' Committee for Civil
Rights Under Law; a law degree from Michigan, cum laude;
undergraduate degree from Yale; had been Deputy Chief in the
Housing and Civil Enforcement Section of the Civil Rights
Division of the Department of Justice; Deputy Chief and trial
attorney in the Civil Rights Division Educational Opportunities
Section.
Thank you for appearing here today, Mr. Rich, and we look
forward to your testimony.
STATEMENT OF JOSEPH RICH, DIRECTOR, HOUSING AND COMMUNITY
DEVELOPMENT PROJECT, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER
LAW, WASHINGTON, D.C.
Mr. Rich. Thank you, Mr. Chairman. I want to thank the
Committee very much for the opportunity to testify at this
oversight hearing. Enforcement of our civil rights laws is one
of the Department of Justice's most important and sensitive
responsibilities, and careful oversight of this work is
crucial. For too long, there has been virtually no
congressional oversight during a time that the Division has
strayed seriously from its historic mission and traditions. It
is important that careful oversight be restored.
I had the honor and privilege of serving in the Civil
Rights Division for almost 37 years, starting in 1968, when I
was hired under the Honors Program. It was a dream job for
someone like me who had come out of law school wanting to work
in civil rights law. I remained in the Division as long as I
did primarily because of a career staff that over the years
consistently was of the highest quality, with an unmatched
devotion to civil rights enforcement.
Civil rights enforcement historically has been highly
sensitive and politically controversial. I served under
Republican administrations for over 24 years and under
Democratic administrations for over 12 years. During this time
I and other career staff in the Division experienced inevitable
conflicts with political appointees in both Democratic and
Republican administrations. But there was almost always an
integrity in the Division which permitted these conflicts to be
resolved after vigorous debate between career attorneys and
political appointees, with each learning from the other. And,
importantly, there was an understanding that partisan politics
not be injected in the decisionmaking as well as institutional
processes that were designed to protect against this.
But in my last 4 years, and particularly during the period
from 2003 to 2005, this changed dramatically. It became
apparent that there was a conscious and unprecedented effort to
remake the Division's career staff. It was evident in a
hostility to career employees who expressed disagreement with
political appointees or were perceived as disloyal, and it lead
to a serious breakdown in communication and cooperation between
political appointees and career section management, something
that is crucial to the appropriate enforcement of civil rights
laws.
Moreover, there was a wide-scale removal of section chiefs,
career section chiefs, and career deputy chiefs, something that
had not happened before. The impact of this was not lost on
career staff, and morale plummeting, resulting in an alarming
exodus of career attorneys, the long-time backbone of the
Division that had historically maintained the institutional
knowledge of the Division and how to enforce our civil rights
laws tracking back to their initial passage.
For example, over 54 percent of the Voting Section attorney
staff and 65 percent of the Employment Section staff, as well
as a large number of appellate staff, have left the Division or
transferred to other sections, and I would add that that number
in the Voting Section is just since I left a year and a half
ago.
The major exodus of career attorneys was accompanied by a
major change in hiring policy instituted in 2002, replacing
hiring procedures first started in 1954 that were designed to
remove any perception of favoritism and politicization of the
process. This change resulted in virtually eliminating career
attorney input into hiring decisions and a hiring system that
lost all transparency to those in the Division. We simply did
not know how hiring was being done.
Not surprisingly, the perception of favoritism and
politicization in hiring that the Honors Program had been
designed to protect against returned, and recent information
from an analysis of Division hired by a Boston Globe reporter
indicates a precipitous drop in hires of people with civil
rights experience and a pattern of new hires with certain
political connections.
The overall impact of this unprecedented effort to change
the make-up of the career staff has been a significant loss in
civil rights enforcement experience and institutional memory in
the Division. It has damaged the Division's long reputation of
excellence and the trust that the public and the courts
historically have had in its evenhanded enforcement of the law.
And it has been compounded by a series of decisions on voting
matters that have sent a message that partisan political
factors are now important in the decisionmaking calculus.
For example, the decision to delay completion of the
Section 5 review in the Mississippi redistricting plan in 2002
by seeking more information from the State and resulting in a
Federal court order, ordering a plan that was designed by the
Republican Party, this was all hard to explain other than
through partisan political considerations.
