[Senate Hearing 110-758]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-758
 
                    CIVIL RIGHTS DIVISION OVERSIGHT 

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 21, 2007

                               __________

                          Serial No. J-110-45

                               __________

         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 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.......................................................     1
    prepared statement...........................................   148
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   173

                               WITNESSES

Clegg, Roger, President and General Counsel, Center for Equal 
  Opportunity, Falls Church, Virginia............................    37
Driscoll, Robert N., Partner, Alston & Bird LLP, Washington, D.C.    39
Henderson, Wade J., President and Chief Executive Officer, 
  Leadership Conference on Civil Rights, Washington, D.C.........    32
Kim, Wan J., Assistant Attorney General, Civil Rights Division, 
  Department of Justice, Washington, D.C.........................     3
Landsberg, Brian K., Professor, McGeorge School of Law, 
  University of the Pacific, Sacramento, California..............    34
Norton, Helen L., Visiting Assistant Professor, University of 
  Maryland School of Law, Baltimore, Maryland....................    35

                         QUESTIONS AND ANSWERS

Responses of Robert N. Driscoll to questions submitted by Senator 
  Feinstein......................................................    59
Responses of Wan J. Kim to questions submitted by Senators Leahy, 
  Kennedy, Feinstein, Durbin, Cardin and Schumer.................    61
Responses of Brain K. Landsberg to questions submitted by 
  Senators Leahy and Feinstein...................................   143
Responses of Helen L. Norton to questions submitted by Senator 
  Durbin.........................................................   146

                       SUBMISSIONS FOR THE RECORD

Clegg, Roger, President and General Counsel, Center for Equal 
  Opportunity, Falls Church, Virginia, statement.................   149
Driscoll, Robert N., Partner, Alston & Bird LLP, Washington, 
  D.C., statement................................................   169
Henderson, Wade J., President and Chief Executive Officer, 
  Leadership Conference on Civil Rights, Washington, D.C., 
  statement and attachments......................................   176
Kim, Wan J., Assistant Attorney General, Civil Rights Division, 
  Department of Justice, Washington, D.C., statement.............   218
Landsberg, Brian K., Professor, McGeorge School of Law, 
  University of the Pacific, Sacramento, California, statement...   252
Moschella William, Department of Justice, Washington, D.C., 
  statement......................................................   260
Norton, Helen L., Visiting Assistant Professor, University of 
  Maryland School of Law, Baltimore, Maryland, statement.........   267
Reigious Organizations, June 21, 2007, letter....................   272


                    CIVIL RIGHTS DIVISION OVERSIGHT

                              ----------                              


                        THURSDAY, JUNE 21, 2007

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 2:03 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, presiding.
    Present: Senators Cardin, Kennedy, Whitehouse, and Hatch.

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

    Senator Cardin. The Committee will come to order.
    First, let me thank Chairman Leahy and Senator Kennedy for 
asking me to chair this hearing today as the Judiciary 
Committee carries out its responsibility on oversight of the 
Civil Rights Division.
    It is fitting that we hold this hearing today as we 
approach the 50th anniversary of the Civil Rights Act of 1957, 
which created the Civil Rights Division. This was the first 
civil rights legislation enacted in the United States since 
Reconstruction.
    This hearing is also part of the Committee's ongoing 
investigation of the firing of U.S. Attorneys for improper 
reasons and the growing influence of politics in the Department 
of Justice. I am concerned as to what extent political 
appointees overrule the recommendations and advice of career 
prosecutors and staff at the Civil Rights Division when it 
comes to enforcing the laws and when it comes to the hiring, 
promotion, and firing of staff.
    I am gravely concerned that over the past 6 years the Bush 
administration has permitted, and even encouraged, political 
considerations and influence in deciding whether to enforce the 
law. This Committee will scrutinize the performance of the 
Division in enforcing anti-discrimination statutes enacted by 
Congress, including laws relating to voting rights, civil 
rights, housing, and employment. The Division has the unique 
resources, obligations, and mandate from Congress to file these 
types of cases to protect minority rights throughout the United 
States. In many cases only the Justice Department can file the 
type of complex and far-reaching cases that can challenge and 
ultimately remedy and destroy discriminatory practices and 
patterns, as we continue our long and unfinished journey toward 
achieving equal rights and equal justice under the law for all 
Americans.
    I am disturbed by today's story in the Washington Post, 
which gives numerous examples of the improper role that 
politics is playing in the Division. This Committee will want 
to hear from the Assistant Attorney General whether he thinks 
it is appropriate and consistent with the law and Justice 
Department regulations for a manager to ask his Justice 
Department staff whom they voted for in an election; whether 
this is an appropriate factor to consider when hiring, firing, 
and promoting staff; whether these types of incidents create a 
culture of intimidation at the Division; whether this culture 
may have contributed to a large number of resignations and 
retirements from the Division, followed by the hiring of a less 
experienced, less diverse, and more ideological group of 
lawyers; and whether these practices undermine the credibility 
of the lawyers at the Division and the overall reputation of 
the Department of Justice.
    I also welcome our distinguished panel of witnesses and 
would solicit their views on the record of the Civil Rights 
Division. For example, enforcement actions on behalf of racial 
minorities have declined, such as the filing of disparate 
impact cases under Title VII. The Division's Appellate Section 
has dramatically reduced its interventions in major 
discrimination cases. The Department has hired a large number 
of new attorneys who have no background in civil rights 
litigation. The Department has filed a declining number of 
pattern and practices of employment discrimination cases. The 
Department has filed a declining number of vote dilution cases 
under Section 2 of the Voting Rights Act. The Department has 
filed a declining number of cases challenging abusive policy 
practices.
    This Committee has a responsibility to the American public 
to ensure that the Civil Rights Division aggressively carries 
out its very important mandate.
    Senator Hatch.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch. Well, thank you, Mr. Chairman. I, too, look 
forward to this hearing. I hope it is a hearing about civil 
rights enforcement and not just another political meeting, 
because I think we have tremendous work that we do and have to 
do. And I want to make sure that we do the type of work that 
has to be done.
    I am particularly happy to welcome Mr. Kim here today. Wan 
Kim worked for us here on the Committee. He did a tremendous 
job, I think got along well with everybody on the Committee, 
and I am very proud that you are down there, especially in this 
Division, because I know that you take these matters very 
seriously. And I also welcome all of the other witnesses who 
are going to be here today.
    Thank you, Mr. Chairman.
    Senator Cardin. Our first witness is the Honorable Wan Kim, 
who has been the Assistant Attorney General for the Civil 
Rights Division of the United States Department of Justice 
since November 9, 2005. Perhaps the most important thing about 
Mr. Kim's background, as Senator Hatch has already pointed out, 
is that he is very familiar with the work of the Judiciary 
Committee, having served this Committee with great 
effectiveness, and we certainly do welcome you here today.
    As is the practice of the Judiciary Committee, I would ask 
that you rise for the oath.
    Do you affirm that the testimony you are about to give 
before the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Kim. I do.
    Senator Cardin. Thank you. You may proceed.

