[Senate Hearing 110-746]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-746
 
THE 50TH ANNIVERSARY OF THE CIVIL RIGHTS ACT OF 1957 AND ITS CONTINUING 
                               IMPORTANCE

=======================================================================


                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 5, 2007

                               __________

                          Serial No. J-110-53

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................    14
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    12
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................     5
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     3
    prepared statement...........................................   103
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   109
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, prepared statement.......................................   123
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     4
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     2

                               WITNESSES

Driscoll, Robert N., Partner, Alston & Bird, Washington, D.C.....    26
Henderson, Wade, President and Chief Executive Officer, 
  Leadership Conference on Civil Rights, Washington, D.C.........    16
Heriot, Gail, Commissioner, Commission on Civil Rights, and 
  Professor of Law, University of California at San Diego, San 
  Diego, California..............................................    22
Lewis, Hon. John, a Representative in Congress from the State of 
  Georgia........................................................     6
Moses, Robert P., President, The Algebra Project, Inc., 
  Cambridge, Massachusetts.......................................    24
Shaw, Theodore M., Director-Counsel and President, NAACP Legal 
  Defense and Education Fund, Inc., Washington, D.C..............    18
Zamora, Peter, Washington, D.C., Regional Counsel, Mexican 
  American Legal Defense and Educational Fund [MALDEF], 
  Washington, D.C................................................    20

                         QUESTIONS AND ANSWERS

Responses of Wade Henderson to written questions were not 
  available at the time of printing.

Responses of Robert P. Moses to questions submitted by Senator 
  Leahy..........................................................    35
Responses of Theodore M. Shaw to questions submitted by Senator 
  Leahy..........................................................    46
Responses of Peter Zamora to questions submitted by Senator Leahy    49

                       SUBMISSIONS FOR THE RECORD

Driscoll, Robert N., Partner, Alston & Bird, Washington, D.C., 
  statement......................................................    53
Henderson, Wade, President and Chief Executive Officer, 
  Leadership Conference on Civil Rights, Washington, D.C., 
  statement......................................................    56
Heriot, Gail, Commissioner, Commission on Civil Rights, and 
  Professor of Law, University of California at San Diego, San 
  Diego, California, statement...................................    97
Lewis, Hon. John, a Representative in Congress from the State of 
  Georgia, statement.............................................   111
Moses, Robert P., President, The Algebra Project, Inc., 
  Cambridge, Massachusetts, statement............................   115
Shaw, Theodore M., Director-Counsel and President, NAACP Legal 
  Defense and Education Fund, Inc., Washington, D.C., statement..   125
Zamora, Peter, Washington, D.C., Regional Counsel, Mexican 
  American Legal Defense and Educational Fund [MALDEF], 
  Washington, D.C., statement....................................   139


THE 50TH ANNIVERSARY OF THE CIVIL RIGHTS ACT OF 1957 AND ITS CONTINUING 
                               IMPORTANCE

                              ----------                              


                      WEDNESDAY, SEPTEMBER 5, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:01 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Kennedy, Feinstein, Feingold, 
Cardin, Specter, and Sessions.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. This Sunday our Nation is 
going to mark the golden anniversary of the Civil Rights Act of 
1957. It was the first major civil rights law passed since 
Reconstruction. I remember it well. It was my first year in 
college when it passed and I remember the excitement I heard on 
a small college campus in Vermont. It remains one of the most 
important pieces of legislation this Committee and the Congress 
ever considered. Its story has been retold in the award-winning 
books ``Master of the Senate'' by Robert Caro and ``Parting the 
Waters'' by Taylor Branch.
    With this hearing, we examine whether Federal civil rights 
enforcement has remained faithful to our goal of achieving 
equal justice for all. We meet with the Nation at a crossroads. 
Two years after the devastation from Hurricane Katrina and its 
aftermath and the failure of Government to protect our citizens 
in the Gulf Coast and to help those displaced from the Lower 
Ninth Ward of New Orleans and elsewhere, many Americans are 
beginning to doubt this country's commitment to civil rights.
    We have a Justice Department without effective leadership. 
The Attorney General, the Deputy Attorney General, the 
Associate Attorney General, the Assistant Attorney General for 
Civil Rights, and many others have resigned in the wake of the 
scandals. And we have witnessed what appears to be the 
abandonment of the founding priorities of the Civil Rights 
Division. That Division, which has so often served as the 
guardian of the rights of minorities, has been subjected to 
partisan hiring practices and partisan litigation practices.
    The flood of recent departures from the Justice Department, 
culminating in last month's resignation of the Attorney General 
and the Assistant Attorney General for the Civil Rights 
Division, underscores the Civil Rights Division's loss of 
direction and the shaken morale of dedicated career staff. We 
cannot allow the absence of meaningful enforcement to render 
our civil rights laws obsolete.
    America has traveled a great distance on the path toward 
fulfilling the promise of equal justice under law, but we still 
have miles to go. Just last year, this Committee received 
extensive testimony during the reauthorization of the Voting 
Rights Act of continuing racial discrimination affecting 
voting. During last fall's election, we received reports about 
several efforts to intimidate Latino voters. These civil rights 
abuses ranged from false campaign mailings in Orange County, 
California, to intimidation at the polls in Tucson, Arizona. An 
important legislative initiative is on our Committee agenda 
this week to try to stem deceptive voting practices and abuses 
still being practiced against minority voters. As long as the 
stain of discrimination remains on the fabric of our democracy, 
the march toward equal justice must continue.
    The Civil Rights Act of 1957 created an Assistant Attorney 
General dedicated solely to civil rights enforcement which led 
to the formation of the Justice Department's Civil Rights 
Division. It also provided the Justice Department with a new 
set of tools to prosecute racial inequality in voting. Although 
the Department had prosecuted some criminal cases since 1939, 
this law allowed the Department to bring civil actions on 
behalf of African-American voters. And with this new authority, 
the Division worked to correct civil rights violations and 
helped set the stage for Congress to pass stronger legislation 
with respect to voting, housing, employment, and other key 
areas in the decade of the 1960's.
    America must remain steadfast in our commitment that every 
person--every person, regardless of race, or color, or 
religion, or national origin--should enjoy the American dream 
free from discrimination. That is something we owe to all 
Americans, we owe to our children, we owe to our grandchildren. 
We should continue to expand that dream to fight discrimination 
based on gender or sexual orientation as well. We should 
reaffirm our commitment to the promise of the Civil Rights Act 
of 1957. I hope that today's hearing is a step in doing so, and 
we are going to have a most distinguished panel of civil rights 
leaders, and I thank them for being here today. But I will 
yield first, of course, to the distinguished Senator from 
Pennsylvania.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE 
                        OF PENNSYLVANIA

    Senator Specter. Thank you very much, Mr. Chairman, and I 
commend you on convening this important hearing to commemorate 
50 years from the enactment of the 1957 legislation on civil 
rights. And I welcome Congressman John Lewis, who has such an 
extraordinary record in civil rights, having been on the front 
lines of the battleground for decades, and the other 
distinguished witnesses who will appear here today.
    We have come a considerable distance. I do not know that I 
would go so far as to say we have come a long way, but I do 
believe we have a long way to go. But there has been noteworthy 
progress.
    In 1957, there were four African-Americans serving in the 
House of Representatives. Since 1957, there have been 85 new 
House Members and an additional 5 non-voting House Members. 
Since 1957, there have been three African-American Senators--
candidly, not enough, but some progress.
    We have seen the advance of women. In 1980, when my group 
was elected, only Senator Nancy Kassebaum was in the Senate, 
representing the only woman in the U.S. Senate. Paula Hawkins 
was elected that year. Now we have a total of 16 women 
Senators, adding a great deal in diversity and a different 
point of view to the U.S. Senate. We have seen legislation on 
protecting women against violence. We have seen two of the 
leading contenders for the Presidency of the United States now 
coming from what had been a minority group--one woman and one 
African American. Odd that women have been classified as a 
minority since they are really a majority and in most 
households are the dominant voice.
    But there has been considerable progress. We have made 
progress on fighting discrimination on sexual orientation. The 
Bowers case was overruled by Lawrence v. Texas. There has been 
considerable progress made on hate crimes legislation, 
although, candidly, not enough. Senator Kennedy and I 
introduced that legislation a decade ago or more. It has had a 
rough road, but it is not a matter of if but a matter of when 
that will be enacted.
    But we still have substantial discrimination present in 
America. You find incidents which have an overtone of 
homosexuality or gay conduct being treated in a manner very, 
very differently than if it had been heterosexual. It still 
remains in our country and still a lot of discrimination 
against African-Americans and the glass ceiling on women and 
sexual orientation and remaining discrimination against many 
other minority groups, still discrimination against Catholics 
and Jews and Italians and the Poles and immigrants, lots of 
discrimination remaining in this country.
    So we can note with some pride the 50 years since we have 
had the legislation, but we have to focus at the same time on 
the great deal of work which is yet to be done.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you.
    Normally we would go right to the first witness, but, 
Congressman Lewis, if you do not mind, the person who has been 
on this Committee the longest of any of us in either party and 
has been as strong a voice in civil rights as any Senator of 
either party I have ever served with, as something that also 
was very similar to his two brothers, is Senator Kennedy. And 
if you do not mind, I would like to yield to him.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you. Thank you very much, Mr. 
Chairman. And I join with Senator Specter and the others in 
congratulating you in having this hearing. I think it is an 
enormously important hearing, and it is good to see our 
colleagues who are here who have joined to listen to some of 
the really profound and thoughtful and concerned voices that we 
are going to hear on our witness list, a very distinguished 
group led by John Lewis.
    This hearing is enormously important, I think, and I hope 
the resonance of what we are going to hear during the course of 
the morning will be listened to by Americans, and particularly 
during this time of national discussion about the future 
direction of our country, because what I see as someone that 
observed the passage of the Civil Rights Act of 1957 and paving 
the way for the actions that we had in 1962, 1964, 1968, on 
through the 1970's and overturning Supreme Court decisions and 
the rest, I see forces in this country that are using the path 
and pattern that were brilliantly led by some of those who are 
concerned about the lack of progress in civil rights during the 
late 1950's and the early 1960's and using those kinds of 
pathways in order to reverse the progress that we have made.
    I may be wrong, and I hope I am, but I am enormously 
distressed by the more recent Supreme Court judgments and 
statements that are made by the courts, the Seattle case, and 
by the failure of the Department to follow the age-old 
traditions of professionalism and the law at a very, very 
crucial and critical period in terms of our country. And I hope 
that those who are here today can sort of put all of this, 
where we have been, where we are going, awaken this country to 
ensure that we are not going to make a misstep or a step 
backward in what has been this extraordinary march to progress, 
and has, I think, been invaluable in helping America be 
America.
    I thank the Chair.
    Chairman Leahy. Thank you, Senator.
    Senator Sessions. Mr. Chairman, could I welcome our guest 
for 1 second?
    Chairman Leahy. Please.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Congressman Lewis is, of course, one of 
the most respected Members of the House and one of, I think, 
America's greatest citizens. He represents Georgia, but he is a 
native of Alabama, grew up a sharecropper's son near Troy, 
Alabama. And I know you were back there recently at Troy 
University speaking. I admire you greatly, and I think it is 
sort of emblematic of what has happened that Troy University in 
Montgomery has created the Rosa Parks Museum. It has an 
interactive museum with a school bus just like the bus she 
refused to move to the back of, and I think maybe that is 
emblematic of some of the progress we have made.
    Congressman Lewis, thank you for your service to America. 
Thank you for being one of Alabama's finest sons. And thank you 
for helping to make this a better country.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, and I apologize. I realize you 
are both Alabamans, and you should have had the ability to say 
something, too.
    Senator Sessions. Thank you.
    Chairman Leahy. John Lewis is a good and dear friend--oh, 
yes, Senator Specter? Sorry. The short-term memory is falling 
apart here. Go ahead.
    Senator Specter. Just a word, Mr. Chairman. The 
Subcommittee on Labor Appropriations where I am Ranking has a 
hearing at 10:30 on the Utah mine disaster, and I am going to 
have to excuse myself to go there. But I will follow closely 
the testimony here today, and without my saying it, you know 
you have my total support.
    Chairman Leahy. Thank you. And I would note that the 
Senator from Pennsylvania always has been in the forefront in 
this, and--
    Senator Feinstein. Mr. Chairman, if I might just say--
    Chairman Leahy. Of course.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much.
    Chairman Leahy. I am the most easygoing Chairman in the 
Senate, as the former Attorney General used to say.
    Senator Feinstein. Thank you. I do not think there is a 
leader in the civil rights movement that is as respected for 
his leadership as you, Congressman Lewis. I want you to know 
that. I think your dignity, your constancy, your consistent 
advocacy has really been important in these decades, and I want 
you to know that.
    I was not going to come to this hearing because I thought, 
you know, we are really on the march with civil rights, things 
are really going to be fine. And then last night I heard on the 
news where the KKK has now gotten active in Virginia, 
particularly with respect to the immigration issue. And I began 
to think that, you know, no matter what the progress we make, 
there are always people that want to turn back the clock for 
one reason or another. And it really does cause us, I think, to 
have a kind of warning that these values we cannot take for 
granted, that we have to continue the advocacy. And I can think 
of no one to be in that front row better than yourself.
    So I just want to say thank you for the many decades of 
leadership, and I look forward to your comments.
    Chairman Leahy. Thank you.
    Now, as I started to say, Congressman Lewis is one of my 
dearest friends in the Congress. We have worked together and 
talked together and plotted together on legislation. He 
represents Georgia's 5th District, is a nationally recognized 
civil rights leader. He was an architect and keynote speaker at 
the March on Washington in 1963. Incidentally, I do remember 
that speech. He served as Chairman of the pivotal Student 
Nonviolent Coordinating Committee. He recently addressed the 
graduating class at the University of Vermont, and he 
instructed those graduates that they have an obligation, a 
mission, and a mandate from all of those men and women who 
sacrificed before their time.
    You are right, and I agree with you. We have to do our part 
for this great democracy, and so I welcome you back to the 
Senate Judiciary Committee. You honor us with your presence. 
Please, Congressman, go ahead.

STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF GEORGIA

    Representative Lewis. Thank you, Chairman Leahy and Senator 
Specter and other members of the Committee. Thank you for 
inviting me to testify before the Senate Judiciary Committee 
today. I thank each and every one of you for those unbelievable 
remarks. I really appreciate it.
    As we approach the 50th anniversary of the Civil Rights Act 
of 1957, I appreciate having this opportunity to share my 
thoughts and experiences with you. In particular, I would like 
to discuss the importance of the Civil Rights Division of the 
Department of Justice and how we can renew and strengthen the 
Division in the future.
    In the late 1950's, there was a tremendous amount of fear 
in the American South. People were afraid to talk about civil 
rights. I would ask my mother, my father, my grandparents, and 
my great-grandparents, ``Why segregation? Why racial 
discrimination? '' And they would say, ``That's the way it is. 
Don't get in the way. Don't get in trouble.''
    People of color couldn't vote; they couldn't register to 
vote. They paid a poll tax. Black people could not sit on a 
jury. Segregation was the order of the day. It was so real. The 
signs were so visible. People were told to stay in their place.
    People were beaten; people came up missing. Emmett Till, a 
14-year-old boy, a boy 1 year younger than I, was lynched in 
1955, and it shook me to the core. It could have happened to me 
or any other African-American boy in the Deep South. It was a 
different climate and environment. In some instances it 
amounted to police-and state-sanctioned violence against people 
of color. I remember reading about a man being stopped on the 
highway, castrated and left bleeding to death. In 1956, in 
Birmingham, Alabama, Nat King Cole was attacked while 
performing, and he never returned to perform in the American 
South. Black people were afraid, and white people were afraid 
to speak out. It truly was terror.
    In September of 1957, I was 17 years old--a child, really. 
I was just arriving in Nashville, Tennessee, to begin my 
studies at the American Baptist Theological Seminary. I had not 
met Dr. Martin Luther King, Jr. I had met Rosa Parks. I had not 
become involved in Student Nonviolent Coordinating Committee. I 
had not taken part in the freedom rides or the sit-ins, and I 
had not walked over the Edmund Pettus Bridge on Bloody Sunday. 
But the ``Spirit of History,'' as I like to call it--Fate, if 
you will--was beginning to move in important ways in 1957, both 
for me and for our Nation.
    That September, the Congress had passed and President 
Eisenhower was signing the Civil Rights Act of 1957--the first 
piece of civil rights legislation since reconstruction. Some 
would look back and think that this legislation was mostly 
ineffective, but it was significant because it created an 
Assistant Attorney General for Civil Rights, and so began the 
Civil Rights Division of the Justice Department. It also 
created the Civil Rights Commissions, which did important and 
at times dangerous work, hold hearings all across the South, 
gathering data and information on voter registration and 
discrimination. The 1957 Act was also significant because, for 
the first time, it made it a crime to interfere with a person's 
right to vote in Federal elections, setting the stage for 
future legislation.
    In the coming years, the Civil Rights Act of 1964 and the 
Voting Rights Act of 1965 would give substance to the promise 
of equal rights and formed the basis for the work of the Civil 
Rights Division.
    In 1958, at the age of 18, I met Dr. Martin Luther King, 
Jr., for the first time--a meeting that would change the course 
of my life. That year, you could feel the urgency in the air, 
the need for change and the sense that things were about to 
change.
    Progress would begin slowly. The Supreme Court decision in 
Brown v. Board of Education and the successful Montgomery bus 
boycott, those threats to the Southern establishment created a 
backlash, more violence and more fear. But at the same time, 
young people, white and black, were joining the movement. We 
were inspired to get in the way, to get in trouble; but it was 
good trouble, it was necessary trouble.
    My involvement in the movement was growing at the same time 
as the Civil Rights Division was becoming an important tool for 
protecting the rights of Americans who faced discrimination.
    During the Kennedy and Johnson administrations, we knew 
that the individuals in the Department of Justice were people 
we could call any time of day or night. The Civil Rights 
Division of the Department of Justice was a Federal referee in 
the struggle for civil rights and civil justice.
    John Doar, beginning in the Eisenhower administration, for 
instance, was a Republican from Wisconsin. He was someone that 
we trusted, we believed in. And he remained during the Kennedy 
and Johnson years. And we felt during those years that the 
Civil Rights Division of the Department of Justice was more 
than a sympathetic referee. It was on the side of justice, on 
the side of fairness. During the movement, people looked to 
Washington for justice, for fairness. But today, Mr. Chairman, 
I am not so sure that the great majority of individuals in the 
civil rights community can look to the Division for that 
fairness. The public has lost confidence in our Government, in 
the Department of Justice, and in the Civil Rights Division. We 
can and must do better.
    The Civil Rights Division was special. It attracted the 
best and the brightest, and those attorneys stayed with the 
Civil Rights Division for decades. The civil rights laws were 
enforced no matter which party was in the White House, and 
these attorneys were able to do their jobs without political 
interference. It is not so today.
    In the last few years, we have lost more career civil 
rights lawyers than ever before. The new lawyers are being 
hired for the first time in the Division's history by political 
appointees rather than career attorneys. It is not surprising 
that the Division is hiring fewer lawyers with civil rights or 
voting rights backgrounds.
    There is also a clear shift in the types of cases being 
brought by the Division. The Division is neglecting the 
tradition of civil rights cases, and it appears to have given 
up on enforcing the Voting Rights Act altogether.
    Mr. Chairman and members of the Committee, I must tell you 
that I am particularly disturbed by the way the Civil Rights 
Division handled the Georgia voter ID law in 2005. It takes 
special people to enforce Section 5 of the Voting Rights Act. 
There is always the potential for political interference. 
However, the Voting Rights Section has always been above 
partisanship, and it has resisted attempts by administrations 
to influence the outcomes of cases.
    However, this was not this case with the Georgia law. The 
Georgia voter ID law would have required voters to show a photo 
ID at the polls and would have disproportionately prevented 
minorities from voting in Georgia.
    The career attorneys found that the law violated the Voting 
Rights Act and recommended that it should be denied pre-
clearance. But the career attorneys were overruled by the 
political appointees. This type of political influence 
preventing the enforcement of our civil rights laws is shameful 
and unacceptable. Thankfully, a Federal court saw the law for 
what it was--a poll tax--and struck it down.
    It is clear that the Civil Rights Division of the 
Department of Justice has lost its way. The Civil Rights 
Division, once guardians of civil rights, has been so weakened 
that I do not recognize it.
    Congressional oversight could have prevented some of this. 
Freedom and equality are rights that are not simply achieved; 
they must be preserved each and every day. But we have not been 
focused on protecting our rights, and therefore, we are 
watching them slip away.
    The Civil Rights Division is still important, and it has 
important work to do today, just as it did during the civil 
rights movement. Yes, Mr. Chairman, we have come a long way, 
but there is still discrimination in voting, in employment, and 
housing that must be addressed.
    Congress must restore the Civil Rights Division as the 
champion of civil rights. Congress has a duty to perform strong 
oversight and to investigate whether our civil rights laws are 
being enforced. We must reverse the political hiring process 
and put the decisions back in the hands of the career 
professionals, who know what it takes to enforce our civil 
rights laws.
    In addition to strengthening the Department of Justice, I 
also believe that we need to give our citizens a private right 
of action to challenge federally funded programs that unfairly 
disadvantage a particular group, whether or not there is 
discriminatory intent. I am working with Senator Kennedy on 
legislation that would ensure this private right of action.
    We in Congress must do all we can to inspire a new 
generation to fulfill the mission of equal justice, which is 
the enduring legacy of the civil rights movement and the Civil 
Rights Division. I still believe, as Martin Luther King, Jr., 
believed, that we can create a beloved community, an 
interracial democracy, based on simple justice that values the 
dignity and the worth of every human being. We need to let the 
spirit of history move within us on this 50th anniversary of 
the Civil Rights Act of 1957. We must rededicate our 
international Government to justice, to service, to equality. 
And we must begin by strengthening the Civil Rights Division of 
the Department of Justice.
    Thank you very much, Mr. Chairman.
    Chairman Leahy. Well, thank you, Congressman. You mentioned 
John Doar. I recall first meeting him when I was a law student 
and then talking with him in later years when I was a 
prosecutor. A very, very impressive man.
    You know, I am going to save your testimony, and sometime 
when my grandchildren, all of them, are old enough to read it, 
I am going to have them read it, and I am going to say, 
``Listen to what Congressman Lewis said about what life was 
like,'' so that they understand what their grandfather and 
others have done to make sure we do not go back to those days. 
I think that if we are not always vigilant, we could go back 
there.
    You and I will never be blocked from voting. You and I will 
never be blocked from going to a restaurant or being on a bus 
or going to any public event. We will not. But there are others 
who might, others who still are.
    In 1957, when this Act was passed, a member of this 
Committee filibustered it for 20-some-odd hours. We would not 
see that today. But it is a different form of filibustering 
that the Act is not being enforced, it is not being handled 