In conclusion, the damage done to the tradition and
integrity and devotion to evenhanded civil rights enforcement
by the Division must be reversed, and the important leadership
role that the division has traditionally had in the enforcement
of civil rights laws restored. I am hopeful that the new
Division leadership will work diligently to repair this damage.
Most importantly, careful and continuous oversight now and in
the future is required to ensure this happens.
Thank you very much.
[The prepared statement of Mr. Rich appears as a submission
for the record.]
Chairman Specter. Thank you, Mr. Rich.
Our final witness this morning is Mr. Michael Carvin,
partner in Jones Day here in Washington; law degree from George
Washington University; bachelor's cum laude from Tulane. He had
been in the United States Department of Justice from 1982 to
1985, Special Assistant to the Attorney General, Civil Rights
Division; Deputy Assistant Attorney General, Civil Rights, from
1985 to 1987; and Deputy Assistant Attorney General in the
Office of Legal Counsel in 1987 and 1988.
Thank you for being with us, Mr. Carvin, and the floor is
yours.
STATEMENT OF MICHAEL CARVIN, PARTNER, JONES DAY, WASHINGTON,
D.C.
Mr. Carvin. Thank you, Mr. Chairman, and thank you for the
opportunity to comment. I would like to direct my remarks, if I
could, to the criticisms that Mr. Rich and Mr. Shaw have made
of the current administration.
The picture they paint is a group of career civil servants
who have neutrally interpreted the law and then a group of
political appointees who have disagreed with their
interpretation of the law, and from this they infer that the
political appointees have engaged in partisan politics or
ideology.
The first point I would make is that this is a very
familiar tune. This is a criticism that every Republican
administration has been subjected to by the career people in
the Civil Rights Division. Certainly it was a dominant theme
when I was there during the Reagan administration. And I think
it is fundamentally unfair for a number of reasons that I would
like to briefly touch on.
First of all, the basic premise that the career people are
somehow without ideology and are simply neutrally interpreting
the law is not at all true. They have a very definitive view of
the law, a very particularized view of the law, which, of
course, is perfectly respectable and completely responsible;
but the notion that they are somehow neutral or balancing both
sides is untrue. Mr. Rich's resume and Mr. Shaw's resume
reflect that. When they left the Department, they went to the
NAACP and the Lawyers' Committee, which, again, are very
respectable organizations, but as far as I know have never
taken the side of a defendant in a civil rights case vis-a-vis
a minority plaintiff, nor have they ever taken the side of a
non-minority victim of discrimination. They have never found
any quota or racially preferential scheme to conflict with the
law. So they are obviously advocating, if you would, one side
of the civil rights debate.
So to infer from their criticism of the Bush administration
that the Bush administration is somehow ideological would be
comparable to taking my criticisms of the Clinton
administration's effort as somehow suggesting that the Clinton
administration was not obeying the law. What it reflects is a
fundamental disagreement about the best way to enforce the law,
but it does not reflect that the administration is not fully
devoted.
This is particularly important, I think, in the voting
rights context because the efforts of Mr. Rich and other folks
in the Voting Rights Section have been consistently rejected by
the Supreme Court, particularly over the last 15 years, where
they have pursued what the Supreme Court accurately labeled a
maximization agenda. And just to briefly tick off the positions
taken by the Voting Rights Section that have been conclusively
rejected by the Supreme Court in the last 15 years, it is in
virtually every major voting rights case: the Shaw cases,
Miller v. Johnson, Bush v. Vera, Bossier Parish I, Bossier
Parish II, Holder v. Hall, Johnson v. DeGrandy, Georgia v.
Ashcroft. In all of these seminal and important cases, the
Department under prior administrations or even the early part
of this administration had advanced a very liberal agenda, so
any neutral interpreter of the law would know that the
discredited and rejected policies that had been pursued by the
prior administration had to be tailored to conform with the
Supreme Court's more recent teaching on the proper scope of
these laws.
I would like to briefly address the three cases that have
been the subject of particularized criticism. I think there is
a mistake here which is, if a court has rejected a plan that
the Department has precleared under Section 5, this somehow
reflects disagreement with the Department's Section 5 judgment.
Section 5 is a relatively specific statute, and if a court
rejects a change on other grounds, that does not in any way
suggest that the Department's Section 5 authority was abused.