  STATEMENT OF WAN J. KIM, ASSISTANT ATTORNEY GENERAL, CIVIL 
 RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Kim. Thank you. Mr. Chairman, and thank you, Senator 
Hatch, for attending this hearing. Senator Hatch, I think 
everyone knows, everyone who has ever worked for you know it is 
a great privilege and honor to work for you. And certainly my 
time in the Committee was also a great highlight of my career.
    It is a pleasure to appear before you to talk about the 
work of the Civil Rights Division, and I am pleased to report 
on some outstanding accomplishments that we have attained in 
the Division since I last appeared before this Committee 7 
months ago. I am very proud of the professional attorneys and 
staff in the Division whose talents, dedication, and hard work 
have made these accomplishments possible. My prepared written 
statement details the accomplishments of each section of the 
Division, and, Mr. Chairman, I would ask that the entirety of 
my prepared statement be placed into the record.
    Senator Cardin. Without objection, all of the statements 
from the witnesses today in their entirety will appear in the 
record.
    Mr. Kim. Thank you, Mr. Chairman.
    First, I am pleased to report that exactly 1 week ago, on 
June 14, 2007, a Federal jury sitting in the Southern District 
of Mississippi returned guilty verdicts against former KKK 
member James Seale for his involvement in the abduction and 
murders of two young African-American men. Now, these crimes 
were committed 43 years ago, in 1964. Seale and other Klansmen 
abducted Henry Dee and Charles Moore, both 19 years old at the 
time, and drove the two young men into a secluded location 
where the Klansmen beat the victims and interrogated them at 
gun point. Seale and the other Klansmen then bound the two men 
with duct tape. The Klansmen then drove the victims to Parker's 
Landing in Warren County, Mississippi, in a route that took 
them through the State of Louisiana. Once at Parker's Landing, 
the Klansmen secured Dee to an engine block and threw him into 
the old Mississippi River, drowning him. The Klansmen next 
secured iron weights to Moore and also threw him into the 
river.
    Several months after the kidnapping and murders, divers 
recovered from the river the badly decomposed remains of the 
two young men. This case was indicted by the Civil Rights 
Division and by the U.S. Attorney's Office earlier this year. I 
would like to express my thanks to the U.S. Attorney's Office 
for the Southern District of Mississippi for its diligent 
efforts in working with the Civil Rights Division on this very 
difficult and very dated case. Our collaborative efforts helped 
to finally bring justice to the victims and their families.
    While the Federal Government's ability to bring civil 
rights era murders is limited by the provisions of then-
existing Federal law, the Department is committed to vigorously 
prosecuting such cases.
    I would also like to commend the Committee for its 
consideration and support of S. 535, the Emmett Till Unsolved 
Civil Rights Crime Act, which, if funded, would facilitate the 
investigation of over 100 civil rights era murders identified 
by the FBI and the Department of Justice.
    Second, we continue to make great strides in our effort to 
combat human trafficking, increased by sixfold the number of 
human-trafficking cases filed in Federal court in the past 6 
years. On June 14, 2007, again, exactly 1 week ago, a Federal 
jury in Hartford, Connecticut, found Dennis Parish guilty for 
his role in the operation of a sex-trafficking ring. The 
defendant purchased two American citizens, including a 14-year-
old girl, for $1,200 each and then forced them to engage in 
repeated acts of prostitution. This case illustrates all too 
clearly that human trafficking can occur at any place, at any 
time, and to any vulnerable victim, and it reinforces the need 
for the Justice Department to remain vigilant in enforcing the 
requirements of the Trafficking Victims Protection Act.
    Finally, we are vigorously enforcing the requirements of 
Title VII that prohibit employment discrimination. Our efforts 
in this regard are highlighted by our recent pattern or 
practice cases against the city of New York and the city of 
Chesapeake, Virginia. Last month, in conjunction with the U.S. 
Attorney's Office, we filed a lawsuit against the largest fire 
department in the United States--the Fire Department of New 
York. This suit alleges that the city of New York's use of 
written exams when selecting entry-level firefighters has an 
unlawful disparate impact against black and Hispanic applicants 
in violation of Title VII. We recently settled a similar 
lawsuit against Chesapeake, Virginia, regarding entry-level 
police officers. We are committed to bringing these types of 
difficult cases to guarantee the equal opportunity of all 
Americans to fill these important positions as firefighters and 
police officers.
    I look forward to working closely and cooperatively with 
this Committee to ensure the vigorous, evenhanded enforcement 
of the Federal civil rights laws. Thank you for your attention, 
and I appreciate the opportunity to respond to any questions 
that the Committee may have.
    Senator Cardin. Well, Mr. Kim, again, thank you for being 
here and thank you for your service.
    I want to start off by talking about the concern that I 
have on the experienced career attorneys within the Civil 
Rights Division and the high turnover, the numbers that have 
experience, and the manner in which appointments are being made 
in your Division. Let me start off by stating the obvious, and 
that is, our civil service rules prohibit that no person 
employed in the executive branch of the Federal Government who 
has authority to take or recommend any personnel action with 
respect to any person who is employed in the competitive 
service shall make any inquiry concerning the race, political 
affiliation, or religious belief, et cetera, et cetera; and 
then the Department of Justice's own regulations that prohibit 
discrimination based upon political affiliation.
    I say that because of the article that appeared today in 
the Washington Post--and I assume, by the way, that you are 
acknowledging that you have read that article.
    Mr. Kim. I have, Senator.
    Senator Cardin. It makes very serious statements about 
political considerations being used in appointments within the 
Department of Justice's Civil Rights Division.
    There has also been testimony before our Committee. Bradley 
Schlozman, who appeared before our Committee, admitted under 
oath that he had bragged about hiring Republicans. And Monica 
Goodling, who is not in that Division but within the Attorney 
General's office, testified under oath in the House Committee 
that she crossed the line in inquiring into political 
considerations for career selections, for people who are not 
political appointments.
    So let me start off by just getting your reaction to the 
testimonies before our Committee from these other witnesses and 
the article that appeared in the paper. And I must tell you 
that there have been other accounts from former attorneys about 
the political influence trying to be exercised on appointments. 
And then, lastly, if I might--and then I will get your 
response--there was a change in policy within the Attorney 
General's office on the committee that interviews and makes the 
recommendations for appointments from career attorneys to 
political appointees, which also has a chilling effect, could 
have a chilling effect on career people who want to come to the 
Department of Justice in order to carry out their public 
commitments.
    I welcome your response.
    Mr. Kim. Mr. Chairman, thank you for that question. There 
is a series of questions that you asked in there, and I will 
try to address all of them.
    First of all, I want to correct the record. There has been 
a widespread publication that there have been droves of 
attorneys leaving the Civil Rights Division in the past 6 
years. The statistics do not bear that contention out. The 
historical rate of attrition in the Civil Rights Division 
during the previous administration was approximately 12 to 13 
percent a year. The historical attrition rate in the past 6 
years is about 13.5, 14 percent.
    So our attrition figures are in line with and they are not 
markedly different from the historical attrition rate of 
attorneys in the Civil Rights Division. We have the great 
fortune of hiring extremely talented attorneys who have a lot 
of other options, and as much as I would like them to stay for 
a very long time, sometimes they do several years of public 
service and then they move on to other opportunities. And I 
regret their loss, but I certainly do not blame them for that.
    Second, you asked many very good questions about what my 
views are of career prosecutors and career attorneys in the 
Department of Justice, and I will tell you that my answer 
starts from my experience as a career prosecutor at the 
Department of Justice. I was hired from law school to a 
clerkship, and from the clerkship to the Honors Program of the 
Department of Justice in the Criminal Division. So I know very 
much what it is like to be a career attorney in the Department 
of Justice. I was subsequently hired to be an Assistant U.S. 
Attorney in the District of Columbia, and, again, I know very 
much what it is like to be a career attorney and to work 
alongside very dedicated career attorneys.
    It is very important to me that when we make personnel 
decisions, we do so for the right reasons in accordance with 
all the rules of the road. And I can tell you, Senator Cardin, 
that I have done that and endeavored to do that every day that 
I have worked in the Department of Justice.
    Senator Cardin. But you must be concerned about the 
testimony before this Committee by Mr. Schlozman as to 
political considerations that were used--at least he implied 
they were used.
    Mr. Kim. Well, Senator, I have reviewed his transcript. I 
did not see his testimony. And I understand that he denied 
violating the law that prohibited making personnel decisions 
based upon political affiliation.
    That being said, I will answer your question by saying I am 
concerned about some of the allegations that have come to light 
in the media. They are concerning. But I would also note that 
there is an ongoing and active investigation by both the Office 
of Professional Responsibility and the Office of the Inspector 
General, and that investigation I trust will get to the bottom 
of the matter.
    Senator Cardin. And we appreciate that investigation taking 
place. We do not know how long that will take, and it is 
certainly an important investigation. But you have a 
responsibility as the Division head to make sure that those 
practices are not taking place today.
    Mr. Kim. Mr. Chairman, I assure you, as long as I am in the 
Department of Justice, I will abide, as closely as possible, to 
my full ability, by the rules of the road. I have descried for 
this Committee before what I look for when I make hiring 
decisions. I am more than happy to state that again on the 
record. But my hiring philosophy is based upon the talents of 
the people and the needs of the Division, and that is why I 
hire people.
    Senator Cardin. Because of all the concerns that have been 
raised, would you be willing to send out a written affirmation 
of that within the Department so it is clear that political 
considerations or affiliations cannot be considered in the 
appointments?
    Mr. Kim. Within my Division, sir?
    Senator Cardin. Yes.
    Mr. Kim. I certainly believe that that would be appropriate 
under the circumstances. But if I may followup, Senator, I do 
not make hiring decisions without consulting with section 
management. That is part of, I think, an effective way of 
hiring people that everyone really likes and is excited about. 
And so I will tell you that I think my section management 
understands what I am looking for, and I understand what they 
are looking for. And I think there is a meeting of the minds 
there. But I am happy to have those kinds of discussions with 
section management if there is any need to clarify the record 
as far as I am concerned.
    Senator Cardin. Well, I think there is a need to clarify 
the record, and I appreciate what you are saying, and I hope 
that means that you are looking for the very best people 
without any litmus test as to their philosophy, but their 
commitment to enforce the laws and work aggressively to the 
mission of protecting the civil rights of the people of this 
country.
    Mr. Kim. Senator, I look to hire the best people available 
to enforce the laws that Congress passed in the way that 
Congress intended those laws to be enforced.
    Senator Cardin. Thank you.
    Senator Hatch.
    Senator Hatch. Well, first of all, every administration has 
tried to hire people that were willing to follow the goals and 
objectives of the administration. And every administration has 
different goals and objectives in the Civil Rights Division, 
all of whom have had good objectives, albeit one or the other 
of us might think there might be better objectives. I mean, 
that is just what you get when you get different 
administrations, and we certainly have put up for years with 
administrations that did not give any consideration to some of 
the things that, in particular, I think are important. So this 
is kind of a red herring.
    My experience with Justice is, yes, whatever 
administration, whether it is Republican or Democrat, they are 
going to try and find people who will share their beliefs and 
try and push the programs that they believe are correct. And we 
can criticize the programs, but I think it is crazy to 
criticize the fact that a Democrat administration might 
approach the Civil Rights Division a little bit differently 
from a Republican one. But I think both of them--my experience 
in both Republican and Democrat administrations has been that 
this Division has been run pretty well, and that whatever the 
particular goals are, they have been acceptable to the 
Committee.
    But I want to thank you for being here today. I apologize 
that I will not be able to stay very long. This is supposed to 
be an oversight hearing regarding the work of the Civil Rights 
Division, and I hope that the politics of the moment will not 
mean that most of the good work that you are doing and that 
your Division has done will be ignored.
    Now, Mr. Kim, as you know, religious liberty has always 
been a high priority for me. It may not have been in some 
Democratic administrations, but it is for me. The right to 
freely exercise religion is the first individual right 
mentioned in the Constitution's Bill of Rights. I am glad to 
see that defending that right against discrimination is also a 
priority for this Justice Department and the Civil Rights 
Division.
    I sponsored the Religious Freedom Restoration Act, along 
with Senator Kennedy, and also the Religious Land Use and 
Institutionalized Persons Act, which President Clinton signed 
into law. In fact, I was the deciding vote in the Civil Rights 
Act for Institutionalized Persons back when Birch Bayh was the 
chief sponsor of that and have had a long record of trying to 
resolve some of these problems.
    Now, my friends on this Committee, Senators Kennedy and 
Schumer, were cosponsors of that Religious Land Use and 
Institutionalized Persons Act, which protects the rights of 
prisoners to practice their religion, among other things.
    Now, last week, the New York Times ran an article which 
quoted one of the witnesses appearing later in this hearing, 
and it criticized the Civil Rights Division for defending 
religious liberty and enforcing statutes like this one that we 
passed through both Houses of Congress.
    Now, I do not agree with belittling our first freedom, 
which is protected not only by the First Amendment to the 
Constitution but by the 1964 Civil Rights Act as well. We can 
have differences on, you know, what the emphasis should be, 
but, nevertheless, there is no reason to have differences on 
this.
    Now, Mr. Chairman, I have here a letter that was sent today 
to all members of this Committee by a diverse group of 
religious organizations. These include the Southern Baptist 
Convention, the Union of Orthodox Jewish Congregations, the 
Seventh Day Adventist Church, and both the American Jewish 
Congress and American Jewish Committee. They write, and I quote 
in their letter, ``to state our appreciation and support for 
the increased attention that the Division has given over the 
past several years to the support and defense of religious 
liberty.''
    I would ask consent to put this letter in the record.
    Senator Cardin. Without objection, it will be included in 
the record.
    Senator Hatch. Now, Mr. Kim, in February, the Attorney 
General announced the launch of the First Freedom Project, and 
I would like you to tell the Committee about it, including the 
protection of religious rights in the wake of the 9/11 
terrorist attacks. Also, please answer your critics who say 
that you are defending religious rights at the expense of other 
priorities.
    Mr. Kim. Well, Senator, I think that what we are doing is 
trying to enforce the laws passed by this Congress as 
effectively as possible, given the priorities that have been 
defined by this administration. And one of the priorities that 
has been defined by this administration is the vigorous 
protection of religious liberties. Those are, as you mentioned, 
ones that began in the passage of the 1964 Civil Rights Act. 
And I thought it was particularly important to do so given that 
when you and Senator Kennedy and other leaders in the Senate 
passed RLUIPA in 2000, which passed by unanimous votes of both 
Houses of this Congress, you developed a record which 
established massive evidence of discrimination in this area.
    And given those congressional findings, that law, which was 
passed unanimously in 2000, the Civil Rights Division believes 
that it is appropriate to make sure that our resources and 
efforts are commensurate with the need that Congress found, 
first in 1964 and again in 2000. We are very proud of the 
efforts that we have brought to bear on this issue. And I think 
the Times article, while I think the overarching tone of it was 
critical, noted within it that almost all of our enforcement 
actions have been successful, that we are not stretching the 
bounds of Federal law here. We are enforcing the law neutrally, 
evenhandedly, and, I submit, on a nondenominational, 
nonsectarian basis, exactly the way Congress intended us to do 
so.
    Senator Hatch. On the second part of that question, which 
was to answer your critics that you are defending religious 
rights at the expense of other priorities.
    Mr. Kim. Senator, again, if you look at my prepared 
testimony, which is somewhat detailed, we have been very 
aggressive in enforcing all the laws committed to our 
jurisdiction.
    For example, we recently filed a lawsuit involving race 
discrimination claims in violation of Title VII against the 
largest fire department in the United States of America.
    We have filed six lawsuits alleging a pattern or practice 
of employment discrimination in the past 2 years.
    Now, just to give a frame of reference, that compares with 
three such lawsuits filed during the last 3 years of the 
previous administration. So during my time in the Civil Rights 
Division, which is just about 2 years, I have authorized and 
filed more 707 lawsuits than during the last 3 years of the 
previous administration.
    So I think that is a record that speaks of my philosophy, 
that is, to evenhandedly enforce the law wherever I find 
violations of that law. And it is a priority for us, and it 
will always remain a priority for us to police those laws that 
prevent discrimination based on race, national origin, 
ethnicity, color, sex, and all the other appropriate 
categories.
    Senator Hatch. That has been my experience with you, and 
that is my direction to you, too.
    Keep in mind I may be a little prejudiced in this area 
because my personal faith is the only church in the history of 
this country that had an extermination order against my faith, 
against the people of my faith. And it does not take much of an 
understanding to look at the current Presidential campaign. 
Even though the Constitution says that religion should not be a 
test, there should be no religious test, you cannot read an 
article about Mitt Romney without finding some fault with his 
personal faith--and, I might add, ridiculous fault and fault 
that does not make sense. But, nevertheless, almost every 
article has something about his faith, even though the man has 
an impeccably honorable reputation in every way, family and 
otherwise.
    Well, this year is the 150th anniversary of the infamous 
Supreme Court decision in Dred Scott, which I believe is the 
worst decision ever decided by the Supreme Court--now, that is 
saying something, really--that slaves were not citizens, among 
other things. Today we see spreading around the globe and even 
here in America a modern type of slavery in the form of human 
trafficking. You have mentioned in your earlier remarks how 
hard you have worked against human trafficking.
    In January, you and the Attorney General announced the 
creation of a new Human Trafficking Prosecution Unit located in 
the Criminal Section of the Civil Rights Division. My own home 
State of Utah has received a grant to establish a Human 
Trafficking Task Force under the direction of our U.S. Attorney 
Brett Tolman, who also has diligently served this Committee, as 
you and a number of your staff have. That will bring together 
Federal, State, and local law enforcement, prosecutors, and 
victims services organizations.
    Would you please define for the Committee the human 
trafficking the Department is targeting--you have to a degree--
explain why it is being done through the Civil Rights Division, 
and update the Committee on the results of your efforts?
    Mr. Kim. Thank you, Senator. In a nutshell, over the past 6 
years, after Congress showed great leadership in passing the 
Trafficking Victims Protection Act of 2000, the Civil Rights 
Division has worked diligently to enforce those protections 
which ultimately stem from the 13th Amendment of the 
Constitution, which prohibits slavery and indentured servitude.
    During the past 6 years, we have increased the rate of 
prosecutions by more than 600 percent, and that is a record of 
progress following, again, the lead of Congress in defining 
this as a heinous offense worthy of the most vigorous efforts 
at the Federal level.
    Broadly speaking, trafficking can be defined as the 
subjugation of another human being by force, fraud, or 
coercion. It typically occurs in two contexts: in sex 
trafficking and in labor trafficking. Both contexts are 
deplorable.
    In sex trafficking, the victim is typically forced to work 
in a brothel and service customers every night, sometimes 
dozens of customers, day after day for weeks and months, and 
sometimes even longer, Labor trafficking occurs in any context 
imaginable: working in labor fields, working in homes as 
domestic servants, working in sweatshops in garment factories. 
We have brought cases in all of those types of categories.
    This is a big problem internationally. It is also a big 
problem within the United States of America. The State 
Department estimates that approximately 15,000 people are 
trafficked within our borders every year. But as the case I 