right, and I thank you for what you said about the Civil Rights 
Division.
    The next Attorney General, indeed, the next President, 
should have a mandate to make sure they put the Civil Rights 
Division back to what it was, to put in good Republicans and 
Democrats, put in people without thought of what their politics 
are, and then tell them not to be political. The Civil Rights 
Division cannot be political. It has to be colorblind. It has 
to enforce the law. I agree with you it is not doing that. Let 
us hope we get back to it, because I never want to go back to 
the days you talked about with your grandparents.
    Thank you.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Congressman Lewis, you came of age during a time not too 
long ago that we had an unfair system in America, particularly 
in the South, where we had a system that discriminated against 
a substantial number of our citizens, and it was just 
maintained by power. We can say whatever we want to, but those 
who know what happened know it was a powerful force determined 
to maintain white supremacy, maintain inequality and unfairness 
and injustice in that system. And it was not right, and you had 
the courage, one of the very earliest ones. You have suffered 
personally and physically for the courage you showed, and I 
want to thank you for it because Alabama and the whole South 
and the Nation is better for what you did.
    Sometimes people tell me, ``Well, you know, we have made so 
much progress and things are better,'' and indeed they are, as 
we certainly know. You hear some, I guess, white constituents 
say, ``Well, you know, I am just tired of hearing about that. 
People are too worried about that. Nobody is going to deny 
somebody the right to vote.'' But I have gained an appreciation 
as I have thought about it that this was not that many years 
ago. It was not that many years ago that you were acting 
against a system that was established law and power.
    I was a teenager during those years, and I remember those 
years. We had bathrooms for the separate races--colored 
bathrooms and white bathrooms. Schools were segregated 
resolutely.
    Would you share with us your thought, to the non-African 
Americans, how it feels to have such a recent change in 
historical times and why it is that you feel a special 
obligation to be vigilant to see that things do not slide back 
in any form or fashion?
    Representative Lewis. Senator, thank you very much for your 
comments and for your question. You know, growing up outside of 
Troy in southeast Alabama and visiting places like Montgomery 
and Tuskegee as a young child, I saw those signs that said, 
``White Waiting,'' ``Colored Waiting,'' ``White Men,'' 
``Colored Men,'' ``White Women,'' and ``Colored Women.''
    I remember in 1956, when I was 16 years old, some of my 
brothers and sisters, we were deeply inspired by Dr. King and 
Rosa Parks and others. We went down to the public library in 
the little town of Troy trying to get library cards, trying to 
check out some books, and we were told by the librarian that 
the library was for whites only and not for coloreds. I never 
went back to that library until July 5, 1998, for a book 
signing of my book, ``Walking with the Wind.'' And hundreds of 
blacks and white citizens showed up, and they gave me a library 
card.
    So I think that says something about the distance we have 
come and the progress that we have made, but a lot of people, a 
lot of young people of color, were denied an opportunity to go 
in that library and read, to check out a book.
    And I remember in 1957, again, 17 years old when I finished 
high school, I applied to go to Troy State, now known as Troy 
University. I submitted my application, my high school 
transcript. I never heard a word from the school. It was only 
10 miles from my home. So I wrote a letter to Martin Luther 
King, Jr., and told him I needed his help. He wrote me back and 
invited me to come to Montgomery to talk with him about it.
    My folks were so afraid. They did not want to have anything 
to do with me going to Troy State. They thought our house would 
be burned or bombed; they thought it was too dangerous. So I 
continued to study in Nashville.
    Years later, after I got elected to Congress, the little 
school in Brundidge--you know where Brundidge is? About 12 
miles from Troy--where I attended high school, had a class 
reunion and John Lewis Day, and Troy University then led the 
parade through the town, and the late Senator Heflin came down, 
and the chancellor said, ``We understand you could not go to 
Troy State. Next year why don't you come and get an honorary 
degree from Troy State? '' And at the next graduation, they 
granted me an honorary degree, and Senator Heflin was the 
commencement speaker.
    I think it says something about the distance we have come 
and the progress we have made in laying down the burden of 
race. But we still have so far to go. I hear young people say 
sometimes, ``Nothing has changed.'' And I feel like saying, 
``Come and walk in my shoes. Things have changed.'' But there 
are still those invisible signs of discrimination. You still 
have, in a State like the State of Georgia, an attempt to take 
us back. To tell people in 2006 you need a photo ID--you must 
understand that hundreds and thousands of people, African 
Americans, low-income whites, and others that were not born in 
a hospital, they do not have a birth certificate. They do not 
even know what a passport is. So they do not have a State ID, 
so these people will be denied the right to participate in the 
democratic process. That is why many of us took the position to 
say that a photo ID amounts to a poll tax where you have to pay 
for it.
    Senator Sessions. Thank you, Mr. Chairman. Thank you, 
Congressman Lewis.
    Chairman Leahy. Thank you very much.
    Senator Feinstein, then Senator Feingold, then Senator 
Cardin. And I might note that both Senator Feinstein and 
Senator Feingold have to leave shortly for an Intelligence 
Committee meeting. Am I correct?
    Senator Feinstein. Yes. Thank you.
    Chairman Leahy. Senator Feinstein.
    Senator Feinstein. Thank you very much.
    Chairman Leahy. Thanks, Jeff.
    Senator Feinstein. I really thank Senator Sessions for 
asking those questions of you, Congressman Lewis, because I 
think it gives people an understanding of the deeply personal 
and personally hurtful part of discrimination, which is a very 
complex reaction. But when I came down earlier and said hello 
to you, you mentioned two pieces of legislation, and one of 
them was the Hate Crimes Act and the other is the D.C. Voting 
Rights Act. And I wanted to give you an opportunity to speak 
about those two pieces of legislation and the importance of 
them at this particular point in time.
    Representative Lewis. Senator, thank you so much. I have 
taken a very strong position in support of the hate crimes 
legislation, and I say to people all the time in my district 
and around the country that I fought too hard and too long 
against discrimination based on race and color not to stand up 
and fight against discrimination based on sexual orientation or 
whatever. There is not any room in our society, it should not 
be allowed by the Federal Government or local government for 
people to engage in violent acts against other people because 
of their religion or their color or sexual orientation.
    I think it is a shame and a disgrace that we live in one of 
the greatest democracies and that people died and fought for 
the right to vote.
    Later you are going to hear from Bob Moses, who was 
Director of the Mississippi Summer Project in 1964, and three 
young men that I knew and Bob knew very well went out as part 
of an effort to get people registered to vote. These three 
young men died in Mississippi during the summer of 1964. And I 
tell young people all the time, they did not die in Vietnam or 
the Middle East or Eastern Europe, in Africa or Central or 
South America. They died right here in our own country. People 
died. And then we are going to say to the District of Columbia, 
where people leave this district, leave this city, they go and 
fight in our wars, and then they cannot participate in the 
democratic process. That is wrong, and I think we have a 
constitutional right to give the District full voting rights. 
It must be done. It must be done on our watch.
    Senator Feinstein. Just a quick followup, if I may. You 
mentioned in your opening comments about the importance of 
Congressional oversight of the Civil Rights unit of the 
Department of Justice and the feeling that it had deteriorated. 
Can you be more specific on that, exactly what you mean?
    Representative Lewis. Well, I will tell you one thing, 
Senator. I do not want to be flip about it, but if you ask most 
of us in the House today who had been the head of the Civil 
Rights Division, we would not know the person. It is like they 
do not exist. They are not engaged. And that is a problem. 
There are problems in America today. It is not just affecting 
one segment of this society where people are being 
discriminated against. And I think the Congress, whether we be 
in the Senate or the House, we have an obligation to hold 
oversight hearings, to follow through, and say, ``What are you 
doing? ''
    Young people have been thrown in jail and sentenced to 
large and long sentences in many parts of the South, and part 
of it is race, nothing but race. And the Department of Justice 
is not saying anything. It is just silent. Complete silence.
    Senator Feinstein. I actually think the position is vacant 
now, is it not?
    Chairman Leahy. We just had a resignation, but there are 
about a dozen resignations ranging from the Attorney General 
straight down to the head of the Civil Rights unit. We 
presently have the most dysfunctional Department of Justice in 
my whole career.
    Representative Lewis. We knew John Doar. We knew Burke 
Marshall.
    Chairman Leahy. And you could call them.
    Representative Lewis. We could call them any time of day, 
any time of night.
    Senator Feinstein. And there was a discussion that took 
place.
    Representative Lewis. And they just did not remain in 
Washington. They came South. They put themselves on the front 
line.
    Senator Feinstein. Hopefully we can change that.
    Thank you very much, Mr. Chairman. Thank you, Congressman.
    Chairman Leahy. Incidentally, is there anyone here from the 
Department of Justice?
    [No response.]
    Chairman Leahy. Anyone here from the White House?
    [No response.]
    Chairman Leahy. That is interesting because when I have 
other hearings, they send scores of people up. I hope they will 
take the time to watch the tape of this hearing and read the 
transcript. Maybe they could learn something by doing that.
    Senator Feingold?