The voter ID situation in Georgia is a perfect illustration
of this. The Department was supposed to look at whether there
was racial retrogression. The court that struck down or
enjoined the Georgia voter ID law found no disparate impact and
no discriminatory purpose. Indeed, it specifically found that
there was insufficient evidence of a racially disparate impact
to raise even a likelihood of a Section 2 violation. It went
off on an entirely separate 14th Amendment theory that does not
reflect any disagreement with the legal or factual analysis of
the Division. I would also point out that the Supreme Court
recently endorsed the importance of these voter ID laws to
ensure against the kind of voter fraud that Senators Leahy,
Schumer, and Feingold correctly noted is a very important
effort to ensure voter participation.
Similarly, in Texas, the Supreme Court endorsed the
Department's view that there had been no retrogression with
respect to African-Americans in Texas, and the Court
unanimously agreed that there had been no retrogression with
respect to Latino voters. Everyone in the Supreme Court agreed
that there were six so-called performing Latino districts under
the plan that had been replaced and six performing Latino
districts under the new legislative enactment. The difference
was a very technical Section 2 argument that there was more--
that one of the legislature's districts was not compact, which
is an issue under Section 2, but not at all an issue under
Section 5. Similarly, the Mississippi case that was criticized,
a very complicated issue of who has jurisdiction, and, again,
the Supreme Court in Branch v. Smith ultimately upheld the
general thrust of what was going on there.
So these are very complicated issues, and I think it is
quite unfair and quite misleading to suggest that the
Department has somehow failed in its Section 5 obligations
simply because a court might have found--either endorsed their
view or found problems under an entirely different species of
the law. And it certainly does not suggest, given the case
recitation I have given you, that the career attorneys are in
any way enforcing the law in a way that complies with the law
as interpreted by the Supreme Court. I would think that the
political appointees have much more closely hewed to those
definitive pronouncements.
Thank you.
[The prepared statement of Mr. Carvin appears as a
submission for the record.]
Chairman Specter. Thank you, Mr. Carvin.
I am sorry that there are not more Senators here to have
heard this spirited discussion and debate. As Chairman, I have
requests from Senators to hold hearings, and I try to
accommodate them. We have had a very, very busy schedule. We
have done a lot on the Voting Rights Act this year, lots of
hearings, and lots of requests for oversight, and people are
always saying there is not sufficient oversight. This Committee
has been engaged in a lot of it this year, with the PATRIOT Act
and the surveillance matters and the Voting Rights Act. And
when you have an oversight hearing, it is a little lonely. The
Chairman does not have any options. Somebody has got to hold on
to the gavel. But I am sorry the spirited debate was not heard
by others.
Mr. Rich, you and Mr. Carvin have crossed swords here on
this issue, and incisively and eloquently. How is the Committee
supposed to make a determination here? I have been concerned
about these issues going back to William Bradford Reynolds
testimony in 1982, and we got very deeply involved in all of
these matters and have had them over the years. And if there
are political decisions, it is wrong. There is a statute which
puts a flat prohibition on Section 5. U.S.C. 2302(b) says that
you cannot discriminate against an employee based on political
affiliation, with the inference that politics is out, which is
what it should be.
So, Mr. Rich, a two-part question. Comment on what Mr.
Carvin has said, and give me some guidance as to how the
Committee is supposed to decide whether there is excessive
politics in the Bush administration or it is just a matter of
political ideology within fair bounds as illustrated by the
approach in the Clinton administration.
Mr. Rich. Yes, sir. I worked with Mike in the Reagan
administration, and there certainly were disagreements. The big
difference between that administration and this administration
was vigorous debate, listening to each other, decisions being
made, disagreements continuing but there was a professional
approach to the process that has not been present in this
administration.
Part of the problem--and I think I focused on the part of
the problem in which the career staff--there has been a
hostility to career staff accompanied with, I think, an
alarming change in hiring, with the result that you are
changing the make-up of the Civil Rights Division, something
that never happened before.
As to the issue of whether these decisions are political, I
think if decisions are made in isolation without the type of
debate that is needed, it is going to lead to a perception of
political judgments. All I can say is that in my seat, it
appeared that the political calculus had been inserted into the
decisionmaking process, and I would only go back to the example
I just mentioned in Mississippi. The Mississippi plan before
us, there was never any debate that the plan did not hurt black
voters. Meanwhile, in the Federal courts, there were arguments
going on, and there was a second plan drawn that was
politically favorable to the Republicans. The Federal court
said if the Department of Justice has not decided this matter
by the end of February, it would go ahead and order into effect
its plan.