talked about in my opening statement reveals, these are not 
just foreign victims. These are American citizens at times. And 
they are subjected to some of the worst form of victimization 
at a continuous level, day after day, week after week, 
sometimes year after year, imaginable. I think--
    Senator Hatch. It is a modern form of slavery, isn't it?
    Mr. Kim. It is a modern form of slavery, Senator. Many 
Congressmen have said so. I believe you have said so. This is a 
despicable form of conduct, and we are very, very pleased to 
implement the will of Congress and to get some of the very, 
very serious penalties that Congress properly attached to these 
crimes.
    Senator Hatch. Well, thank you. Also, please respond to 
your critics who say that human-trafficking and slavery cases 
are taking precedence over what the critics say are the 
Division's most traditional criminal cases. Now, some of the 
critics have said that you are pursuing human-trafficking and 
slavery cases at the expense of hate crimes and police abuse 
cases. So could you respond to those charges?
    Mr. Kim. Senator, I am very proud of my years as a 
prosecutor, and one of the things you learn as a prosecutor is 
you take the cases that you find and you take the violations 
where they occur. And I think Congress passed the TVPA for a 
good reason: they saw a big problem in America that we needed 
to tackle. And so I think, rightly, our prosecutions in that 
area have increased by 600 percent over the past 6 years.
    But we have not neglected our traditional responsibilities. 
In fact, if you look at the core of what the Criminal Section 
of the Civil Rights Division has done since its inception, it 
is prosecuting what is called 242 violations--violations 
committed under color of law, typically excessive force by law 
enforcement officials.
    With respect to that category of criminal conduct, 
convictions over the past 6 years have gone up by 50 percent. 
So with respect to all of the statutes committed to our 
jurisdiction, we have been vigilant in enforcing the cases 
where we find them. And I have made a pledge many times before, 
and certainly before this Committee, that I will bring cases 
where I find the facts and the law to be appropriate. I will 
not shirk away from cases because I do not like the result. I 
believe that is for Congress to define. Congress defines the 
law. It is my duty to carry out that law.
    Senator Hatch. Do you feel that you have been political in 
any way in this position or that the people who serve with you 
are political in any way?
    Mr. Kim. Senator, I have done my level best to make sure 
that my conduct comports with the oath of office that I have 
taken, and that is to enforce the laws. And I believe that in 
many respects the service that I have had in the Civil Rights 
Division as a political appointee, the service I have had in 
the last 2 years as a Senate-confirmed Assistant Attorney 
General is a logical outgrowth of my 7 years of service as a 
career prosecutor in the Department of Justice. At all times I 
have felt that it is my duty to enforce the law. I have never 
seen that differently.
    Senator Hatch. Well, I have been watching you down there, 
and I think you have done a really good job. Now, that does not 
mean that we cannot do better, and I would just encourage you 
to do the best job you can because it is inexcusable for any 
violations of civil rights of whatever kind in this country to 
not be prosecuted or at least not be worked against.
    Mr. Kim. Senator, I appreciate your support. Thank you.
    Senator Hatch. Well, thank you.
    Mr. Chairman, I took a little longer than I should have, 
perhaps.
    Senator Cardin. Senator, it is fine.
    Mr. Kim, we take pride in Congress on strengthening our 
trafficking laws. It was done in bipartisan legislation 
strengthening the tools given to the Department of Justice and 
the State Department in order for the United States to be a 
leader on trafficking issues. So we are pleased that you are 
moving forward in those areas.
    My concern is that when I look at the areas that have been 
where the Department of Justice, the Civil Rights Division, has 
had tremendous impact in advancing civil liberties, you look at 
job discrimination cases because economic empowerment is 
critically important to our communities; you look at major 
discrimination cases where you can have impact well beyond the 
specific case that is brought, or abusive police practices, 
which is a signal to a community as to how the Federal 
Government will be there to stand up to governmental abuses at 
the local level; you look at all these areas, and the 
statistics seems to indicate that they are not priorities 
within your agency.
    Now, you look at the--take job discrimination cases for one 
moment. The number of cases that you have filed is about half 
of what was done in the previous administration. You have more 
attorneys and are filing less cases. That does not seem to 
instill a spirit that the Department of Justice believes that 
discrimination in employment is a priority.
    Mr. Kim. Senator, might I respond?
    Senator Cardin. Certainly.
    Mr. Kim. Senator, I have been the Assistant Attorney 
General since November of 2005. In that less-than-2-year 
period, I have authorized the filing of six pattern or practice 
of employee discrimination lawsuits. Again, if you look at the 
previous record of the previous administration, during their 
last 3 years, which is the trend line, I think, they filed 3 
707 pattern or practice of employment discrimination lawsuits.
    So I have during my short tenure approved the filing of 
twice as many, and I think that that shows my commitment to 
bring cases where I find violations.
    Now, you do not always find violations everywhere you look, 
but we do make an effort to look broadly. That is my 
commitment. And my secondary commitment is that where we find 
violations, where we think the legal standard is satisfied by 
the facts that we develop in our case, you have my absolute 
commitment that I will authorize that case. And I have tried to 
bring that to bear by some of these cases.
    Senator Cardin. I take it that you were not satisfied with 
the progress made with job discrimination cases before you came 
on board?
    Mr. Kim. Senator, I do not fault any of my predecessors. I 
think they did their jobs admirably, as well as they could. It 
was a priority for me because I wanted to make sure that I was 
implemented the Attorney General's directive and my oath.
    Senator Cardin. The record shows the Division has filed 
almost as many cases alleging discrimination against whites as 
they have against African-Americans or Latinos. Now, 
discrimination in any form is wrong, and we want the Department 
of Justice to speak out on behalf of every American in the form 
of discrimination. However, I think it is apparent that efforts 
to help racial minorities is where the Department of Justice 
must place its priorities.
    That concerns me. It appears--I mean, you are giving the 
impression--first of all, do you dispute those numbers?
    Mr. Kim. Senator, I do not know exactly where those numbers 
come from. I think that they may be a compilation of statistics 
over some period of time.
    I can tell you, I can rattle down the cases that I have 
authorized, and they are three on behalf of African-Americans 
and Hispanic Americans, one on behalf of women, one on behalf 
of whites, and one on behalf--with discrimination against Sikhs 
and Jewish Americans. That is not one that places special 
importance on the role of discrimination against whites. I 
mean, I think discrimination, as you do, Senator, against any 
group based upon their race is offensive and in violation of 
Title VII, and it is my duty to enforce those cases. But I do 
not think that I have placed disparate attention on cases 
involving any one racial minority. I do not think that is my 
job.
    Senator Cardin. I appreciate that. I have been told by 
staff that those numbers came from your website, so that is 
where our source is. I am sure it is a good source.
    Mr. Kim. Senator, I think that is a good source. I will 
have to go back and check them all again. I can actually rattle 
off the case names of the seven cases I just cited to you.
    Senator Cardin. Well, let me move to some specific cases, 
because then perhaps we can--and these might have been 
initiated before you took on your current responsibilities, so 
maybe your views are different. But I certainly am concerned 
about trying to match up your statements in your statement for 
the record and your testimony here about aggressively fighting 
any forms of discrimination and the traditional role the 
Department of Justice and the Civil Rights Division to really 
be the leading enforcement agency to protect the rights of 
minorities in this country.
    The Solicitor General--this is the Burlington Northern 
case, where the Solicitor General joined with the employer in 
that case arguing that the anti-retaliation provisions confine 
actionable retaliation only to employer action and harm that 
concerns employment and the workplace, a rather narrow 
interpretation. The Solicitor General joined in that issue. It 
was ultimately rejected by the Supreme Court by, I think, an 8-
1 decision.
    Again, it seems that the administration went out of its way 
to try to narrow the enforcement of our discrimination laws.
    Mr. Kim. Senator, with respect, I do not see it that way. 
The issue in that case was one where we joined on the side of 
the worker, but we argued for a different legal standard to 
apply. And the Supreme Court, admittedly, ruled on the side of 
the worker and adopted a different legal argument than the one 
we urge.
    But what we did in that case, the United States entirely--I 
mean, the Solicitor General obviously makes the determination 
on these cases, although my name appeared on that brief. We are 
trying to interpret to the best of our ability what Congress 
intended in these laws. And we know that statutory 
interpretation questions sometimes pose difficult analytical 
conundrums. I mean, sometimes we get it right. I think we get 
it right a lot more often than we get it wrong. And in that 
case, the Supreme Court went a different way with what it 
thought the statute meant.
    But I think you are citing one case as opposed to the 
litany of cases that we filed, especially on the issue of ADA 
compliance, on the issue of race-based classifications, and in 
those cases we have taken positions that we think, again, do 
not favor one group or the other, because that is not our goal. 
Our goal is to try to figure out what did Congress mean and how 
can we best enforce Congress' will. And if you look at Johnson 
v. California, if you look at United States v. Georgia, if you 
look at the Title III ADA cases, including Specter v. Norwegian 
Cruise Lines, those were cases where we advocated a position 
that some might consider to be plaintiff-friendly. And, again, 
that may be the outcome.
    But my approach in figuring out what to do in those kinds 
of cases is figure out what is the right answer. I have a great 
deal of respect for this institution having served this 
institution for one of its, I would submit with bias, leading 
Senators. I know that the job of the executive branch, 
especially the job of the Department of Justice, is to effect 
the will of Congress and implement it in legislation and not 
substitute my judgment or anyone else's judgment for that.
    Senator Cardin. Mr. Kim, you have a strange way of starting 
that out by saying you are on the side of the employee on that 
case? I mean, wasn't that a narrow interpretation which the 
Supreme Court gave a much broader interpretation?
    Mr. Kim. The interpretation of law and how it applied is 
absolutely a little bit different. But in terms of what the 
judgment was--
    Senator Cardin. More favorable to the employee.
    Mr. Kim. More favorable, yes. But the rule that we urged 
would have also benefited the employee in that case. So the 
question is which way do you line up on the side of--and then 
what analysis do you urge.
    Senator Cardin. That is an interesting point. Again, I 
would say that when the Department of Justice enters a case, it 
is a signal beyond just that individual case. And I think the 
Burlington Northern case was a signal that the Department of 
Justice was looking for accommodations to employers more so 
than trying to help employees who had retaliatory actions.
    Mr. Kim. Senator, with respect, that was not my intent in 
that case. When I approach these cases of statutory 
interpretation, I apply all the legal tools that I have at my 
disposal, which I admit are limited, to try to get to the best 
answer based upon what I think Congress meant when it passed 
that statute.
    Senator Cardin. I have some additional questions, but my 
time on this round has expired, so let me turn to Senator Hatch 
in case he has some additional questions.
    Senator Hatch. Let me just ask a couple questions.
    I think we are well served down there at Justice with you, 
and I think your time up here has stood you in good stead 
because I think you realize that there are two sides on all 
these issues, and it is important that we understand that both 
sides need to be looked at. But I would like to look at the 
Civil Rights Division's efforts to protect the rights of the 
disabled.
    In 1979, nearly 30 years ago, I cosponsored the Civil 
Rights of Institutionalized Persons Act, which I mentioned 
earlier. I was the deciding vote on that. I took a lot of flack 
for it. It did not make any difference to me because I thought 
I was right and that was the way it should be.
    That bill did not pass until after we invoked cloture on 
the fourth attempt, which was pretty much not normal in the 
Senate. Hardly any votes went beyond one, two, or three. But it 
passed, and today the Civil Rights Division is charged with 
enforcing it, protecting the rights of persons in institutions, 
such as nursing homes, juvenile justice facilities, and mental 
health centers.
    Now, could you tell the Committee a little bit about your 
efforts there and whether or not you are having success?
    Mr. Kim. Yes, Senator. We take very seriously the 
requirements of both the Americans with Disabilities Act and 
the Civil Rights of Institutionalized Persons Act--
    Senator Hatch. Well, I was a prime cosponsor on the 
Americans with Disabilities Act, too, and the act of 1990. And 
so I would like you to tell the Committee about programs such 
as the New Freedom Initiative, Project Civic Access, and the 
ADA Mediation Program, as well as the results that the 
Department is achieving for the disabled in different kinds of 
settings, such as hospitals or public transportation.
    Mr. Kim. Well, I appreciate that question, Senator, and 
certainly you have shown great leadership in this arena. The 
whole point of the ADA and then the President's New Freedom 
Initiative is to try to make all Americans participate fully in 
all areas of American life, and that is ultimately an issue of 
empowerment and it is ultimately an issue of treating people 
with dignity and recognizing that, as the President has said, 
no unworthy person was ever born.
    We have tried to implement those laws and that policy 
directive by vigorously going out and working with communities 
across the country in the context of the ADA to make sure that 
community services are accessible to all individuals, including 
those individuals with disabilities.
    In that very, very Herculean effort during the past 6 
years, we have reached agreements with more than 150 
communities since this program began, and 80 percent of those 
agreements were reached during the past 6 years. And in the 
past 6 years, we have made through these agreements lives 
directly better for more than 3 million people, Americans with 
disabilities across the country.
    That is not a record that is achieved overnight. It is not 
a record that is achieved without a lot of hard work and 
commitment and attention. And it is not a record that we could 
have attained without having Congress pass a law that allowed 
us to go out there and implement that type of direction to the 
localities across the country where people with disabilities 
reside.
    In the context of institutional facilities, ensuring 
constitutional conditions, we have obviously implemented 
Congress' will in that direction by noting that when someone is 
committed to the custody of the State, the State now has an 
obligation to that person to treat them in a certain way, to 
make sure that they are being treated within constitutional 
conditions. We have implemented that in jurisdictions across 
the country, from jurisdictions including St. Elizabeth's 
Hospital in D.C. to agreements in Maryland, to agreements in 
Texas, to agreements basically all across the country.
    One area of particular focus for us in the past 6 years has 
been in juvenile justice facilities. When choosing among the 
myriad of facilities and institutions that are run by State and 
local actors that are governed by CRIPA, we thought to focus 
our resources primarily upon the most vulnerable members--the 
youngest in our midst, the Nation's youth, the Nation's future, 
those who are confined to institutions, making sure that when 
they are confined to those institutions, that is not a backward 
step in their lives, that that is at least a neutral step, if 
not a forward step, and in doing that making sure that they are 
treated with the kind of dignity, care, and respect that they 
are entitled to under the Constitution.
    Senator Hatch. Well, I have a lot of other questions, but 
let me just end with one last question, because all Americans 
are mindful of our soldiers and our veterans, especially at a 
time of war. The Civil Rights Division, as I understand it, is 
actively defending the rights of veterans and service members 
to vote and when they return to civilian employment. If you 
could, tell the Committee about your efforts to enforce such 
laws as the Uniformed Service Employment and Reemployment 
Rights Act and the Uniformed and Overseas Citizen Absentee 
Voting Act. If you could, I would like to know where you are on 
those.
    Mr. Kim. Thank you, Senator. We have been fortunate to be 
entrusted with the responsibility to help protect some of the 
civil rights of our service members. Having formerly served in 
the United States Army Reserve, I have a firsthand appreciation 
for the rigors of service and a great and profound admiration 
for those of us Americans who serve, especially at a time of 
war.
    These are laws passed by the Congress to make sure that 
when a soldier is called to duty and, not in America, to vote 
on election day, that their vote is still counted, that they 
still have a way to help pick the people who govern us. And so 
in the past few years, we have been vigilant in enforcing the 
provisions of UOCAVA, working cooperatively with States at 
times and filing litigation at times, to make sure that they 
have a system in place for their elections that allowed that 
overseas service member to vote in the elections and to help 
pick who gets elected to represent them.
    With respect to USERA, the Uniformed Service Employment and 
Reemployment Rights Act, that was a statute for which 
jurisdiction was recently transferred to the Civil Rights 
Division, and that is one that we have embraced. It affects the 
employment rights of people who serve, making sure that they 
are not discriminated against for serving their country, and 
making sure that when they come back after serving in a field 
of battle or serving abroad or serving somewhere else, that 
they have their job guaranteed back to them. We have been 
aggressive in investigating those claims along with our 
partners at the Department of Labor, and we have been 
aggressive in litigating those matters where we cannot 
successfully resolve those claims. That is work that is 
important to us, and it is work that we intend to continue.
    Senator Hatch. Well, thank you, Mr. Kim.
    Thank you, Mr. Chairman. I will submit the rest of my 
questions. I just want to tell you that I appreciate the 
service you are giving and those who work with you. There is 
always more to do, and we just encourage you to do the very 
best you can across the board in this very, very important 
Division down there at Justice.
    Mr. Kim. Thank you very much, Senator.
    Senator Hatch. Thank you.
    Senator Cardin. Mr. Kim, I am glad Senator Hatch raised the 
issue of voting because I want to go into a little bit of 
voting. But let me just complete the question in regards to the 
Burlington Northern, because we are trying to look forward as 
to what type of activities we can expect from the Civil Rights 
Division.
    In retrospect, do you believe, now looking at the Supreme 
Court decisions, that your Department will be more cautious 
about those types of positions that you take in employment 
cases?
    Mr. Kim. Senator, with respect, we do not wade into these 
waters without being cautious. I mean, we took a very hard look 
at that case. The Solicitor General is a very smart man. I 
think I am fairly adept on certain legal issues--not as smart 
as he is--and we put together our best reading of the statute, 
and that is what we write on paper. And it is completely 
transparent what our argument is and why it is that way.
    If your question is do we respect the opinion of the 
Supreme Court, absolutely. We respect the opinion of the 
Supreme Court, and that is the way we will interpret the 
statute.
    Senator Cardin. Of course, we want you to be aggressive 
also. Could you explain why you did not enter the Ledbetter 
case? The Ledbetter case was where the civil rights community 
was forced to advocate on behalf of the EEOC position regarding 
the statute of limitations in Title VII, a disparate pay case, 
because the Department of Justice refused to support the EEOC's 
position. This was DOJ basically supporting the 180-day statute 
of limitations, why you did not support the agency's 
recommendations.
    Mr. Kim. Senator, the internal advice that I gave is not 
something that I can discuss in a public forum, but I am not 
sure that your characterization I can comment upon one way or 
the other.
    I will say this: The position advanced by the United States 
in that case was the one adopted by the Supreme Court.
    Senator Cardin. Yes. Well, perhaps you will get back to us 
on that. I am still--it seems like the Department of Justice, 
which should be available to pursue cases that are of 
significance, and the statute of limitations clearly is--this 
is one of significance, should be working with our civil rights 
community and particularly if we have an opportunity to make 
some advancement here. It appears that the Department of 
Justice was closing doors rather than opening doors.
    Mr. Kim. Senator, again, if I could, my goal and I believe 
our goal when we try to interpret a law and offer an amicus 
brief or a brief in support of a certain proposition, according 
to statutory construction principles that I follow, starts from 
the law itself, not to what result might interest this group or 
that group. And then we make our best determination using legal 
analysis and reasoning and precedent as to what the proper 
interpretation is. And in that case, the Solicitor General 
advanced the interpretation that ultimately the Supreme Court 
agreed to.
    Senator Cardin. We want you to make your best judgments. We 
