[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

                               ----------                              

                          Serial No. J-109-120

                               ----------                              

         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



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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

                              ----------                              

                    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

                              ----------                              


                      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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