[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
CHANGING TIDES: EXPLORING THE CURRENT STATE OF CIVIL RIGHTS ENFORCEMENT 
                    WITHIN THE DEPARTMENT OF JUSTICE
=======================================================================


                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 22, 2007

                               __________

                           Serial No. 110-44

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York          LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California           JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. SCOTT, Virginia            JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 22, 2007

                           OPENING STATEMENT

                                                                   Page
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     3

                               WITNESSES

Mr. Wan J. Kim, Assistant Attorney General, Civil Rights 
  Division, U.S. Department of Justice
  Oral Testimony.................................................     7
  Prepared Statement.............................................    10
Mr. William L. Taylor, Chair, Citizens' Commission on Civil 
  Rights
  Oral Testimony.................................................    55
  Prepared Statement.............................................    56
Mr. Joseph D. Rich, Director, Fair Housing Community Development 
  Project, Lawyers' Committee for Civil Rights Under Law
  Oral Testimony.................................................   114
  Prepared Statement.............................................   115
Mr. Roger Clegg, President and General Counsel, Center for Equal 
  Opportunity
  Oral Testimony.................................................   121
  Prepared Statement.............................................   122
Mr. Wade Henderson, President and CEO, Leadership Conference on 
  Civil Rights
  Oral Testimony.................................................   139
  Prepared Statement.............................................   141

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Chairman, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................     2
Prepared Statement of the Honorable Trent Franks, a 
  Representative in Congress from the State of Arizona, and 
  Ranking Member, Subcommittee on the Constitution, Civil Rights, 
  and Civil Liberties............................................     4
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, 
  Chairman, Committee on the Judiciary, and Member, Subcommittee 
  on the Constitution, Civil Rights, and Civil Liberties.........     6

                                APPENDIX

Material Submitted for the Hearing Record........................   223


CHANGING TIDES: EXPLORING THE CURRENT STATE OF CIVIL RIGHTS WITHIN THE 
                         DEPARTMENT OF JUSTICE

                              ----------                              


                        THURSDAY, MARCH 22, 2007

                  House of Representatives,
                 Subcommittee on the Constitution, 
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:07 a.m., in 
Room 2237, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Davis, Ellison, Conyers, 
Scott, Franks, Pence, Issa, and Jordan.
    Staff present: David Lachmann, Chief of Staff; LaShawn 
Warren, Majority Counsel; Crystal Jezierski, Minority Counsel; 
and Susana Gutierrez, Professional Staff Member.
    Mr. Nadler. Good morning. This hearing of the Subcommittee 
on the Constitution, Civil Rights, and Civil Liberties will 
come to order.
    Today's hearing will examine the work of the Civil Rights 
Division of the Department of Justice.
    The Chair recognizes myself for 5 minutes for an opening 
statement.
    Today we begin the Subcommittee's oversight over the Civil 
Rights Division of the Department of Justice. The Division, 
established by Civil Rights Act of 1957, is charged with the 
enforcement of our Nation's civil rights laws, prohibiting 
discrimination on the basis of race, sex, disability, religion 
and national origin. The Constitution's promise of equal 
protection under the laws has, for many, remained unfulfilled. 
Our civil rights laws exist to make that promise a reality for 
all Americans.
    The recently released report by the Citizens' Commission on 
Civil Rights, ``The Erosion of Rights: Declining Civil Rights 
Enforcement Under the Bush Administration,'' documents a very 
troubling pattern of the politicization of the Division's work. 
The findings, by this bipartisan group of career civil rights 
professionals, are very troubling. They reflect concerns that 
have been raised for several years, and which, until now, have 
not been subject to the scrutiny of this Subcommittee.
    Allegations of the politicization of law enforcement are 
certainly not new to the Members of this Committee. An 
extremely disturbing pattern is emerging from this 
Administration of relentless political interference in the 
basic enforcement of our laws.
    In areas such as the Voting Rights Act, which this 
Committee and the Congress just recently reauthorized last 
year, we have received allegations that political 
considerations have trumped the recommendations of career 
staff. In some of these cases, the courts have upheld the 
recommendations of the civil rights professionals in the 
Division and have struck down the political decisions imposed 
by what some have called the Shadow Civil Rights Division--that 
is, the political appointees who change the decisions or the 
recommendations of the professional staff and make different 
rulings on behalf of the Division, only to see those rulings 
upset by the courts because the rulings were held to be 
contrary to law.
    If the rule of law is to have any meaning, if the civil 
rights laws this Committee produces are to have any value, then 
we must be assured that those laws will be enforced without 
fear or favor or political contamination.
    I hope that we can get some answers to these very serious 
allegations, and I look forward in particular to Mr. Kim's 
testimony.
    I will note that we did not get his testimony until 
yesterday evening. This has become a pattern with the Justice 
Department, one that I find unacceptable. I would be interested 
to know whether the Attorney General thinks he is accountable 
to anyone, because the contempt the department has shown toward 
this Committee, among other things, by not giving us that 
testimony until last night and to its Members and the American 
people is deplorable.
    I realize that this Administration has gotten a free ride 
for the last 6 years, but that is over. This Committee will 
fulfill its constitutional duty, and I hope that, in the 
future, we can count on the department's cooperation.
    And that means, among other things, answering our questions 
and giving us testimony before the night before the hearing.
    I yield back the balance of my time.
    I will now yield for an opening statement to the 
distinguished Ranking minority Member, the gentleman from 
Arizona, Mr. Franks.
    [The prepared statement of Mr. Nadler follows:]
Prepared Statement of the Honorable Jerrold Nadler, a Representative in 
Congress from the State of New York, and Chairman, Subcommittee on the 
            Constitution, Civil Rights, and Civil Liberties
    Today we begin the Subcommittee's oversight over the Civil Rights 
Division of the Department of Justice.
    The Division, established by Civil Rights Act of 1957, is charged 
with the enforcement of our nation's civil rights laws, prohibiting 
discrimination on the basis of race, sex, disability, religion and 
national origin. The Constitution's promise of equal protection under 
the laws has, for many, remained unfulfilled. Our civil rights laws 
exist to make that promise a reality for all Americans.
    The recently released report by the Citizens' Commission on Civil 
Rights, ``The Erosion of Rights: Declining Civil Rights Enforcement 
Under the Bush Administration,'' documents a very troubling pattern of 
the politicization of the Division's work. The findings, by this bi-
partisan group of career civil rights professionals, are very 
troubling. They reflect concerns that have been raised for several 
years, and which, until now, have not been subject to the scrutiny of 
this Subcommittee.
    Allegations of the politicization of law enforcement are certainly 
not new to the members of this Committee. An extremely disturbing 
pattern is emerging from this administration of relentless political 
interference in the basic enforcement of our laws.
    In areas, such as the Voting Rights Act--which this Committee just 
reauthorized--we have received allegations that political 
considerations have trumped the recommendations of career staff. In 
these cases, the courts have upheld the recommendations of the civil 
rights professionals in the Division, and have struck down the 
political decisions imposed by what some have called the Shadow Civil 
Rights Division.
    If the rule of law is to have any meaning, if the civil rights laws 
this Committee produces are to have any value, then we must be assured 
that those laws will be enforced without fear or favor.
    I hope that we can get some answers to these very serious 
allegations, and I look forward to Mr. Kim's testimony.
    I will note that we did not get his testimony until yesterday 
evening. This has become a pattern with the Justice Department, one 
that I find unacceptable. I would be interested to know whether the 
Attorney General thinks he's accountable to anyone, because the 
contempt the Department has shown toward this Committee, to its 
members, and to the American people is deplorable.
    I realize that this administration has gotten a free ride for the 
last six years, but that's over. This Committee will fulfill its 
constitutional duty, and I hope that, in the future, we can count on 
the Department's cooperation.
    I yield back the balance of my time.

    Mr. Franks. Well, thank you, Mr. Chairman. I am very 
pleased to be here today to discuss the recent activities of 
the Civil Rights Division in the Department of Justice.
    And, Mr. Kim, thank you for being here, sir.
    The Division performs work that is important to the health 
of this Nation. And the evidence that we have in front of us 
here today indicates that it has been well led in recent years.
    In 2006, the Voting Section filed 17 new lawsuits, which 
more than doubles the average number of lawsuits filed during 
the preceding 30 years.
    This fall, the Division oversaw the largest election 
monitoring effort ever conducted by the Department of Justice 
for a midterm election.
    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.
    And in the last 6 years, the Division has tripled the 
number of agreements reached with police departments across the 
country and convicted 50 percent more law enforcement officials 
for misconduct, such as the use of excessive force, as compared 
to the previous 6 years.
    In fiscal year 2006, the department obtained a record 
number of convictions in the prosecution of human trafficking 
crimes. Those victims were predominantly women and minorities.
    I was also pleased to see the Division's recent report on 
its efforts to protect religious liberty. Religious freedom is 
the cornerstone from which all of our rights, including our 
civil rights, grow.
    To reject the importance of our religious freedoms is to 
reject the very basis upon which the premise of the statutes 
the Division is charged with--of enforcing.
    My colleagues in this majority have criticized the Division 
for its enforcement activities. They disagree with the chosen 
priorities of the President, the Attorney General and with Mr. 
Kim. While it is certainly their right to disagree with the 
Division's decisions, the evidence shows that the Division has 
vigorously pursued those areas of the law that are most 
critical to civil rights and race relations in this country.
    Under the current Administration, the department has 
increased the number of prosecutions and the number of 
convictions in key areas.
    Similarly, the Division has had no rule 11--the rule under 
the Federal code of civil procedure, which seeks to ensure a 
certain level of good faith in all cases brought in Federal 
courts violations--no rule 11 violations. I mention this 
because the Division under the leadership of President Clinton 
and former Attorney General Janet Reno was ordered to pay or 
agreed to pay approximately $4 million for having brought 
frivolous lawsuits.
    That means the lawsuits and the arguments made in those 
lawsuits were so lacking in merit that the lawyers of the 
Division and the Division were sanctioned for having even 
brought them.
    The ultimate goal of the department's work in all areas 
should be to punish wrongdoing and to remove deserving 
wrongdoers from our communities.
    And while I would hope that the Division is always asking 
how it can do its job better, it seems clear that the Division 
has been working to ensure that it furthers the important 
mandate it was given when formed 50 years ago.
    Over the last few years, the Division has continued to ask 
itself how it can improve its performance while responding to 
what the public views as traditional civil rights violations 
and working hard to respond to emerging civil rights threats. 
This effort should be applauded and not criticized.
    The job of the Division and, quite frankly, the Department 
of Justice as a whole is to provide national leadership on 
various legal issues and to address complex multijurisdictional 
cases and legal issues that promote the dignity of humanity.
    I applaud the Division and the department's current 
leadership for making these strategic decisions and working to 
meet new challenges while continuing to address the 
longstanding issues that may sadly remain in some pockets of 
our Nation.
    Thank you for joining us here today, Mr. Kim. And I look 
forward to discussing many of these issues with you and our 
other witnesses.
    Thank you, Mr. Chairman.
    [The prepared statemet of Mr. Franks follows.]
 Prepared Statement of the Honorable Trent Franks, a Representative in 
Congress from the State of Arizona, and Ranking Member, Subcommittee on 
          the Constitution, Civil Rights, and Civil Liberties
    Thank you Mr. Chairman,
    Mr. Chairman, our work to ensure the franchise to all citizens is 
not yet done. I'm delighted to see that we can all agree, that there 
must be law to ensure that all citizens have protection from false 
information about elections AND receive unencumbered access to the 
ballot. Voters must be confident that their vote is not diluted or 
cancelled out through voter fraud, by those who would make false 
statements to illegally participate in elections. As we know, the 
Supreme Court has held that (quote) ``the right of suffrage can be 
denied by a debasement or dilution of the weight of the citizens' vote 
just as effectively as by wholly prohibiting the free exercise of the 
franchise.'' \1\
---------------------------------------------------------------------------
    \1\ Reynolds v. Sims, 377 U.S. 533, 555 (1964).
---------------------------------------------------------------------------
    We must ensure that only citizens are participating in elections, 
and this bill brings us closer to that goal by penalizing those who 
would seek to dilute citizen votes. Eligible citizens are able to prove 
their eligibility and are not dissuaded from voting if required to do 
so. We know that states that have worked to strictly control the 
integrity of their voter rolls have experienced positive results. The 
issue hits close to home for me.
    At the Committee's field briefing in Arizona, Secretary of State 
Jan Brewer discussed the effects of the newly enacted identification 
law known as Proposition 200. Under Proposition 200, all voters are 
required to present identification at the polls before casting a 
ballot, and all new voter registration applications must be accompanied 
by sufficient proof of citizenship. While identification is required in 
all Arizona jurisdictions, 15 jurisdictions have successfully 
implemented a proof of citizenship requirement. Secretary Brewer 
testified that Arizona has experienced a 15.4 percent INCREASE in voter 
registration since the requirements of Proposition 200 went into 
effect.
    Currently, state and local governments do not have any effective 
way to prevent non-citizens from registering to vote and voting. 
Section 303(b)(4)(A) of HAVA requires inclusion of a citizenship box on 
the National Voter Registration Form. When applying to register to 
vote, individuals must check the box affirming their citizenship. The 
law provides that registration forms that do not have the box checked 
should be rejected and returned to the individual. However, some states 
are not enforcing this requirement. Even in states that do enforce the 
citizenship requirement, it is still done on an honor system that 
relies on the truthful response of the registrant. While the present 
state of the law leaves the system open to abuse, our work in this 
Committee will take us one step further to help to insure that only 
eligible citizens are voting.
    While there may be disputes about the nature and extent of voter 
fraud, there can be no dispute that it occurs. People must be protected 
from false information about elections and encouraged that their vote 
will be counted and will not be cancelled out by an illegal vote.
    With these aims in mind, I look forward to seeing our hard work on 
this issue come to fruition today.
    Thank you, Mr. Chairman.

    Mr. Nadler. Thank you, Mr. Franks.
    In the interest of proceeding to our witnesses, and we have 
two panels today, and mindful of our busy schedules, I would 
ask that other Members submit their statements for the record. 
Without objection, all Members will have 5 legislative days to 
submit opening statements for inclusion in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing at any time, which I will endeavor not 
to do unless there are votes on the floor.
    As we ask questions of our witnesses, the Chair will 
recognize Members in the order of their seniority on the 
Subcommittee, alternating between majority and minority, 
provided that the Member is present when his or her time 
arrives.
    Members who are not present when their turn begins will be 
recognized after the other Members have had the opportunity to 
ask their questions.
    The Chair reserves the right to accommodate a Member who is 
unavoidably late or only able to be with us for a short time.
    And I will endeavor not to have to make this announcement 
at every subsequent hearing, but I thought I should do it at 
this time. That will be the policy we will follow in general.
    [The prepared statement of Mr. Conyers follows.]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties
    Since its establishment in 1957, the Civil rights Division has been 
the nation's bulwark against discrimination. Though I may have taken 
issue with the priorities of various administrations over the years, I 
must state that the policies adopted by this administration are truly 
stunning and without precedent. Just as in the case of the U.S. 
Attorney firings more generally, we have seen an unprecedented 
politicization of the Civil Rights Division. As the report submitted by 
the Citizens' Commission on Civil Rights details, this administration 
has seldom missed the opportunity to reduce or redirect the resources 
of the Division.
    Our concerns date back to the 2002 Mississippi Congressional 
redistricting plan's preclearance under Section 5 of the Voting Rights 
Act. In that case, the Division ran out the clock on the review process 
and allowed a Republican dominated three-judge court to take 
jurisdiction over the case. This situation resulted in a plan that 
favored the Republican candidate and the loss of African-American voter 
influence in the process. That was the first of a series of incidents 
where the Department used the Voting Rights Act as a shield to block 
the interests of minorities.
    In former Rep. Tom Delay's drive to redistrict Texas, the Division 
again succumbed to intense partisan pressure. My colleagues will recall 
that both the DOJ and Homeland Security Offices of Inspector General 
reported numerous high level contacts made in an attempt to pressure 
their Departments into tracking down Democratic legislators who were 
protesting the process in Austin.
    The stakes involved in the Texas preclearance were immense and 
should have been devoid of the barest hint of partisanship. We later 
discovered, however, that political appointees overruled the career 
staff at the expense of minority voters, who objected to the Delay 
plan. It was not until this session, after a long legal and political 
battle, that Latino voters in Texas were finally able to elect their 
candidate of choice to Congress.
    Again, in the case of the Section 5 review of the Georgia photo ID 
requirement, we were to discover that career staff were overruled by 
the political appointees. This time, however, a court stepped in with 
an injunction to protect the interests of Georgia minorities, calling 
the plan that you precleared a ``poll tax.'' Apparently learning your 
lesson, the press reported that the Division hereafter barred staff 
attorneys from offering recommendations in major Voting Rights Act 
cases, marking a significant change in the procedures meant to insulate 
such decisions from politics.
    Despite the bright sounding statistics cited in your testimony, 
these kinds of practices have clearly taken a toll on the Division. The 
Commission's report details an alarming level of attorney and 
professional turnover throughout the Division, with the Voting, 
Employment and Special Litigation Sections being especially hard hit.
    Since April 2005, the voting Section has experienced over 54% 
attorney turnover. During the same period, only one of the five persons 
in section leadership--a single litigation deputy--remains in the 
section today. The Employment Section is even worse, with over 65% 
attorney turnover.
    This brain drain will soon come back to haunt the Division. In your 
testimony, you attempt to explain the small number of Title VII pattern 
and practice cases by describing them as ``factually and legally 
complex, as well as time-consuming and resource-intensive.''
    I suspect that the problem is that the Section lacks attorneys with 
enough tenure or experience to bring the cases. The Voting Section is 
similarly vulnerable. With the turnover of Section 5 analyst in 
particular, you must ask yourself whether, at the end of your term, 
your management has resulted in a stronger or weaker commitment to the 
protection of civil rights.
    Even after the Division's illustrious 50 year history, civil rights 
are still the unfinished business of America. As Assistant Attorney 
General, you carry the burden of ensuring that we continue our progress 
in civil rights. Unfortunately, that progress has been uneven in this 
Administration. It's very important that this Committee know you are 
committed to maintaining and resuming progress across the Division' 
particularly the Employment, Voting and Special Litigation Sections. As 
we move forward today and in the coming year, I hope we can work in a 
cooperative spirit to fulfill our nation's promise of equal 
opportunity.