want you to follow the law. We want you to follow the 
congressional authority that you have and the tools that you 
have. But we also want you to work with the advocacy community 
so that we can advance civil rights in this country.
    Employment discrimination cases are difficult cases, and it 
seems to me that in this case--this was a case that was heavily 
watched, and, again, it looks like the Department of Justice 
was more interested in taking an easy pass and not working for 
an advancement in this area than trying to figure out ways that 
they could advance protection that is offered in employment 
cases.
    Senator Hatch. Mr. Chairman, if I could just--
    Senator Cardin. Certainly, Senator.
    Senator Hatch. It seems to me their job is to enforce the 
statutes that we enact up here. They cannot just sociologically 
decide to ignore the statutes just because some of us up here 
may not like the result. And it is apparent that the Supreme 
Court took the same position, and one of the times when they 
literally observed what we did up here.
    Now, if we do not like the statute, we ought to change it, 
and that would be my answer here, because, you know, I would 
not want you to substitute your own personal predilections for 
what we pass up here. If you did that, I would be pretty darn 
mad.
    Mr. Kim. I do not think I could, Senator.
    Senator Hatch. Even though that may be an unjust result.
    Senator Cardin. Let me take back my time just to say that 
Mr. Kim already pointed out that his attorneys are pretty 
effective. Perhaps if they were on the side of the EEOC, maybe 
the Supreme Court would have ruled a different way. I do not 
know. But it would be nice to know that we are all on the same 
wavelength. If you believe the laws need to be changed, you 
should be coming here suggesting changes in the law. If you 
think the laws are adequate, fine. But in a way, you did not 
take a position on that, and it was an important issue for the 
civil rights community. I would just like to know your position 
on it. And if you think it is fair and the civil rights 
community is wrong, then speak out about it. But to not take a 
position, as you did in not joining the agency, to me was not 
as open as you should have been.
    I want to get some voting rights cases, and I know Senator 
Whitehouse is here, so let me just take a minute or two more, 
and then I will come back on the next round.
    You know my concern about what happened in Maryland. You 
and I had a conversation about it as to, in my view, deliberate 
actions taken to try to marginalize minority voters. It was not 
isolated. There also were cases in Virginia where callers tried 
to intimidate or confuse Democratic voters in a pretty 
contested Senate race. And the Arizona Republic reported that 
in Tucson three vigilantes--one carrying a camcorder, one 
holding a clipboard, and one a holstered gun--stopped Hispanic 
voters and questioned them outside a Tucson polling place.
    I could go on and give you more and more examples, and I 
know you and I have talked about whether the Federal laws are 
strong enough or not, and we have a bill pending that I hope 
will be passed that will clarify this. But voting 
representation, being able to vote, is such a fundamental 
issue, with the 50th anniversary of the creation of your 
Department, the passage of the Voting Rights Act, and still 
today there are candidates and parties that think it is fair 
game to try to marginalize minority voters.
    If you think it is not a problem, say it is not a problem. 
If you think it is a problem, then do something about it. If 
you think it is a problem and you do not have the tools to deal 
with it, tell us what tools you need. But I think just to sit 
back and be a passive observer is not an option that the Civil 
Rights Division should be taking.
    We had a hearing here, and I have not seen the 
administration come in with a statement in support of our 
legislation. I have not seen any position on this. And I just 
think this is a pretty fundamental issue.
    We have had conversations about it, and I guess I expected 
to hear something about whether you believe the circumstances 
are just fine, whether you have the tools to do something about 
it, or whether you think you need additional tools from 
Congress in order to pursue these issues.
    Mr. Kim. Senator, we have spoken on the issue. I have 
appreciated those conversations, and I think we have had what I 
hope was a productive dialog as to what the laws are that the 
Department of Justice, and particularly the Civil Rights 
Division, as far as I am concerned, enforces.
    I know you have been a leader in trying to supplement the 
Federal laws that are currently on the books to address some of 
the instances that you just recounted. All I can tell you at 
this point, Senator, because I am a voice of the 
administration, is that I am aware that views are being put 
together. I am not in a position to articulate those views 
because they have not been cleared, but I do believe the 
administration is prepared to make a statement with respect to 
the legislation that you have supported and that is pending 
within this body.
    Senator Cardin. Well, I appreciate that it has to be 
cleared before you can tell us specifically, but can you at 
least share with us whether you believe that there are concerns 
out there about what is happening with voters?
    Mr. Kim. Senator, I as a personal matter do not like dirty 
tricks. I think that everyone who is registered to vote and is 
qualified to vote should vote on election day, and I think that 
we should make that process as painless as possible.
    And so, in general, my predilection and I think the 
Department's predilection is to try to make it easier for 
people to vote and to vote, you know, their mind and to vote 
exactly the way they intend the election to be voted.
    That is my general statement, and I hope that satisfies you 
because the more specific views letter I hope will be coming.
    Senator Cardin. Well, let me try one more question. When 
can we expect the administration's view on this?
    Mr. Kim. Senator, I am looking behind me to people who are 
actually more knowledgeable. I know--
    Senator Cardin. They did not say anything. They left you on 
your own.
    [Laughter.]
    Mr. Kim. That happens sometimes. I do not know exactly why.
    The short answer, Senator, is I believe it is in the 
process. It is hard for me to predict these things because 
sometimes I think it is going to happen in a couple days and it 
does not, and then people get mad at me. The truth of the 
matter is I know that it is past the point of discussion and 
actually to the point of writing and to the point of 
circulation, and that is as--
    Senator Cardin. Well, I hope we receive it shortly, unless 
I do not like what I receive, then take your time.
    Mr. Kim. Well, Senator, I think you know my phone number, 
so I may be back in your office.
    Senator Cardin. Senator Hatch.
    Senator Hatch. Let me just make this one comment. You know, 
we up here have got to be very careful, too. We should not be 
trying to make the case of politics--we cannot say--or should I 
say that politics should not be involved in hiring Justice 
Department employees, and then assert that politics should be 
involved in what those lawyers do by picking sides. It seems to 
me that you have a tough enough job without us second-guessing 
everything you do. And I know that you are trying to do the 
best job you can. And to me that is very, very important.
    Just one last question and then I probably have to go. When 
we think of law enforcement and the prosecution of crime, we 
most often think of current events, but crimes remain unsolved 
for even decades ago during the fight for civil rights. I am a 
cosponsor of the Emmett Till legislation, and I am very proud 
to cosponsor that.
    In February, you and the Attorney General announced a new 
initiative to investigate these crimes. Now, tell the Committee 
about how this initiative will work and how you will partner 
with nongovernmental organizations. And I understand that just 
last week a Federal jury in a case brought by the Division--
well, you mentioned it--convicted James Ford Seale of crimes 
committed against two African-American men in 1964. You have 
told us about that case and how important that case is, and I 
commend the Department and all who worked on that case for 
being able to bring about the result that we all knew should 
have been brought about a long time ago.
    Now, some of your critics, however, including on the panel 
that will follow you in this hearing today, say that the Civil 
Rights Division is actually undermining enforcement of the 
Nation's civil rights laws. Now, that is a dramatic claim that 
the Division is quite literally doing the opposite of what it 
is supposed to do.
    Now, these critics say the changes in priorities, policy, 
or personnel have stopped the Civil Rights Division from 
engaging in aggressive civil rights enforcement. Now, these 
critics seem to say that unless you follow their priorities and 
bring their preferred cases or apply their policies, you simply 
do not believe in civil rights and you are simply not enforcing 
the civil rights laws of this country.
    Now, I am sure you have heard these criticisms before. I 
think they are very unfair. But I do want to give you an 
opportunity to respond to them.
    Mr. Kim. Senator, I did not come to the Civil Rights 
Division without any background or any experience or any work 
at the Department of Justice. Quite to the contrary, I have 
been a prosecutor for basically my entire career. I clerked for 
a year, I spent 2 years in private practice, and the rest of my 
time I have been a Federal prosecutor or in the Department of 
Justice.
    I have viewed my job at the Department of Justice, be it in 
a career rank or a political rank, the same way, and that is to 
go out there and try to find as many violations that you can 
prove of Federal law that are committed in your jurisdiction as 
possible. That is why I think we have been doing a good job, in 
my view, on bringing pattern or practice of employment 
discrimination lawsuits. That is why last year in the Voting 
Section we filed 18 lawsuits, which is more than twice the 
average number filed in the previous 20 years on an annual 
basis. That is why I think we have been aggressive in going 
after a murder that was committed 43 years ago. When we find 
facts to support Federal violations, we bring those kinds of 
cases.
    My commitment and the oath I take and the obligation I 
think that those of us at DOJ have is to go out there and 
enforce the laws as vigorously as possible and make sure when 
you are doing that, you are following the will of Congress as 
enunciated in those laws--not what you think, not what other 
people may tell you to think, but what the statute says.
    I do not believe I have many other alternatives than that, 
and that, quite frankly, is not my view on what else I should 
be doing. That to me is my charter and my goal. I have tried to 
the best of my ability to execute that during the 11 years I 
have been at the Department of Justice. And so long as I serve 
at the Department of Justice, you have my commitment that I 
will do my level best to enforce the laws that you give us to 
enforce.
    Senator Hatch. Well, thank you.
    Thank you, Mr. Chairman. You have been very kind.
    Senator Cardin. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Mr. Chairman.
    Good afternoon.
    Mr. Kim. Good afternoon, Senator.
    Senator Whitehouse. I am sorry if I am going over 
previously plowed ground.
    Mr. Kim. Not at all.
    Senator Whitehouse. I came in after some of the statements, 
but there have been astonishingly frequent reports coming out 
in the media and in various other fora recently that the 
internal administration of your Division has been driven by 
politics, that hiring has been driven by politics, that 
performance evaluations have been driven by politics, that 
assignments within the Division have been driven by politics. 
And by ``politics,'' I do not mean office politics. I mean 
partisan Republican-versus-Democrat politics.
    There have been instances of people voting with their feet 
to get out of the Department after long and presumably very 
honorable careers. There have been members of the Division 
speaking out, either anonymously or by name, to express their 
concern and in some cases I would say even horror and dismay at 
what has become of the Division. Mr. Schlozman admitted here 
that he bragged about allowing Republican--that he, in effect, 
got more Republicans in. Monica Goodling admitted that in her 
hiring practices she crossed the line. The Honors Program was 
turned over to partisan political officials for hiring for the 
first time in its history. I guess that has been corrected, 
thank God.
    There is a new preeminence, or prominence, I should say, of 
Regent Law School. Over and over again you see symbols that 
would suggest that internally the management is in a state of--
let's put it this way, was in a state of considerable 
partisanship and is presumably now in a state of considerable 
disarray as it tries to recover.
    My question to you is: What are you doing right now to 
remedy this very difficult situation with respect to evaluating 
whether these charges are true internally with respect to 
repairing the damage and the morale within your section, with 
respect to clarifying what policies are and making sure that 
they are being followed and that it is being done neutrally, 
and with respect to reassuring people that they will be judged 
on the merits, not by whether they are Republicans or voted for 
George Bush or are members of the Federalist Society or went to 
the right law school?
    Mr. Kim. Senator, I appreciate that question because I have 
heard of these allegations, and they have been charged, and I 
am concerned about the public perception that I do not believe 
exists in the Civil Rights Division so long as I have been the 
Assistant Attorney General.
    We just had a retreat, the first retreat for the Civil 
Rights Division management, leadership management, that we have 
had in 7 years, and we spent 2 days, and we talked about a lot 
of management issues, and we got a chance to actually sit in a 
room, heard a great address by Chief Judge--I am not sure he is 
Chief Judge anymore, but J. Harvie Wilkinson on the Fourth 
Circuit, who talked about his time in the Division in the 
1980's. And that is a long, roundabout way of telling you that 
I care very much about the Division, I care very much about the 
morale of the people in the Division, I care very much that 
people in the Division believe that they will be evaluated 
fairly, for the right reasons, and sometimes that means--most 
times that means they will be evaluated for doing a great job, 
and sometimes that means that they could do a better job and 
they need to improve.
    That type of transparency based on merit and qualifications 
is important for me to know that people believe that. And--
    Senator Whitehouse. You can continue with your answer, but 
let me interrupt you just to ask: Do you accept that, because 
you are the Civil Rights Division of the United States 
Department of Justice, in terms of the way in which you 
administer your internal personnel matters, you should set a 
very high standard and a very high example for getting it right 
and now allowing inappropriate considerations? If you can do 
it, that kind of sends a signal to the rest of the country of 
kick down the doors, let's do this anywhere?
    Mr. Kim. Senator, I mean, I will take it even more broadly 
that that. I know you served with distinction as a U.S. 
Attorney. I believe that same standard should apply throughout 
the Department of Justice. I think that we should be the 
standard bearers in how lawful, fair, governance should apply 
within the ranks of any Division. And I think that I have been 
pretty transparent to my section chiefs and to the Division's 
leadership and certainly to my staff as to what I expect. And I 
think I have set a tone that I hope is respected in that sense 
that people need to be judged for what they do and how they do 
it. And talent and competence and ability and desire to me 
matter. Other things do not matter.
    Obviously, I want attorneys who are smart, but you find 
smart attorneys in a lot of law schools. I went to a pretty 
good law school. I do not think my law school is the only law 
school that produces good attorneys. And I have found terrific 
lawyers in law schools across the country, and I do not think 
we should have an unduly narrow focus. But I will also tell 
you, Senator, that we hire a lot of people from Harvard and 
Yale. That just happens to be two awfully good law schools 
where we get a lot of applicants. We probably do not hire 
enough people, in my view, from the University of Chicago, but 
maybe we could rectify that in the next few years.
    But in my judgment, the best assurance that I can give you 
that I follow the rules of the road and I turn square corners 
in my personnel management practices is not only the fact that 
I was a prosecutor, a Federal prosecutor in the career ranks 
for 7 years, but because I will also tell you that the first 
thing I ask with respect to any personnel decision is: What 
does the section chief think? And my deputies know not to even 
bring an issue to me--unless they want me to decide the issue--
unless they have the concurrence of that career section chief, 
who has an average of 17 years of experience within the Civil 
Rights Division, if you look across the ranks of my Division.
    That I think provides you with some assurance that I am 
making decisions and trying to make decisions for all the right 
reasons, and I hope that message filters down. And I think 
that--
    Senator Whitehouse. And specifically in response to these 
recent allegations, other than the retreat, have you taken any 
other steps?
    Mr. Kim. Well, Senator, two things that I did immediately 
upon my confirmation as Assistant Attorney General: one, I 
established an Office of Internal Ombudsman, who is staffed 
with a career, to field complaints from the field. Now, I 
encourage people to use the chain of command. We have a lot of 
attorneys in the Division, and they cannot constantly be 
bucking their chain of command to talk directly with me. So I 
encourage people to use the chain of command. And, also, 
instead of subverting that chain of command, I have asked them 
to talk to the Ombudsman first before they contact me, because 
some career leadership felt rightly that if people still felt 
they needed to come to me all the time, then their role would 
be marginalized. And that Ombudsman I think has been helpful in 
resolving a lot of issues.
    I try very hard to make sure that I get out to the sections 
every once in a while. Now, that varies greatly depending on 
the time of the year, but I do try to make myself available on 
a personal level. And one of the most significant things that I 
think I have done since I have become head of the Civil Rights 
Division is to establish the Professional Development Office, 
which was instrumental in creating the leadership retreat, but 
also instrumental in creating for the first time ever a formal 
training program for attorneys who are hired to work in the 
Civil Rights Division. We are a Division with now 350 
attorneys, 700 employees. We have never heretofore had a way of 
welcoming them into the Division, telling them what the rules 
of the road were, showing them the statutes. Now we do. And we 
have had week-long training sessions now three, four, five 
times. I believe it has been a great success.
    Senator Whitehouse. Given all those wonderful things that 
you have said, with respect to the allegations that have been 
made so frequently from so many different sources very 
consistently about what has happened in terms of the internal 
personnel administration of the Civil Rights Division, would 
you wish me to conclude that that happened before you got 
there, or that the people who are making these allegations are 
mistaken? There seems to be a bit of a disconnect between the 
very, you know, principled discussion that you are giving me 
now about how that Division is managed from what an awful lot 
of people are willing to say, both on and off the record, about 
the problem.
    Are you telling me that there really is not a problem? Are 
you telling me you have got your hands around it and you have 
corrected it? Where do we stand on this? Was there never a 
problem?
    Mr. Kim. Senator, there is an Office of Inspector General 
investigation as to whether there was a problem, and I expect 
to cooperate--
    Senator Whitehouse. Well, you are in charge of the 
Division. You ought to know if there was a problem.
    Mr. Kim. Senator, what I can give you an assurance is to 
all the things I testified, that is the model that I have set 
and the standards that I have demanded ever since I have been 
in the Division as Assistant Attorney General. I have 
endeavored to do the right thing all the time, and that if 
people are concerned about what I have done, I hope they 
contact me and talk to me about it.
    I think that I have set a tone. I hope that that has 
filtered down. I think that I have made principled decisions in 
cases, in hiring decisions, in the course of the work that I 
do. And at the end of the day, other people will have to judge 
whether that is true or not or whether I did a good job or a 
bad job. But I have done my level best to do the best job I 
can.
    Senator Whitehouse. Well, simply put, was there or is there 
a problem?
    Mr. Kim. Senator, I don't believe there is a problem, and I 
don't think there is a problem ever since I have been the head 
of the Division and been assigned with the responsibility of 
stewarding the Division and its personnel practices.
    If there was a problem--
    Senator Whitehouse. Do you have an explanation for this 
cascade of concern and op-ed pieces and news stories and really 
very challenging things being said about the integrity of this 
Division that you manage?
    Mr. Kim. Well, Senator, I find it unfortunate because, 
first and foremost, I supervise a great team of folks and they 
are doing hard work, and I do not like to have their work 
reflected in a negative way. And, obviously, if it is the fault 
of some people in the political ranks, then we bear 
accountability for that.
    There is an investigation, and I expect it to be a 
thorough, full, and fair investigation, and I think we should 
all wait--there have been a lot of allegations. Many of them 
have been anonymous. I think we should wait to see what the 
results of that investigation are before drawing judgments. But 
all I can do, Senator, is my level best to tell you that I do 
not agree with a lot of what people have been doing or have 
been said to do. And I try to turn square corners in the way 
that I manage the division.
    Senator Whitehouse. I have got you.
    Mr. Chairman, may I ask one last question?
    Senator Cardin. You may proceed.
    Senator Whitehouse. There has been some information that 
United States Attorney Griffin, before he was appointed United 
States Attorney and had a political role, was engaged in voter 
suppression tactics. There is an e-mail that uses the word 
``caging.'' I assume you are familiar with what ``caging'' is 
as a voter suppression strategy.
    Mr. Kim. I am.
    Senator Whitehouse. OK. And there were sort of inexplicable 