STATEMENT OF RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE 
                          OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. It is always an 
honor to be in the presence of Congressman Lewis, but 
particularly on an occasion like this, and to hear your 
accounts of the reality that you faced. It is a privilege to be 
a Member of Congress and to hear that.
    Every so often, it is important to look back and celebrate 
important historic events that still have relevance to the 
problems we seek to address today in the Senate. The enactment 
of the Civil Rights Act of 1957 is one such event. The Civil 
Rights Act of 1957 certainly does not have the fame of the 
Civil Rights Act of 1964 or the Voting Rights Act of 1965, but 
it was an extremely important milestone for our country. It was 
the first civil rights bill passed into law since 1870, finally 
breaking through the seemingly impenetrable roadblock built by 
segregationists in the Senate against legislation to protect 
the rights of African Americans. Lions such as Hubert Humphrey 
and Paul Douglas, working with the extraordinary then-Senate 
Majority Leader Lyndon Johnson, passed a bill that the public 
and the pundits certainly thought would die, just as every 
other civil rights bill in nearly a century had died. The law's 
substantive achievements were modest compared with the landmark 
legislation that followed, but the creation of the Civil Rights 
Division of the Department of Justice has gained significance 
over time and is that law's greatest legacy today.
    And the symbolic value of the legislative accomplishment 
was enormous. As Lyndon Johnson biographer Robert Caro writes 
in ``Master of the Senate,'' which tells the story of Johnson's 
struggle to pass the bill, ``The Civil Rights Act of 1957 made 
only a meager advance toward social justice, and it is all but 
forgotten today. But it paved the way. Its passage was 
necessary for all that was to come.''
    Because the Civil Rights Act of 1957 was only a beginning, 
it is fitting that this hearing look ahead as well as back. 
Obviously, we have come a long way in the past 50 years in the 
fight for racial equality, but there is much more to be done. 
Continuing our oversight of the Civil Rights Division is 
crucial, especially in light of what we have learned in recent 
months about the improper hiring practices and political 
interferences in decisions in the Voting Rights Section. The 
next Attorney General must make putting the Civil Rights 
Division back on track a very top priority.
    We also have to do more legislatively, as you have already 
been talking about. This week the Committee will take up a bill 
to prohibit deceptive practices and voter intimidation--the 
21st century version, if you will, of poll taxes and 
registration tests that are used to prevent minority citizens 
from exercising the right to vote.
    Later in this Congress, I hope the Senate will consider the 
Fair Pay Restoration Act to reverse the Supreme Court's cramped 
interpretation of Title VII's pay discrimination prohibition. 
We must end racial profiling and do much more to bring the 
promise of equality to other racial minorities, the disabled, 
and gays and lesbians. And, yes, we must get D.C. voting 
rights, something which I have supported from the very 
beginning of my time in the Senate.
    This is all noble work, Mr. Chairman, which builds on the 
foundation laid by the Civil Rights Act of 1957. I am proud to 
stand with those who believe that guaranteeing civil rights for 
all Americans is one of Congress' most important duties, and I 
am honored to again be with Representative Lewis and, of 
course, Dr. Bob Moses, two giants of the civil rights movement, 
and the other witnesses today. We have much to learn from them, 
and I appreciate very much the opportunity to speak.
    Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Feingold.
    Senator Cardin?

 STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE 
                       STATE OF MARYLAND

    Senator Cardin. Well, Mr. Chairman, first, thank you for 
convening this hearing and commemorating the 50th anniversary 
of the Civil Rights Act of 1957. I must tell you this is a 
personal pleasure for me to have John Lewis as our witness. 
Twenty-1 years ago, I was elected to the House of 
Representatives, which was the single honor in my life, but to 
be elected with John Lewis in the same class--and the two of us 
became very good friends and almost soul mates during some very 
difficult times. And, Congressman Lewis, I just really want to 
thank you for what you have done not only in the civil rights 
movement, but what you have done in the Congress of the United 
States. You have always had that passion. You and I served on 
the Ways and Means Committee I guess for many, many years. I 
sort of miss the Ways and Means Committee, but it is really 
nice to be in the U.S. Senate.
    I want you to know that you have always been an inspiration 
to all of us as far as your passion for these issues and your 
faith in our country. This is a great country. And we have made 
progress, as you have pointed out, but we still have much that 
needs to be done.
    You know how to connect with people. You know how to really 
relate to the problems that we have in our community, and you 
are effective in getting things accomplished. So I just really 
want to followup on some of my colleagues and just point out 
that we have an agenda. The 50th anniversary should not be just 
a celebration, but it should be to establish where we need to 
go from here in order to complete the journey, as you so often 
talk about. And that means as Members of the U.S. Congress, 
there are some things that we can do. We do have an important 
role in looking at what is happening in the executive branch of 
Government, and as our Chairman pointed out, the Civil Rights 
Division, which was one of the crowning accomplishments of the 
1957 Civil Rights Act, where we would have a focus within the 
Department of Justice on civil rights, has lost that focus.
    We had a hearing not too long ago in this Committee that I 
had the opportunity to chair in which it became pretty obvious 
that the traditional role of the Civil Rights Division and 
standing up and fighting for racial discrimination cases has 
been missing and that the hiring within the Civil Rights 
Division of career attorneys has been compromised.
    So I think we have a responsibility to restore that, and we 
have a chance to do that in that there now will be new 
leadership within the Department of Justice, and I think it is 
very important for this Committee and the Judiciary Committee 
in the House and each one of us to make sure during this 
process that we refocus the Department of Justice back on that 
Civil Rights Division and what it should do within the Civil 
Rights Division.
    My colleagues have pointed out legislation we should be 
passing. The hate crimes statute should be passed. Tomorrow we 
are going to have an opportunity in this Committee to do what 
you have already done in the House and pass the Voter 
Intimidation Act, to say once and for all that it is wrong, it 
is illegal, and we are not going to tolerate campaign 
strategies that try to win by suppressing the minority vote. 
That should be off the table. And I agree with my colleague 
Senator Feingold about the D.C. voting rights. That is 
something that needs to be done. That is a civil rights issue 
that needs to be accomplished.
    Now, Mr. Chairman, I would also point out I think it is 
right for us in the confirmation process of judges to make sure 
judges have a passion for protecting the civil liberties of the 
people of this Nation, and that is part, I think, of our 
responsibility to make sure we complete the journey.
    So to my friend John Lewis, thank you for coming over and 
gracing our Committee and for inspiring us to do more, and I 
just look forward to many more years of working with you in the 
U.S. Congress so that we can continue to make progress so that 
every American can truly enjoy the liberties of this great 
country. It is a great country. We have made a lot of progress. 
That is why it is so painful when we see the types of detours 
that have been taken recently. And I think we have the 
opportunity now to correct that and to move forward so that 
everyone in this country can enjoy this great Nation.
    So congratulations on the work that you have done, and it 
is good to see you here, and please say hello to my friends in 
the House of Representatives.
    Representative Lewis. Well, Senator, thank you very much. I 
am very pleased and delighted to see you. We have been friends 
and we will remain friends, and it is good to be able to call 
you ``Senator Cardin.'' Thank you.
    I agree with you. We must give up. We must continue to push 
on. We can legislate, but we can also speak up and speak out. I 
think there is a great need for leadership, and I think the 
American people are prepared to make that leap. We just need to 
get out there. And what I said in the earlier statement, find a 
way to get in the way. And under the leadership of the Chairman 
and the members of this Committee, I know you will do the right 
thing. And I appreciate the opportunity to be here and 
especially to see the Chairman and to see you, sir.
    Senator Cardin. Thank you.
    Mr. Chairman, I might point out, John Lewis was truly 
reluctant in advising me to run for the U.S. Senate because of 
our friendship. But then he realized that I had more seniority 
in the Ways and Means Committee than he did; then he encouraged 
me to run.
    [Laughter.]
    Chairman Leahy. I might say, I am glad you ran. I enjoy 
having that extra seat. And I am delighted that you were 
willing in a very weak moment to allow me to convince you to 
come on the Senate Judiciary Committee. You have been a very, 
very valuable member.
    Senator Cardin. It has been very rewarding. Thank you, Mr. 
Chairman.
    Chairman Leahy. We will stand in recess for about 4 minutes 
while they set up for the next panel. And, Congressman Lewis, 
that was some of the most powerful testimony I have heard in 
all my years here, and I appreciate you doing this.
    Representative Lewis. Thank you, Senator. Thank you, Mr. 
Chairman.
    [The prepared statement of Representative Lewis appears as 
a submission for the record.]
    [Recess 10:54 a.m. to 10:58 a.m.]
    Chairman Leahy. If we might come back. we are going to have 
a distinguished panel: Wade Henderson, the President and CEO of 
the Leadership Conference on Civil Rights; Theodore Shaw--I 
have always called him ``Ted''--Director-Counsel and President 
of the NAACP Legal Defense and Education Fund; Peter Zamora, 
the Washington, D.C., Regional Counsel of the Mexican American 
Legal Defense and Educational Fund, or MALDEF; Gail Heriot, 
Commissioner, United States Commission on Civil Rights, and 
Professor of Law, University of California at San Diego; Robert 
P. Moses, who is the President, as we know, of the Algebra 
Project in Cambridge; and Robert Driscoll is a partner at 
Alston & Bird in Washington, D.C.
    Following the procedure for non-Congressional members who 
are testifying, would you please all stand and raise your right 
hand? Do you solemnly swear that the testimony you are about to 
give before this Committee shall be the truth, the whole truth, 
and nothing but the truth, so help you God?
    Mr. Henderson. I do.
    Mr. Shaw. I do.
    Mr. Zamora. I do.
    Ms. Heriot. I do.
    Mr. Moses. I do.
    Mr. Driscoll. I do.
    Chairman Leahy. Thank you.
    The first witness will be Wade Henderson, as I said, the 
President and CEO of the Leadership Conference on Civil Rights 
that works on issues involving voting rights and election 
reform, Federal judicial appointments, economic justice, 
educational equity, hate crimes, criminal justice reform, 
issues of immigration and refugee policy, human rights.
    Mr. Henderson, welcome. You are no stranger to this 
Committee. On both sides of the aisle, we have found your 
testimony to be extremely important. Please proceed, and what I 
am going to do is go down through each of you before we go to 
questions.

  STATEMENT OF WADE HENDERSON, PRESIDENT AND CHIEF EXECUTIVE 
  OFFICER, LEADERSHIP CONFERENCE ON CIVIL RIGHTS, WASHINGTON, 
                              D.C.

    Mr. Henderson. Well, good morning, and thank you, Mr. 
Chairman and members of the Committee. It is an honor to be 
with you today. Indeed, I am Wade Henderson, President of the 
Leadership Conference on Civil Rights, the Nation's oldest, 
largest, and most diverse civil and human rights coalition. I 
am also honored to serve as the Joseph L. Rauh, Jr, Professor 
of Public Interest Law at the University of the District of 
Columbia, and it is a special pleasure to represent the civil 
rights community before the Committee today and to discuss the 
important topics at hand.
    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 
first steps in responding to this growing need.
    For years, we in the civil rights community have looked to 
the Department of Justice as a leader in the fight for civil 
rights. Yet, recently, many civil rights advocates have been 
concerned about the direction of the Division's enforcement. In 
order for the Division to once again play a significant role in 
the struggle to achieve equal opportunity for all Americans, it 
must rid itself of the missteps of the recent past, but also 
work to forge a new path. It must respond to contemporary 
problems of race and inequality with contemporary solutions. It 
must continue to use the old tools that work. But when they 
don't, it must develop new tools. It must be creative and 
nimble in the face of an ever-moving target.
    Today, the Leadership Conference on Civil Rights Education 
Fund is releasing a new report, ``Long Road to Justice: The 
Civil Rights Division at 50,'' which outlines the critical role 
the Civil Rights Division has played over the last 50 years in 
helping our Nation achieve its ideals. In the report, we also 
assess the current state of the Division's enforcement efforts 
and outline some recommendations for a way forward. The 
following are a few highlights of those recommendations:
    First, the Civil Rights Division must restore its 
reputation as the place for the very best and brightest lawyers 
who are committed to equal opportunity and equal justice. It is 
not a question of finding lawyers of a particular ideology; 
rather, it is a rededication to hiring staff who share the 
Division's commitment to the enforcement of Federal civil 
rights law. That is not politics. It is civil rights 
enforcement.
    In the area of voting rights, rather than promoting schemes 
that deny equal opportunity to citizens to vote, the Civil 
Rights Division should be focused on ways to increase voter 
access, such as combating voter ID laws--which John Lewis so 
eloquently spoke about--that have a disproportionate negative 
impact on racial, ethnic, or language minorities.
    Fresh attention must also be paid to racial and ethnic 
segregation in housing. Discrimination in real estate sales and 
racial steering and discrimination in lending that destroys 
neighborhoods cannot continue to go unchecked. And as long as 
discrimination based on race, ethnicity, religion, gender, or 
disability remains a sad, harsh reality in this country, the 
battle against it must remain a central priority of the Civil 
Rights Division.
    And in the wake of the Supreme Court's decision in the 
Seattle and Louisville cases, the Division must develop new 
tools that fight to create and maintain integrated and high-
quality schools.
    The complete text of ``Long Road to Justice'' can be found 
on our new website, www.reclaimcivilrights.org, which is being 
launched today as an important tool in our public education 
campaign on the issue of civil rights enforcement.
    The 50th anniversary of the 1957 Civil Rights Act and the 
creation of the Civil Rights Division is a time to take a stock 
of where we have been, where we are, and where we need to go in 
the struggle for equal rights and equal justice in America. And 
we have come a long way, as has been noted--a very long way 
from legally segregated lunch counters, poll taxes, and whites-
only job advertisements. But we are not finished. Today, we 
face predatory lending practices directed at racial minorities 
and older Americans, voter ID requirements that often have 
discriminatory impact on minority voters, and English-only 
policies in the workplace. So our work continues.
    As our report outlines, one of the critical tools to our 
collective progress in civil rights has been the Civil Rights 
Division at the Department of Justice, and the heart and soul 
of the Division has always been its career staff. For 50 years, 
and regardless of which political party was in power, the staff 
has worked to help make our country what it ought to be: a 
place where talent trumps color and opportunity knocks on all 
doors; where you cannot predict the quality of the local school 
system by the race or ethnicity of the school's population, 
where access is a right not a privilege, and where difference 
is not just tolerated but valued.
    We have concerns with the direction of the Civil Rights 
Division in recent years. The hope is that we can meet those 
concerns with positive action for our future. This report 
attempts to begin to map out the way forward, and we look 
forward to continuing the conversation.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Henderson appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Mr. Henderson.
    Mr. Shaw is, as I said, the Director-Counsel and President 
of the NAACP Legal Defense and Education Fund. I would also 
mention he participates in briefing and oral arguments in the 
U.S. Supreme Court and litigation of civil rights cases--again, 
no stranger to this Committee.
    Happy to have you here, Mr. Shaw.