    Mr. Nadler. Our first witness is Wan J. Kim, assistant 
attorney general for the Civil Rights Division of the United 
States Department of Justice. Mr. Kim previously served as a 
deputy assistant attorney general in the Civil Rights Division.
    He has spent most of his career at the Department of 
Justice, having entered through the Attorney General's honors 
program as a trial attorney in the Criminal Division and later 
serving as an assistant United States attorney for the District 
of Columbia.
    Mr. Kim also has worked on the staff of the Senate 
Judiciary Committee for former Chairman Orrin G. Hatch and as a 
law clerk to Judge James L. Buckley of the U.S. Court of 
Appeals for the District of Columbia circuit.
    He was born in Seoul, South Korea, and is a graduate of the 
Johns Hopkins University and the University of Chicago Law 
School.
    Mr. Kim, your written statement will be made part of the 
record in its entirety. I would ask that you now summarize your 
testimony in 5 minutes or less.
    To help you stay within that time, there is a timing light 
at your table. When 1 minute remains, the light will switch 
from green to yellow and then to red when the 5 minutes are up.
    Thank you, and you may proceed when you wish.

  TESTIMONY OF WAN J. KIM, ASSISTANT ATTORNEY GENERAL, CIVIL 
          RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Kim. Thank you, Mr. Chairman.
    Mr. Chairman, Ranking Member Franks, distinguished Members 
of the Subcommittee, it is a pleasure to appear before you 
today to represent the President, the Attorney General and the 
dedicated professional public servants in the Civil Rights 
Division.
    I am honored to serve the people of the United States as 
assistant attorney general for the Civil Rights Division, and I 
am pleased to report that the past year was full of outstanding 
accomplishments in the Civil Rights Division and a year 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 accomplishments 
of each section of the Division, and I will address portions of 
it here.
    Mr. Chairman, Members of the Subcommittee, I am sorry the 
statement was submitted late. I will assure the Committee that 
I will endeavor to work and make sure that it is submitted more 
timely in the future.
    I would also state, however, that the Department of Justice 
does take seriously its obligation. It was submitted to the 
interagency clearance process in time. It just was returned too 
late. And I take responsibility for that.
    I would just like to take a few minutes to highlight some 
of the accomplishments of the Division recently, beginning with 
two recent initiatives and the creation of a new unit recently 
within the Criminal Section of the Civil Rights Division.
    Just a few weeks ago, on February 20, 2007, the Attorney 
General announced a new initiative entitled ``The First Freedom 
Project'' and released a report on the enforcement of laws 
protecting religious freedom to highlight and build upon the 
Division's role in enforcing the longstanding Federal laws that 
prohibit discrimination based on religion.
    This initiative is particularly important to combat 
religious and cultural intolerance in the aftermath of the 
terrorist attacks of September 11.
    Just 2 months ago, the Attorney General announced a Federal 
indictment charging James Seale for his role in the abduction 
and murders of two African-American teenagers, Henry Dee and 
Charles Moore, in Mississippi in 1964. This case is being 
prosecuted by the Civil Rights Division and the U.S. Attorney's 
Office.
    Shortly thereafter, the Attorney General announced an FBI 
initiative to identify other unresolved civil rights-era 
murders for possible prosecution, to the extent permitted by 
the available evidence and the limits of Federal law, an effort 
in which the Civil Rights Division will play a key role.
    On January 31, 2007, the Attorney General announced the 
creation of a new human trafficking prosecution unit within the 
Criminal Section.
    This new unit is staffed by the C Section's most seasoned 
human trafficking prosecutors, who work with our partners in 
Federal and State law enforcement and NGOs to investigate and 
prosecute the most significant human trafficking crimes, such 
as multijurisdictional sex trafficking cases.
    In addition to these recent advances, the Division has done 
much to further the enforcement of our Federal civil rights 
laws. In the past year, the Voting Section has filed 18 new 
lawsuits in calendar year 2006, more than doubling the average 
number of lawsuits filed during the preceding 30 years.
    We successfully mounted the largest election monitoring 
effort ever conducted by the Justice Department for a midterm 
election. The Administration strongly supported passage of the 
voting rights reauthorization legislation which Congress did 
last year.
    The Criminal Section obtained a record number of 
convictions in the prosecution of human trafficking cases, 
deplorable offenses of fear, force and violence that 
disproportionately affect women and minority immigrants.
    The Housing and Civil Enforcement Section filed more cases 
alleging discrimination based on sex than in any year in the 
Division's history.
    The Housing and Civil Enforcement Section conducted 
significantly more tests to proactively ensure compliance with 
the Fair Housing Act pursuant to the Attorney General's 
Operation Home Sweet Home Initiative. And we are working to 
achieve an all-time high number of such tests this year.
    The Disability Rights Section obtained the highest success 
rate to date in mediating complaints brought under the 
Americans with Disabilities Act, 82 percent.
    In the past 6 years, the Disability Rights Section has 
reached more than 80 percent of all the agreements obtained 
with State and local governments under Project Civic Access, a 
program that has made cities across the country more accessible 
and lives better for more than three million Americans with 
disabilities.
    And 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 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 this year the 
Division is celebrating its 50th anniversary. Consequently, I 
reflected upon the work of the Division not only during my time 
in service but also over the past half century.
    Since our inception in 1957, the Division has accomplished 
a great deal, and we have much of which to be proud. But while 
much has been accomplished, the Division's daily work 
demonstrates that discrimination still exists, and our work 
still continues.
    Thank you, Mr. Chairman and Ranking Member Franks, for the 
opportunity to appear before you today. I look forward to 
answering any questions that you may have.
    [The prepared statement of Mr. Kim follows:]
                    Prepared Statement of Wan J. Kim




























