lists of, you know, low-income minority voters that would 
appear to have been part of a caging strategy. My question to 
you is a very simple one. We know that information about this 
came to the attention of political officials within the 
Department of Justice in the course of Mr. Griffin's screening 
to become a United States Attorney. Was anything related to his 
participation in the caging effort or the existence of the 
underlying caging effort ever forwarded to your Division for 
evaluation or investigation or review?
    Mr. Kim. Senator, I am not aware of anything that predates 
the letter that I understand that you sent to the Department of 
Justice earlier this week. Quite frankly, I don't believe I 
have ever met Tim Griffin, and I had not even heard about him 
until he became the U.S. Attorney for the Eastern District of 
Arkansas.
    Senator Whitehouse. So as far as you know, when this came 
to the attention of senior officials within the Department of 
Justice, it was never brought to the Civil Rights Division's 
attention by them?
    Mr. Kim. Senator, I am not aware of it, but I would like to 
double-check and make sure. There are a lot of things that I am 
not aware of that happen in the ordinary course of events. I 
would like to have the opportunity to double-check that and get 
back to you. But as I sit here right now, I have no 
recollection of that.
    Senator Whitehouse. Thank you.
    Mr. Chairman, thank you. I appreciate the time of Senator 
Kennedy and Senator Hatch.
    Senator Cardin. Mr. Kim, I would just follow up briefly on 
Senator Whitehouse's point. I urge you not to wait, as I said a 
little bit earlier, on the report from the Inspector General. I 
think that you need to take action now. You have already 
indicated that you are. Some of these allegations occurred when 
you were Deputy. So I think these are serious concerns, and I 
think the way that Senator Whitehouse worded it is accurate. If 
it did not occur, then we need to correct the record. If it did 
occur, then we have to make sure that it will not happen again. 
And I think these are important issues that you are now in 
charge and you need to make sure that you follow up on what you 
have been saying here so that there is the clear directive to 
everyone in the Department about how you are operating that 
agency.
    I want to give you one more example, if I might, which is 
the clearance of the Georgia law requiring voter 
identification. Now, I give you this example because here is an 
example where the preclearance was opposed by the career 
attorneys and overruled by the political appointments. And, of 
course, ultimately it was struck down by the courts. And to me 
it is kind of obvious that this is something that you ought to 
be very, very cautious about, voter ID and the impact it has on 
minority voting in the State of Georgia.
    So that is why I think you see the press reports that there 
appears to be a political motivation overriding career workers 
who have been in the vineyard a long time trying to ensure full 
participation by minority voters, and that went forward. It was 
reversed by the courts. But why did it ever happen? You are 
indicating that you do not do things unless you have had full 
consultation with your staff and your career people. Here is 
one where evidently the political appointees overruled it and 
were wrong.
    Mr. Kim. Well, Senator, I want to make sure you understand 
my previous statement, or make sure that I said it correctly.
    With respect to personnel actions, that is what I was 
referring to in the context of I want a consensus.
    Senator Cardin. I thought you meant all important actions. 
So you do not--if you have an important decision--
    Mr. Kim. Let me get to the--let me get to the second part 
of it, which is all litigation decisions, all other things that 
happen in the Division, I have a full and candid discussion 
about those legal issues with everyone involved, and certainly 
the recommendation of the section is extremely important to me, 
and we have full and fair and candid discussions, I think, 
about those.
    I do not agree on every single one of those. I would say 
that I agree on the vast majority of those.
    Now, I am happy to comment upon the Georgia matter as I 
understand it, but that was a decision that was issued before I 
became the Assistant Attorney General and in which I had no 
involvement.
    Senator Cardin. I believe that there were two such 
preclearances in 2005 and 2006, I have been told by staff.
    Mr. Kim. That is correct. The Georgia identification matter 
was first submitted and decided sometime in the summer of 2005. 
And then it was amended and precleared again, the amendments 
were precleared in, I believe, early 2006--I want to say 
February or March. The amendments that were precleared were 
ones that, for example, made the ID free, increased the number 
of places across the State where one could get the ID, and I 
think commissioned an education program to educate people 
about--
    Senator Cardin. And the career individuals at the Civil 
Rights Division recommended against that?
    Mr. Kim. Senator, we do not comment upon internal 
deliberations, but I will say that with respect to the 
preclearance letter in the first submission and the second 
submission, they were signed by the person who had authority to 
issue the preclearance, which was the career section chief.
    Senator Cardin. Well, all I can tell you, it has been 
widely reported that the career attorneys opposed it, and that 
adds to the types of articles that have appeared in the paper 
and the confidence in the Department of Justice.
    Senator Hatch.
    Senator Hatch. I would be happy to defer to Senator 
Kennedy.
    Senator Cardin. Senator Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman, and I 
apologize for missing the earlier discussion. I thank Mr. Kim 
for being here today, and he represents, I believe, one of 
really the most important agencies of Government, and that is 
the Civil Rights Division. The great challenge of our society 
is to be a fair country and knock down the walls of 
discrimination, and it has been a hard and painful road that 
this Nation has followed and is continuing to follow. And there 
is still strong evidence of prejudice and discrimination and 
bigotry that is out there.
    So the Civil Rights Division, not that it in and of itself 
is going to solve these issues or questions, but it has to be 
the kind of agency that has the kind of respect, I think, for 
people in this country that understands that we are a Nation 
unfulfilled until we are really going to deal with these issues 
and questions in a timely way and be a fair and a more just 
Nation. So it is an enormous responsibility that you have.
    I was just--and I am going to come to my question--
disappointed, as Senator Cardin pointed out. The issue was so 
clear on the Georgia case because of the close association with 
requirements of needy people, underserved people to pay for 
their ability to be able to have the identity card to be able 
to vote. If that did not ring in as a return to the poll tax, 
it is difficult for me to understand it as one who was very 
much involved in the whole debate on the issues of poll tax.
    The Texas redistricting was the same kind of issue, and the 
career officers were all supported by the Supreme Court 
decision. So the point that the Chairman makes is powerful.
    This hearing was called, and it is extraordinary because we 
have a front-page story. Perhaps others have gone through this, 
but the front-page story from the Justice Department, I am sure 
you are familiar with it.
    Mr. Kim. I have read it.
    Senator Kennedy. I apologize if others have gone into some 
detail on it, but I think all Americans had to be appalled. 
Read the article about this Civil Rights Division, the most, I 
think, important Division in the Justice Department. And it 
paints a picture of Division run amok because of partisan 
politics. And according to the article, Bradley Schlozman, 
former high-ranking official, imposed a partisan litmus test on 
the career Division attorneys, transferring the three female 
attorneys--their name are listed in the first column here--
transferring the three female attorneys with stellar records 
apparently because they were perceived as Democrats, and Mr. 
Schlozman reportedly said he was transferring them to ``make 
room for some good Americans.'' ``Good Americans.''
    In the Appellate Division, one of the Division's most high-
profile litigating section, he also went after Republicans who 
thought they were not ``loyal Bushies,'' questioned whether he 
could trust one career lawyer who voted for Senator McCain in a 
Republican primary.
    I have asked you many times about your own involuntary 
transfer of Robert Berman, the deputy chief who advised against 
the approving of the discriminatory Georgia voter ID law. But 
your explanations have come back--I do not find them very 
satisfactory. I will ask that they be made a part of the 
record, Mr. Chairman.
    Senator Cardin. Without objection.
    Senator Kennedy. The issues we have been discussing today 
are the equivalent of a five-alarm fire, and I want to know--I 
know you have perhaps responded, but I want to hear it--about 
what you are going to do to stop it. It is not acceptable to 
deny the obvious problem. It is not acceptable to say the 
problem began on someone else's watch. You head the Division. 
You show the American people that you will be part of the 
solution and not the problem. Confidence in the Division will 
require that you are going to do things differently.
    Now, what are you going to do?
    Mr. Kim. Well, Senator, I do hope I have done things 
differently, and I hope I have done things the way I think they 
should be done, which in my view is the right way, from day one 
after this Committee confirmed me and after I was sworn in to 
take office in November of 2005.
    I have always valued the input of career section management 
in the personnel decisions that I have made. And I will say 
that as a career attorney for many years before I became a 
political appointee, I tried hard to respect them, to make sure 
that the personnel practices that I employed were consistent 
with the ones that I wish were employed when I was a career 
attorney and ones that I felt--
    Senator Kennedy. Well, is this going on?
    Mr. Kim. Senator, I--
    Senator Kennedy. I mean, when you read the paper today, did 
you say, ``It is all news to me'' ?
    Mr. Kim. Senator, I was shocked by some of the allegations 
in the paper.
    Senator Kennedy. What is the first thing you did? This is 
on your watch. What is the first thing? You read that. It is 
your watch, your Division. You are coming up here this 
afternoon. What is the first thing you do?
    Mr. Kim. Senator, to be fair, I learned about the 
allegations or some of the allegations last night when it was 
communicated by the Office of Public Affairs. So it was not the 
first time--
    Senator Kennedy. Fine. OK. So then what do you do?
    Mr. Kim. What I did was prepare to come to the hearing 
today--
    Senator Kennedy. Well, how do you--I mean, who did you talk 
to over there? How did you find out whether these things are 
true or were not true?
    Mr. Kim. Well, Senator--
    Senator Kennedy. What did you--what was your own sense of 
outrage about this? This is the Department to preserve and 
protect the civil rights of American citizens. What is your 
reaction? You saw this or heard about it last night. What are 
the things--rather than just prepare for the hearing, what did 
you do?
    Mr. Kim. Senator, some of the things have been done 
already, to be fair. With respect, not referring to individual 
people in a public forum, some of the management decisions of a 
personnel matter that Mr. Schlozman is alleged to have made, I 
have made differently. Some people who were removed from the 
section are back in the section based upon decisions that I 
have made starting from more than a year ago.
    Senator Kennedy. Well, when you read that Mr. Schlozman--
and I know that time is moving on, Mr. Chairman. Schlozman 
reportedly said he was transferring them to ``make room for 
some good Americans.'' What did that say to you?
    Mr. Kim. Senator, at a very minimum, those were intemperate 
and inopportune remarks. I mean, I think it is fair to say that 
they caused me some concern, and I think it is also fair to say 
that there is an OIG and an OPR investigation into that hiring 
practice and those hiring practices.
    Senator Kennedy. Well, you know, the list goes on--``loyal 
Bushies.'' I want to get into one other area. I understand you 
have promised personally to investigate this and report back in 
30 days. I hope the report provides the specific information on 
how you are going to ensure that the partisan game playing, 
both in personnel and case decisions, ends. I hope that will be 
included.
    Mr. Kim. Senator, I don't mean to quarrel with you. I am 
not sure that I have made an assurance to investigate, and I do 
not know that it would be appropriate for me to do so given 
that OIG and OPR are currently investigating some of these 
subject matters.
    What I have pledged to do is to communicate clearly, at the 
request of the Chairman, my standards, which I hope are clear, 
to the leadership of the Civil Rights Division as to what I am 
looking for and what I expect when personnel decisions are 
made.
    Senator Kennedy. Well, I would think, as the head of a 
Division--this happened on your watch on this thing--that you 
would want to get to the bottom of it yourself, just in terms 
of your own basic and fundamental integrity as being the head 
of the Division--
    Mr. Kim. Senator, if I might--
    Senator Kennedy.--and to be able to deal with these kinds 
of issues.
    Mr. Kim. Senator, if I may respond.
    Senator Kennedy. Yes.
    Mr. Kim. I believe that most of the allegations that were 
reported in the paper today did not happen when I was Assistant 
Attorney General.
    Senator Kennedy. I am talking about now. In any event, how 
these are dealing and how you are assuring that they are not 
going on now.
    Mr. Kim. Senator, I have tried my level best to--
    Senator Kennedy. Let me move on to another area, and then I 
am--on the record of the Division with regard to voting rights, 
there has been only one case alleging racial discrimination in 
voting on behalf of African-Americans in this administration. 
One case. One case. One case.
    You filed the same number of cases alleging discrimination 
against whites. Why is it? What can you tell us, this 
Committee--
    Mr. Kim. Senator, I--
    Senator Kennedy.--if there is one case in terms of African-
American voting, in terms of this country? Is that--what are we 
supposed to conclude from that?
    Mr. Kim. Senator, I don't believe that is an accurate 
factual statement.
    Senator Kennedy. Well, what is the number then?
    Mr. Kim. I have approved one case involving vote dilution 
on behalf of African-American--
    Senator Kennedy. What do you think? Do you think it is more 
than 15 or less than 5?
    Mr. Kim. With respect to race--
    Senator Kennedy. The number of cases, voting rights cases.
    Mr. Kim. Race cases in general.
    Senator Kennedy. Voting rights cases with regards to 
African-Americans.
    Mr. Kim. Under the Voting Rights Act?
    Senator Kennedy. Yes.
    Mr. Kim. I believe it is between 5 and 15.
    Senator Kennedy. You believe it is between 5 and 15. So if 
it is between 5 and 15--that is what your testimony is?
    Mr. Kim. That is what I believe, Senator. I mean, I could 
provide an accurate--
    Senator Kennedy. Yes, would you provide the--
    Mr. Kim. Of course. Of course.
    Senator Kennedy. Because I think you will find out that it 
is considerably less. I think you will find out that with 
regards to the record of the Civil Rights Division on these 
kinds of cases, there has been a dramatic fall-off in very 
recent times on this kind of thing, and I would like to know 
why. And if you can be able to help us understand if there has 
been that drop-off, what the reasons are for it, whether it is 
because we have been making progress or because of the fact 
that the Department has not chosen to go ahead, I would 
appreciate it.
    Mr. Kim. Senator, my commitment to enforcing all the laws 
neutrally to the best of my ability is one that I have made 
before the Committee and one that I reiterate today. I have 
tried very hard to make sure that we are enforcing all the 
statutes across our jurisdiction with respect to all Americans. 
And the one lawsuit that you may be referring to, a vote 
dilution lawsuit under Section 2 of the Voting Rights Act, was 
authorized by me against the city of Euclid shortly after I 
became Assistant Attorney General. I have also authorized 
Section 2 lawsuits on behalf of Hispanic Americans. I have 
authorized voting rights lawsuits on behalf of many different 
minority groups, including for the first time ever Koreans. And 
my job, I think, is to try to fairly enforce the laws on behalf 
of everyone, and I can categorically assure you, Senator, that 
I have no interest in not enforcing laws as opposed to any 
group of people. And to the extent that I find violations--and 
we have been working hard to find violations, and we have been 
working hard to solicit allegations--that is something that I 
think is part and parcel of our mission.
    Senator Kennedy. Finally, just on the time that you were--
as I understand, you were in the Division the whole time that 
this allegedly evidently was going on. You were the Deputy 
Assistant AG for 3 years before becoming the AAG, and you were 
totally unaware that this was going on?
    Mr. Kim. Senator, the type of specific allegations that are 
being raised are newfound, in my mind. I was a Deputy Assistant 
Attorney General along with two other Deputy Assistant Attorney 
Generals, a Principal Deputy Assistant Attorney General, and 
the Assistant Attorney General. In many respects, the DAGs 
moved on parallel tracks. I supervised my sections, and the 
other Deputies supervised their sections.
    The type of specific allegations that are being alleged are 
ones that I was not aware of when I was Deputy Attorney 
General. To be fair, these are allegations--I know that Mr. 
Schlozman has come before this Committee and denied doing 
anything in violation of law, and there is an investigation 
that is pending that I expect to be thorough, and I expect to 
cooperate fully with that investigation, and I think all of us 
would benefit from waiting and seeing how those allegations 
shake out and trying to get to the bottom of this.
    Senator Kennedy. Thank you very much, Mr. Chairman.
    Senator Cardin. Thank you, Senator.
    Senator Hatch.
    Senator Hatch. I think you have more than adequately 
explained that you are doing the job down there, albeit that 
there may have been some cases to protect whites from voter 
discrimination. I mean, I guess they are entitled to 
protection, too, although I am not sure, listening to some of 
my colleagues. But I hope that nobody, whether it is disabled 
people, veterans, whoever it may be, religious people, will 
have their rights trampled on.
    I think you have more than adequately explained that you 
are making sure or doing your dead level best to make sure that 
all rights are protected and that you abide by the statutes 
even though sometimes we up here disagree with our own 
statutes. One side or the other disagrees from time to time. 
Your job is not to just do what you might want to do. Your job 
is to enforce those statutes, and I think you have more than 
adequately explained that here today, and personally, I am very 
proud of you. You served this Committee well when you were up 
here, and I happen to know that perhaps better than anybody 
else on the Committee. But a lot of others on this Committee 
have admitted that, too. And I just have to say that it is a 
tough job you have, but keep doing it to the best of your 
ability. And we expect discrimination to be fought against--it 
is just that simple, no matter who it affects--in accordance 
with the statutes that we have enacted up here. And you have 
made that commitment, and I personally appreciate it and 
personally back you.
    So thank you for being here, and that is all I need to say.
    Mr. Kim. Thank you, Senator.
    Senator Cardin. Mr. Kim, I would ask that you make 
available to the Committee the communication that we have 
talked about to staff as to the practices within your Civil 
Rights Division.
    And, second, there seems to be some disagreement on the 
turnover, experience of staff, demographics, et cetera, so if 
you could make available to us the length of service within the 
Civil Rights Division of your employees and their background 
within civil rights, I think that would be helpful so that we 
can just get a level playing field. The information we had 
showed that your staff has less experience and more turnover 
than historical numbers, and I think it would be helpful to get 
the facts on that from you so that we can be able to look at 
the records rather than each of us subjectively claiming what 
the circumstances are.
    Mr. Kim. Mr. Chairman, with respect to the first request, I 
have no problem committed to do that.
    With respect to the second request, consistent with 
personnel privacy protections, I will endeavor to make sure 
that you get the information you have requested.
    Senator Cardin. Thank you. Also, the other point that I 
think I mentioned earlier--and Senator Kennedy mentioned it--
you are the agency that we look upon for opportunity for all 
Americans. There have been press accounts as to the lack of 
diversity within the Civil Rights Division, and if you could--I 
am not suggesting you do this by individual, but if you could 
give us the diversity numbers within the Department, I think 
that would be very helpful for us, too.
    Mr. Kim. I will be happy to provide that, Senator.
    Senator Cardin. Thank you.
    Is there anything further for Mr. Kim? If not, again, I 
thank you very much for your attendance here today.
    Mr. Kim. Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Kim appears as a submission 
for the record.]
    Senator Cardin. Our next panel will consist of Wade 
Henderson, who is the President and CEO of the Leadership 
Conference on Civil Rights; Brian Landsberg, who is a professor 
at McGeorge School of Law, University of the Pacific in 
Sacramento, California; Helen Norton, Visiting Assistant 
Professor, School of Law, University of Maryland, Baltimore, 
Maryland--my alma mater. It is nice to have somebody here from 
the University of Maryland School of Law. And Roger Clegg, 
President and General Counsel, Center for Equal Opportunity, 
Falls Church, Virginia; and Robert Driscoll, Partner, Alston & 
Bird, Washington, D.C.
    I should have asked you before you sat down. If you would 
please rise for the--as a tradition of our chairman, we swear 
in our witnesses. Do you affirm that the testimony you are 
about to give before the Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Henderson. I do.
    Mr. Landsberg. I do.
    Ms. Norton. I do.
    Mr. Clegg. I do.
    Mr. Driscoll. I do.
    Senator Cardin. Thank you. Please be seated and, again, 
welcome to the Committee. We very much appreciate your presence 
here. Your full statements, as I have indicated earlier, will 
be made part of the record of our Committee. You may proceed as 
you see fit. We will start with Mr. Henderson.