STATEMENT OF THEODORE M. SHAW, DIRECTOR-COUNSEL AND PRESIDENT, 
 NAACP LEGAL DEFENSE AND EDUCATION FUND, INC., WASHINGTON, D.C.

    Mr. Shaw. Thank you, Mr. Chairman. I join in what Wade 
Henderson has said about the career attorneys at Justice, and I 
would like the Committee's indulgence as I talk personally 
about my experience.
    I started out my legal career at the Justice Department in 
the Civil Rights Division. It was one of two jobs I longed for 
as a law student. The other one was to be an attorney for the 
Legal Defense Fund, and I have been blessed to work in both 
places.
    When I joined the Justice Department, I was part of a cadre 
of lawyers, many who had been there since the halcyon days of 
the civil rights movement, who were committed to civil rights 
enforcement. They were apolitical. Their deepest commitment was 
to enforcing the civil rights statutes and laws of our Nation.
    I think in understanding where we are now, we must 
recognize that the changes at the Justice Department that many 
of us lament today did not begin with this administration, 
although they certainly have been accelerated. In fact, these 
changes began in 1981, at least that far back, when appointees 
to the Civil Rights Division leadership began a course of 
intentionally shifting the direction of the Division, stepping 
away from school desegregation, stepping away from the class 
action employment discrimination cases that had been brought on 
behalf of African-American and Latino men and women and other 
people of color, and those who suffered both racial and gender 
discrimination.
    The Department, as I understood it when I worked there, had 
a special role to play, and I think that it has lost its focus 
on that role. Not only was it the enforcer on behalf of the 
Federal Government of the Nation's civil rights laws, but it 
also was the leading entity within the Federal Government in 
coordinating civil rights. And so, for example, the Civil 
Rights Division was deeply involved in working with the 
Department of Education's Office of Civil Rights or Housing and 
Urban Development with respect to its enforcement of housing 
policies.
    My view today, of course, is that there is a vacuum with 
respect to those functions, or if there is not a vacuum, there 
is a complete reversal with respect to the Department's focus 
and its role. A couple of quick examples.
    In the aftermath of the Michigan cases in which the Supreme 
Court upheld the constitutionality of the consideration of race 
as a limited factor in college admissions, the Department of 
Education put out a set of guidelines with respect to 
interpreting those decisions and applying them that focused on 
undercutting what the Supreme Court had said was allowable as 
opposed to taking the basis the Supreme Court had given.
    Another more recent example. The two cases that the Supreme 
Court decided--actually, one case involving two school 
district, Seattle and Louisville, in June, those two cases were 
the first time that the Supreme Judicial Court, to my 
knowledge, has argued against school desegregation or 
integration of public schools since the Department weighed in 
on the side of the plaintiffs in Brown v. Board of Education in 
the 1950's. That is a reversal of historic proportions. The 
Department of Justice, through the Solicitor General, argued a 
position in support of those who were opposed to voluntary 
school integration--a deeply disturbing development, made even 
more disturbing by the absence of the voice of African-American 
students and their parents at oral argument because the Court 
did not allow them to have a voice at oral argument.
    So where was the Department of Justice? Where was its 
voice? What did it say? What did it do? I believe that it was a 
betrayal of the promise of Brown v. Board of Education.
    Many years ago, in the civil rights movement, there was a 
saying out of Mississippi: ``There's a town in Mississippi 
called `Liberty.' There's a Department in Washington called 
`Justice.''' It was aspirational, at best.
    Finally, I would like to pick up on something that Senator 
Cardin mentioned. It is so important to the Nation that this 
Committee continue to exercise even more vigilance with respect 
to judicial appointments, because while the Department of 
Justice needs to recommit itself to civil rights, it is 
ultimately the judges and the Justices who are confirmed by the 
Senate who interpret the law. And we look forward to continuing 
to work with this Committee to ensure not only enforcement of 
civil rights with respect to the Department of Justice, but to 
make sure that the judges and Justices confirmed by the Senate 
are those who are open to the enforcement of civil rights.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Shaw appears as a submission 
for the record.]
    Chairman Leahy. Thank you very much, Mr. Shaw.
    Mr. Zamora is the Washington, D.C., Regional Counsel for 
the Mexican American Legal Defense and Educational Fund, 
MALDEF, as I mentioned, that works on Federal policy matters--
immigration, education, voting rights.
    We are glad to have you here. Please go ahead.

STATEMENT OF PETER ZAMORA, WASHINGTON, D.C., REGIONAL COUNSEL, 
 MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND [MALDEF], 
                        WASHINGTON, D.C.

    Mr. Zamora. Thank you very much, Chairman Leahy, Senator 
Cardin. It is a real pleasure to be here today to testify in 
recognition of the 50th anniversary of the Civil Rights Act of 
1957. The Act really remains as important today as it was 50 
years ago because it codified the intent of Congress that the 
Federal Government should play a central role in protecting the 
civil rights of all Americans.
    The Act intended to ensure that all qualified citizens be 
allowed to vote without distinctions based on race or color, 
and it specifically prohibited interference with voting rights 
in the election of any Federal officers. To enforce of these 
provisions, the Act authorized an additional Assistant Attorney 
General to initiate Federal civil rights enforcement actions.
    The Civil Rights Act of 1957 ensured that voting rights 
were no longer dependent upon actions brought by private 
individuals, often at great personal risk and expense. In 
creating the Civil Rights Division of the Department of 
Justice, in addition to the U.S. Commission on Civil Rights, 
Congress provided key investigative and enforcement mechanisms 
that continue to play a central role in protecting our civil 
rights.
    We currently live in a critical period for the U.S. Latino 
community, one in which our hard-won civil rights are 
particularly at risk. Congress' failure to enact comprehensive 
immigration reform has exacerbated an ongoing civil rights 
crisis that affects all Americans but falls especially hard 
upon Latinos.
    States and localities have increasingly taken it upon 
themselves to enact laws that aim to intimidate, destabilize, 
and displace undocumented immigrants. Prince William County, in 
fact, right down the road here in Virginia, recently approved 
such an ordinance.
    These laws, which often violate Federal law, may target 
undocumented immigrants, but they undermine the civil rights of 
all of those who live in these communities, especially those 
who allegedly look or sound ``foreign.'' To an extent 
unprecedented in recent years, America's Latino population has 
become a focus of hateful and racist rhetoric and violence.
    The growing presence of Latinos in local communities across 
the Nation, including communities that have not historically 
had a strong Latino presence, will give rise to pressing civil 
rights issues in the 21st century. In voting, minority 
communities are often subject to discrimination as they gain 
political influence. While MALDEF frequently brings legal 
actions on behalf of Latino voters, private individuals and 
organizations lack sufficient resources to guarantee free and 
fair elections nationwide. The growing Latino electorate must 
be able to depend upon the Voting Section of the Civil Rights 
Division to enforce Section 2, Section 5, and Section 203 of 
the Voting Rights Act to ensure that no voter is wrongly 
disfranchised.
    In education, many children in America suffer in schools 
that are so unequal and inadequate that the programs and 
conditions violate the students' Federal civil rights. Latino 
students, who comprise one in five U.S. public school students, 
often continue to face significant barriers to fair and equal 
educational opportunities, including increasingly segregated 
school sites.
    As Federal, State, and local governments respond to the 
recent Supreme Court decision regarding voluntary school 
integration plans in Seattle and Louisville, the Educational 
Opportunities Section of the Civil Rights Division must protect 
against school resegregation. The section must also enforce the 
Equal Educational Opportunities Act, which requires schools to 
take actions to overcome language barriers that impede English-
language-learner students from participating equally in school 
programs.
    In employment, the Office of Special Counsel for 
Immigration-Related Unfair Employment Practices protects 
against employment discrimination based upon national origin 
and citizenship status. Nearly 50 percent of OSC's settlements 
during fiscal year 2005 involved Hispanic workers.
    Finally, the Criminal Section of the Division must 
prioritize the prosecution of hate crimes. The past several 
years have seen a growing number of violent assaults and 
attacks by white supremacists against Latinos, with crimes 
ranging from vandalism to brutal assaults and murders. In most 
cases, the perpetrators did not know the victims but targeted 
them solely based upon their appearance. In 2004, law 
enforcement agencies reported 7,649 incidences of hate crimes 
in the United States.
    In conclusion, the most lasting effect of the Civil Rights 
Act of 1957 may be that it fostered a tradition of strong 
Federal civil rights enforcement in America. Congress has since 
passed more comprehensive civil rights legislation, but the 
1957 Act was a critical catalyst that engaged the Federal 
Government as the key guardian of Americans' civil rights. We 
must use the tools provided under the Civil Rights Act and 
subsequent legislation to respond to civil rights trends in a 
Nation that has changed much since 1957, where discrimination 
may assume different forms now than it did then. And as 
minority populations increase in size and in proportion of the 
U.S. population, the proposition that every individual shall 
receive fair and equal treatment under the law must continue to 
be the principle under which we live. If the Federal Government 
does not meet its obligation to protect 21st century civil 
rights, our Nation will be much impoverished on the 100th 
anniversary of the Civil Rights Act of 1957.
    Thank you very much.
    [The prepared statement of Mr. Zamora appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    Professor Heriot is, as I said, Commissioner on the U.S. 
Commission on Civil Rights, also Professor of Law at the 
University of California at San Diego.
    Professor, thank you very much for being here today. Please 
go ahead.