    Mr. Nadler. Thank you, Mr. Kim. And I commend you for 
coming in under the 5-minute time limit.
    I will now yield myself 5 minutes for questions. And as I 
said before, we will alternate from majority to minority in 
asking questions.
    Mr. Kim, the recent Citizens' Commission report raises 
concerns about the Division's role in the pre-clearing mid-
decade congressional redistricting plan enacted by the State of 
Texas. I am sure you are familiar with this. Probably everybody 
in the room is.
    The plan targeted several areas of minority voting 
strength. The career staff of the Voting Section concluded that 
the plan violated section 5 because it resulted in the 
retrogression of minority electoral opportunity.
    The department's political appointees rejected the staff's 
recommendations and pre-cleared the plan.
    My question is how was the decision made to reject the 
recommendations of the career staff concerning the Texas 
redistricting plan, and what was the legal basis for the 
rejection of their recommendation?
    Mr. Kim. Congressman, I appreciate the question on Texas 
redistricting. My recollection serves that was a plan that was 
pre-cleared by the Department of Justice in December of 2003.
    We can know a lot about what that plan accomplished today 
because that plan was the subject of extensive litigation in 
the Federal court, in the U.S. Supreme Court, and that plan 
actually produced an election.
    Obviously, with pre-clearance determinations we----
    Mr. Nadler. If I recall, it produced exactly what Mr. DeLay 
intended it to produce. But go ahead.
    Mr. Kim. Mr. Chairman, with respect, the issue in 
retrogression as far as the Department of Justice is concerned 
is with the effective exercise of the electoral franchise 
rights by minority citizens.
    And the plan that was adopted in December of 2003, I think, 
produced a map that had elected, I think, seven Members of 
Congress who are minority representatives from the State of 
Texas.
    I believe the elections of 2004, which implemented the plan 
that was challenged, produced eight. And so the results of the 
election actually show that that plan was not retrogressive as 
to minority voting strength.
    That plan was also subjected to extensive litigation in the 
courts.
    Mr. Nadler. But, wait, wait, wait. Wasn't it true that the 
court, in fact, struck down the Bonilla seat, which is part of 
that plan, so the court held that, in fact, there was 
retrogression?
    Mr. Kim. No, sir. The court did not hold that there was 
retrogression.
    Mr. Nadler. Or rather that the court held that the plan was 
illegal under the Voting Rights Act?
    Mr. Kim. The court held that--could I proceed by saying 
that there was two pieces of litigation with respect to that 
plan.
    One was before a Federal three-judge panel under the Voting 
Rights Act. That panel blessed the entire plan. They said the 
entire plan was legal under every circumstance, Voting Rights 
Act as well as constitutional.
    That plan was then challenged in the Supreme Court. The 
Supreme Court ruled that 31 districts of the 32 districts were 
properly constituted and posed no violation whatsoever.
    Mr. Nadler. But my question, excuse me--the professional 
staff of the Division recommended that the plan not be pre-
cleared. They were overruled by the--let's call it the 
political echelon, the recent appointees.
    How was that done? That is to say, how was a decision made 
to reject the recommendations of the career staff, and what was 
the legal basis for the rejection?
    Mr. Kim. Well, Mr. Chairman, I am trying to explain the 
legal basis of the decision, which is that the plan was not 
retrogressive as determined by the decision makers back in 
December 2003.
    And the recommendation----
    Mr. Nadler. The political people decided that the decision 
that the plan was retrogressive made by the professionals in 
the department was wrong and that they knew better.
    Mr. Kim. Mr. Chairman, with respect, I think you are 
drawing those inferences from a lot of leaked documents and 
news accounts. I am not in a position to confirm or deny that. 
I am in a position to tell you how these decisions typically 
come up.
    Mr. Nadler. No, that is not my question. All right. I 
thought that it was widely acknowledged. Did the political 
echelon--and by that I mean the appointees on the top--did they 
overrule the recommendations of the career staff?
    Mr. Kim. Mr. Chairman, what I am trying to do is tell you 
exactly what happened without waiving any privilege.
    Mr. Nadler. No, no, no. Without waiving any privilege, yes 
or no, did they do that or not? Because based on everything 
that I thought was common knowledge, we are assuming that they 
did. If they didn't, please say so.
    Mr. Kim. Mr. Chairman, the pre-clearance letter was signed 
by a political appointee.
    Mr. Nadler. Obviously. The question is was there a 
recommendation not to pre-clear by the professional staff and 
was that overruled?
    Mr. Kim. Mr. Chairman, I can say there was a leaked 
memorandum that reflects a recommendation that was different. I 
am not trying to----
    Mr. Nadler. So in other words, your answer is yes, sir, 
unless you say that that leaked memorandum was inaccurate.
    Mr. Kim. Mr. Chairman, I am trying not to answer that 
question, because that would waive----
    Mr. Nadler. Obviously.
    Mr. Kim [continuing]. A privilege the department has never 
waived. I am trying to be as responsive----
    Mr. Nadler. You are trying to not answer the question 
because that would waive a privilege?
    Mr. Kim. That the department has never waived, yes, sir.
    Mr. Nadler. And what privilege is that?
    Mr. Kim. Attorney-client privilege. Deliberative process 
privilege.
    Mr. Nadler. Attorney-client privilege? Who is the client 
and who is the attorney?
    Mr. Kim. Well, sir, the recommendations of attorneys made 
to decision makers--those are typically attorney-client 
privileged.
    And again, Mr. Chairman, I am trying to be responsive to 
your question. There was a leaked memorandum that purported to 
interpose an objection. The actual pre-clearance letter----
    Mr. Nadler. All right. I have gotten your answer. We have 
very little time. I have one more question for you.
    Mr. Kim. Yes, sir.
    Mr. Nadler. In December of 2005, it was reported in several 
newspapers that the Division had barred staff attorneys from 
offering recommendations at all in their memoranda to the 
Division leadership. Is this true? If it is, when exactly was 
the process changed and why?
    Mr. Kim. Mr. Chairman, that is not true.
    Mr. Nadler. It is not true.
    Mr. Kim. I have never asked for anything other than 
recommendations. And every single item of litigation that comes 
to my desk has a recommendation from the career attorneys.
    And so I am--it is absolutely not the case that I bar 
recommendations from my staff.
    Mr. Nadler. Well, I appreciate that you could answer that 
question. I appreciate your candor. And I appreciate that you 
asserted no privilege.
    My time is expired. I will now recognize the Ranking Member 
of this Subcommittee, the Ranking minority Member of the 
Subcommittee, the distinguished gentleman from Arizona----
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Nadler [continuing]. For 5 minutes.
    Mr. Franks. Thank you very much, Mr. Chairman.
    You know, I think sometimes when we are dealing with issues 
that are charged as much as civil rights issues, we should 
always realize that the substance and the essence of true 
tolerance is not in pretending that we have no differences.
    It is in being kind and loving and decent to each other in 
spite of those differences. And I hope that that will always be 
our central focus and goal in this country.
    With that said, Mr. Kim, I want to--if it is all right, if 
you feel you needed to have a chance to further elaborate on 
the rationale that was behind the question you were trying to 
answer when the Chairman was talking to you. Would that help 
you?
    Mr. Kim. Yes, Mr. Franks, if I could just take a minute. I 
mean, at the end of the day, that decision was--the decision to 
pre-clear that Texas redistricting plan was based on a 
retrogression analysis.
    It was not based upon a question of partisanship, because I 
think there were many acknowledged positions that the map was 
drawn, in part, for partisan purposes. And that is true in 
almost every redistricting plan that is ever created.
    These are very difficult questions. A three-judge Federal 
panel approved the entire plan. The Supreme Court, by a vote of 
5-4, approved 97 percent of that plan and found a section 2 
voting rights violation with respect to one district, which was 
redrawn.
    Under those circumstances, the map that was created in the 
Texas redistricting plan--every court that considered the issue 
ruled that 97 percent of it, at least, was a valid plan.
    And so that does not call into question, I think, the 
Department of Justice's decision back in December 2003 or so to 
pre-clear that plan.
    It would have been inconsistent with those judicial 
decisions to say that that entire plan, all 32 districts, could 
not be withdrawn, when at the end of the day many, many Federal 
judges, very, very smart, careful people, impartial people, 
looked at that map and they drew conclusions that basically 
said 100 percent or 97 percent of that plan should be pre-
cleared--I am sorry, you know, should go into effect.
    Mr. Franks. Well, thank you, Mr. Kim.
    Mr. Kim, what are the Division's priorities for fiscal year 
2007 and 2008 in general, and how are these priorities--how are 
they arrived at?
    Mr. Kim. Well, Mr. Franks, I will say that my biggest 
priority, given my background as a career Federal prosecutor, 
and my background at the Department of Justice and what I view 
my role at the Department of Justice to be, first and foremost 
is to bring every available case based upon the facts and the 
law, without fear or favor.
    And I echo and endorse entirely what the Chairman said 
about that being a critical role at the Department of Justice. 
It is a role that I have historically played and it is a role 
that I continue to play.
    With respect to individual initiatives, the Attorney 
General has defined several. First of all, he has focused on 
the fact that we need to do more on human trafficking.
    Congress has shown great leadership in this area by 
providing us tools to more effectively combat this form of 
modern day slavery. It is a problem that we see across the 
country. t is a problem that we have put our attention to from 
the beginning of this Administration, again, with the 
legislation enacted by Congress. It is an area that we have 
shown great strides, bringing 500 percent more prosecutions 
over the past 6 years, and it is an area that, quite frankly, 
we can do a lot more on, because the facts of these cases are 
absolutely disgusting.
    Mr. Franks. Horrifying.
    Mr. Kim. These are some of the most vile criminals out 
there in the world, someone who would profit from the misery of 
others and profit from the subjection of others.
    And we intend to keep going full bore ahead to make sure 
that we investigate these crimes as proactively and as 
aggressively as possible.
    Mr. Franks. Well, Mr. Kim, I think that is a, you know, 
very laudable thing, and I want to be the--you know, very 
strong record my own applause for that kind of effort.
    I also mentioned in the opening statement that your 
Division has been more proactive in religious discrimination 
issues or discrimination of religious liberty.
    It is my perspective--and I hope the perspective of the 
Committee here--that, you know, the religious differences that 
any people have are sometimes, you know, the issues that we 
really struggle with.
    And if we can get that right, if we can respect each 
other's faith and religion, then a lot of the other kinds of 
differences between us can be respected.
    Can you comment on what you think has been the underlying 
effect and ongoing efforts related to protecting the religious 
freedom of your clients?
    Mr. Kim. Yes, Congressman. First of all, I certainly share 
many of your sentiments. I mean, I think at the end of the day 
this country is a country built on diversity. It is a country 
built on a lot of different people.
    I spoke with you briefly before the hearing, and your wife 
is an immigrant. I am an immigrant. My entire family came from 
a different country. For many Americans, America is not the 
country of their birth. It is the country of their choice.
    And the greatest of America is how it allows people to 
become full, patriotic, participating members of this country 
without barriers based on race, skin color, national origin, et 
cetera.
    And that is something that I have truly viewed as one of 
the most blessed things that ever happened to my family, the 
ability to come here and to prosper, and to live a little part 
of the American dream that has been true for generations of 
Americans over time.
    The protection of religious liberty certainly is an 
important component of that. It is one of the first things 
mentioned in the Bill of Rights. It has been a consistent theme 
in laws passed by Congress since the 1964 Civil Rights Act.
    And ever since 9/11, I think we have become more aware of 
cultural, religious intolerance built of ignorance, and trying 
to break those barriers down is important to a welcoming 
society that we all live in.
    Mr. Franks. Thank you, Mr. Kim.
    Mr. Nadler. Thank you. The time of the gentleman has 
expired.
    I now recognize the distinguished Chairman of the full 
Committee of the Judiciary Committee, the gentleman from 
Michigan, Mr. Conyers.
    Mr. Conyers. Thank you so much, Chairman Nadler.
    I welcome you to this hearing. We consider it a very 
important one. And only yesterday the report of the civil 
rights commission--Citizens' Commission on Civil Rights has 
come out. Did you get a chance to peruse it yet?
    Mr. Kim. Yes, sir, I did.
    Mr. Conyers. And did it seem to be a fairly accurate, 
unbiased analysis of the subject matter they discussed?
    Mr. Kim. With respect, Mr. Chairman, I disagree with many 
of the conclusions raised in the report, and I can offer you 
some specifics. I would be happy to answer questions more 
focused from you.
    Mr. Conyers. Well, I would like you to submit to the 
Committee your reservations and objections and criticisms of 
the report. Could you do that subsequently?
    Mr. Kim. Yes. Yes, sir, I would be happy to.
    Mr. Conyers. That would be very helpful to us.
    Well, do you agree with the thrust of the report, declining 
civil rights enforcement under the Bush administration?
    Mr. Kim. Mr. Chairman, I don't.
    Mr. Conyers. Okay.
    Mr. Kim. Again, I mean, I could provide you with more 
focused responses. I mean, I think that there are many things 
in the report which is just--things that just are not true 
based upon my experience.
    The report, for example, suggests----
    Mr. Conyers. Well, I want you to put it all in another 
document, because in 2 minutes or 3 minutes that is not going 
to give us the opportunities that we need.
    Mr. Kim. Yes, Mr. Chairman.
    Mr. Conyers. Then I take it you disagree about--well, I 
shouldn't take anything. Let's just ask you. Political 
appointees intruded into the attorney evaluation process in 
certain instances. Could that have possibly happened?
    Mr. Kim. Mr. Chairman, I don't do that. I talk with----
    Mr. Conyers. So the answer is no.
    Mr. Kim. Not from me, sir, no.
    Mr. Conyers. Okay. Well, from anybody. Maybe there are 
people over you, with you or under you--anybody?
    Mr. Kim. Well, Mr. Chairman, I am not in a position to talk 
about everyone who ever served in the Civil Rights Division. I 
only came to be assistant attorney general about 18 months ago.
    What I am in a position to tell you about is what I do, 
what my practices are.
    Mr. Conyers. Well, I didn't expect you to do anything else. 
I don't expect clairvoyance here at these hearings, although we 
make serious demands on our witnesses.
    Now, has any political appointee or management staff 
ordered section chiefs to change staff attorney performance 
evaluations?
    Mr. Kim. Mr. Chairman, I have never done that.
    Mr. Conyers. All right. How many employees hired as career 
staff are currently working in the front office of the 
Division?
    Mr. Kim. Mr. Chairman, I want to provide you with an 
entirely accurate number. I can----
    Mr. Conyers. Surely.
    Mr. Kim [continuing]. Think of three off the top of my 
head, not all from the Civil Rights Division. I have one detail 
from the Criminal Division.
    But certainly, I think that is very consistent with prior 
practices. I believe that there has always been career 
attorneys who work with the----
    Mr. Conyers. Okay. That is fine. Excellent response.
    Now, Attorney Spakovsky--are you familiar with him?
    Mr. Kim. I am sorry, sir?
    Mr. Conyers. Are you familiar with Hans von Spakovsky?
    Mr. Kim. Spakovsky, yes, sir.
    Mr. Conyers. Okay--hired as a career staff attorney. Did he 
work in the front office?
    Mr. Kim. Yes, sir.
    Mr. Conyers. And how long did he work in the front office, 
if you can remember?
    Mr. Kim. Mr. Chairman, he was there when I came to the 
Civil Rights Division. He left a few weeks after I was 
confirmed to be assistant attorney general, so I supervised 
him, I would say, for about 4 weeks or 5 weeks.
    I can get you his exact tenure. I just don't know off the 
top of my head.
    Mr. Conyers. Well, I wouldn't expect you to. Do you know if 
he had a supervisory role?
    Mr. Kim. He played a role in advising the assistant 
attorney general on primarily voting matters. I know that.
    Mr. Conyers. Well, if you disagree with this Citizens' 
Commission report, I think that forms a basis for questions 
that will have to go on beyond the 5-minute rule, and I am glad 
that you are open to filling this out supplementally.
    We have had a number of questions that go back to the 
Mississippi congressional redistricting plan's pre-clearance 
under section 5 of the Voting Rights Act, and I take it you 
found no particular problem with that.
    Mr. Kim. I would say that the presentation that I read in 
the report was incomplete, and I would be happy to supplement 
what I think the complete record would show.
    Okay, for example----
    Mr. Conyers. Well, my time is out, but I have got a number 
of issues that we want to put to you and then have you explain 
to us your impressions of them, especially any matters that 
happened before you got there.
    Mr. Kim. Yes, sir. And, Mr. Chairman, may I say that I 
would be more than happy to do that. I am prepared to do as 
much of it as I can today off the top of my head.
    I will say that I don't think that anyone in the Civil 
Rights Division was shown a copy of this report before it was 
prepared. Certainly, we would be happy to provide you with our 
thoughts and comments upon it.
    But it came to us a few days ago, and we have had a chance 
to review it. I have some initial impressions. I would be happy 
to flesh them out further.
    Mr. Conyers. We would be delighted.
    Thank you very much.
    Mr. Nadler. Thank you.
    Thank you, Mr. Kim.
    We will now go for 5 minutes of questioning to the 
distinguished gentleman from California.
    Mr. Issa. Thank you. I will take my 5 distinguished minutes 
and try to make the best of them.
    I am interested in your report--your finding for a reason, 
and that is it is very clear that since September 11 the Muslim 
community, the community--particularly their places of worship, 
have been under various levels of attack or the color of 
discrimination.
    And it appears as though the balance hasn't been changed 
dramatically, that your department continues to--more than 5 
years after, continues to sort of say, ``Okay, we have got so 
much for human trafficking, we have so much for African-
American issues, we have so much for Native American issues,'' 
et cetera.
    What were the new fundings to deal with this, and where did 
they come from?
    And to ask the obvious question, how much more would you 
need to do the kind of work to make sure that places of worship 
and people of faith who happen to be of the same religion as 
those who attacked us on September 11 don't find themselves as 
second-class residents?
    Mr. Kim. Well, you know, Congressman, thank you for raising 
that question, because you raise an extremely important issue. 
It is an issue of education. It is an issue of tolerance.
    And ultimately, for us, it is an issue of law enforcement 
and making sure that those types of crimes are aggressively 
investigated and prosecuted wherever we find enough facts----
    Mr. Issa. Could I have regular order, please? Could I have 
regular order, please?
    Mr. Chairman, could I have regular order, please? Please.
    Mr. Kim. Thank you, Congressman. One of the first things we 
did after the September 11 attacks was to have a task force 
formed within the Department of Justice to go after ignorant 
crimes of bigotry based upon people who happen to be of the 
same race, national origin, religion as the perpetrators of 
September 11 and, quite frankly, people who were mistaken to 
belong to those races.
    For example, one of the regular participant groups in the 
forums that we host are Sikh Americans who, of course, are not 
Muslim, are not Middle Eastern, but are yet often mistaken as 
such, and so----
    Mr. Issa. They include a Sikh who was killed.
    Mr. Kim. Yes, sir. Yes. And so at the end of the day, what 
we have done is we have taken the huge spike in those types of 
crimes after September 11 and investigated those thoroughly.
    I think we have done tremendous work in this area with 
respect to investigating and prosecuting those kinds of crimes. 
We investigated more than 700, got great cooperation from the 