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

    Mr. Henderson. Thank you, Mr. Chairman, and good afternoon. 
My name is Wade Henderson. I am the President of the Leadership 
Conference on Civil Rights. The Leadership Conference is the 
Nation's leading civil and human rights coalition, with 200 
national organizations working to build an America as good as 
its ideals. It is a privilege to represent the civil rights 
community in addressing the Committee today.
    Now, today's article in the Washington Post, which has been 
alluded to by several Senators today, about politically 
motivated hiring and firing of career civil servants in the 
Civil Rights Division at the Department of Justice is just the 
latest in a string of news reports that have revealed that the 
Division has abandoned its long tradition of fair and vigorous 
enforcement of our Nation's civil rights laws. Partisanship, it 
seems, has been driving both substantive and personnel 
decisionmaking. In its 50-year history, never before has the 
Civil Rights Division faced such a challenge. In those 50 
years, through both Republican and Democratic administrations, 
the integrity of the Division has never been questioned to this 
degree. Not even close. Members of the committee, we must turn 
this ship. We expect a Civil Rights Division that enforces the 
Nation's civil rights laws, without fear or favor. We must 
demand accountability and a return to vigorous enforcement.
    Now, over the last 6 years, we have seen career Civil 
Rights Division employees, section chiefs, deputy chiefs, and 
line lawyers forced out of jobs to make room for what one 
political appointee within the Division described as ``good 
Americans.'' You heard Senator Kennedy allude to it in his 
remarks today. We have seen retaliation against career civil 
servants for disagreeing with their political bosses. We have 
seen whole categories of cases not being brought and the bar 
made unreachable high for bringing suits in other cases. We 
have seen some outright overruling of career prosecutors for 
political reasons and also many cases being ``slow walked,'' to 
death.
    In the Housing Section alone, the total number of cases 
files has fallen 42 percent since 2001, while the number of 
cases involving allegations of race discrimination has gone 
down by 60 percent. The Voting Section did not file any cases 
on behalf of African-American voters during a 5-year period 
between 2001 and 2006. And no cases have been brought on behalf 
of Native American voters for the entire administration.
    Furthermore, the Department has gone out of its way to take 
legal positions to roll back civil rights. For example, last 
year the Department filed amicus curiae briefs in support of 
the dismantling of voluntary school integration programs in 
Seattle, Washington, and Louisville, Kentucky. These cases, 
which challenge one of the few ways left for local school 
districts to battle de facto segregation in public schools, are 
currently pending before the U.S. Supreme Court.
    The Division's record on every score has undermined 
effective enforcement of our Nation's civil rights laws, but it 
is the personnel changes to career staff that are in many ways 
most disturbing. For it is the staff that builds trust with 
communities, develops the cases, and negotiates effective 
remedies. Career staff has always been the soul of the 
Division, and it is now under attack.
    The blueprint for this attack appeared in an article in 
National Review in 2002. The article--entitled, and I quote, 
``Fort Liberalism: Can Justice's Civil Rights Division be 
Bushified? ''--argued that previous Republican administrations 
were not successful in stopping the Civil Rights Division from 
engaging in aggressive civil rights enforcement because of the 
``entrenched'' career staff. The article proposed, again, and I 
quote, that ``the administration should permanently replace 
those [section chiefs] it believes it can't trust,'' and 
further, that ``Republican political appointees should seize 
control of the hiring process,'' rather than leave it to career 
civil servants. This is a radical change in policy. It seems 
that those running the Division got the message. To date, four 
career section chiefs and two deputy chiefs have been forced 
out of their jobs.
    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 Civil Rights Act and the creation of the Civil Rights 
Division were the first steps in responding to a 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. In the 1960s and 1970's, it was the Civil Rights 
Division that played a significant role in desegregating 
schools in the old South. In the 1970s and 1980s, it was the 
Civil Rights Division that required police and fire departments 
across the country to open their ranks to racial and ethnic 
minorities and women. It was the Civil Rights Division that 
forced counties to give up election systems that locked out 
minority voters. And it was the Civil Rights Division that 
prosecuted hate crimes when no local authority had the will.
    Members of this Committee, we must continue to work to 
understand the extent of the damage that has been done to the 
Civil Rights Division and hopefully develop a road map for our 
way back to vigorous enforcement, integrity, and justice--and 
to a Civil Rights Division the Nation can again be proud of.
    Thank you very much.
    [The prepared statement of Mr. Henderson appears as a 
submission for the record.]
    Senator Cardin. Thank you, Mr. Henderson.
    Professor Landsberg.

STATEMENT OF BRIAN K. LANDSBERG, PROFESSOR, MCGEORGE SCHOOL OF 
     LAW, UNIVERSITY OF THE PACIFIC, SACRAMENTO, CALIFORNIA

    Mr. Landsberg. Thank you, Chairman Cardin and Senator 
Hatch. Thank you for inviting me to testify. My understanding 
is that I am to provide a historical perspective on the Civil 
Rights Division of the Department of Justice, and I have 
provided the Committee with a statement.
    I worked at the Civil Rights Division for over 20 years 
beginning in 1964 under six administrations, and my scholarship 
includes two books about the work of the Division. I am proud 
of the contribution that the Division has made to equal rights 
under the law that Mr. Henderson just summarized for us.
    Any historical perspective must mention the important role 
of the Department of Justice in enforcing equal rights during 
Reconstruction as well as the country's abandonment of 
Reconstruction resulting in reinstatement of a racial caste 
system in which law and customs supported white subordination 
of blacks. Some supporters of equality under the law fear that 
the second Reconstruction--the civil rights advances since 
1954--will meet the same fate as the first.
    The Civil Rights Division began in 1957 with a narrow 
mandate, which has grown substantially over the years. 
Congress, however, has consistently seen the Division as an 
enforcer of the public interest in eradicating discrimination 
based on race and other invidious classifications. 
Unfortunately, the widespread laws and customs enforcing race 
discrimination from the late 1870s to the 1960s have left a 
continuing legacy, and combating continuing race discrimination 
stands at the core of the Division's responsibilities today as 
it did in 1957.
    The Division developed proactive enforcement techniques 
starting late in the Eisenhower administration and refined 
under Presidents Kennedy and Johnson. Its lawyers went out into 
the field to uncover unlawful discrimination. Their 
recommendations received rigorous review by and discussion with 
the Division leadership. The Division traditionally gave high 
priority to combating discrimination against African-Americans 
because the racial caste system was viewed as destructive of 
American ideals and as undermining our society and economy.
    The Division, like most Federal agencies, is composed of 
career personnel and political appointees. Its success depends 
upon the ability of the two groups to work together.
    When the Presidency changes hands, there is inevitably a 
period of adjustment. Ironically, the incoming political 
appointees view the career attorneys as holdovers from the 
prior administration, even though long-term attorneys may have 
worked through several administrations under Presidents from 
both parties. Most career attorneys, however, have normally 
been hired through the Attorney General's Honors Program, 
instituted during the Eisenhower administration to ensure that 
lawyers were hired based on merit rather than on ideology, 
political affiliation, or other throwbacks to the spoils 
system. They are dedicated to law enforcement. They understand 
that priorities may change from one administration to the next. 
They have been trained to turn square corners, as Mr. Kim 
mentioned earlier, in their work to honestly evaluate the law 
and the facts. Both civil servants and political appointees 
need to have the courage to say no to political pressures. The 
Division works best when it operates in an atmosphere of mutual 
respect between career staff and political appointees. Proper 
interaction between them ensures that neither group will carry 
out an improper agenda. This will enhance the Division's 
credibility with the courts and the public.
    In closing, let me emphasize the importance of careful 
prioritizing of the Division's responsibilities. While the many 
new responsibilities that Congress has assigned to the Division 
over the years deserve attention, the core responsibilities 
Congress has assigned relate to discrimination based on race, 
national origin, sex, and disability in voting, schools, 
housing, public accommodations and facilities, federally 
assisted programs, and employment. In my view, racial 
discrimination is a core disease in this country, and the 
future of civil rights enforcement requires that combating race 
discrimination remain as a central priority.
    Thank you.
    [The prepared statement of Mr. Landsberg appears as a 
submission for the record.]
    Senator Cardin. Thank you very much, Professor Landsberg.
    Professor Norton.