     STATEMENT OF GAIL HERIOT, COMMISSIONER, UNITED STATES 
COMMISSION ON CIVIL RIGHTS, AND PROFESSOR OF LAW, UNIVERSITY OF 
         CALIFORNIA AT SAN DIEGO, SAN DIEGO, CALIFORNIA

    Ms. Heriot. Well, thank you very much for allowing me this 
opportunity to participate in the commemoration of the Civil 
Rights Act of 1957.
    Many civil rights scholars like to characterize the Civil 
Rights Act of 1957 as a ``weak act,'' and in some respects they 
are correct. Compared to the ambitious bill that Senator Paul 
Douglas of Illinois earlier envisioned, the 1957 Act was puny 
indeed. Senator Douglas hoped that the first civil rights bill 
passed by Congress since Reconstruction would be a sweeping 
one--outlawing race discrimination in public accommodations 
across the country. But it was not to be--not in 1957, anyway.
    I prefer to think of the Civil Rights Act of 1957 not as a 
weak legislative effort but, rather, as a vital building block. 
Without it, it is not at all clear that the Civil Rights Acts 
of 1960, 1964, 1965, 1968, and 1972 would indeed have passed. 
And seen in this light, the 1957 Act is not puny at all but, 
rather, the beginning of a long overdue journey. It is, 
therefore, fitting that this Committee should commemorate its 
passage today.
    You will often hear the 1957 Act referred to as a ``voting 
rights act,'' and, of course, that is accurate. But the most 
significant step taken in that Act was probably the creation of 
these two new arms of the Federal Government that have already 
been referred to today that are assigned the task of looking 
after civil rights law, and that is the Civil Rights Division, 
indirectly created by creating an extra Assistant Attorney 
General's position, and the Commission on Civil Rights, which 
is what I am most familiar with. So that is what I will talk 
about.
    If the value of a Federal agency could be calculated on a 
per dollar basis, it would not surprise me to find that the 
Commission on Civil Rights would be among the best investments 
that Congress has ever made. My back-of-the-envelope 
calculations show that the Commission now accounts for less 
than 1/2000th of 1 percent of the Federal budget; back in the 
late 1950's, it would have been similar in size. But, 
nevertheless, it has packed quite a punch, particularly in its 
early years.
    Soon after the passage of the 1957 Act, the then-six-member 
bipartisan Commission, consisting of John Hannah, President of 
Michigan State University; Robert Storey, Dean of the Southern 
Methodist University Law School; Father Theodore Hesburgh, 
President of Notre Dame University; John Battle, former 
Governor of Virginia; Ernest Wilkins, a Department of Labor 
attorney; and Doyle Carleton, former Governor of Florida--they 
set about to assemble a record.
    Their first project was to look for evidence of racial 
discrimination in voting rights down in Montgomery. But they 
immediately ran into resistance in the form of then-Circuit 
Judge George Wallace, who ordered that voter registration 
records be impounded. Quoting Judge Wallace, ``They are not 
going to get the records,'' he declared. ``And if any agent of 
the Civil Rights Commission comes down to get them, they will 
be locked up. . . .I repeat, I will jail any Civil Rights 
Commission agent who attempts to get the records.'' Again, that 
is quoting Judge Wallace.
    The hearing, nevertheless, went forward with no shortage of 
evidence. Witness after witness testified to inappropriate 
interference with his or her right to vote. And the facts 
gathered by the Commission went into the Civil Rights Acts of 
1960, 1964, the Voting Rights Act of 1965, and the Fair Housing 
Act.
    What is important was the revolution in public opinion that 
occurred during that period, and although the Commission on 
Civil Rights was certainly not the only institution that helped 
bring about that change, it was a very significant factor.
    In 1956, just before the Act, less than half of white 
Americans agreed with the statement, ``White students and Negro 
students should go to the same schools.'' By 1963, the year 
before the 1964 Act, that figure had jumped to 62 percent. 
Similar jumps on other civil rights issues also occurred during 
that period.
    Given the amount of time I have, the one thing I wanted to 
be sure to talk about is some of the people who were important 
for passing the 1957 Act. We all know about President 
Eisenhower's importance in that. He called for it in his State 
of the Union Address. Attorney General Brownell, and especially 
then-Majority Leader Lyndon Johnson.
    However, there is an unsung hero that I would like to point 
out who I first learned about when reading through Robert 
Caro's biography of Lyndon Johnson, ``Master of the Senate,'' 
and this person, unlike Johnson, Eisenhower, and Brownell, is 
still very much alive, is 92 years old, and is still an active 
part of the teaching faculty at the university at which he 
works.
    It seems that the bill was hopelessly hung up over the 
issue of remedies law, and as a remedies professor, that is a 
very dear issue to my heart, and a law professor then at the 
University of Wisconsin proposed a solution. There was some 
controversy over jury trial issues for contempt of court since 
the Act authorized the Department of Justice to seek 
injunctions for violations of voting rights. And some 
supporters of the bill wanted to have no right to a jury for 
criminal contempt proceedings. Others were not willing to vote 
for the bill if it had that in it. And this law professor 
suggested a compromise: Don't eliminate the right to a jury 
trial in those criminal contempt proceedings but, rather, rely 
on civil sanctions for contempt. Lyndon Johnson latched onto 
that idea, and he persuaded his colleagues, and as a result, 
according to Caro, the bill passed.
    That law professor was Carl Auerbach, then of the 
University of Wisconsin, later Dean at the University of 
Minnesota, and now for over 20 years, my colleague at the 
University of San Diego. So I would like to honor him today.
    [The prepared statement of Ms. Heriot appears as a 
submission for the record.]
    Chairman Leahy. Thank you.
    Mr. Moses is President of the Algebra Project, as I 
mentioned, an organization dedicated to achieving quality for 
students in inner-city and rural areas through mathematics 
literacy. When I read ``Parting the Waters,'' Mr. Moses, you 
were there, of course, in some detail. You were field secretary 
for the Student Nonviolent Coordinating Committee and then the 
Director of the Mississippi Project, and you and John Lewis 
have testified here, somewhat younger at the time, but equally 
dedicated. I thank you for being here. Go ahead, sir.

 STATEMENT OF ROBERT P. MOSES, PRESIDENT, THE ALGEBRA PROJECT, 
                 INC., CAMBRIDGE, MASSACHUSETTS

    Mr. Moses. Thank you, Senator Leahy.
    After our Constitutional Convention of 1787, freedom and 
slavery struggled for the soul of our National workable 
Government. African slaves became constitutional property, and 
if they stole themselves as insurgent runaways, the Feds were 
permitted through Article IV, Section 2, Paragraph 3 to capture 
and return them as property, across the lines of sovereign 
States to their slave owners. This way of working worked for 
about three-quarters of a century.
    After our civil wars from 1860 to 1875, slavery was 
replaced by caste and Jim Crow, constitutional property by 
constitutional exiles. C. Vann Woodward says that Jim Crow laws 
were ``constantly pushing the Negro farther down.''
    The last battles of the Civil War were fought by the White 
Leagues of Mississippi in the fall elections of 1875, and the 
following summer, a Senate Select Committee, led by Senator 
George Boutwell of Massachusetts, took testimony all across the 
State and issued the Boutwell Report. Senator Boutwell 
concluded that the election of the 1875 Mississippi State 
Legislature was carried by Democrats by a preconceived plan of 
riots and assassinations. Mississippi winked and the Nation 
blinked. Federalism and Federal rights, the Civil War 
amendments establishing citizenship and the right to vote, were 
recognized by non-recognition. This way of working worked for 
another three-quarters of a century.
    In the early darkness of a winter evening in February 1963, 
Jimmy Travis slipped behind the wheel and Randolph Blackwell 
crowded me beside him in a SNCC Chevy in front of the Voter 
Registration Office in Greenwood, Mississippi, to take off for 
Greenville on U.S. 82 straight across the Delta. Jimmy 
zigzagged out of town to escape an unmarked car, but as we 
headed west on 82, it trailed us and swept past near the turn-
off for Valley State University, firing automatic weapons, 
pitting the Chevy with bullets. Jimmy cried out and slumped; I 
reached over to grab the wheel and fumbled for the brakes as we 
glided off 82 into the ditch, our windows blown away, a bullet 
caught in Jimmy's neck.
    After Jimmy caught that bullet in his neck, SNCC regrouped 
to converge on Greenwood, and black sharecroppers lined up at 
the courthouse to demand their right to vote. When SNCC field 
secretaries were arrested, Mississippi was not looking and the 
FBI could not find the White Leaguers who gunned us down. Burke 
Marshall, the Assistant Attorney General for Civil Rights under 
Robert Kennedy, removed our cases to the Federal District Court 
in Greenville and sent John Doar to be our lawyer. From the 
witness stand, I looked past John at a courtroom packed with 
black sharecroppers from Greenwood, hushed along its walls, 
squeezed onto its benches, and attended to the question put by 
Federal District Judge Clayton: ``Why are you taking 
illiterates down to register to vote? '' A good question.
    After the Civil War, as the Nation drove west, built 
railroads and industrialized, it established an education 
system to drive its caste system, or as James Bryant Conant 
discovered to his astonishment, the clearest manifestation of 
our caste system is our education system.
    In Mississippi, the deal went down on that legislature of 
1875. Alexander Percy of Greenville entered politics for one 
legislative session for the express purpose of ensuring that 
one of the Articles of Impeachment against the Republican-
elected Governor, Adelbert Ames, shifted the money and 
resources Republicans had allocated for the education of the 
freed slaves to the building of railroads to crisscross the 
Delta, to support cotton plantations and sharecropping. 
Sharecropper education has long been the subtext of the 
struggle in Mississippi in this country for the right to vote.
    Sharecroppers, constitutional exiles, were pushing against 
the constitutional gate, seeking status as constitutional 
people, using their 15th Amendment rights in an effort to 
establish their 14th Amendment rights. Three-quarters of a 
century after our civil wars, the Supreme Court in Brown v. 
Board of Education acknowledged that our education system had 
left a whole people behind, and this past June, a half-century 
later, the New York Times spread pictures of all nine Supreme 
Court Justices on its front page to alert the Nation of its 
ongoing struggle about the 14th Amendment and what it means to 
be a constitutional person. In the words of Harvard law 
professor Laurence Tribe, ``There is a historic clash between 
two dramatically different visions not only of Brown, but also 
the meaning of the Constitution.''
    It was Amzey Moore, the head of the local branch of the 
NAACP in Cleveland, Mississippi, who saw that the energy of the 
student sit-in movement could bring down Jim Crow in 
Mississippi. The SNCC-led movement for the right to vote in 
Mississippi called on the whole country to do that, but we have 
yet to accomplish what Amzie wanted for all the people of the 
country: first-class citizenship.
    [The prepared statement of Mr. Moses appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much, Mr. Moses.
    Robert Driscoll is a partner at the Washington office of 
the law firm Alston & Bird, but from 2001 through 2003, he 
served as Deputy Assistant Attorney General and Chief of Staff 
to the Civil Rights Division of the U.S. Department of Justice.
    Mr. Driscoll, thank you for taking time to come by.