FBI along the way.
    We were able to prosecute, I think, about 35 defendants 
criminally. We helped State and local prosecutors bring 
prosecutions of about another 150.
    Thankfully, America was able to become more normal, and 
Americans were able to appreciate and become Americans again 
and recognize that these are silly acts of violence.
    And so the big spike that we saw after September 11 did 
return to better levels--not good levels, but better levels.
    We saw additional smaller spikes after certain incidents in 
the Middle East occurred, and all along this time we have 
maintained regular contacts with people in the communities.
    I meet every 6 weeks or so in my conference room with more 
than 30 representatives of many Middle Eastern, Arab, Muslim 
groups, as well as people from all the departments that are 
implicated in this issue, from the Department of State, from 
the Department of Homeland Security, from the FBI, from DHS.
    And we make sure that issues affecting the community are 
aired. I am pleased to say that more and more these issues are 
not one of outright violence and bigotry, although we still get 
those, and we go after those.
    Mr. Issa. Actually, if I could ask an anecdotal question--
--
    Mr. Kim. Yes, sir.
    Mr. Issa [continuing]. The 35 enforcements and 
convictions--would those include the two people that were 
brought to trial for trying to blow up my office in 2001?
    Mr. Kim. You know, Congressman, I don't know the answer to 
that, but I certainly could find that for you. We have a 
comprehensive listing of the cases that we have brought.
    Mr. Issa. I would appreciate a little update information on 
that. Obviously, their prime target was a Muslim mosque, and 
they just took a Christian of half-Lebanese ancestry and threw 
me into the mix.
    But I have a close attachment to the fact that there are 
people of hate who will--it doesn't matter if it is misguided. 
Dead is dead.
    But 35 seems like a low number. I know my time is expiring.
    From a resource standpoint, you know, you can always use 
more resources, but how much more would allow you to have a 
zero tolerance against these kinds of vandalisms and hate 
crimes targeted against Muslims and people from the Middle East 
or believed to be from that region?
    Mr. Kim. Well, Congressman, two points. First, you hit it 
right on the head. Discrimination, bigotry--those are crimes 
based on ignorance. They are not crimes based on intelligent 
analysis of the facts, and that is why we condemn them 
uniformly.
    With respect to resources, Congress has been very generous 
with the provision of resources to the Civil Rights Division. 
We investigate and we prosecute, where appropriate and where 
jurisdiction lies, all of these cases.
    When you say 35 is a relatively low number, I would point 
out that we have investigated more than 700 incidents. And many 
of those never pan out to something that we can prosecute.
    Mr. Issa. If the gentleman could finish--he had to be 
stopped midstream.
    Mr. Kim. And we have worked collaboratively with State and 
local prosecutors to prosecute 150 more. So at the end of the 
day, we go after these folks.
    We need the assistance from law enforcement, and they have 
been able to provide it. So I have not seen a dearth of 
resources hurt us on this issue. If it does, I certainly would 
let you know.
    Mr. Issa. Thank you.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    The gentleman from Georgia?
    Mr. Davis. The gentleman from Alabama will also----
    Mr. Nadler. Alabama, excuse me.
    Mr. Davis [continuing]. Allow himself to be recognized.
    Mr. Issa. Now, there is a form of prejudice if I ever saw 
it. [Laughter.]
    Mr. Davis. Thank you, Mr. Chairman.
    Let me try, Mr. Kim, to circle back to some of the 
questions that the Chairman raised at the outset.
    You were somewhat reluctant to answer his questions about 
exchanges between senior personnel and career attorneys based 
on the doctrine of attorney-client privilege.
    When the United States files a claim in United States 
District Court, who is the client?
    Mr. Kim. The United States.
    Mr. Davis. And that would presumably not be the attorneys 
for the Department of Justice, would it?
    Mr. Kim. No, sir, it would be the United States of America 
acting through----
    Mr. Davis. Has there been any assertion by the people of 
the United States of America regarding the scope of attorney-
client privilege regarding those conversations? Obviously not.
    So my point, and I think the Chairman's point, was that you 
used the term attorney-client privilege.
    There may be some kind of a work product doctrine that is 
lurking out there, but I think--I don't want to certainly spend 
a lot of time on this, Mr. Kim, today, but I think you would 
agree with me as a lawyer that work product is considerably 
less protected than attorney-client privilege.
    And I think secondly--you would agree with that as a 
general proposition.
    Mr. Kim. Yes, sir.
    Mr. Davis. And I assume you would also agree with the 
proposition that the Department of Justice is a taxpayer-
subsidized entity that is meant to represent the United States 
government.
    Congress has oversight functions. I assume that you 
acknowledge that, do you not?
    Mr. Kim. I am here, Congressman, and I acknowledge that 
fully.
    Mr. Davis. So I can't, frankly, see any way that this 
institution could perform its oversight function if the 
doctrine of work product means that we can't ask questions 
about communications.
    So in this spirit, let me do that. The Chairman asked you 
about the standard for overruling career attorneys at the 
Department of Justice who make a recommendation.
    I think he asked you that several times, and each time I 
think you didn't answer the question. You talked about what the 
legal analysis was. So let me go back to the question.
    Mr. Kim. Sure.
    Mr. Davis. What is the standard for determining when senior 
political appointees will overrule the recommendations of the 
line attorneys? What is the standard?
    Mr. Kim. I think the standard is one of judgment.
    Mr. Davis. Is that judgment based on professional 
expertise, or is it based on something else?
    Mr. Kim. I believe it is based on professional, legal 
expertise and reasoned analysis.
    Mr. Davis. All right. Taking those three things, what is 
the typical experience level of the line attorneys who practice 
in the Voting Rights Division who make analyses regarding pre-
clearance? What is their typical experience?
    Mr. Kim. They vary widely, sir.
    Mr. Davis. What would be the most experienced that you 
would have who would be involved in making a decision or an 
evaluation regarding pre-clearance?
    Mr. Kim. The chief.
    Mr. Davis. Well, no, the line attorneys. We are talking 
about, again, the line attorneys who are making evaluations 
regarding pre-clearance.
    In fact, let's take a specific case, the Texas case. What 
was the experience level of the line attorneys who were 
involved in making those recommendations?
    Mr. Kim. You know, Congressman, I don't know, because I am 
not familiar with exactly who worked on that case.
    Mr. Davis. Well, then let me ask another way.
    Mr. Kim. Sure.
    Mr. Davis. The people who make evaluations, who make 
recommendations to senior management regarding pre-clearance--
you would agree with me that they are seasoned, experienced 
attorneys, typically, wouldn't you?
    Mr. Kim. Yes, sir.
    Mr. Davis. In fact, they wouldn't be in a position to make 
those recommendations but for the fact that they are seasoned 
and experienced career attorneys. Is that right?
    Mr. Kim. Congressman, I am not trying to disagree with you. 
I just want to make one point for the record.
    Mr. Davis. Yes.
    Mr. Kim. Many of the people who make recommendations are 
analysts who are not attorneys, or paralegals who are not 
attorneys.
    Mr. Davis. But at some point attorneys make the final sign-
off.
    Mr. Kim. Absolutely. Absolutely.
    Mr. Davis. And they are experienced, seasoned attorneys, 
would you agree?
    Mr. Kim. Yes, sir.
    Mr. Davis. Who made the specific decision to grant pre-
clearance in the context of the Texas redistricting?
    Mr. Kim. That letter was signed by Sheldon Bradshaw, is my 
understanding.
    Mr. Davis. And who was Sheldon Bradshaw?
    Mr. Kim. Sheldon Bradshaw was then the principal deputy 
assistant attorney general.
    Mr. Davis. For Civil Rights Division----
    Mr. Kim. Yes, sir.
    Mr. Davis [continuing]. Or overall?
    Mr. Kim. Yes, sir, the Civil Rights Division.
    Mr. Davis. Okay. And can you compare that individual's 
experience level with that of the line attorneys who made the 
recommendation? Are you able to make the comparison?
    Mr. Kim. Again, because I am not familiar with exactly who 
worked on the Texas pre-clearance matter----
    Mr. Davis. What about the Georgia Voter I.D.? That is 
another instance where it has been reported that that there was 
an overruling of career attorneys.
    Can you contrast the experience level--or I would be happy 
to have the information for record eventually.
    Mr. Kim. May I response to the Georgia I.D. matter?
    Mr. Davis. Certainly.
    Mr. Kim. With respect to the Georgia I.D. matter, the pre-
clearance decision in that case was signed by the career 
section chief of the Voting Rights Section.
    Mr. Davis. Well, again, going back to Texas----
    Mr. Kim. Again, I think Joe Rich, who will testify shortly 
was the section chief at that time. He certainly has decades of 
experience in the Civil Rights Division.
    Mr. Davis. Then let me close out on this line of questions, 
Mr. Kim. What we are getting at today is you have experienced 
career attorneys who were there.
    They give you the benefit of their judgment. It would 
strike me that there ought to be a very high standard for a 
political appointee overruling them.
    And I think as a matter of practice--we don't have to waste 
a lot of time on this--typically political appointees in these 
positions, no matter what the Administration, are, frankly, not 
as experienced in day-in, day-out litigation as the career 
professionals.
    So that is why this is a subject of concern to the 
Committee. The fact that you sometimes have, in at least one 
instance, recommendations by experienced professionals that 
have been overruled by individuals who are less experienced.
    Mr. Kim. May I respond to that point, Mr. Chairman?
    Mr. Nadler. Quickly, please.
    Mr. Kim. Congressman, I don't disagree with you one bit. 
That experience, that expertise is valued. I value it. I used 
to be a career attorney. And I thought that I offered value 
when I offered a recommendation or made an analysis in a case.
    And it is extremely rare when those recommendations are not 
adopted--in the vast majority of circumstances, certainly as 
long as I have been assistant attorney general.
    But at the end of the day, I come before this Committee. I 
have been confirmed by the Senate. I am accountable. I accept 
that accountability 100 percent.
    And if I come to this Committee and answer a question as to 
why I did something or why I didn't do something, and I answer 
that question by saying I took a show of hands and did what the 
show of hands recommended, that would not be a responsible 
position.
    And at the end of the day, accountability has to rest with 
the person who reports to the Congress. That is my position.
    Mr. Nadler. Thank you, sir.
    We are expecting votes on the floor at about 11:30. I would 
like to see if we can conclude and get to the next panel 
expeditiously.
    So I think we have--I am sorry, Mr. Pence. I thought we had 
finished.
    Mr. Pence. I thank the Chairman. I will pass on the 
courtesy and just meld into the hearing on the next panel.
    Mr. Nadler. Well, thank you. I thank the gentleman.
    Mr. Scott?
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    Mr. Chairman, I would ask at this point, Mr. Chairman, if 
we could ask CRS for research on whether or not this attorney-
client privilege exists, because I think our experience in 
other matters is that there really is no such privilege, and we 
ought to be able to get the information.
    So I would ask for the Committee to consider that.
    Mr. Kim, while we are on Voting Rights Act, if someone had 
a scheme where they intentionally had too few voting machines 
at a precinct and created long lines intentionally, if you 
could prove it, would that be a violation of the Voting Rights 
Act?
    Mr. Kim. If it was based on race, yes, sir.
    Mr. Scott. If it was based on race.
    Mr. Kim. Yes, sir, it would be a violation of section 2.
    Mr. Scott. Okay. On religious discrimination, about 40-some 
years ago we passed legislation prohibiting discrimination 
based on religion because we felt it was so reprehensible that 
we made it illegal. Is there any reason to repeal religious 
discrimination laws in employment?
    Mr. Kim. Congressman, that is a matter for Congress, but 
certainly we enforce the laws vigorously that Congress has 
passed.
    Mr. Scott. Are you recommending taking a position that 
those laws need to be repealed?
    Mr. Kim. Congressman, I am not in a position to make a 
legislative recommendation to the body. I certainly would take 
back any legislative recommendations the body wanted us to 
consider.
    Mr. Scott. So you don't have any feeling one way or another 
whether those laws are still important?
    Mr. Kim. Congressman, we enforce all the laws passed by 
Congress. I believe that the law has historically provided for 
protection from discrimination based on religion in many 
categories, and I believe those laws are important. And I 
believe Congress has made that judgment as well.
    But certainly Congress is always free to reevaluate how it 
views the propriety of laws.
    Mr. Scott. I mentioned to you earlier about the Deaths in 
Custody Act. Do you have a special litigation section that 
looks at problems with arrest and custody?
    We have a law that is in effect now where jurisdictions are 
supposed to report to the Attorney General about any death that 
occurs in the custody of law enforcement in prison, in jail, 
process of arrest.
    Could you review that information and ascertain whether or 
not you see any pattern of civil rights violations?
    Mr. Kim. Certainly, Congressman.
    Mr. Scott. Do you see any civil rights implications if U.S. 
attorneys are encouraged or coerced to be partisan political 
officials rather than law enforcement officials, or whether or 
not--any civil rights implications if they are evaluated based 
on partisan political implications----
    Mr. Kim. Congressman----
    Mr. Scott [continuing]. If you can prove it?
    Mr. Kim. Congressman, I have worked at Department of 
Justice for most of my career, most of that time as a career 
attorney. I think it is improper for anybody to urge that any 
DOJ official at all take an action that is not based on the 
facts and the law.
    Mr. Scott. And if such activity--if you could show that 
such activity occurred, partisan political activities, would 
that have civil rights implications?
    Mr. Kim. Congressman, I would have to go back and evaluate 
the statutes. It would really depend on the context in which it 
would occur. And again, I am not suggesting that any of this--
--
    Mr. Scott. I didn't say it occurred. I just said if it 
occurred, kind of like ``If I Did It.''
    Mr. Kim. Congressman, if someone urged or told a prosecutor 
to do something that wasn't supported by the facts and the law, 
I think that would be improper on many levels.
    Mr. Scott. Okay.
    Mr. Kim. And I think at a very fundamental level, that is 
not the role of a prosecutor.
    Mr. Scott. Does your office have jurisdiction over 
discrimination against Black farmers?
    Mr. Kim. I believe, Congressman, you may be referring to 
the USDA matter. I believe that that is a matter which we did 
not have jurisdiction.
    Again, Black farmers in what context would be the question. 
Obviously, if thy were being victimized physically, you know, 
certainly, that might invoke our jurisdiction. It really 
depends on the facts and circumstances of each case.
    Mr. Scott. So that is not something you are presently very 
much involved in?
    Mr. Kim. The litigation involving the Department of 
Agriculture, Congressman?
    Mr. Scott. Well, Black farmer discrimination generally.
    Mr. Kim. I can't answer that question, because----
    Mr. Scott. Have you been doing work in discrimination in 
housing?
    Mr. Kim. Yes, sir.
    Mr. Scott. And mortgages?
    Mr. Kim. Yes, sir. In fact, we recently brought a major 
redlining case against Centier Bank in Indiana just a few 
months ago.
    Mr. Scott. Church burnings?
    Mr. Kim. Sir, we remain vigilant on the church burning 
front. I know that you raised an issue a few years ago 
regarding a rash of burnings in your area. We have met 
extensively with the ATF to try to pursue those to the fullest 
extent permissible.
    Mr. Scott. And I guess I have a couple of seconds left. 
Community relations--do you have resources to help communities 
deal with racial problems? And how is that going?
    Mr. Kim. Congressman, that is committed to the jurisdiction 
of the Community Relations Service, which Congress established 
in the 1964 act. They are doing a very good job, as far as I 
can tell, and we coordinate with them often on areas where 
their expertise may be put to good use.
    Mr. Scott. Thanks, Mr. Chairman.
    Mr. Nadler. Thank you. The time of the gentleman has 
expired.
    I thank the witness. Thank you, Mr. Kim.
    Mr. Kim. Thank you. Thank you, Mr. Chairman.
    Mr. Nadler. I would now like to introduce our second panel, 
and I will start reading the introductions while they come up, 
because we have votes on the floor all too soon.
    Our first witness is William Taylor. He is a lawyer, 
teacher and writer in the fields of civil rights and education.
    He will testify today in his capacity as the chairman of 
the Citizens' Commission on Civil Rights, a bipartisan group of 
former Federal officials which has monitored Federal civil 
rights policies and enforcement efforts since the early 1980's.
    The commission has just released a study entitled ``The 
Erosion of Rights: Declining Civil Rights Enforcement Under the 
Bush Administration.'' Their work addresses many of the issues 
before the Subcommittee today.
    Mr. Taylor has had a long and distinguished legal career 
beginning in 1954 when he worked for Thurgood Marshall and the 
NAACP Legal Defense and Education Fund.
    In the 1960's he served as general counsel and later staff 
director of the U.S. Commission on Civil Rights, where he 
directed major investigations and research studies that 
contributed to the civil rights laws enacted in that decade.
    Our second witness is Joseph Rich, the director of the Fair 
Housing and Community Development Project at the Lawyers' 
Committee for Civil Rights Under Law.
    Prior to joining the Lawyers' Committee in May 2005, Mr. 
Rich spent almost 37 years in the Department of Justice's Civil 
Rights Division, where he was hired as part of the honors 
program in 1968.
    He most recently spent 6 years as the chief of the Voting 
Section, from 1999 to 2005. Prior to his tenure in the Voting 
Section, Mr. Rich served for 12 years as deputy chief in the 
Housing and Civil Enforcement Section enforcing fair housing 
and fair lending laws.
    He also served as deputy chief and trial attorney in the 
Educational Opportunities Section. He received his B.A. from 
Yale University and his J.D. cum laude from the University of 
Michigan, where he was an assistant editor of the Michigan Law 
Review.
    Our third witness is Roger Clegg, president and general 
counsel of The Center for Equal Opportunity, a conservative 
research and educational organization based in Falls Church, 
Virginia that specializes in civil rights, immigration and 
bilingual education issues.
    From 1982 to 1993, Mr. Clegg held a number of positions at 
the U.S. Department of Justice, including assistant to the 
solicitor general, where he argued three cases before the 
United States Supreme Court, and as the number two official in 
the Civil Rights Division and Environment Division.
    From 1993 to 1997, Mr. Clegg was vice president and general 
counsel of the National Legal Center for the Public Interest, 
where he wrote and edited a variety of publications on legal 
issues of interest to business. He is a graduate of Rice 
University and Yale Law School.
    Our fourth and final witness is Wade Henderson, the 
executive director of The Leadership Conference on Civil Rights 
and counsel to the Leadership Conference's Civil Rights 
Education Fund.
    Prior to joining The Leadership Conference, Mr. Henderson 
was the Washington bureau director of the National Association 
for the Advancement of Colored People.
    He was also previously the associate director of the 
Washington national office of the American Civil Liberties 
Union, where he began his career as a legislative counsel.
    Mr. Henderson is a graduate of Howard University and the 
Rutgers University School of Law.
    I am pleased to welcome all of you. As a reminder, each of 
your written statements will be made part of the record in its 
entirety.
    I would ask that you now summarize your testimony in 5 
minutes or less. To help you stay within that time, there is a 
timing light at your table. When 1 minute remains, the light 
will switch from green to yellow, and then red when the 5 
minutes are up.
    And I would ask that we be a little more strict on time on 
this panel than with Mr. Kim, because we do have votes on the 
floor coming up, and I don't want to have to ask you to wait 
around till 2:30 to complete your testimony. So thank you.
    And the first witness is, I believe, Mr. Henderson. Mr. 
Taylor is the first witness, I am sorry.
    Mr. Taylor is recognized for 5 minutes.