  STATEMENT OF HELEN L. NORTON, VISITING ASSISTANT PROFESSOR, 
   UNIVERSITY OF MARYLAND SCHOOL OF LAW, BALTIMORE, MARYLAND

    Ms. Norton. Good afternoon, Mr. Chairman, Senator Hatch. My 
name is Helen Norton, and I am a visiting professor at the 
University of Maryland School of Law. As a political appointee 
in the Civil Rights Division from 1998 until January of 2001, 
my duties included service at the Deputy Assistant Attorney 
General charged with supervising the Employment Litigation 
Section. So my testimony today will focus on the Civil Rights 
Division's Title VII enforcement efforts.
    As you know, Congress empowered the Department of Justice 
with the power to enforce Title VII with respect to State and 
local government employers, and this authority is critically 
important, as State and local governments employ more than 18 
million workers in a wide variety of jobs, from police 
officers, to teachers, firefighters, health care providers, and 
more. Some of these jobs offer entry-level gateways to 
employment and economic security, while others stand at the top 
levels of State and local leadership.
    But despite the importance of this mission, the Division's 
Title VII enforcement efforts have plunged since January 20, 
2001.
    I would like to make just two points today.
    First, the Division's measurable Title VII activity has 
declined substantially and across the board. We have seen a 
significant drop in activity of all types: fewer successful 
resolutions, fewer cases filed alleging systemic 
discrimination, fewer cases filed alleging individual 
discrimination.
    For example, one especially valuable enforcement measure 
examines the number of successful resolutions secured through 
judgments, consent decrees, and out-of-court settlements. These 
resolutions further Title VII's objectives by providing 
compensation to discrimination victims and securing changes to 
employers' discriminatory practices. But since January 20, 
2001, the Division has resolved only 46 Title VII cases, 
including only eight pattern and practice cases. In contrast, 
the Division during the Clinton administration resolved 
approximately 85 Title VII complaints, including more than 20 
pattern and practice cases.
    Another helpful enforcement measure tracks the number of 
complaints filed under Title VII. So long as illegal job 
discrimination remains a problem, we should expect to see 
continued case filings. Here, too, the Division's efforts fall 
short. The Division has filed a total of only 39 Title VII 
complaints since January 20, 2001. At this pace, the Division 
can be expected to file approximately 49 cases over two full 
terms, and this is just over half of the nearly 90 Title VII 
complaints filed during the Clinton years.
    Second, the Division's record reveals a retreat from its 
historic leadership in the fight against race and national 
origin discrimination as its Title VII docket, which is now 
significantly reduced, devotes an even smaller proportion of 
its resources to job discrimination experienced by African-
Americans and Latinos.
    For example, the Division under this administration has 
brought significantly fewer pattern and practice cases, 
challenging systemic discrimination that has the capacity to 
affect large numbers of workers. But of this already shrinking 
docket, the number of cases challenging systemic discrimination 
experienced by African-Americans, Latinos, and women has 
plummeted to less than a third of what it was previously.
    Turning to its Title VII docket on behalf of individual 
victims, the Division has filed only 28 individual complaints 
of discrimination since January 20, 2001. At this pace, the 
Division will file approximately 35 such cases over two full 
terms. Again, this is just half of the nearly 70 individual 
claims filed during the previous administration.
    And while the current administration has brought 
significantly fewer individual claims of all types, this is 
especially true of claims on behalf of African-Americans, 
religious minorities, and Latinos. And, in fact, during this 
administration, the Division has yet to file an individual 
Title VII claim on behalf of a Latino.
    Now, this downturn in Title VII enforcement activity is all 
the more troubling given the greater resources now available to 
the Employment Litigation Section. On average, 35 to 36 
attorneys have been assigned to that section during the Bush 
Administration, compared to only 30 to 31 during the previous 
administration.
    One last note, Senator Cardin. You expressed concern about 
the Department's position in the Ledbetter and Burlington 
Northern cases, and I share that concern, and here is why. In 
both of those cases, the Department did file amicus briefs in 
the Supreme Court, but in both of those cases the Department 
took pains to repudiate the EEOC's longstanding interpretations 
of Title VII that actually interpreted the statute in a way 
that furthered its objectives of providing compensation to 
discrimination victims and deterring future discrimination. In 
both of those briefs, the Department of Justice argued that the 
EEOC's position was not entitled to deference and instead 
argued for a considerably more cramped understanding of Title 
VII. In Burlington Northern, as you pointed out, eight Justices 
of the Supreme Court rejected the Department's position. In 
Ledbetter, by a 5-4 decision, the majority shared the 
Department's position over a spirited dissent by Justice 
Ginsburg, and Members of Congress have already introduced 
legislation to try to change the effects of that ruling. But 
the troubling thing to me is that in both cases, despite the 
fact that the agency got charged by Congress with lead 
enforcement over Title VII, the EEOC had a longstanding 
position that it had argued successfully in a range of lower 
courts that that position was abandoned by this Department.
    Taken together, these developments represented a disturbing 
retreat from the Department's historic commitment to vigorous 
enforcement of Title VII. I appreciate your attention to these 
issues and the opportunity to testify today, and I look forward 
to any questions that you may have.
    [The prepared statement of Ms. Norton appears as a 
submission for the record.]
    Senator Cardin. Thank you, Professor Norton.
    Mr. Clegg.

STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER 
         FOR EQUAL OPPORTUNITY, FALLS CHURCH, VIRGINIA

    Mr. Clegg. I have a real sense of deja-vu in listening to 
the testimony today. I was also a political deputy in the Civil 
Rights Division for 4 years, from 1987 to 1991, and what we are 
hearing are basically the same three kinds of criticism of the 
Division I used to hear. Some members of the Committee say the 
Division is not bringing enough of the kinds of cases they 
would like. Some members are saying that the Division is 
bringing too many of the cases that they don't like. And some 
members are saying that in the hiring process, and in other 
ways that the political appointees deal with career lawyers, 
the Department has become politicized.
    It is entirely appropriate, since Congress appropriates 
money for the Division and wants it to enforce the laws that it 
has passed, for it to keep an eye on what kind of a job the 
Division is doing, so long as the oversight process does not 
become so onerous that it actually prevents the Division from 
doing its job.
    If the members don't agree with the Division in the way it 
is interpreting the law or don't like the enforcement 
priorities that it has set, they can certainly argue with the 
Division leadership about it. But, of course, ultimately the 
call is the executive branch's.
    There will be legitimate differences of opinion among 
members of the Committee, between members and the 
administration, and between political and career lawyers in the 
Division about how to interpret the civil rights laws. Judges 
don't interpret laws the same way, and neither do Government 
lawyers. And, of course, outside groups like mine will 
sometimes be critical of the Division. I criticized the 
Division the Clinton administration, and I have criticized it 
during the Bush administration. Many of you think the Division 
has been too conservative. I think it has not been conservative 
enough.
    There will also be differences of opinion, again, among 
members of the Committee, and between members of the Committee 
and the administration, and between the political appointees 
and career lawyers in the Division about how to set law 
enforcement priorities. The lack of enthusiasm that the Clinton 
administration had for challenging affirmative action 
discrimination had to do, I suspect, not only with a difference 
of opinion in how it read the law, but also with a belief--
which I believe is misguided, but was their sincere belief--
that fighting such discrimination is just not as important as 
other items on its agenda. The Bush administration's greater 
care in bringing disparate impact cases may reflect, again, not 
just a difference in how it reads the statutes, but also in a 
belief that, say, human trafficking is a more pressing problem 
than, for instance, a fire department's alleged overemphasis on 
one kind of physical conditioning or another.
    In addition, even without differences in law enforcement 
philosophy, the Division's priorities will change over time. 
Congress passes new laws. Lawbreaking will become more common 
in some areas and less common in others.
    As Mr. Kim explained, for instance, this administration has 
spent much time enforcing the Help America Vote Act, which was 
just passed in 2002. New statutes often require a great deal of 
enforcement attention, to educate the people that are going to 
be affected by their requirements. There are a variety of other 
statutes that you all have only recently passed.
    Now, some of you all have criticized the Division for 
concentrating proportionately fewer resources than in years 
past on bringing cases that allege discrimination against 
African-Americans. But even accepting arguendo that there has 
been such a decline--and I think Mr. Kim would suggest that 
there has not--you have to bear in mind that the Division has a 
lot more laws now to enforce than it did 40 years ago; and, I 
will say, that discrimination against African-Americans is less 
pervasive now in 2007 than it was in 1967.
    Just to give one example, we would hardly expect a southern 
city to discriminate to the same degree in its municipal hiring 
today--when African-Americans, because of the success of the 
Voting Rights Act, have more political power and may even 
constitute a majority of the city council and other municipal 
offices, including mayor--as when the city government was lily 
white and black people were not allowed to vote.
    Now, I am not saying that anti black discrimination has 
vanished; it hasn't, and there will always be bigots, of all 
colors, in a free society. But anybody who thinks that anti 
black discrimination is the same problem in 2007 that it was in 
1967 is delusional.
    I think I am going to stop with that. Again, I think it is 
important to bear in mind that there are legitimate differences 
in opinion between political appointees (who, in a Republican 
administration, tend to be conservative) and career lawyers in 
the Civil Rights Division (who naturally tend to be left of 
center). And there is nothing sinister or scandalous about 
those differences in enforcement philosophy.
    Thank you.
    [The prepared statement of Mr. Clegg appears as a 
submission for the record.]
    Senator Cardin. Thank you, Mr. Clegg.
    Mr. Driscoll.