   STATEMENT OF ROBERT N. DRISCOLL, PARTNER, ALSTON & BIRD, 
                        WASHINGTON, D.C.

    Mr. Driscoll. Thank you, Mr. Chairman. I am reluctant to 
follow the testimony of Mr. Moses. It seems clear in retrospect 
that he probably should have been the clean-up hitter on this 
panel with what he had to say, but I will go forth, anyway.
    Thank you again, Mr. Chairman and Senator Cardin, for 
having this hearing. I am Bob Driscoll and I am a partner with 
Alston & Bird here in Washington. From 2001 to 2003, I was 
Deputy Assistant Attorney General in the Civil Rights Division, 
which, of course, was created by the 1957 Act. And during that 
time I worked on some of the issues that were discussed by 
previous panelists, including racial profiling guidance to 
Federal law enforcement, some school desegregation issues, and 
police misconduct.
    Today's panel is distinguished, and I have enjoyed hearing 
everybody's perspectives on this topic. I believe that every 
other panelist has, in some way, dedicated their career to the 
advancement of civil rights, and for that I am grateful, and I 
would like to thank all of them. My own perspective is that of 
a working lawyer who has spent several years in leadership of 
the Division--an institution for which I have great respect. It 
is my experience doing my best for those 2 years helping manage 
the Division that provides the basis for my comments.
    Essentially, as I reflected on the 50th anniversary of the 
passage of the Act, I have been struck by several points: first 
is the progress we have made in this country in the 50 years 
since the Act was passed; second, how the Act has served as a 
framework--and I think other panelists have talked about this--
for the advances in civil rights legislation that followed; 
and, finally, how the Act can serve, I think, as inspiration 
for those of you on the Committee crafting legislation today 
and how legislation can, in fact, change the Nation.
    I think that the Act--and professor Heriot mentioned this--
will be remembered for protecting voting rights, but I also 
think it is important to recognize it as a building block for 
the 1964 Act and the 1965 Voting Rights Act, which were much 
broader substantively. And the institutions created by the 
Act--the Civil Rights Division and the Commission on Civil 
Rights--really served as the tools through which lots of facts 
were gathered to pass future civil rights legislation.
    When one looks at what going on at the time and listens to 
the testimony of Representative Lewis and Robert Moses, it is 
hard not to be struck by the progress that has been made in the 
50 years since the passage of the Act.
    I am reluctant to speak of progress sometimes for fear of 
being misinterpreted as someone who thinks that racial 
discrimination no longer exists--and I can see that it does--or 
that it is not in many areas in society where we are falling 
down on our ideals of equality among men and women, because I 
think certainly we have. Nor do I mean to suggest that the 
gains that have been made were not hard fought, or that 
progress was not resisted by certain circuit court judges and 
certain other people that were discussed today all the way. But 
I think there is no escaping that the moral imperative of equal 
opportunity that has animated legislation such as the 1957 Act 
has largely taken hold and been internalized by most Americans, 
and we need to recognize that.
    To take an obvious example that was discussed today, to 
compare the wake of the Brown decision and the massive 
resistance of certain school districts to integrate schools, 
compare that to today, and I know it is a controversial 
decision, which Ted Shaw mentioned and I think which members of 
the Committee have mentioned, being litigated in the Supreme 
Court in the Louisville and Seattle cases is that there is 
clearly a disagreement among members of the Court and among 
people that filed briefs in that case--I filed one on the 
opposite side of Mr. Shaw--as to what the right answer was. But 
when you look at what was being litigated, I think there is no 
question it is a sign of progress. The question being litigated 
was: Was the school board of Louisville, Kentucky, being so 
aggressive in its efforts to integrate its school system that 
it violated the Constitution? And I think we can all disagree 
in good faith or people can disagree in good faith about 
whether or not the Court reached the right result in that case. 
But I think the people that originally were litigating on 
behalf of the Civil Rights Division, enforcing early 
desegregation orders, would be very surprised to hear that one 
of the main points of contention in the Supreme Court would be 
whether or not the school district had gone too far, and I 
think that is quite a change from school districts that were 
massively resisting any attempt at integration in prior years.
    Finally, given the time constraints, I would just like to 
say that I think the 1957 Act--it is interesting to look at as 
an inspiration for possible future legislation. I think other 
people have talked on the panel and on the Committee about 
certain advances they would like to see in the civil rights of 
the country. And I think when you look back at the 1957 Act, 
you can say it was a compromise. People have noted it was not 
an incredibly strong substantive Act, and I think that we can 
all learn from that and look at that and say that sometimes 
progress is incremental and sometimes what you view as a first 
step today ends up being something that in retrospect was a 
very important building block. And I think when people look at 
different issues, you know, such as the Committee discussed 
hate crimes legislation or rights of gays and lesbians, things 
like that, I think that looking at the 1957 Act, I think 
sometimes you look at the compromise that it was, and you look 
at what it did not have--you know, it did not have national 
prohibitions on public accommodation discrimination; it did not 
have a particularly strong voting rights provision to it in 
retrospect when you compare it to the 1965 Act. And so I think 
that, you know, we look at our controversial and divisive 
political issues today, and nothing could be as controversial 
and divisive as this was back in 1957. And so maybe in that 
regard it can serve as an inspiration to the Committee and to 
the folks drafting legislation.
    Thank you very much.
    [The prepared statement of Mr. Driscoll appears as a 
submission for the record.]
    Chairman Leahy. Thank you, Mr. Driscoll.
    I also should have noted that Mr. Driscoll served as a law 
clerk to a classmate of mine from Georgetown and a very, very 
good friend, an extremely good friend, the late Fred Parker, 
who served both as chief district judge in Vermont and then as 
Vermont's representative on the Second Circuit.
    Now, I look at the 2004 report by the Harvard Civil Rights 
Project, ``Brown at 50: King's Dream or Plessy's Nightmare? '' 
Which shows a major increase in segregation, and the concern 
the Civil Rights Division has paid insufficient attention to 
ending housing segregation, which brings about segregation in 
our schools. There are also reports on the ADA--whether the 
Americans with Disabilities Act is being enforced. I see such 
things, again, when a local school board in Louisville sought 
to integrate public schools, the Justice Department sued the 
school board, and we seem to be turning things on their head.
    I see very few cases being brought about racial 
discrimination against African-American voters, which makes you 
think that that does not exist anymore.
    MALDEF attorneys found anti-immigrant activists 
aggressively intimidating Latino voters in Tucson, Arizona. In 
fact, the Arizona Republic reported that Russell Dove, a local 
anti-immigrant activist, proudly acknowledged his effort to 
intimidate Latino voters. Mr. Zamora knows of what I speak. 
When I hear Mr. Moses talk about John Doar--and I know your 
work in Mississippi forged a close personal relationship with 
him. I had the privilege of meeting him the first time when I 
was a law student at Georgetown. And I think of what you said 
about his active participation--what many of you have said. But 
then I see the Urban Institute says 50 percent of African-
American 9th graders, 49 percent of Native Americans, 47 
percent of Latino Americans do not graduate from high school in 
4 years. And in some of the poorest urban and rural areas--and 
I come from a rural State--dropout rates approach almost 80 
percent. Mr. Moses, you are aware of that with the Algebra 
Project.
    So I am going to ask one question. There are a whole lot of 
questions I could ask, but I know most of you, and you have no 
hesitation in letting me or my office know your thoughts. 
Someday--someday--we are going to have a new--I would hope the 
administration will send up a name of a new head of the Civil 
Rights Division. He or she is going to have to come before this 
Committee for confirmation. Now, assume you were sitting where 
I am as Chairman of the Committee. What would you ask as the 
first question of a new head of the Civil Rights Division? That 
may be unfair. Anybody want to start?
    [Laughter.]
    Chairman Leahy. I mean, talking about things you want to do 
when you are in school. I only had two dreams when I was in law 
school. I hoped someday I might be a prosecutor, and I hoped I 
might be a U.S. Senator. I thought being a Democrat from 
Vermont, that would never happen, and I ended up being both. 
So, Mr. Shaw, do you want to take a stab at it?
    Mr. Shaw. Dreams do come true sometimes.
    Chairman Leahy. Sometimes.
    Mr. Shaw. Mr. Chairman, I would ask any nominee to head the 
Civil Rights Division what that nominee's plans were to restore 
the Division to its full strength and integrity with respect to 
its carrying out of its mission. I would want to know, for 
example, in the aftermath of the Seattle and Louisville 
decision, whether that nominee would consider re-establishing 
the General Litigation Section, the section I joined when I was 
at the Division years ago. It was dismantled, but the section 
existed pursuant to a theory that there was a relationship 
between school and housing segregation. And in the aftermath of 
the Supreme Court's decision, I think the Department and the 
Division should revisit the issue of trying to get at 
segregation in schools and in housing through that housing 
focus.
    In general, I think the task is to re-establish a core of 
committed, apolitical line attorneys who will not be subjected 
to political interference in spite of the recognition that 
administrations get to set policy. How would that nominee go 
about re-establishing the integrity of the Division?
    Chairman Leahy. Mr. Zamora? And then we will go to Mr. 
Henderson. Mr. Zamora?
    Mr. Zamora. Thank you. MALDEF has very specific criteria by 
which we evaluate and issue recommendations for nominees. And, 
you know, we have had experiences recently before this very 
Committee where we have had nominees to courts who have made 
representations about their future intentions with respect to 
enforcing the laws or--
    Chairman Leahy. I recall that.
    Mr. Zamora. Yes, I am sure that you do.
    Chairman Leahy. With some chagrin. Go ahead.
    Mr. Zamora. Exactly. And so what we really look at is the 
life history, the record of the individual, and what that life 
history shows in terms of the perspective upon civil rights and 
a real commitment. And I think we have heard from many 
witnesses today who have demonstrated through their 
professional experiences, through their careers, that there is 
that commitment.
    Also for MALDEF, certainly diversity is a consideration. It 
is not the sole consideration, but we do feel that it is 
important generally that the Federal Government reflect the 
diversity of the population, and particularly, obviously, for 
the Assistant Attorney General for Civil Rights, we would 
appreciate a nominee who has walked in the shoes of individuals 
who have suffered civil rights violations.
    Chairman Leahy. Mr. Henderson?
    Mr. Henderson. Mr. Chairman, I had hoped that my colleagues 
going before me would do as they have done and focus on the 
importance of career attorneys and the importance of restoring 
integrity and commitment to the Department.
    I wanted to take a slightly deeper dive, though, in an 
issue that has gotten little attention, but in the wake of the 
Louisville and Seattle cases deserves a closer review, and that 
is the topic that Mr. Shaw touched upon--the link between 
school integration and quality education and housing 
discrimination.
    You know, next year is the 40th anniversary of the Fair 
Housing Act, first enacted in 1968, and yet housing 
discrimination remains one of the last frontiers of civil 
rights enforcement. The link between barriers of school 
integration and housing discrimination have been well 
documented, and the Supreme Court itself has spoken on numerous 
occasions about that link. The Department of Justice has 
extraordinary power in this area, the power to use pattern and 
practice litigation techniques to really look at this question 
of housing discrimination. And yet, in reviewing the number of 
cases that have been brought with that extraordinary power, the 
Department has largely been silent on the sidelines in 
addressing this important area of our work.
    If this country is ever going to get to the point where 
quality education becomes a universal right, recognized for all 
students as a part of their citizenship in the United States as 