            TESTIMONY OF WILLIAM L. TAYLOR, CHAIR, 
              CITIZENS' COMMISSION ON CIVIL RIGHTS

    Mr. Taylor. Age before beauty, I see. [Laughter.]
    Thank you, Mr. Chairman and Mr. Chairman of the full 
Committee, and Ranking Member Franks and Members of the 
Committee. That is a powerful incentive to stay within the time 
limit.
    The commission, I think most of you know, is a bipartisan 
organization consisting largely of people who held cabinet or 
other high-ranking positions involving civil rights, founded in 
1982 to monitor Federal policy on important issues of equal 
opportunity.
    The report that we presented to the Committee is the eighth 
in a series that looks at the incumbent Administration and says 
as best we can what is going on. And that is a part of your 
record, I believe.
    I also attached a letter from William Brown, who is a 
member of our commission and a former chair of the Equal 
Employment Opportunity Commission under President Nixon.
    Mr. Brown, who is a Republican, notes that civil rights 
progress has been made in the past only through bipartisan 
cooperation, and he is deeply concerned about the lack of 
Republican participation----
    Mr. Nadler. Mr. Taylor, you will submit the report and we 
will admit it into the record.
    Mr. Taylor. Yes. Thank you very much.
    The most distressing part of this report is the account of 
six former lawyers of the Civil Rights Division of the 
Department of Justice on how the Bush Administration has 
undermined the work of the Division.
    As you know, the Division was established in 1957 and has 
been a pillar of successful efforts to transform this Nation 
from a White male society to one in which African-Americans and 
other persons of color and women and others who have been 
discriminated against have become active participants in our 
political and legal systems and in which people who were 
formerly excluded now have opportunities for education and for 
productive employment.
    Yet as the Division approaches its 50th anniversary, it is 
in deep trouble because the Bush administration has used it as 
a vessel for its own political objectives, often disregarding 
the law and sullying the group's reputation for professionalism 
and integrity.
    Some of the details of the Administration's actions will be 
presented by Joe Rich, who wrote and edited a good deal of the 
section on the Division. And I think in the interest of time, I 
will exclude even my summary of what he will summarize.
    But the professional staff has been downgraded. Priorities 
have been changed without making sure that old priorities like 
hate crimes and misconduct of officers are still fully attended 
to by the Criminal Civil Rights Section.
    And I would say that the assault of the Administration on 
the Civil Rights Division, taken together with the nomination 
of judges who are hostile to the enforcement of laws that ban 
discrimination, have left many people without the protections 
of laws on which they have come to rely.
    Our report also deals with other important subjects 
including several where executive policy has had a major impact 
on the poor.
    Among our concerns and reflected in the report is the 
maltreatment of immigrants and the seeming inability of the 
Administration to secure the enactment of reforms that will 
supply stability and end the growing interethnic conflict.
    In addition, emblematic of the Administration's failures--
the Nation's failures to address the needs of the poor is the 
lack of advocacy of affordable housing in places that will 
afford people access to good jobs, schools and services.
    We will, if the Committee deems it permissible, try to 
respond to Mr. Kim's testimony and the additional testimony he 
supplies.
    I have to say that this program called Home Sweet Home does 
not represent a real effort on the part of the Administration 
and on Justice Department--other Divisions to supply housing 
opportunities for people who need them. It must be treated with 
some irony by the people down in New Orleans.
    Finally, we commend the Committee for its readiness to take 
on an agenda already loaded with the need for oversight in 
crucial areas in order to examine these failures of enforcement 
in civil rights.
    I am finishing. We recommend that the Congress do more, and 
we have recommendations for a select committee to be appointed 
in this area, House and Senate, and the critical Committees are 
Civil Rights--this is a tall order, but we believe that the 
dire circumstances of civil rights enforcement compel such 
steps.
    And as our society grows more diverse, strong civil rights 
laws are essential not only to equal justice but to ensuring 
the unity and stability of the Nation.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Taylor follows:]
                Prepared Statement of William L. Taylor
                              introduction
    Thank you for the opportunity to testify on behalf of the Citizens' 
Commission on the implementation of civil rights laws by the current 
Administration. The Commission is a bipartisan organization consisting 
largely of people who held cabinet or other high ranking positions 
involving civil rights. It was founded in 1982 to monitor federal 
policy on important issues of equal opportunity.
    The report that we are presenting to the Committee is the eighth in 
a series of such studies that we have published to make information 
available on how civil rights laws have fared under incumbent 
Administrations.
    I would like to place in the record a copy of our report--``The 
Erosion of Rights: Declining Civil Rights Under the Bush 
Administration,'' just publicly released. I also would offer a letter 
to the Committee from William H. Brown, a member of our Commission and 
former Chair of the Equal Employment Opportunity Commission under 
President Nixon. Mr. Brown, a Republican, notes that civil rights 
progress has been made in the past only through bipartisan cooperation 
and he is deeply concerned about the lack of Republican participation 
in preserving and extending rights now.
                the attack on the civil rights division
    The most distressing part of this report is the account of six 
former lawyers of the Civil Rights Division of the Department of 
Justice on how the Bush Administration has undermined the work of the 
Division.
    The Division, as many of you know, was established fifty years ago 
as part of the Civil Rights Act of 1957. It has been a pillar of 
successful legal efforts to transform the nation from a privileged 
white male society to one in which African Americans and other persons 
of color and women have become active participants in our political and 
legal systems and in which people formerly excluded now have 
opportunity for education and productive employment.
    Yet as the Division approaches its 50th anniversary, it is in deep 
trouble because the Bush Administration has used it as a vessel for its 
own political objectives, often disregarding the law and sullying the 
group's reputation for professionalism and integrity.
    Some of the details of the Administration's actions will be 
presented by Joe Rich who wrote and edited a good deal of our section 
on the Division. I would summarize only by saying that what we have 
been witnessing is an attack on the professionalism of the Division, 
with political leaders of the agency not only rejecting but failing to 
even consult these respected, experienced lawyers. We have also 
witnessed a shifting of priorities in the Criminal Civil Rights Section 
by moving into that section cases that have been ordinarily handled 
outside the Division by federal prosecutors. The cost has been to cases 
involving hate crimes and official misconduct that have been the staple 
of the Section's work.
    In employment, the effective attack on patterns and practices of 
discrimination has been marred by a shift away from cases of 
discrimination against African Americans to what are described as 
``reverse discrimination'' cases filed by white plaintiffs.
    Nowhere is the downgrading of professional staff more damaging than 
in the area of voting where the Department has special responsibilities 
to approve electoral changes by states and localities. Because of the 
political sensitivity of such reviews, the Department has adopted 
procedures to ensure the integrity of the process. But the 
Administration has cast aside these protections in several cases, just 
as it seems to have done in punishing U.S. attorneys for not being 
political enough in their handling of vote fraud cases.
    The assault of the Administration on the Civil Rights Division, 
taken together with the nomination of judges who are hostile to the 
enforcement of laws that ban discrimination, has left many persons 
without the protections of law on which they have relied.
                        equality of opportunity
    Our report also deals with other important subjects including 
several where executive policy has a major impact on the poor. Among 
the Commission's concerns is the maltreatment of immigrants and the 
seeming inability of the Administration to secure enactment of reforms 
that will supply stability and end the growing interethnic conflict. In 
addition, emblematic of the nation's failures to address the needs of 
the poor is the lack of advocacy for affordable housing that will 
afford people access to good jobs, schools and services.
                               conclusion
    We commend the Committee for its readiness to take on an agenda 
already loaded with the need for oversight in several crucial areas in 
order to examine these failures of enforcement in civil rights. Indeed 
we recommend that the Congress do more by establishing a select 
committee of both Houses to undertake a two year review of the 
implementation of federal civil rights laws. The Committee should be 
composed of senior members of both parties who serve on the Judiciary 
Committees and on other committees that deal with education, 
employment, housing and the administration of justice.
    This is a tall order, but we believe that the dire circumstances of 
civil rights enforcement compel such steps. As our society grows more 
diverse, strong civil rights laws are essential not only to equal 
justice under law but to ensuring the unity and stability of the 
nation.

                               ATTACHMENT














































































































    Mr. Nadler. Thank you, Mr. Taylor.
    Mr. Rich?

 TESTIMONY OF JOSEPH D. RICH, DIRECTOR, FAIR HOUSING COMMUNITY 
DEVELOPMENT PROJECT, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER 
                              LAW

    Mr. Rich. Mr. Chairman and Members of the Committee, I want 
to thank you for the opportunity to testify at this hearing.
    Since its creation in 1957, the Civil Rights Division has 
been the primary guardian for protecting our citizens against 
legal, racial, ethnic, religious and gender discrimination.
    Through both Republican and Democratic administrations, the 
Division has developed a well-earned reputation for expertise 
and professionalism in its civil rights enforcement efforts.
    Partisan politics were rarely, if ever, injected into 
decision making, in large measure because decisions usually 
arose from career staff and were normally respected by 
political appointees.
    Career staff play a central role in recommending new career 
hires, and those recommendations were almost always respected.
    Unfortunately, since this Administration took office, that 
professionalism and non-partisan commitment to the historic 
mission of the Division has been replaced by unprecedented 
political decision-making.
    The result is that the essential work of the Division to 
protect the civil rights of all Americans is not getting done.
    Furthermore, the conscious effort to politicize the 
Division has depleted its institutional knowledge by driving 
away the talent and history of its career staff.
    The political decision-making process that led to the 
questionable dismissal of 8 U.S. attorneys was standard 
practice in the Civil Rights Division before these revelations.
    And even today, there is another story coming out of the 
Civil Division tobacco litigation that is similar to this. 
These connections should not be minimized.
    It was evident in several ways: A hostility to career 
employees expressed as agreement with political appointees--or 
were perceived as disloyal was evident early on.
    For example, during my tenure as section chief for the 
Voting Section, I was ordered to change standard performance 
evaluations of attorneys under my supervision to include 
critical comments of those who had made recommendations that 
were counter to the political will of the front office and to 
improve evaluations of those who were politically favored.
    In my 32 years of management in the Division before this 
Administration, I was never asked to alter my performance 
evaluations.
    Furthermore, four section chiefs, two deputy chiefs and a 
special counsel were either removed or marginalized because 
they were disfavored for political reasons or perceived as 
disloyal.
    In past Administrations, the front office has only rarely 
weighed in on the fate of section chiefs and, to my knowledge, 
never weighed in on the fate of deputy chiefs. In fact, this 
hostility was not lost on career staff. For example, since I 
left the Voting Section, approximately 55 percent to 60 percent 
of the attorney staff has left the department or transferred to 
other sections.
    In the important section 5 Unit in the Voting Section, the 
deputy section chief for Section 5 Unit, with vast section 5 
experience, was involuntarily transferred out of the section in 
2006.
    In addition, the number of civil rights analysts has been 
reduced from 26 in 2001 to 10 today, and attorneys who reviewed 
these submissions have been reduced from seven to two. This 
depletion of intellectual resources has the potential to be 
disastrous.
    The drastic reduction in section 5 staff makes it virtually 
impossible for the section to meet its responsibilities and 
will be even more of an impediment to adequate voting rights 
enforcement as we move closer to the 2010 census.
    The major exodus of career attorneys was accompanied by a 
major change in hiring policy in 2002, replacing a hiring 
process created in 1954 by the department to remove the 
perception of political favoritism and cronyism.
    Involvement of career staff, which was central to the 
process for more than 35 years, completely ended and was 
replaced by exclusive control of political appointees making 
hiring decisions based not on the applicant's civil rights 
experience and commitment but on a demonstrated fidelity to the 
Republican partisan interests.
    Politicization has affected Division enforcement record as 
well. For example, in a 5-year period, the department brought 
no voting cases and only one employment pattern and practice 
case on behalf of African-Americans and no voting cases on 
behalf of Native Americans.
    At the same time, there were several reverse discrimination 
employment cases brought and the first case ever on behalf of 
White voters alleging discrimination against an African-
American Democratic Party operative in Mississippi.
    Most disturbing has been the brazen insertion of partisan 
politics into decision making under section 5. Section 5 
decisions in Mississippi and Texas redistricting matters in 
2002 and 2003 and the Georgia Voter I.D. matter in 2005 were 
made for clear partisan political reasons over strong 
recommendation.
    I want to talk a little bit about Georgia, but I will leave 
that for questioning. Thank you.
    [The prepared statement of Mr. Rich follows:]
                  Prepared Statement of Joseph D. Rich
    My name is Joe Rich. Since May, 2005 I have been Director of the 
Housing and Community Development Project at the Lawyers' Committee for 
Civil Rights Under Law. Previously I worked for the Department of 
Justice's Civil Rights Division for almost 37 years. The last six 
years--from 1999-2005--I was Chief of the Division's Voting Section. 
Prior to that, I served as Deputy Chief of the Housing and Civil 
Enforcement Section for twelve years and Deputy Chief for the Education 
Section for ten years. During my nearly 37 years in the Division, I 
served in Republican administrations for over 24 years and Democratic 
administrations for slightly over 12 years.
    I want to thank the Committee for the opportunity to testify at 
this oversight hearing. Enforcement of our nation's 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 in which the Division has strayed seriously from its historic 
mission and traditions.
    Since its creation as a Congressionally mandated unit of the 
Department of Justice in the Civil Rights Act of 1957, the Civil Rights 
Division has been the primary guardian protecting our citizens against 
illegal racial, ethnic, religious, and gender discrimination. Through 
both Republican and Democratic Administrations, the Division earned a 
reputation for expertise and professionalism in its civil rights 
enforcement efforts.
    During much of the history of the Division, its civil rights 
enforcement work has been highly sensitive and politically 
controversial. It grew out of the tumultuous civil rights movement of 
the 1960's, a movement which generated great passion and conflict. 
Given the passions that civil rights enforcement generates, there has 
always been potential for conflict between political appointees of the 
incumbent administration, who are the ultimate decision makers within 
the Division and the Department, and the stable ranks of career 
attorneys who are the nation's front line enforcers of civil rights and 
whose loyalties are to the department where they work. Career attorneys 
in the Division have experienced inevitable conflicts with political 
appointees in both Republican and Democratic administrations. These 
conflicts were almost always resolved after vigorous debate between the 
career attorneys and political appointees, with both learning from the 
other. Partisan politics was rarely injected into decision-making, in 
large measure because decisions usually arose from career staff and, 
when involving the normal exercise of prosecutorial discretion, were 
generally respected by political appointees. In a similar fashion, the 
hiring process for new career employees began with the career staff, 
who made recommendations to the political appointees that were 
generally respected.
    During the Bush Administration, dramatic change has taken place. 
Political appointees made it quite clear that they did not wish to draw 
on the expertise and institutional knowledge of career attorneys. 
Instead, there appeared to be a conscious effort to remake the 
Division's career staff. Political appointees often assumed an attitude 
of hostility toward career staff, exhibited a general distrust for 
recommendations made by them, and were very reluctant to meet with them 
to discuss their recommendations. The impact of this treatment on staff 
morale resulted in an alarming exodus of career attorneys--the longtime 
backbone of the Division that had historically maintained the 
institutional knowledge of how to enforce our civil rights laws tracing 
back to the passage of our modern civil rights statutes.
    Compounding this problem was a major change in hiring procedures 
which virtually eliminated any career staff input into the hiring of 
career attorneys. This has led to the perception and reality of new 
staff attorneys having little if any experience in, or commitment to, 
the enforcement of civil rights laws and, more seriously, injecting 
political factors into the hiring of career attorneys. The overall 
damage caused by losing a large body of the committed career staff and 
replacing it with persons with little or no interest or experience in 
civil rights enforcement has been severe and will be difficult to 
overcome.
    In August, 2005, the first article bringing to light the problems 
in the Civil Rights Division was written by William Yeomans for Legal 
Affairs.\1\ Following this, there was a flurry of articles in many 
newspapers and broadcasts on NPR over a four month period revealing not 
only the change in personnel and hiring policies in the Division, but 
also, alarmingly, the crass politicization of decision-making. Constant 
oversight of the Division is necessary to address these very serious 
problems.
---------------------------------------------------------------------------
    \1\ See ``An Uncivil Division,'' Legal Affairs, (August-September, 
2005). The author of this article, William Yeomans, was a 23 year 
career Civil Rights Division attorney who had served as Chief of Staff 
to Assistant Attorney General Bill Lann Lee from 1997 until 2000.
---------------------------------------------------------------------------
         relationship of political appointees and career staff
    Brian K. Landsberg was a career attorney in the Civil Rights 
Division from 1964-86 during which he was chief of the Education 
Section for five years and then chief of the Appellate Section for 
twelve years. He now is professor of law at McGeorge Law School. In 
1997, he published Enforcing Civil Rights: Race Discrimination and the 
Department of Justice (University Press of Kansas), a careful and 
scholarly analysis of the history and operation of the Division. 
Landsberg devoted a full chapter to the ``Role of Civil Servants and 
Appointees.'' He summarizes the importance of the relationship between 
political appointees and career staff at page 156:

        Although the job of the Department of Justice is to enforce 
        binding legal norms, three factors set up the potential for 
        conflict between political appointees, who represent the 
        policies of the administration then in power, and civil 
        servants, whose tenure is not tied to an administration and 
        whose loyalties are to the department where they work and the 
        laws they enforce: the horizontal and vertical separation of 
        powers; the indeterminacy of some legal norms; and the lack of 
        a concrete client. The vertical separation of powers was 
        designed to enable both civil service attorneys and political 
        appointees to influence policy. This design, as well as wise 
        policy, requires cooperation between the two groups to achieve 
        the proper balance between carrying out administration policy 
        and carrying out core law enforcement duties. Where one group 
        shuts itself out from influence by the other, the department's 
        effectiveness suffers. (emphasis added)

    Rather than making efforts to cooperate with career staff, it 
became increasingly evident during the Bush Administration that 
political appointees in the Division were consciously walling 
themselves off from career staff. Indeed, on several occasions there 
was hostility from political appointees toward those who voiced 
disagreement with their decisions and policies or were perceived to be 
disloyal. This was apparent in many ways:

          Longtime career supervisors who were considered to 
        have views that differed from those of the political appointees 
        were reassigned or stripped of major responsibilities. In 
        April, 2002, the employment section chief and a longtime deputy 
        chief were summarily transferred to the Civil Division. 
        Subsequently, a career special litigation counsel in the 
        employment section was similarly transferred. In 2003, the 
        chief of the housing section was demoted to a deputy chief 
        position in another section and shortly thereafter retired. 
        Also in 2003, the chief of the special litigation section was 
        replaced. In the voting section, many of the enforcement 
        responsibilities were taken away from the chief and given 
        directly to supervisors or other attorneys in the section who 
        were viewed as loyal to political appointees. In 2005, the 
        chief of the criminal section was removed and given a job in a 
        training program, and shortly after that, the deputy chief in 
        the voting section for Section 5 of the Voting Rights Act was 
        transferred to the same office. On only one occasion in the 
        past had political appointees removed career section chiefs, 
        and on that occasion it was on a more limited basis. In short, 
        it is rare for political appointees to remove and replace 
        career section chiefs for reasons not related to their job 
        performance. Never in the past had deputy section chiefs been 
        removed by political appointees.

          Regular meetings of all of the career section chiefs 
        together with the political leadership were virtually 
        discontinued from the outset of the Administration. Such 
        meetings had always been an important means of communication in 
        an increasingly large Division that was physically separated in 
        several different buildings.

          Communication between the direct supervisors of 
        several sections at the deputy assistant attorney general level 
        and section staff also was greatly limited. In the voting 
        section, for instance, section management was initially able to 
        take disagreements in decisions made at the Deputy Assistant 
        Attorney General level to the Assistant Attorney General for 
        resolution. But it became increasingly evident that such 
        debate, which is so important to the healthy development of 
        policy, was frowned on. In 2003, it was made very plain that 
        efforts to raise with the Assistant Attorney General issues on 
        which there was disagreement would be discouraged. In past 
        administrations, section chiefs had open access to the 
        Assistant Attorney General to raise issues of particular 
        importance. Attempts to hold periodic management meetings with 
        political appointees were also usually not acted upon. This 
        resulted in political appointees not receiving the expertise 
        and institutional knowledge of career staff on many matters. 
        Indeed, a political special counsel in the front office was 
        assigned to work solely on voting matters and often assumed 
        many of the responsibilities of the chief of the section.