The Department of Justice then in the middle of February
issued a letter seeking more information not about the
redistricting plan before it, but about an obscure State law,
whether or not the State law which gave the State courts the
ability to review redistricting plans, that that hurt black
voters, something that had never been suggested by anybody.
Chairman Specter. Mr. Rich, you served in the Reagan
administration?
Mr. Rich. Yes, sir.
Chairman Specter. And you served from, according to the
information I have, 1999 to 2005 as the Chief of the Voting
Section, so that you were there for a good bit of the current
Bush administration.
Mr. Rich. Yes.
Chairman Specter. Mr. Carvin, he is complimenting the
Reagan administration where you served, so you are in the
clear.
[Laughter.]
Chairman Specter. How would you advise the Committee to
weigh this conflicting testimony? Who is giving a false
statement under Section 1001?
Mr. Carvin. Well, I certainly never reject compliments,
particularly about the Reagan administration. And it is quite
true that Joe and I worked closely together on these questions,
and I think, although we certainly had a different approach to
the law, that it was a full and healthy debate.
But I do think there is some revisionist history going on
here, Senator. You may remember from your personal experience
that the notion that William Bradford Reynolds was upheld as
this icon of evenhanded decisionmaking free from politics does
not square with the record that was fully developed at the
time, particularly when he was seeking promotion to Associate
Attorney General. You had very similar testimony, if not more
critical testimony, of his approach to the law from both career
Civil Rights Division people and people from the civil rights
groups.
So I will reiterate what I said before. This is a very
recurring theme. Whenever people who have a certain slant in
terms of the way they want to approach the law, more of that of
civil rights plaintiffs, are confronted with a Republican
administration that, in my view, takes a more evenhanded and
neutral approach and considers the relative equities involved.
In terms of how the Committee can, you know, sort through
this, it is a very good question. It is very difficult for you.
I would think the best evidence is not internal conversations
or anything like that, but let's look at the track record in
the courts. Let's look at, as I said, the Clinton's
administration record in front of the Supreme Court on the
Voting Rights Act, which was, you know, no better than that of
the Washington Redskins, certainly. I mean, they consistently
lost on the most important of voting rights cases of the term--
Chairman Specter. Didn't the Washington Redskins have some
pretty good years, 1993 to 2000?
Mr. Carvin. That is right.
[Laughter.]
Chairman Specter. Clinton was there a long time.
Let's turn to the question of resources. Mr. Shaw, I
appreciate what you said, how emphatic it is when the
Department of Justice Civil Rights Division comes into court
and starts to complain. And, Mr. Driscoll, you commented about
the additional resources that were provided during your tenure.
We have very tight budgets all around, finding money for NIH,
finding money for stem cell research, Title I in education. How
much more do we need to do by way of authorization of
appropriation, Mr. Shaw, to have a Department of Justice which
does what you say no other entity can do?
Mr. Shaw. Well, Mr. Chairman, I cannot give you a dollar
figure. I do know that the concern that I have as I have
articulated it, both here today and in my testimony, is that
the Division has seen a precipitous decline in the number of
cases brought on behalf of African-Americans, particularly in
employment involving systemic discrimination but also in other
areas. And while I applaud the Division's expansion to protect
the rights of other Americans without reservation, I say that
that should not be done at the cost of abandoning what has been
part of its core mission from its very inception, and still
stands as work that we know at the Legal Defense Fund needs the
Justice Department's involvement on the right side.
The other thing I want to say, Mr. Chairman, if I may, is
that I also worked under the Reagan administration. I was hired
under the Carter administration. I know Michael Carvin from way
back, and I remember spirited discussions with Brad Reynolds,
with whom I disagreed on a number of issues. But I had a very
cordial personal relationship with him.
I left the Division understanding as a career lawyer that
he made policy and the administration made policy, and I had
disagreements, and if somebody was going to go at that time, it
was not going to be the Assistant Attorney General. But I am
very clear that the fact that we opposed the Assistant Attorney
General, many of us, when he was nominated for another
position, because of Bob Jones and because of other concerns
that we had, in no way means that the discourse that we had
with him was not a valuable discourse.
