[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
CHANGING TIDES: EXPLORING THE CURRENT STATE OF CIVIL RIGHTS ENFORCEMENT
WITHIN THE DEPARTMENT OF JUSTICE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
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
U.S. GOVERNMENT PRINTING OFFICE
34-177 PDF WASHINGTON DC: 2007
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
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
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
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
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
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
Oral Testimony................................................. 121
Prepared Statement............................................. 122
Mr. Wade Henderson, President and CEO, Leadership Conference on
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
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,
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
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
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
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
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
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
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
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
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
Thank you for joining us here today, Mr. Kim. And I look
forward to discussing many of these issues with you and our
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
\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
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
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%
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
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
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
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
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
My prepared written statement details the accomplishments
of each section of the Division, and I will address portions of
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
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
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
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
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
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
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
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
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
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
Mr. Kim. No, sir. The court did not hold that there was
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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,''
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
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
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
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
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
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
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
Congress has oversight functions. I assume that you
acknowledge that, do you not?
Mr. Kim. I am here, Congressman, and I acknowledge that
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
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
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
Mr. Davis. But at some point attorneys make the final sign-
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
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
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
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
So I think we have--I am sorry, Mr. Pence. I thought we had
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. 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
Mr. Nadler. Thank you, Mr. Taylor.
TESTIMONY OF JOSEPH D. RICH, DIRECTOR, FAIR HOUSING COMMUNITY
DEVELOPMENT PROJECT, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER
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
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
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
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
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
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
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
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
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
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
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
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
\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
\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
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.
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
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.
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
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
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
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
\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:
``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
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
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
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
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,
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
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
[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
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
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
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
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
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
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
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
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
In the 1960's and 1970's, it was the Civil Rights Division
that played a significant role in desegregating schools in the
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
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
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
Mr. Nadler. Even though that work had been accepted at the
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
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
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
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
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
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
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
Mr. Taylor. Well, I have no basis for thinking it was not
being handled well by prosecutors. So yes, I am not saying
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
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
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
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
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
Secondly, there have been shifting priorities, and we are
not referring in that regard to an expansion of priorities with
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 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
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
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
Mr. Nadler. The time of the gentleman has----
Mr. Clegg [continuing]. The enforcement of civil rights
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. 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
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
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
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
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
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
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
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
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
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
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
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
Material Submitted for the Hearing Record