          Communication between sections was also discouraged. 
        This was especially true when the appellate section was 
        handling the appeals of trial section cases or amicus briefs on 
        the subjects handled by a trial section. When drafting briefs 
        in controversial areas, appellate staff was on several 
        occasions instructed not to share their work with the trial 
        sections until shortly before or when the brief was filed in 
        court. This was extremely frustrating for career staff in both 
        the trial and appellate sections and hindered the adequate 
        development of briefs and full debate of issues in the briefs.

          Political appointees have inserted themselves into 
        section administration to a far greater level than in the past. 
        For example, on many occasions, assignments of cases and 
        matters to section attorneys were made by political employees, 
        something that was a rarity in the past. Moreover, assignment 
        of work to sections and attorneys was done in a way that 
        limited the civil rights work being done by career staff. This 
        was especially true of attorneys in the appellate section, 
        where close to 40% of attorney time was devoted to deportation 
        appeals during 2005.\2\ Similarly, selected career attorneys in 
        that Section were informed that they would no longer receive 
        assignments to civil rights cases, and disfavored employees in 
        other sections were assigned the deportation appeal cases. 
        Political appointees also intruded into the attorney evaluation 
        process in certain instances, something that did not happen in 
        the past.
---------------------------------------------------------------------------
    \2\ See Confirmation Hearings for Wan Kim, October, 2005. Answer 
No. 12 to Written questions of senator Durbin (``According to available 
records, it is my understanding that during FY 2005, the Appellate 
Section filed 120 appellate briefs in the Office of Immigration 
Litigation, and that for the first three quarters of FY 2005 for which 
information is currently available, approximately 38.8% of attorney 
hours in the Appellate Section of the Civil Rights Division have been 
spent on cases regarding the Immigration and Nationality Act.
---------------------------------------------------------------------------
                  impact on morale of career employees
    It is hard to overemphasize the negative impact that this type of 
administration of the Division has had on the morale of career staff. 
The best indicator of this impact is in the unprecedented turnover of 
career personnel. It should be noted that the impact has been greater 
in some sections than others, and often attorneys in the sections most 
directly affected by the hostility of political appointees transferred 
to other sections in which the impact was less. The sections most 
deeply affected have been voting, employment, appellate, and special 
litigation.
                             voting section
  Based on a review of personnel rosters in the voting section, 
20 of the 35 attorneys in the section (over 54%) have either left the 
Department, transferred to other sections (in some cases 
involuntarily), or gone on details since April 2005. During the same 
period, of the five persons in section leadership at the beginning of 
2005 (the chief and four deputy chiefs), only one deputy chief remains 
in the section today.

  Equally disturbing is the decimation of voting section staff 
assigned to the important work required by Section 5 of the Voting 
Rights Act. Prior to the Bush Administration, Section 5 staff was 
uniformly strengthened, and by 2001--the year that the new round of 
redistricting submissions began--approximately 40% of Section staff was 
assigned to this work, including a Deputy Section Chief, Robert Berman, 
who oversaw the Section 5 work; 26 civil rights analysts (including 8 
supervisory or senior analysts) responsible for reviewing, gathering 
facts, and making recommendations on over 4,000 Section 5 submissions 
received every year; and over six attorneys who spent their full-time 
reviewing the work of the analysts. Since then, and especially since 
the transfer of Deputy Chief Berman from the Section in late 2005, this 
staff dropped by almost two-thirds. There are now only ten civil rights 
analysts (none of whom hold supervisory jobs and only three of whom are 
senior) and two full-time attorney reviewers. During my tenure as 
Section Chief until 2005, I made several requests to fill civil rights 
analyst vacancies, but these requests were always rejected. It is 
difficult to understand how this Administration expects to fulfill its 
Section 5 responsibilities--especially the coming redistricting cycle--
with such a reduced staff.
                           employment section
  Based on a review of personnel rosters in the employment 
section, the section chief and one of four deputy chiefs were 
involuntarily transferred to the Civil Division in April, 2002. Shortly 
after that, a special counsel was involuntarily transferred to the 
Civil Division. And, since then, two other deputy chiefs left the 
section or retired. Overall, since 2002, the section chief and three of 
the four deputy chiefs have been involuntarily reassigned or left the 
section. In addition, in that period, 21 of the 32 attorneys in the 
section in 2002 (over 65%) have either left the Division or transferred 
to other sections.

  Loss of paralegals in the employment section has also been 
significant. Twelve professionals have left, many with over 20 years of 
experience.

  In the appellate section, since 2005, six of the 12-14 line 
attorneys in the section transferred to other sections or left the 
Department. Two of the transfers were involuntary.

    There has always been normal turnover of career staff in the Civil 
Rights Division, but it has never reached such extreme levels and never 
has it been so closely related to the manner in which political 
appointees have managed the personnel in the Division. It has stripped 
the division of career staff at a level not experienced before.
                           hiring procedures
    Compounding the impact of the extraordinary loss of career staff in 
recent years has been a major change in the Division's hiring 
practices. Since 1954, the primary source of attorneys in all divisions 
in the Department has been the attorney general's honors program. This 
program was instituted by then Attorney General Herbert Brownell in 
order to end perceived personnel practices ``marked by allegations of 
cronyism, favoritism, and graft.'' \3\ Since its adoption, the honors 
program has been consistently successful in drawing top law school 
graduates to the Department.
---------------------------------------------------------------------------
    \3\ Landsberg, Enforcing Civil Rights at p. 157.
---------------------------------------------------------------------------
    Until 2002, career attorneys in the Civil Rights Division played 
the central role in the process followed in hiring attorneys through 
the honors program. Each year, career line attorneys from each section 
were appointed to an honors hiring committee which was responsible for 
traveling to law schools to interview law students who had applied for 
the program. Because of the tremendous number of applications for the 
honors program, committee members generally would limit their 
interviews to applicants who had listed the Civil Rights Division as 
their first choice when applying. The Civil Rights Division had earned 
a reputation as the most difficult of the Department's divisions to 
enter through the honors program because only a few positions were open 
each year and so many highly qualified law students desired to work in 
civil rights.
    After interviewing was completed, the hiring committee would meet 
and recommend to the political appointees those who they considered the 
most qualified. Law school performance was undoubtedly a central 
factor, but a demonstrated interest and /or experience in civil rights 
enforcement and a commitment to the work of the Division were the 
qualities that interviewers sought in candidates selected to join the 
career staff of the Division. Political appointees rarely rejected 
these recommendations.
    Hiring of experienced attorneys--so-called ``lateral'' hires--
followed a similar process. Individual sections with attorney vacancies 
would review applications and select those to be interviewed. They 
would conduct initial interviews and the section chief would then 
recommend hires to Division leadership. Like recommendations for honors 
hires, these recommendations were almost always accepted by political 
appointees.
    These procedures have been very successful over the years in 
maintaining an attorney staff of the highest quality--in Republican as 
well as Democratic administrations. A former Deputy Assistant Attorney 
General in the Reagan Administration, who was interviewed for a recent 
Boston Globe article about Division hiring practices, said that the 
system of hiring through committees of career professionals worked 
well. The article quoted him as saying: ``There was obviously oversight 
from the front office, but I don't remember a time when an individual 
went through that process and was not accepted. I just don't think 
there was any quarrel with the quality of individuals who were being 
hired. And we certainly weren't placing any kind of litmus test on . . 
. the individuals who were ultimately determined to be best 
qualified.'' \4\
---------------------------------------------------------------------------
    \4\ Charlie Savage, Civil Rights Hiring Shifted in the Bush Era, 
July 23, 2006 at A1.
---------------------------------------------------------------------------
    But, in 2002, these longstanding hiring procedures were abandoned. 
The honors hiring committee made up of career staff attorneys in the 
Civil Rights Division was disbanded and all interviewing and hiring 
decisions were made directly by political appointees with little or no 
input from career staff or management. As for ``lateral'' hires, the 
political appointees similarly took a much more proactive role in 
selecting those persons who received interviews, and almost always 
participated in the interviewing process. In my experience as chief of 
the voting section, section leadership had no input into interviewing 
or hiring decisions of experienced attorneys.
    Not surprisingly, these new hiring procedures have resulted in the 
resurfacing of the perception of favoritism, cronyism, and political 
influence which the honors program had been designed to eliminate in 
1954. Indeed, information that has come to light recently indicates 
that in many instances, this is more than perception. In July, 2006, a 
reporter for the Boston Globe obtained pursuant to the Freedom of 
Information Act the resumes and other hiring data of successful 
applicants to the voting, employment, and appellate sections from 2001-
2006.\5\ His analysis of this data indicated that:
---------------------------------------------------------------------------
    \5\ Id.

          ``Hiring of applicants with civil rights 
        backgrounds--either civil rights litigators or members of civil 
        rights groups--have plunged. Only 19 of the 45 [42 percent] 
        lawyers hired since 2003 in the [employment, appellate, and 
        voting] sections were experienced in civil rights law, and of 
        those, nine gained their experience either by defending 
        employers against discrimination lawsuits or by fighting 
        against race-conscious policies.'' By contrast, ``in the two 
        years before the change, 77 percent of those who were hired had 
---------------------------------------------------------------------------
        civil rights backgrounds.''

          ``Meanwhile, conservative credentials [of those 
        hired] have risen sharply. Since 2003, the three sections have 
        hired 11 lawyers who said they were members of the conservative 
        Federalist Society. Seven hires in the three sections are 
        listed as members of the Republican National Lawyers 
        Association, including two who volunteered for Bush-Cheney 
        campaigns.''

    The reporter noted that current and former Division staffers 
``echoed to varying degrees'' that this pattern was what they observed. 
For example, a former deputy chief in the Division who now teaches at 
the American University Law School testified at an American 
Constitution Society panel on December 14, 2005 that several of his 
students who had no interest in civil rights and who had applied to the 
Department with hopes of doing other kinds of work, were often referred 
to the Civil Rights Division. He said every one of these persons was a 
member of the Federalist Society.\6\
---------------------------------------------------------------------------
    \6\ American Constitution Society, The Role of Political and Career 
Employees of the U.S. Department of Justice, Civil Rights Division, 
December 14, 2005; video available at www.acslaw.org.
---------------------------------------------------------------------------
    Early on in the Bush Administration, the hiring in the voting 
section was overtly political. In March, 2001, after the contested 2000 
election, Attorney General Ashcroft announced a Voting Rights 
Initiative. An important part of this Initiative was the creation of a 
new political position--Senior Counsel for Voting Rights--to examine 
issues of election reform. Two voting section career attorney slots 
were filled as part of this initiative to help this appointee. The 
decision to create these new positions was made with no input from 
career staff and, once the new hires were on board, they operated 
separately from the voting section on election reform legislation. The 
person named as the Senior Counsel for Voting Rights was a defeated 
Republican candidate for Congress. The two line attorneys who filled 
career attorney slots assigned to the voting section were hired with no 
input from the section and had been active in the Republican party. One 
of those ``career'' attorneys, Hans von Spakovsky, was promoted to a 
political position in 2003--special counsel to the Assistant Attorney 
General. For the two and a half years that this attorney held this 
position, he spent virtually all his time reviewing voting section work 
and setting the substantive priorities for the section. Although he was 
clearly in a political supervisory position, he continued to be listed 
as a voting section line attorney and enjoyed career status until he 
received a recess appointment to the Federal Election Commission in 
December, 2005.
                               conclusion
    During the Bush Administration, there has been an unprecedented 
effort to change the make-up of the career staff at the Civil Rights 
Division. This has resulted in a major loss of career personnel with 
many years of experience in civil rights enforcement and in the 
invaluable institutional memory that had always been maintained in the 
Division until now--in both Republican and Democratic administrations. 
Replacement of this staff through a new hiring process resulted in the 
perception and reality of politicization of the Division, and high 
profile decisions in voting matters have added significantly to this. 
The overall impact has been a loss of public confidence in the fair and 
even-handed enforcement of civil rights laws by the Department of 
Justice.
    The damage done to one of the federal government's most important 
law enforcement agencies is deep and will take time to overcome. 
Crucial to this effort is careful and continuous Congressional 
oversight, now and in the future. This is the first House Judiciary 
committee oversight hearing in at least three years, and until 
November, 2006 there had not been a Senate Judiciary Committee 
oversight hearing of the Civil Rights Division for over four years.
    The recent revelations concerning the firing of eight United States 
Attorneys reflect the alarming practices of the Bush Administration's 
Department of Justice that first came to light in revelations about the 
Civil Rights Division. Vigilant oversight is an absolute necessity to 
restore the Civil Rights Division and the Department of Justice to the 
historic role of leading the enforcement of civil rights laws and 
protection of equal justice under the law.

    Mr. Nadler. Thank you.
    The next witness is Mr. Clegg.

TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER 
                     FOR EQUAL OPPORTUNITY