Finally, on this point, I do not want to get into a debate
with Mr. Carvin. It is not a good use of time. I do want to
correct him on one thing. I do not work for the NAACP or lead
the NAACP. The NAACP Legal Defense Fund is a separate
organization. But the notion that the fact that I went to the
Legal Defense Fund and Mr. Rich went to the Lawyers' Committee,
two of the leading litigation organizations involving civil
rights in this country, in any way taints the credibility of
our judgment with respect to the proper enforcement by the
Civil Rights Division is both breathtaking and disturbing in
its implications.
While we may disagree, I said earlier and I say now that
those disagreements that we have have gone to administrations
that are both Democratic and Republican. My concern is a
healthy Civil Rights Division that enforces the law in a way
that advances the cause of civil rights consistently with the
tradition of the greatest moments of the Division, the greatest
traditions of the Division. I want to see that restored.
Chairman Specter. Mr. Driscoll, let's come back to
resources. I appreciate what you say, Mr. Shaw, but focusing
again on resources, you had complimented the Congress for
providing more resources. Have we done enough? Should we do
more?
Mr. Driscoll. Mr. Chairman, it is difficult to say, not
being in the Division right now. I do think Ted makes a point,
that the jobs the Civil Rights Division has had have expanded
over time, things like ADA enforcement, things like CRIPA
enforcement, religious freedom, RLUPA. Every time Congress does
pass a new statute, the pie gets divvied up a little bit more,
and that needs to be taken into account.
I also think, frankly, that is in large part the cause for
some of the criticism the administration comes under, because
you have got roughly 300 or 400 attorneys enforcing all these
statutes, and people that want enforcement to focus on one
particular area, like the NAACP Legal Defense Fund does, they
are not going to be happy. When you sit and run the Division
like Mr. Kim has to do, he will have similar meetings with
disability rights groups, he will have similar meetings with
immigration tracking groups, all of whom are convinced that
their particular issue is the most important one.
So I do not know what the answer is. I think that Ted
raises a good point, a valid point at least, that the mission
of the Division has expanded over time.
If I could, with your indulgence, Mr. Chairman, just
briefly respond to Mr. Rich.
Chairman Specter. Sure.
Mr. Driscoll. Because I was a member of this
administration, and it is kind of taking it on the chin a
little bit here on a couple of points.
You mentioned how should you figure out what is going on or
are things getting too political. I think one way to look at
that is to look at the record, as Mr. Carvin said. The
appellate record of this administration has been great. The
percentage of times decisions the Department has made have been
upheld has gone up over time, not down. If you look at the
Mississippi case Mr. Rich complained about, that decision
largely was upheld by the Supreme Court, and so you would think
if an administration was sailing way out beyond the markers on
any established area of civil rights laws a court would tell it
so at some point. The very arguments that the Division is
asking the question and the Mississippi case was some kind of
political trick was addressed in the Supreme Court decision on
the matter. So I think that is probably the first place you
could go to.
With respect to employment cases, for example, I think you
have to look at the record and think back to even before this
administration started. When we were standing up the Division
in 2001, we were looking at an Employment Section that was just
coming off a $1.5 million fine for overreaching on an
employment case. That was very controversial. You may remember
the Torrance, California, case. We were looking at a division
that really had some problems with overreaching, and so as
lawyers you come in and you look at the situation and you try
to look at the law and the facts and do the best you can. But I
think the way to settle it or the way the Committee can look at
these political questions is to look at the record. And when
you have Mr. Kim back, ask him, ``What percentage of your cases
are upheld on appeal?'' Ask him, ``What percentage of your
preclearance decisions have been reversed?'' And I think you
will find the record is pretty good.
Chairman Specter. Well, we have to call it at this point.
There are many, many issues which I would like to go into in
greater detail. To repeat, I would like to have had some of my
colleagues hear this. But it has been a very good discussion.
Five of us here are lawyers, and I know when we have got a
panel of strong lawyers, they may be late on statements, but
you are heavy on intellectualism. And I guess I would trade a
good intellect and some in-depth discussions on the law for an
on-time statement. In any event, it has been very spirited, and
I compliment our staff for balance. We have had a lot of
balance here. Sometimes our hearings are kind of lame, kind of
tepid, but this has been very spirited and very balanced, and
gives us some insights as to what to look for.
This is a tremendously important area. I would like to get
into some of the areas on detainees and habeas corpus, but we
cannot do everything in one hearing. So I thank you very much
for your participation, and that concludes our hearing.
[Whereupon, at 11:35 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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