a whole, we are going to have to get beyond the point where 
States have the ability under the guise of federalism to 
exercise control over the schools within their boundaries in 
ways that work against extending quality education to all 
students. And fair housing enforcement in a very aggressive and 
effective way can be an important tool.
    I am hopeful that the next Attorney General and the next 
head of the Civil Rights Division will make a commitment to 
using the Nation's fair housing laws to look at cases of real 
disparate treatment. Unlike other areas that we have talked 
about, you still see intentional discrimination in the area of 
housing sales and rental housing that have not been addressed. 
And so I am hoping that the next Attorney General and head of 
the Division will make a real commitment to making a deeper 
dive in that area.
    Chairman Leahy. Mr. Driscoll, you were there. If you were 
sitting up here, what would you ask?
    Mr. Driscoll. I think, Mr. Chairman, I would ask the 
nominee to explain where he or she saw their position in the 
Civil Rights Division in the Department of Justice, where they 
saw that position fitting in with the general executive and 
legislative scheme of civil rights enforcement. And I think 
what you would want is someone who would pledge to enforce the 
laws that the Congress passes and that are signed by the 
President without fear or favor and apolitically, as has been 
said by other witnesses, that would call balls and strikes on 
enforcement of the civil rights laws and that would not take 
upon themselves an ability to set policy, because I think that 
is very dangerous for a law enforcement position to do, and 
that if there are going to be extensions of certain statutes or 
certain legal principles and to argue for them before this 
Committee and to pledge not to just go do what they want as 
head of the Division, that the position, while it has policy 
implications, when you are in the offices over a 950 
Pennsylvania, you realize it is pretty circumscribed by the 
statutes that are passed by Congress and that there are a lot 
of--sometimes there are some gaps in those statutes, and you 
look at the options you have. And I think that getting a real 
sense of where the nominee would draw that line to say what are 
the limitations on what I can do and what can I do with vigor 
and pride, and you would want to ask those questions. And I 
also think it would be entirely appropriate to address some of 
the other issues that the panel has raised about dealing with 
some of the recent controversies in the Department and how they 
would work to restore confidence in the career attorneys.
    Chairman Leahy. Professor Heriot, you get the penultimate 
question on this, and then we will go to Mr. Moses.
    Ms. Heriot. Actually, all the questions that my fellow 
panelists have suggested are excellent questions, and that if I 
were asked what question to ask after those questions, I might 
be inclined to just wish the nominee good luck and hope that 
they remember that no matter what they do, someone will 
criticize them for it.
    Chairman Leahy. Not me.
    [Laughter.]
    Chairman Leahy. Mr. Moses?
    Mr. Moses. I guess the simple question is why does that 
person want that job.
    Chairman Leahy. Yes, I know. You want somebody who wants it 
because they can do good--or do right, I should say.
    Mr. Moses. Yes, and I guess the question is how do we 
understand their response to that and how do we gauge their 
response against their record, against their life.
    Chairman Leahy. I know what you are saying, and I know what 
I would listen to. I would listen to a lot more than just the 
words in somebody answering that question.
    Senator Cardin? And I apologize. I have impinged on your 
time. Senator Cardin, as I said before, is one I rely on very 
much in this office and in this area. Coming from a State with 
the racial makeup of Vermont, I have to rely very much on 
somebody like Senator Cardin, who has experienced in his work 
even before he was in the Congress, has experienced very much 
in these areas. Senator Cardin?
    Senator Cardin. Well, Mr. Chairman, thank you very much. I 
do come from a State that has a rich diversity, but it presents 
challenges. And I appreciate very much your leadership on this 
hearing. I think this hearing is extremely important, and I 
thank each of you for your commitment in your careers to civil 
liberties and civil rights and for being here to help establish 
a record for this Committee, because we have important 
decisions to make, whether it is the confirmation process of 
the next Attorney General or the person who will head up the 
Civil Rights Division, some important decisions on laws and, as 
I said earlier, in our confirmation of judges. And I think the 
record that you all have helped us establish in this Committee 
points out that we have a lot of work to do.
    Mr. Shaw, I listened very carefully about your assessment 
of historically some of the changes that have been made in the 
Civil Rights Division and its priorities, and each 
administration has the right to appoint its political 
appointees in these positions, subject to confirmation. But 
this administration has gone beyond just shifting priorities. I 
think that we have to be very careful that they have not 
created permanent damage in our ability to deal with the civil 
rights of the people of this country. And I say that, 
recognizing that their policy, for example, on dealing with 
voter fraud for people voting who should not, which has never 
been documented, is to try to disenfranchise a large number of 
minority voters. That is just a practice that cannot be 
tolerated in this country.
    And you look at the last decade, with school desegregation 
becoming more intense, and their answer is to challenge those 
who want to have plans to try to have schools more integrated. 
It turns the traditional role of the Civil Rights Division on 
its head.
    And as we had at our last hearing testimony about the 
hiring practices--yes, you have the right to make political 
appointments to the Department of Justice, but you do not have 
the right to try to interfere in a partisan way with the career 
attorneys. And this administration, of course, changed the 
hiring procedures, using political appointees to select the 
career attorneys. All of that has had incredible damage in the 
Civil Rights Division.
    So I think we have our work cut out for us. I do not want 
to minimize that. I think we have a tremendous burden in 
dealing with the Civil Rights Division.
    I can tell you, Mr. Chairman, the first question I am going 
to ask the nominee for Attorney General is his commitment to 
the Civil Rights Division because I think that is an issue that 
needs to be addressed by the Attorney General and the President 
of the United States, and not just the person who heads the 
Civil Rights Division.
    Let me ask one question, if I might. Tomorrow we are going 
to have a chance, I hope, to improve the tools available to the 
Department of Justice dealing with voter intimidation and 
trying to intimidate minority voters in this country by 
misleading and wrong information.
    I don't know whether that bill will ultimately be signed by 
the President and enacted into law. I hope it is. But my 
question to you is: Knowing what is happening today, the types 
of efforts made to disenfranchise minority voters, what should 
the Department of Justice be doing in order to ensure that 
every person in this country has the right and opportunity to 
participate in our political system through the right of 
voting? What should the Federal Government be doing in order to 
assist us in helping those who have been disenfranchised?
    Mr. Zamora. I would jump in and, first of all, thank you 
for your sponsorship of the voter intimidation and deceptive 
practices bill, which MALDEF has supported. I think it does 
become another important set of tools that the Division can use 
to protect against this kind of disenfranchisement--of course, 
against the backdrop that it has to be used properly, like any 
Federal civil rights statute. We have some great laws on the 
books that have not been properly enforced over the last 
several years, so this will add to the number of laws that need 
to be appropriately enforced.
    But we have seen an increase of voter intimidation directed 
against Latinos, and my written testimony cites several very 
striking examples. But there is still an opportunity in this 
administration, in this Civil Rights Division, to undertake 
vigorous outreach, to train local election officials to be 
prepared to recognize and report incidences of voter 
intimidation. Then we need for the Civil Rights Division, 
through the election and beyond, to actually prosecute these 
individuals. We have reported the incident in Tucson to Voting 
Section officials who are going to refer it to the Criminal 
Division. We have not heard the results of that investigation 
as of yet.
    In California, I cited in my testimony to an incident where 
an actual candidate for the House of Representatives mailed a 
letter to 14,000 Latino voters that had wrong information. It 
was trying to drive people away from the polls. The State 
investigation has concluded, but to my knowledge, the Federal 
investigation is ongoing, and we have not seen a priority made 
of the prosecution of these sorts of incidents.
    So I think the combination of outreach and training of 
local election officials along with the vigorous prosecution of 
the law.
    Senator Cardin. Does the Department of Justice have those 
tools today, they could use those?
    Mr. Zamora. Yes, certainly, there are statutes on the books 
that do protect against certain types of voter intimidation. I 
think your bill actually expands that which classifies as voter 
intimidation, I think in very positive ways. But, yes, there 
are laws on the books that we have not seen vigorous, 
prioritized enforcement of.
    Senator Cardin. Mr. Shaw? Mr. Henderson?
    Mr. Henderson. Thank you, Mr. Cardin. I would like to 
respond going beyond the consideration of the new bill, which I 
think Mr. Zamora addressed, you know, very effectively. I think 
enforcing existing law in a meaningful way would make a huge 
difference. For example, I think John Lewis spoke quite 
eloquently about the need for the Division and the Department 
of Justice to look more closely at voter ID laws that do have a 
disproportionate impact on racial minorities who should be 
protected by the Constitution, as with all citizens.
    Second, the National Voter Registration Act, which has been 
on the books for now over a decade, does have the ability to 
make a real difference in registering voters and providing 
meaningful access through social service agencies, and those 
provisions have been underenforced and largely ignored by the 
Department.
    And then, thirdly, I think there has in the past existed a 
real firewall between the Criminal Division in the Department 
and the Civil Rights Division. And the idea of voter fraud 
cases being handled in the Criminal Division that bleeds into 
the responsibilities of the Voting Section it seems to me is 
problematic and it invites the kind of politicization that you 
have seen in the way in which some of these cases have been 
handled.
    So I think emphasizing the enforcement of existing laws is 
also an important part of any serious enforcement scheme.
    Mr. Shaw. Senator Cardin, if I may address the question at 
a little bit more length, Section 11(b) of the Voting Rights 
Act states that, ``No person shall intimidate, threaten, or 
coerce, or attempt to intimidate, threaten, or coerce, any 
person from voting or attempting to vote.''
    Since the Act's inception, to our knowledge, 11(b) has been 
used only three times by the Department of Justice. Clearly, 
that is a statutory provision that has been underutilized given 
the ubiquity of reports with respect to voter intimidation of 
various types every election cycle. And so in addition to the 
legislation you are proposing, which we commend you on, we also 
think that 11(b) should be enforced vigorously by the Justice 
Department.
    I might add that Mr. Henderson and I and others were at a 
meeting I remember very clearly with the former Attorney 
General, John Ashcroft, a few years back in which he made clear 
the Department's priorities with respect to voter fraud, a 
problem--or, rather, a solution in search of a problem. And we 
made it very clear that that priority was misplaced, and we 
understood it in the context that I believe you described that 
focus, even though you were not specifically referring to 
Attorney General Ashcroft.
    So we believe that the Department's priorities ought to be 
reset to protect minority voters who are subjected to 
intimidation as opposed to this attempt to focus on fraud, 
which we interpret as an attempt to dissuade minority voters 
from going to the polls.
    Senator Cardin. Thank you. Thank you all very much again 
for your careers and for your testimony.
    Chairman Leahy. Thank you. And we will, as we always do, 
keep the record open. You will certainly have a chance to go 
through your own testimony. If there is something that you 
thought you left out or wanted to add or change, feel free to 
do so. I thank you. It has been a long morning for all of you, 
but this is a record we wanted to make.
    Thank you.
    [Whereupon, at 12:02 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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