    Mr. Clegg. Thank you very much, Mr. Chairman.
    You know, with all respect, we are not hearing very much 
new today. This is very typical of what happens whenever we 
have oversight hearings like this.
    There will be some Members who believe that--and there are 
some interest groups who think that--there are not enough cases 
being brought of the kind that they like. And there will be 
Members and interest groups who think that there are being too 
many cases being brought of the kinds that they don't like. And 
there will be an assertion that the department is being 
politicized in some way, that the Civil Rights Division in 
particular is being politicized. I am confident that there is 
nothing to these allegations, and I explain why in my written 
statement, which I won't rehash here.
    I think that Mr. Kim gave a very good account of himself at 
these hearings this morning and at the Senate hearing that 
basically covered the same ground a few months ago.
    You know, the fact of the matter is that the career staff 
in the Civil Rights Division tends to be made up of people who 
are left of center. And there is nothing wrong with that, but 
there will inevitably be friction in Republican administrations 
because Republican Political appointees tend to be right of 
center. Judges interpret the law differently. So do Government 
lawyers.
    And wholly aside from that, changing times will mean that 
there will be differences in enforcement priorities. Congress 
passes new statutes. Those new statutes have to be enforced. 
That requires a reallocation of resources. The demographics of 
the country change. That means that more cases are going to be 
brought about discrimination against the groups that are 
growing. There is nothing sinister in any of that, either.
    With respect to the report that the Citizens' Commission on 
Civil Rights has handed out, I am underwhelmed by it. I think 
if you all read it carefully, you will be underwhelmed by it, 
too.
    For instance, look at the three chapters by career folks. 
One of them basically concludes that there is no problem at 
present--this is the chapter on the Criminal Section--just that 
there is the potential that if proactive steps aren't taken 
there will be a diminution in the number of traditional kinds 
of police brutality and involuntary servitude cases. But it 
says up front that that is not a problem right now, that the 
number of traditional police brutality cases and traditional 
involuntary servitude cases is about at the level that it has 
always been.
    I also think that when you talk about the number of reverse 
discrimination employment cases, if you read the report 
carefully, this flood of reverse discrimination cases that is 
being asserted to amounts to two out of 32 ttle VII cases. That 
is hardly a flood.
    I think that the Division is not being aggressive enough in 
challenging discrimination that is overtly and unapologetically 
discriminatory against Caucasians in some cases, against Asians 
in other cases, against Arab-Americans in other cases, because 
such lawsuits are thought to be politically incorrect. I wish 
the department were doing more along those lines.
    Finally, I want to just say that I think that the tone of 
these hearings is unfortunate. I thought that the tone was 
unfortunate in the Senate.
    I think that there ought to be a great deal of respect when 
the head of an enforcement Division in a co-equal branch of 
Government is brought before you.
    And I think that allegations like the one that Mr. Taylor 
just made, that the Administration is nominating judges 
``hostile to the enforcement of civil rights laws,'' is 
demagogic and irresponsible.
    And I don't think that there is any place for that in civil 
political discourse or in hearings of this type. Thank you very 
much.
    [The prepared statement of Mr. Clegg follows:]
                   Prepared Statement of Roger Clegg
    Thank you very much, Mr. Chairman, for the opportunity to testify 
today. My name is Roger Clegg, and I am president and general counsel 
of the Center for Equal Opportunity, a nonprofit research and 
educational organization that is based in Falls Church, Virginia. Our 
chairman is Linda Chavez, and our focus is on public policy issues that 
involve race and ethnicity, such as civil rights, bilingual education, 
and immigration and assimilation.
    I should also note that I was a deputy in the U.S. Department of 
Justice's Civil Rights Division for four years, from 1987 to 1991. My 
career at the Justice Department began, however, five years before 
that, when I was first hired to a nonpolitical slot there, in a 
different office. Then I held several positions as a political 
appointee, but I went back to nonpolitical status when I was Assistant 
to the Solicitor General. I finished my service at the Department as a 
political appointee, including my four years as a Deputy Assistant 
Attorney General in the Civil Rights Division.
    Mr. Chairman, as you know, I have to submit my testimony--
reasonably enough--in advance of when the head of the Civil Rights 
Division, Mr. Wan Kim, will be questioned by the Subcommittee, but I am 
going to assume--based on similar hearings before the Senate Judiciary 
Committee last November 16, news accounts, and my own experience in 
Washington, including my time at the Civil Rights Division--that the 
Division's record will be criticized in three basic ways. These are the 
same criticisms that are always made during oversight hearings of the 
Division.
    First, some members of the subcommittee will say that the Division 
is not bringing enough of the kinds of cases they would like. Second, 
and conversely, some members will argue that the Division is bringing 
too many of the kinds of cases that they do not like. And, third, some 
members will say that the hiring process and other ways in which 
political appointees deal with career lawyers has become wrongly 
politicized.
    Since Congress appropriates money for the Division and wants it to 
enforce the laws it has passed, it makes sense for the members to keep 
on eye on what sort of job the Division is doing--so long, of course, 
as the oversight process does not become so onerous that it actually 
prevents the Division from doing its job. If the members don't agree 
with the way the Division is interpreting the law, or doesn't like the 
enforcement priorities it has set, they can certainly argue with the 
Division leadership about these matters. But ultimately the call is, of 
course, the Executive Branch's.
    And the questioning at hearings like these should be civil, as 
befits conversations between two coequal branches of government. There 
will inevitably be differences of opinion about how to interpret laws 
and what the Division's priorities ought to be. There is nothing 
sinister about this. I have to say, Mr. Chairman, that when I read the 
transcript of last fall's oversight hearings before the Senate 
Judiciary Committee, I discerned a distinct lack of civility in some 
Senators' questioning of Mr. Kim. I hope that this doesn't repeat 
itself at your hearings.
    There will be legitimate differences of opinion--among members of 
the Subcommittee, between members and the administration, and between 
political and career lawyers in the Division--about how to interpret 
the civil rights laws. Judges don't interpret the laws the same way; 
neither do government lawyers. And, of course, outside groups like mine 
will sometimes be critical of the Division. I have criticized the 
Division during the Clinton administration, and I have criticized it 
during the Bush administration. Many of you think the Division has been 
too conservative; well, I think it has not been conservative enough.
    I am including with my statement today a paper that I delivered at 
a political science conference last year at the University of Virginia, 
comparing the enforcement policies of the employment antidiscrimination 
laws at the Civil Rights Division during the Clinton and Bush 
administrations, respectively. I noted there in particular differences 
I saw with respect to disparate impact lawsuits and challenges to what 
I call ``affirmative discrimination''--a.k.a. reverse discrimination. 
The Clinton administration was more aggressive--so aggressive, for 
example, that it was fined over $1.7 million for overreaching in one 
matter--in bringing disparate impact cases (which is too bad, since 
such the theory on which such cases depend is misguided, and they often 
result in more rather than less discrimination), and with only one 
possible exception never challenged affirmative discrimination (which 
is also too bad, since the civil rights laws ought to be interpreted to 
protect all of us from discrimination on the basis of race, ethnicity, 
or sex). But the Bush administration has, nonetheless, brought and 
continued to litigate some disparate impact lawsuits, and it has not 
been terribly aggressive in challenging affirmative discrimination, so 
it has not been perfect either, at least by my lights.
    There will also be differences of opinion--again, among members of 
the Subcommittee, between members and the administration, and between 
political and career lawyers in the Division--about how to set law-
enforcement priorities. The lack of enthusiasm that the Clinton 
administration had for challenging affirmative discrimination had to 
do, I suspect, not only with a difference of opinion in how it read the 
law, but also with a belief--misguided in my opinion--that fighting 
such discrimination was just not as important as other items on its 
agenda. The Bush administration's greater care in bringing disparate 
impact cases may reflect, again, not just a difference in how it reads 
the statutes, but also in a belief that, say, human trafficking is a 
more pressing problem than, say, a fire department's alleged 
overemphasis on one kind or another of physical conditioning.
    In addition, even without differences in law-enforcement 
philosophy, the Division's priorities will change over time. Congress 
will pass new laws. Lawbreaking will become more common in some areas, 
and less common in others.
    For instance, the Bush administration has spent much time enforcing 
the Help America Vote Act, which was just passed in 2002. New statutes 
often require a great deal of enforcement attention, to educate those 
affected to its requirements. The administration has spent more time, 
proportionately, enforcing the foreign-language ballot provisions of 
the Voting Rights Act than the Division did several decades ago. This 
probably reflects the fact that we have many more jurisdictions and 
voters affected by those provisions now than we did back then, because 
of increases in immigration. I say this, by the way, even though in my 
opinion those provisions of the Voting Rights Act are misguided as a 
policy matter and unconstitutional as a matter of law. The Division is 
also spending a lot of time enforcing laws that prohibit discrimination 
against servicemen and servicewomen; this is also unsurprising, since 
there will probably be more such cases in a time of war than in a time 
of peace.
    Some people have criticized the Division for concentrating 
proportionately fewer resources than in years past on bringing cases 
that allege discrimination against African Americans. But in assessing 
this criticism, one must bear in mind, first, that the Division now has 
many more laws to enforce, and, second, that discrimination against 
African Americans is less pervasive now than it was in 1964. To give 
just one example, we would hardly expect a southern city to 
discriminate to the same degree in its municipal hiring today--when 
African Americans have much more political power and may even 
constitute a majority of its city council and other municipal offices, 
including mayor--as when the government there was lily white and black 
people were disenfranchised. I'm not saying that antiblack 
discrimination has vanished; it hasn't, and there will always be 
bigots, of all colors, in a free society. But anyone who thinks that 
antiblack discrimination is the same problem in 2007 that it was in 
1964 is delusional.
    I hasten to add, Mr. Chairman, that of course none of this means 
that the Division is free to interpret the law in bad faith, or to set 
enforcement priorities, for partisan political purposes. But charges 
that the Division is doing so are serious indeed, and should not be 
made lightly. For Congress to do so, without strong evidence, is itself 
irresponsible, in addition to being demagogic. The examples that I've 
seen cited to date--mostly involving a handful of cases under the 
Voting Rights Act--are unpersuasive; the Senate hearings last fall, I 
think, showed as much (Chairman Specter, who came into the hearings 
like a lion, seemed to me to go out like a lamb).
    This brings us to, and overlaps with, the relationship between 
political appointees and career lawyers. Here, too, I think it ought to 
be easy to agree on some basic boundaries.
    On the one hand, no career lawyer should be penalized for partisan 
political reasons. What's more, political appointees should be eager to 
draw upon the institutional memory and expertise of the career staff. I 
know that I always was.
    On the other hand, our government is a democratic republic, and the 
Executive Branch is accountable to the American people. Elections have 
consequences. That means that the President and his appointees have the 
responsibility and the right to run the Executive Branch--to set its 
priorities, to make the call on how to interpret the law (consistent 
with decisions by the Judicial Branch, of course), and even to decide 
which lawyers will best serve the Division's interests by most 
intelligently, enthusiastically, and resourcefully litigating its 
cases.
    The picture that is frequently painted, then, of political hacks 
(ignorant of the law and interested only in winning political 
elections) overruling disinterested, white-lab-coat-wearing career 
lawyers is, to put it mildly, misleading. Political appointees, in my 
experience, are frequently at least as knowledgeable about the law as 
the career people whom they supervise (and, again, I have been on 
either side of the table); conversely, the career lawyers are 
frequently at least as partisan and ideological in their orientation. 
When there is friction between the two, I would not jump to the 
conclusion that it is the fault of the political appointees, or that 
they are showing an unprofessional lack of respect to the career 
lawyers, rather than vice versa.
    Thank you again, Mr. Chairman, for the opportunity to testify 
today. I would be happy to try to answer any questions the Subcommittee 
may have for me.




























    Mr. Nadler. Thank you.
    And I will commend the witness for coming in under 5 
minutes.
    Mr. Henderson, Wade Henderson?

  TESTIMONY OF WADE HENDERSON, PRESIDENT AND CEO, LEADERSHIP 
                   CONFERENCE ON CIVIL RIGHTS

    Mr. Henderson. Good morning, Mr. Chairman. And thank you, 
Members of the Subcommittee, for the opportunity to appear 
before you. Indeed, my name is Wade Henderson. I am president 
of the Leadership Conference on Civil Rights.
    The Leadership Conference is the Nation's premier civil and 
human rights coalition, with approximately 200 national 
organizations working to build an America as good as its 
ideals.
    The Leadership Conference has coordinated the national 
legislative campaigns on behalf of every major civil rights law 
since 1957, including the work to pass the historic 1957 Civil 
Rights Act, which created the Civil Rights Division 50 years 
ago this year.
    Now, the recent allegations that eight U.S. attorneys were 
fired to further a political agenda were surprising to many. To 
those of us who have been watching the Civil Rights Division 
over the past several years, it was not.
    Over the last 6 years, we have seen politics trump 
substance and alter the prosecution of our Nation's civil 
rights laws in many parts of the Division.
    We have seen career civil rights Division employees--
section chiefs, deputy chiefs and line lawyers--forced out of 
their jobs in order to drive political agendas. We have seen 
whole categories of cases not being brought, and the bar made 
unreachably high for bringing suit in other cases.
    We have seen some outright overruling of career prosecutors 
for political reasons, and also many cases being slow-walked to 
death. For example, in the Housing Section alone, the total 
number of cases filed has fallen 42 percent since 2001, while 
the number of cases involving allegations of race 
discrimination has gone down by 60 percent from 20 in 2001 to 
eight in 2006.
    Changes in Administration have often brought changes in 
priorities within the Division, but these changes have never 
before challenged the core function of the Division.
    And never before has there been such a concerted effort to 
structurally change the Division by focusing on personnel 
changes at every level.
    The Division's record on every score has undermined 
effective enforcement of our Nation's civil rights laws, but it 
is the personnel changes to the career staff that are in many 
ways most disturbing, for it is the staff that builds trust 
with communities, develops the cases, negotiates effective 
remedies.
    Career staff has always been soul of the Division, and it 
is under attack. The blueprint for this attack appeared in an 
article in National Review in 2002.
    The article entitled, ``Fort Liberalism: Can Justice's 
Civil Rights Division be Bushified,'' argued that previous 
Republican administrations were not successful in stopping the 
Civil Rights Division from engaging in aggressive civil rights 
enforcement because of the entrenched career staff.
    The article proposed that ``the administration should 
permanently replace those section chiefs it believes it can't 
trust and, further, that Republican political appointees should 
seize control of the hiring process, rather than leave it to 
career civil servants,'' a radical change in policy.
    It seems that those running the Division, however, did get 
the message. To date, four career section chiefs have been 
forced out of their jobs, along with two deputy chiefs, 
including the long-serving veteran who was responsible for 
overseeing enforcement of section 5 of the Voting Rights Act.
    The amount of expertise in civil rights enforcement that 
has been driven out of the Division will be difficult to 
recapture.
    Fifty years ago, the attempt to integrate Little Rock High 
School demonstrated the need for the Federal Government to 
finally say, ``Enough.'' Enough of allowing the States to defy 
the U.S. Constitution and the courts. Enough of Congress and 
the executive branch sitting idly by while millions of 
Americans were denied their basic rights of citizenship.''
    The 1957 act and the creation of the Civil Rights Division 
were the first steps in responding to a growing need. Now, for 
years, we in the civil rights community have looked to the 
Department of Justice as a leader in the fight for civil 
rights.
    In the 1960's and 1970's, it was the Civil Rights Division 
that played a significant role in desegregating schools in the 
old South.
    In the 1970's and 1980's, it was the Division that required 
police and fire departments across the country to open their 
ranks to racial and ethnic minorities and women.
    It was the Civil Rights Division that forced counties to 
give up election systems that locked out minority voters.
    And it was the Civil Rights Division that prosecuted hate 
crimes when no local authority had the will.
    Members of the Committee, today you begin a process that is 
long overdue, a process that will help us to understand the 
extent of the damage that has been done to the Civil Rights 
Division and hopefully a road map for our way back to vigorous 
enforcement, integrity and justice, and to a Civil Rights 
Division the Nation can again be proud of.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Henderson follows:]
                  Prepared Statement of Wade Henderson
























































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    Mr. Nadler. Thank you.
    I will yield myself 5 minutes for question. I will start 
with Mr. Rich.
    According to your written testimony, sir, political 
appointees intruded into the attorney evaluation process in 
certain instances, something that did not happen in the past.
    Could you tell us how the appointees intruded into the 
attorney performance evaluations, what happened, when, and how 
frequently did this happen? And try to keep your answers brief, 
because we are running up against----
    Mr. Rich. Okay. It happened approximately seven or eight 
times. It happened primarily in 2003. The group of attorneys 
who had worked on different matters, that the supervisors in 
the front office disagreed with those judgments, and----
    Mr. Nadler. Give us an example, such as.
    Mr. Rich. Such as my recollection was one of the cases that 
was recommended had to do with sending some observers to Texas, 
and the judgment was that it wasn't necessary. That was 
accepted.
    Six months later, when I wrote the evaluation for this 
particular person, I was actually sent back and told to include 
in that evaluation criticism of the work on that particular 
matter.
    Mr. Nadler. Even though that work had been accepted at the 
time.
    Mr. Rich. Yes. I mean, well, it was--they disagreed and 
didn't approve it, but it was not a matter of something that 
would go in an evaluation, in my judgment.
    Even more particular, there was another matter in which 
there was disagreement initially. Eventually, the supervisors 
agreed with us, but when it came time to performance 
evaluations, a criticism was made concerning their initial 
recommendation.
    Mr. Nadler. Okay. And in this connection, were you put 
under political pressure directly to hire or promote personnel 
based upon specific political objectives, or were you put under 
political pressure to make specific decisions or 
recommendations based upon political concerns?
    Mr. Rich. Well, I am not sure that that is quite what 
happened. Certainly, there was a sense in the section 5 
decisions that I have discussed in my article that there were 
political considerations that overruled the recommendations of 
career staff, the Mississippi, Texas and Georgia, and----
    Mr. Nadler. Yes, but were you put under political pressure 
to hire or promote personnel based upon----
    Mr. Rich. Well, we did not have any real authority to hire.
    Mr. Nadler. Okay.
    Mr. Rich. So I didn't get involved in hiring. And the 
hiring process changed. Promotions----
    Mr. Nadler. Okay. Now, in the matter of the Georgia photo 
I.D. case----
    Mr. Rich. Yes.
    Mr. Nadler [continuing]. According to a November 17th 
Washington Post article, a team of Justice Department lawyers 
and analysts who reviewed the case recommended rejecting it 
because it was likely to discriminate against Black voters but 
were overruled the next day by higher ranking officials.
    Did this section 5 submission go through the normal review 
process?
    Mr. Rich. I was not there, but I have read the same 
materials you have. I had left by that time. But I can tell you 
that the process that was followed was unusual.
    Mr. Nadler. In what way was it unusual?
    Mr. Rich. The August 25th memo recommending an objection--
typically, the case--it is very rare for those to be overruled 
above. It happens, but it is very rare.
    This time, it happened the next day, even though there were 
30 days remaining that they could still review the matter 
further. And furthermore, on the same day that the----
    Mr. Nadler. In other words, there were 30 days in which 
they could have conferred with the attorneys and----
    Mr. Rich. Right.
    Mr. Nadler [continuing]. Seen why they made it and so 
forth.
    Mr. Rich. And furthermore, on the day that it was pre-
cleared, the State of Georgia had submitted more information to 
be looked at. The staff had brought that to the attention----
    Mr. Nadler. And they didn't have time--and they didn't do 
that because they made the decision right away.
    Mr. Rich. Right. They didn't wait to look at that, and the 
decision was made the next day.
    Mr. Nadler. And do you believe politics played a role in 
this decision? And if so, why? Why do you believe that?
    Mr. Rich. Well, I think it was political. Voter I.D. was an 
issue that this Administration was pushing very hard and had 
changed the policies and the way that the Voting Section had 
reviewed voter I.D. laws in the past.
    Mr. Nadler. Wait, wait. When you say that, just--in the 20 
seconds remaining, how was the policy as to the way they 
reviewed it in the past changed?
    Mr. Rich. It goes to the substance. In the past, they had 
pre-cleared a Georgia voter I.D. law because it had a backup 
provision that said if you come in and sign an affidavit 
swearing you are who you are, you can vote.
    Mr. Nadler. And now they didn't----
    Mr. Rich. And we pre-cleared that.
    Mr. Nadler. And now they didn't require that.
    Mr. Rich. Now they didn't require that.
    Mr. Nadler. My time has expired.
    The distinguished Ranking Member, Mr. Franks?
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, in the interest of time, I am just going to 
ask one question and then yield the balance--to two different 
witnesses and yield the balance of my time to the gentleman 
from Indiana.
    Mr. Taylor, I will start with you. It seems that the real 
discussion here centers around priorities of enforcement rather 
than the vigor of enforcement, because certainly the Division 
has been very vigorous given the statistics that we have seen 
here. They have been very active in their enforcement.
    Related to some of the priorities, one of those has been 
the increased priority on prosecuting human trafficking civil 
rights violations.
    Mr. Taylor, I don't want to make any assumptions here. Why 
do you or why do you not believe that the prevention of human 
trafficking is a civil rights issue to which the considerable 
talents of the Division should be applied?
    Mr. Taylor. Well, if you read the article by Seth 
Rosenthal, the piece that he submitted as a former member of 
the Criminal Civil Rights Division, carefully, with due 
respect, Mr. Clegg's conclusion is wrong.
    The traditional work of the section was diminished in the 
area of hate crimes and in the area of police misconduct.
    The subject is human trafficking is certainly an important 
subject, Mr. Franks, but it had been handled capably by 
prosecutors outside the Civil Rights Division.
    Mr. Franks. So you essentially think that this is probably 
not an area where considerable talents of the Division should 
be applied.
    Mr. Taylor. Well, I have no basis for thinking it was not 
being handled well by prosecutors. So yes, I am not saying 
that----
    Mr. Franks. Thank you. Thank you, Mr. Taylor.
    Mr. Taylor [continuing]. This is not handled capably within 
the Division, but there was no reason to transfer it----
    Mr. Franks. In the interest of time, Mr. Clegg, could I 
give you a shot at the same question?
    Mr. Clegg. Well, let me just read to you from the report. 
``[N]either the quantity nor quality of their work,'' that is, 
the section's work, ``in traditional enforcement areas has 
suffered. . . .'' ``The changed emphasis of the Criminal 
Section during the Bush years is not a negative development.''
    I mean, I am quoting from the report. And I think that the 
reason for the reallocation of enforcement authority from the 
Criminal Division to the Civil Rights Division is also 
explained in here.
    There was a new statute that was passed at the behest of 
the Division in the Clinton administration that is called the 
Trafficking Victims Protection Act that widened the law 
enforcement authority of the department generally.
    And I think it makes perfect sense to have all of those 
cases prosecuted within one Division rather than half in one 
Division and half in the other Division.
    But you know, even if reasonable people, can differ about 
that, this is hardly the stuff of scandal. Why should this 
Subcommittee try to micromanage the Civil Rights Division in 
that way?
    Mr. Franks. Thank you, Mr. Clegg. And----
    Mr. Taylor. If I may----
    Mr. Franks [continuing]. With that, I will yield the 
balance of my time----
    Mr. Taylor. If I may say another word about----
    Mr. Franks [continuing]. To the gentleman from Indiana.
    Mr. Taylor. If I may say another word, Mr----
    Mr. Franks. In the interest of time, I will let him----
    Mr. Nadler. The time is going to the gentleman----
    Mr. Franks. From Indiana, please.
    Mr. Pence. I appreciate the gentleman yielding.
    And let me say to the panel that I appreciate the 
testimony. I voted for the Voting Rights Act. I actually voted 
against the King amendment to preserve the bilingual elements 
of that legislation.
    I will vote for D.C. voting today. I am a little bit 
broader than some people think sometimes.
    But let me ask you very sincerely, the Ranking Member just 
said that this is really about priorities.
    And it seems to me that, Mr. Taylor, you were critical of, 
you know, a failure to pass immigration reform, a failure to be 
concerned about issues of abuse among potential illegal 
immigrants.
    Isn't it precisely correct that currently DOJ--part of the 
complaint that is being leveled here is that the Department of 
Justice is beginning to focus on the language requirements of 
the Voting Rights Act to the broader community, including 
ensuring that American Hispanics have full access to the ballot 
box?
    And isn't there an argument over--in fact, that is a 
shifting priority which does address some of the most immediate 
questions of our time.
    Mr. Henderson and Mr. Taylor?
    Mr. Henderson. Well, Mr. Pence, first, thank you so much 
for the question.
    Thank you, by the way, for your vote in the Judiciary 
Committee in support of the D.C. Voting Rights Act. That was 
tremendous, courageous. We appreciate it.
    Having said that, I want to take issue with your initial 
characterization that the only matter of concern is that of 
shifting priorities.
    I think as we look at the Civil Rights Division, there are 
three areas of concern. First, there has been an overall 
dropoff in the number of actual cases brought within the 
Division.
    Secondly, there have been shifting priorities, and we are 
not referring in that regard to an expansion of priorities with 
respect to----
    Mr. Nadler. The gentleman's time has expired. Excuse me. 
The gentleman's time has expired, but the witness will be 
permitted to complete his answer. But please do so briefly. We 
will be able to get back to Mr. Pence, I think.
    Mr. Henderson. Thank you, sir.
    And then the third area of concern is one that I focused 
on, and that is the politicization of the appointment process 
and the treatment of longstanding career attorneys in ways that 
have either driven them out of the Division or diminished their 
ability to be effective in offering counsel.
    So those three areas, not really the one you highlighted.
    Mr. Nadler. The time of the gentleman has expired. I thank 
the gentleman.
    The distinguished Chairman of the Committee, Mr. Conyers?
    Mr. Conyers. Thank you so much.
    Am I glad to see you witnesses here. I mean, it reminds me 
of the old days--hale and hearty.
    Let me allow Mr. Taylor to complete his thought. He had a 
point that he wanted to make and time had run out under one of 
the Members of the Committee.
    Did you want to continue that?
    Mr. Taylor. Thank you very much, Mr. Conyers. I will try to 
be brief. I do think that priorities are a major part of the 
issue.
    We have made great progress in this country under the civil 
rights laws and under Brown in desegregating schools, in 
beginning the opportunities in housing, and in employment.
    But the Civil Rights Division, which has a role--not the 
only role in that--has really put them on the back burner. And 
when you say--I will give you one example, by the way. It is 
not in this report. The Civil Rights Division Education 
Section, which we will report on later, under the prior 
Administration was siding with school districts which wanted to 
continue desegregation after their court obligations expired by 
having voluntary desegregation plans. And the section filed a 
number of--the Division filed a number of amicus briefs in the 
lower courts. Now, the Justice Department has turned around 
completely, said that a school district can't desegregate its 
schools or balance them even if it wants to. And in the Supreme 
Court, they took a completely opposite position without stating 
any real legal basis or educational reason for doing so. That 
is the kind of thing that is happening these days.
    Mr. Conyers. Thank you.
    Let me ask Mr. Clegg--welcome again to the Committee. Are 
you still opposed to the extension of the Voter Rights Act?
    Mr. Clegg. Well, yes. I was outvoted, though, on that, as 
you know. But I do think that it was a mistake to reauthorize 
section 5 and section 203--not the entire act, but those two 
provisions.
    Mr. Conyers. I see. Okay.
    Let me ask Wade Henderson, what about the types and numbers 
of cases the Civil Rights Division has been bringing? Do you 
have some concerns about that?
    Mr. Henderson. Absolutely, Mr. Chairman. I think there are 
two areas that confirm our belief that there has been a dropoff 
in the quantity of cases they have brought to the detriment of 
effective civil rights enforcement.
    For example, in the area of employment, since January 2001, 
the Administration has filed just 35 title VII cases, or an 
average of approximately six cases per year.
    Now, this number includes five cases in which DOJ 
intervened in ongoing litigation, and two cases that were 
initiated by the U.S. Attorney's Office in the Southern 
District of New York using their own resources.
    By contrast, the Clinton administration filed 34 cases in 
its first 2 years in office. And by the end of its term, the 
Administration--that is, the Clinton administration, had filed 
92 complaints of employment discrimination, for an average of 
11 per year.
    I think if you look at what has happened in the Housing and 
Civil Enforcement Sections, you will see essentially the same 
thing, 53 cases in 2001 down to 31 cases in 2006.
    And the number of race cases that have been brought in this 
area has fallen by 60 percent. What we are looking at is really 
not just a shifting emphasis of priorities. What we are looking 
at is a backing away from the statutory obligation of the 
Division to effectively enforce----
    Mr. Conyers. Thank you.
    Mr. Henderson [continuing]. Existing civil rights laws.
    Mr. Conyers. Attorney Clegg, let me ask you my last 
question. I was wondering why you didn't appreciate Attorney 
Taylor, Professor Taylor, pointing out that the nature of the 
appointments of the members of the judiciary have been 
extremely conservative lately.
    And you felt that that was an inappropriate comment before 
the Subcommittee of the Judiciary Committee.
    Mr. Clegg. That is not what he said. Had he complained 
about their being ``conservative'' appointees, I wouldn't have 
had any problem. What he said was that these were judges 
``hostile'' to----
    Mr. Nadler. The time of the gentleman has----
    Mr. Clegg [continuing]. The enforcement of civil rights 
laws.
    Mr. Nadler. The time of the gentleman has expired. The 
witness can complete his answer.
    Mr. Conyers. Yes. Wasn't that valid criticism? I mean, it 
could be agreed with or disagreed with, but when witnesses 
begin to challenge other witnesses' statements, we could have a 
full hearing--as a matter of fact, I recommend it to Chairman 
Nadler--on this conservatizing situation to straighten it out.
    But I don't think that he has any more right to criticize 
you on your views than you have to criticize him on his.
    Mr. Clegg. I think we both have the right to criticize each 
other, and that is what I am doing.
    Mr. Conyers. Well, that is not why----
    Mr. Clegg. I am saying that it is----
    Mr. Conyers. But that is not why the hearing is being held. 
We are here for a different subject.
    Mr. Clegg. I don't agree.
    Mr. Nadler. The time of the gentleman has expired.
    Mr. Pence?
    Mr. Pence. Thank you, Chairman.
    I would just like to return to this question of priorities. 
I appreciate Mr. Henderson's response to that. And as we have a 
vote on, I will leave the majority of my time for reaction 
here.
    I just continue to--I should have checked this box, too. 
You know, I get beat up by a lot of people because I suggested 
comprehensive immigration reform in the last Congress.
    You know, I mean, I am a head first without a helmet guy. 
You know, but I think it is the right thing to do.
    So using those bona fides, let me say again, Mr. Taylor or 
Mr. Rich, is it possible here that what we are seeing in 
evidence I actually just that elections have consequences, that 
different Administrations do bring a different intensity level, 
a different level of priorities?
    Or is it, in fact, your contention that the law is being 
disregarded here?
    It does seem to me that this Administration has placed 
greater emphasis on ensuring that classes of persons apart from 
traditional targets of civil rights enforcement law have had 
their rights protected under the Voting Rights Act, especially, 
and that may have diverted resources that previously were 
focusing on more traditional areas of civil rights.
    But is there at least--would either one of you allow that 
this is a natural outgrowth of the changing of the guard the 
American people made in the year 2000?
    Or is it your firm belief that this represents ignoring the 
law and stepping aside from constitutional duty?
    Mr. Taylor. Mr. Pence, I think--I will turn it over to Joe 
in a minute. I think voting rights are central in this country. 
And I don't think they have been--I think part of the story is 
they have not been adequately protected.
    And when I look at what has happened at the Justice 
Department and look at the unfolding story about prosecutors, 
U.S. attorneys and vote fraud, I see a dilution of the right to 
vote. I think----
    Mr. Pence. But would you grant the point--forgive me for 
interrupting, but would you grant the point that this 
Department of Justice has placed greater emphasis and resources 
on ensuring that Hispanic Americans have access to bilingual 
ballots and----
    Mr. Taylor. I was going to say that I think that it is 
important for the department to keep up to date with problems 
as they unfold, with hate crimes, with ill treatment of 
Muslims.
    I think they do have to--and I think they--I didn't hear an 
answer to the question about what additional resources would be 
requested for the department to do some of that work, and I 
wish they would request some additional resources.
    I think housing is another important area. I think 
employment is another area. I think high-impact cases, which 
the department is not bringing these days, is important, not 
just individual complaints, but to stop practices which affect 
a great many people.
    So I think there--we could have a good discussion about 
this, I think.
    The other thing I will just say briefly is Mr. Clegg has 
called me a lot worse things than he called me here today, so 
maybe I am improving in his estimation.
    But I would just say to the Committee, look at the two 
reports by highly regarded attorneys on the nominations to the 
court and see if you disagree with them.
    Mr. Pence. If I could reclaim my time, Mr. Chairman.
    Mr. Clegg, could you respond to that? Is my 
characterization of this fair from your perspective, in the 
minute and 10 seconds we have left?
    Mr. Clegg. No, I think it is very fair. And as I say in my 
statement, I think a lot of this is driven by simply a 
difference in enforcement priorities, which, you know, is 
perfectly legitimate.
    Times change. Congress passes new laws. New problems arise. 
And there are legitimate differences in the way that different 
Government lawyers interpret the law, just as there are 
legitimate differences in the way that judges interpret the 
law.
    And we ought to be able to have those differences without 
characterizing one another as ``hostile to the enforcement of 
[civil rights] laws.'' That is not what this is about.
    Mr. Pence. Mr. Henderson, the balance of the time.
    Mr. Henderson. Mr. Pence, in the time you have left, let me 
just say the Division was started under the Administration of 
Dwight Eisenhower.
    But every successive Administration after that, both 
Democratic and Republican, saw the need for steady progress on 
civil rights enforcement.
    What we saw with the Bush administration was a precipitous 
dropoff in the number of cases being brought in a variety of 
different areas, and not just shifting priorities, but an 
effort to diminish its primary responsibility to ensure the 
effective civil rights enforcement for all Americans.
    Mr. Clegg. But as you point out, yes, the number of cases 
have gone down in some areas but they have gone up in others.
    Mr. Nadler. The time of the gentleman has expired. All time 
has expired.
    Oh, Mr. Scott again. Mr. Scott, I am sorry. [Laughter.]
    I keep not looking at the front row.
    Mr. Scott. What did that lawyer say, ``I am not a potted 
plant''?
    Mr. Rich, you were at the Division 37 years. Can you make a 
comment on the attorney-client privilege question that was 
brought up in the first panel?
    Mr. Rich. That has always been a very vexing issue, what 
the attorney-client privilege means for a Government attorney.
    I agree with Mr. Kim's portrayal that we represent the 
United States, the people of the United States. The question is 
how does that affect that attorney-client privilege.
    I think that there is a sense of career attorneys that 
internal deliberations, internal memos, are something that are 
privileged to protect the ability to give your frank opinions.
    Mr. Scott. Have the recommendations been rejected in 
previous Administrations--or has the level of rejection 
increased in this Administration, rejecting the opinions of the 
career attorneys on section 5 cases?
    Mr. Rich. Oh, most definitely. I think that the high 
profile cases show that more than anything.
    A couple other things I wanted to add about the Georgia 
Voter I.D. matter that were extraordinary is that each of the 
attorneys who worked on that case that recommended an objection 
are no longer in the section, including the deputy chief, who 
was removed.
    And after that particular matter is when the Justice 
Department changed the longstanding policy of asking civil 
rights analysts and attorneys to give their recommendations on 
whether to object.
    That has now changed. Mr. Kim was not clear on that. What 
has changed is that the section chief still gives a 
recommendation, but the civil rights analysts who always had 
given recommendations to the section chief no longer give those 
recommendations to the section chief.
    Mr. Scott. Is the section chief a political appointee or a 
career appointee?
    Mr. Rich. He is a career appointee. He replaced me.
    Mr. Scott. Okay. Mr. Kim also went to great lengths to show 
that the courts had validated certain decisions. Isn't it true 
that you can have a section 5 violation without having a 
section 2 violation?
    Mr. Rich. That is correct.
    Mr. Scott. And the section 5 decision is not reviewable. If 
you are in court, it is on a section 2 violation.
    Mr. Rich. The only time a section 5 matter would be 
reviewable--if there was an objection, the jurisdiction has the 
ability to go to the U.S. District Court here in D.C. and raise 
it before that court. It is not an appeal.
    Mr. Scott. Now, that is if it has been rejected--if it has 
not been--if it has been pre-cleared, there is no jurisdiction 
for appellate review.
    Mr. Rich. There is no jurisdiction, and that happened 
certainly in the Mississippi case.
    Mr. Nadler. Well, I thank the gentleman, and I thank the 
gentlemen in particular for coming in under his time limit in 
spite of my blindness in failing to see him for a second time, 
for which I apologize.
    First of all, the Chair thanks all the witnesses and the 
Members of the panel.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond as promptly as you can, so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    With that, this hearing is adjourned.
    [Whereupon, at 11:48 a.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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