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

    Mr. Driscoll. Thank you, Mr. Chairman and Senator Hatch, 
for inviting me to testify. My name is Bob Driscoll, and I, 
too, was a political deputy in the Civil Rights Division from 
2001 to 2003, when John Ashcroft was the Attorney General 
during that time period.
    When I was preparing my testimony, I had to guess as to 
what questions were going to come up for Mr. Kim, and I guessed 
correctly, if you read my written submission, so I wanted to 
address three issues that I think are on the mind of the 
Committee. The first is the relationship between the career and 
the political appointees.
    The stories I have read and even heard today from the panel 
and the Committee seem to focus on allegations that Civil 
Rights Division employees were either overruled or interfered 
with by political appointees when the Division took a 
particular position in litigation or with the Section 5 
preclearance under the Voting Rights Act. While I am familiar 
with my own experience in the Division--and I wasn't at the 
Division for some of the events that have been questioned--I do 
think these stories and questions misperceive this relationship 
and how it should properly function.
    As with every Division of Justice, the career staff carries 
out the day-to-day operations of the Division, and they are 
certainly the most experienced people in the Division in 
certain areas, and they make recommendations to political 
appointees to open cases. And there is no question that the 
career staff is where the institutional knowledge typically 
resides in the Division. However, it is the Assistant Attorney 
General for Civil Rights and the leadership of the Department 
that are ultimately responsible for the actions of the 
Division, and various AAGs who have appeared before this 
Committee over the years have been questioned extremely sharply 
by members of the Committee about the actions they have taken. 
And so it is a tremendous responsibility for those appointees 
to sit before the Committee and explain the Division's 
position.
    Because of that responsibility, the AAG and his or her 
political staff must independently review all the 
recommendations that come before them. And as anyone knows who 
has done an independent review, sometimes there will be a 
disagreement, and there is nothing inherently wrong with this. 
I agree with Roger completely.
    Indeed, I think the Committee wouldn't react well if 
Assistant Attorney General Kim came before you and testified 
that every decision he made that was controversial, he had 
simply rubber-stamped the recommendation given to him by the 
career staff, who is very experienced, and that he had nothing 
to say about it and that, therefore, he wasn't responsible. And 
I think the Committee would be appropriately angry with 
Assistant Attorney General Kim if he took that position.
    Similarly, when the Division makes a mistake--and I will 
recall now the case in Torrance, California, that received a 
lot of attention from this Committee in the past administration 
when the Division was sanctioned almost $2 million for 
overreaching in an employment discrimination case against State 
jurisdiction--it would be no excuse for the AAG to say, ``I was 
merely following the recommendations of the career staff.'' The 
AAG has to convince him- or herself that the facts and the law 
are on their side. So that, therefore, it seems to me the 
important question that the Committee should be focusing on in 
a given area is not whether any particular decision was made 
with the political and career staff in agreement, but whether 
that decision was in the end correct. And from what I have 
seen, the courts have largely agreed with the positions taken 
by AAG Kim and his predecessors. And members of the Committee 
might disagree with those decision. They might agree with the 
court decisions. But there is little indication that the 
Division has been sailing beyond the markers in terms of legal 
theories it has been pursuing or positions that it has been 
taking in court. And that to me is a much more important 
question than whether or not there has been disagreements 
between the political staff and the career staff.
    I would also like to address briefly setting of priorities 
and, in particular, the criticism I have read in the New York 
Times of the Division's emphasis on human-trafficking and 
religious discrimination cases as a shift away from traditional 
civil rights enforcement. I think these criticisms are 
generally unfounded and take an unnecessarily cramped view of 
what the Civil Rights Division should be doing.
    As an initial matter, as Senator Hatch noted, new statutes 
get passed all the time, and these statutes provided new 
weapons to combat both religious discrimination and human 
trafficking. So it is natural that enforcement in those areas 
went up when the Bush administration came into power. More 
importantly, both President Bush and General Ashcroft, under 
whom I worked, made clear that combating religious 
discrimination was a priorities, and that is perfectly 
appropriate for them to do. Some may disagree with it, but it 
was perfectly appropriate for the political leadership to 
direct the Division to emphasize those cases.
    So when I served in the Division, we made it a priority. We 
created the position of Special Counsel for Religious 
Discrimination. Eric Treene was hired. He has done a great job 
in that role. And the success rate of these cases is very high 
because, unfortunately, there is no shortage of governmental 
entities out there that don't understand the proper role 
religion can play in the public square. And I think most 
Americans are pleased to see this enforcement, and there is 
nothing wrong with the emphasis on these cases.
    As to the question of whether this de-emphasizes 
traditional civil rights areas, I think this is unlikely for 
several reasons.
    First, those cases are not prosecuted out of the Voting or 
Employment Section generally, and so if the Committee has 
questions about that, they can ask them, but it wouldn't be a 
diversion of resources. And, second, I think the notion that 
traditional discrimination suffers if non-traditional, to call 
it that, discrimination is enforced would cause us to cut back 
on disability cases, language-minority cases, police misconduct 
cases, clinic access cases, prison cases, juvenile facility 
cases, gender discrimination cases, and religious 
discrimination cases--I do not think anyone wants that. So I 
would like to just counter this notion that by enforcing 
religious discrimination cases vigorously there is necessarily 
a cutback in other areas.
    Thank you very much.
    [The prepared statement of Mr. Driscoll appears as a 
submission for the record.]
    Senator Cardin. Mr. Driscoll, thank you for your testimony, 
and I thank all of our witnesses.
    Mr. Henderson, let me start, if I might, with your 
observations. You have an incredible record over an extended 
period of time working in the civil rights community and 
leadership in that area. You have had a chance to observe what 
is called ``changing priorities after national elections,'' 
particularly when it is an administration of a different party. 
So we have seen over the 50-year history of the Department of 
Justice Civil Rights Division many changes of administrations 
and priorities within an administration.
    I want to get your assessment, because we have heard a lot 
of accusations that have been made, about the effectiveness of 
this administration's Civil Rights Division as far as pursuing 
aggressively the rights, the important rights of minorities. I 
just want to get your assessment to whether this is just 
changes of priorities in different types of cases or whether we 
are looking at a different commitment to enforcing civil 
rights.
    Mr. Henderson. Thank you, Mr. Chairman. I think it is an 
important question, and let me respond this way: Discrimination 
in violation of the law is abhorrent in any form. It is 
inconsistent with our notions of a fair and just society. It is 
inconsistent with what I think we all accept to be the meaning 
of ``equal opportunity'' in the 21st century.
    The issue is not whether the Civil Rights Division is 
enforcing statutes that protect religious liberty or seek to 
protect the rights of institutionalized persons or address the 
problems of victims of sexual trafficking.
    Certainly each of these areas of the law or problems of 
decision require attention, and would not criticize the 
Department or Division for spending resources to address some 
of those issues. The question, however, is whether the Division 
is backing away from or perhaps even abandoning its primary 
responsibility to address problems that have proven to be among 
the most difficult and intractable in resolving in our society. 
Certainly issues of race, problems of national origin 
discrimination, certainly have been among the most difficult.
    What we have seen within the Department is radically 
different today than we have seen over the past 50 years. Now, 
admittedly, we have had differences with administrations, both 
Democratic and Republican, in the handling of selected 
individual cases with which we might disagree. But as a general 
matter, there has been no criticism wholesale of either 
Democratic or Republican administrations of the Department of 
Justice's Civil Rights Division in the life span of this 
Division for the past 50 years, with the recent exception of 
some of the actions that have been taken and that are the 
subject of discussion today.
    The example that I would use, which I think graphically 
demonstrates the difference in character between the kinds of 
experiences we have seen under this administration currently 
with what we have seen in the past, is the case that Senator 
Kennedy and others highlighted during the previous round. Let's 
take the Georgia voter ID statute.
    Here we have a situation where career line attorneys, in 
evaluating the impact of a proposed statute requiring voter ID 
of prospective voters, challenged that statute under the 
assumption that it would harm persons protected under the 
Constitution who should be given the right to vote.
    That career judgment was overturned, in large measure 
driven by one individual--Hans von Spakovsky, who happened to 
be counsel to the Assistant AG for Civil Rights--and perhaps 
others who are political appointees within the Division urging 
the Department to override the voices of its career attorneys 
and to side with the State in adopting a statute which many 
believed would be harmful. Fortunately, the courts challenged 
that statute and sided with those who criticized the 
implementation of the statute in the final analysis.
    That example, it seems to me, is a graphic illustration of 
the nature of the politicization of the Department and the kind 
of thinking that we are challenging today. So the question is 
not whether the Division chooses to enforce statutes that fall 
within its purview or under its jurisdiction. The question is 
whether the administration and the Division is using that 
approach, that is to say, its desire to enforce statutes more 
broadly, as a subterfuge for shifting policy away from the 
enforcement of statutes that affect issues of race, issues of 
national origin discrimination, among the most difficult and 
intractable problems in modern society.
    Senator Cardin. Well, I thank you for that answer. I think 
the Georgia case is very illustrative. It is to me a kind of--I 
don't understand how the--it is clear to me it was political 
ill judgment by individuals outside of the mainstream of the 
historic role that the Department of Justice Civil Rights 
Division has played because of the consistency of dealing with 
voter participation. So I think it is an example that is 
extremely troublesome, and Mr. Kim answered a lot of questions 
but didn't quite answer that one as to--because that happened 
under his watch, even though he said it didn't, because of the 
modification in 2006.
    I am going to have additional questions, but let me yield 
to Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. This has been 
a really interesting hearing to me, as all of these civil 
rights hearings are. I mean, there are just different points of 
view, and they are important, by everybody.
    Mr. Henderson, let me just mention one thing to you, and 
then I would like to turn to Mr. Clegg and Mr. Driscoll. You 
stated in your submitted testimony that between 2001 and 2006, 
``the only racial discrimination case brought by the Division 
under Section 2 of the Voting Rights Act was on behalf of white 
voters in Noxubee, Mississippi.'' Yet the Voting Section 
reports ten actions brought, at least in part, under Section 2 
between 2001 and 2006. Now, only one of them was on behalf of 
white voters. Two were brought on behalf of African-American 
voters. That was in U.S. v. City of Euclid and U.S. v. Crockett 
County. Two were brought on behalf of, like I say, African-
American voters. Seven more of them were brought on behalf of 
Hispanic Americans, including one that was also on behalf of 
Asian Americans. I will not list all those cases.
    The statistics you cite starkly under count the actions 
brought by the Voting Rights Section, it seems to me, unless 
there may be some explanation I do not understand at this 
point.
    Mr. Henderson. Thank you, Senator Hatch. Let me respond in 
the following way: I think Mr. Kim, before he left, at the 
conclusion of his statement was asked a question about how many 
cases had been filed under his tenure in this area. I think he 
cited perhaps between 5 and 15. Our review of the record of the 
Department of Justice, provided in large measure by its own 
materials, would suggest that only one case had been filed by--
    Senator Hatch. You can see I have listed 10 here that they 
list.
    Mr. Henderson. Right. Well, many of them are, in fact, 
holdover cases themselves that had been filed, but let me give 
you an example of what I am talking about.
    When one thinks back on the 2004 Federal election, the 
State of Ohio often comes to mind as a graphic example of some 
of the problems on the ground in addressing issues of deceptive 
practices in which individuals, for example, issued fliers to 
communities, most often African-American communities, 
suggesting that the election day was some day other than the 
day it actually occurred, or instances in which eligible voters 
who happened to be Latino or themselves naturalized citizens 
were frightened with fliers that suggested that the Immigration 
and Customs Enforcement Agency might be lurking at the time of 
enforcement.
    There were many examples of extended lines that required 
voters to wait hours, sometimes in the rain, before they could 
cast their ballots, and those lines, in fact, were created by 
discretionary decisions, but we had to allocate resources.
    There were numerous instances of irregularities that I 
think shocked the conscience of most average Americans in 
thinking about how our system of democracy works and benefits 
the country as a whole. And yet to know that there have not 
been adequate investigations and/or charges brought either as a 
result of what occurred in Ohio or in some of the other 
jurisdictions where such documentation has occurred, it does 
seem to me is quite troubling.
    While I think there may be some dispute as between 
ourselves and the Department on how they interpret cases to be 
filed, I think there can be no dispute that the Department 
failed to adequately address problems that were within their 
purview and available to be addressed by existing statutory 
authority. And so my sense is it misses the larger point, 
Senator Hatch. If we dwell on whether or not there have been 
one or two cases filed here or there, the question is whether 
in the broad sweep of the Department's responsibility, it is 
quite clear that the Department has stepped back from its 
ongoing responsibility to enforce the laws as they apply to all 
Americans.
    Senator Hatch. Well, the reason I bring it up is because 
the Voting Section home page lists 12 cases. A couple of them 
were filed during the Clinton years, and there may have been 
others that were filed, but if you go by the years, they were 
filed during the Clinton years. All I can say is that, you 
know, there appear to be some differences here in the count.
    Let me ask Mr. Clegg and Mr. Driscoll, I found Professor 
Norton's comments, her statistical comments, quite interesting 
and intriguing. Would either of you care to comment on 
Professor Norton's statistical standard that numbers should 
necessarily stay the same between administrations?
    Mr. Clegg. Well, I will, again, make the general statement 
that I made before. I think that Mr. Driscoll actually talks 
about the specific problems that can come up with this kind of 
bean-counting in his testimony, so I am going to defer to him. 
But I would say that, as a general matter, we would not expect 
the number of cases to be the same in every area of the law 
over time. Again--
    Senator Hatch. The exact same type of statutes.
    Mr. Clegg. Right, because you all are constantly passing 
more statutes. The Division has limited resources. If it is 
devoting more resources to one area, then proportionately it is 
going to be devoting less to other areas, and there is nothing 
sinister about that. You started out in the 1960s, and people 
who were disabled were not protected from discrimination. 
People--
    Senator Hatch. Well, let me ask you, there is a huge 
regular branch of civil servants who are there regardless of 
which administration. Can you imagine a case where, if they 
felt strongly a case should be brought as a group, that it 
would not be brought or it would not be given heavy 
consideration?
    Mr. Clegg. No, I can't, and that is a very good point, 
Senator Hatch. What is it that is being--
    Senator Hatch. And they weigh in. They weigh in on these, 
don't they?
    Mr. Clegg. Of course.
    Senator Hatch. I mean, they don't just sit there like 
puppets.
    Mr. Clegg. And, you know, what would be the reason that any 
administration would say that we are not going to bring 
discrimination cases when there has been discrimination against 
African-Americans? What possible motive could they have for 
that? I mean, even putting aside the fact that it would be 
immoral and wrong for them to do so, it would be politically 
crazy to do that. I can tell you that from when I was in the 
Civil Rights Division, and I think it was clear that this 
administration wants to--I mean, Republican administrations--of 
all administrations--bend over backwards to make clear that--
they are committed to enforcing the civil rights laws and 
making clear that, they are not racist, that they are not 
bigoted, that they are ensuring that everybody is protected 
from discrimination. What would be the purpose for them to--is 
there some constituency that people think--
    Senator Hatch. Well, they would get killed if they did not 
bring cases that clearly should be brought.
    Mr. Clegg. It is absurd. I think what--
    Senator Hatch. What some of these articles are saying, you 
don't know whether they are right or wrong. I do not know if 
they are right or wrong. All I can say is I thought Mr. Kim 
explained himself quite well in his testimony.
    You know, let's be honest about it. There are axes to grind 
on both sides, sometimes, in these areas of the law.
    Mr. Clegg. Absolutely.
    Senator Hatch. Political axes to grind, and especially in 
the media, which does not necessary make the media right and 
the Civil Rights Division wrong.
    Mr. Clegg. Well, and the picture that is being painted of 
these white-lab-coat, professional career lawyers who have no 
political axe to grind at all, on the one hand, and the 
political appointees being these crazed political operatives 
who are nothing but political hacks and who care about nothing 
but winning elections, on the other hand, is ridiculous.
    Senator Hatch. I think it is, too.
    Mr. Clegg. The career people have their political agendas. 
They are often as extreme ideologically, more extreme 
ideologically, than the political people. And the political 
people, in my experience, in the main are better lawyers--maybe 
just because they tend to be more senior, but they are better 
lawyers--than the career lawyers are.
    Senator Hatch. Well, you served in the Justice Department, 
including the Civil Rights Division, under both President 
Reagan and Bush I.
    Mr. Clegg. That is correct.
    Senator Hatch. I served here on the Judiciary Committee 
during that entire time, and I remember that some of the same 
accusations and charges were made against the Civil Rights 
Division at those times that we are hearing today.
    Now, in your testimony, you just got through drawing a 
useful distinction between political appointees and career 
staff at the Justice Department. Now, listening to the critics, 
many people might assume that if there is a dispute or 
disagreement between them, that is between the career people 
and the political appointees, the career staff, they are always 
supposed to win.
    Mr. Clegg. Right.
    Senator Hatch. Now, of course, that is not the case at all, 
is it? In his testimony here today, Mr. Henderson says that 
while changes in priorities within the Civil Rights Division 
come with changes in the administration, today these changes 
are literally challenging what he calls the ``core functions of 
the Division.'' Do you agree with that?
    Mr. Clegg. No, I don't.
    Senator Hatch. Or disagree with it.
    Mr. Clegg. I disagree with that. I think that these are 
legitimate differences in legal philosophy and in enforcement 
philosophy. And, again, I don't think that can assume that just 
because there is a dispute, that therefore it is the career 
people--or, excuse me, that it is the political people who are 
acting in an unprofessional way. Senator Kennedy, you know, 
professed to be astounded that there coincidentally was this 
front-page story in the Washington Post today on the very same 
day as these hearings were going to be. I don't think that was 
a coincidence. I think that it is very unprofessional for 
career people to leak information to the media for their own 
ends. But I think that that happens, and I think that it 
happened when I was in the Division, and it is happening now as 
well.
    Senator Hatch. Well, I would also like a response to Mr. 
Henderson's claim that the Civil Rights Division's record on 
every score, that is, in every way, on every issue, in every 
area, is undermining effective enforcement of our Nation's 
civil rights laws. Do you agree with that? That is a dramatic 
charge. Do you agree or disagree with that?
    Mr. Clegg. No, I don't. I--
    Senator Hatch. You don't agree or you disagree?
    Mr. Clegg. I do not agree with the charge that the civil 
rights laws are being dramatically undermined by this 
administration.
    Senator Hatch. OK. Well, you know, one of the things that I 
am concerned about is--I mentioned in my questions--and I asked 
him specifically because I wanted to see just what Mr. Kim 
would say about all these new areas of the law that we have 
enacted up here that are in addition to what they were back 
when you were there, Professor Landsberg, or at least 
statutorily different, because they weren't enacted then.
    Mr. Clegg. There are also demographic changes that take 
place, Senator Hatch. For instance, the fact that there are so 
many more immigrants now, so many more people who do not speak 
English well, means that more time has to be spent enforcing 
Section 203 of the Voting Rights Act.
    Now, personally I don't like Section 203 of the Voting 
Rights Act. I think it is unconstitutional. I think it is bad 
policy. But you all have passed it, in your wisdom, and the 
Justice Department has to enforce it. And if the Division--
    Senator Hatch. You enforced it when you were there?
    Mr. Clegg. We did. And when the Division because of these 
demographic changes is required to spend more, to devote more 
of its resources to enforcing those kinds of laws, it 
necessarily means that it is going to have fewer resources to 
devote to enforcing other kinds of laws.
    Senator Hatch. Do you mind if I ask one more?
    Senator Cardin. Please continue.
    Senator Hatch. I will be glad to yield back.
    Senator Cardin. Go ahead.
    Senator Hatch. OK. I really appreciate the way Senator 
Cardin has allowed me to ask whatever I want to ask, and, of 
course, I would do the same for him if I were in his shoes. You 
have really been very decent and fair, as I think you always 
are.
    Mr. Clegg. If I could just make one other point.
    Senator Cardin. Please don't let the Chairman know that.
    Senator Hatch. He said, ``Don't let the Chairman know 
that.''
    [Laughter.]
    Senator Hatch. No, no. I expect Senator Leahy to be fair, 
too, yes.
    Mr. Clegg. Mr. Henderson gave as an example of how this 
administration has turned its back on its historic role as 
enforcing the civil rights laws the briefs it filed in the 
Seattle and Louisville cases, which are currently pending 
before the Supreme Court. And Mr. Henderson said that in those 
cases the Division or the administration opposed voluntary 
desegregation efforts. I think that that is a very unfair way 
and misleading way to characterize the briefs that were filed 
by the administration in those cases.
    What the school boards in those cases were doing was 
assigning children to schools on the basis of race. I thought 
that it was the principle of Brown that you couldn't do that. I 
thought that Brown made clear that you were not supposed to 
assign school children to schools on the basis of race.
    Now, you can call what Seattle and Louisville were doing 
``voluntary,'' and I suppose it was voluntary in a sense that 
no court was forcing the school districts to do so. But, of 
course, if that is the way you are using the term 
``voluntary,'' the segregation under Jim Crow was voluntary, 
too. The school children were not asking, were not 
volunteering, to be discriminated against in the Jim Crow era, 
and they weren't volunteering to be discriminated against in 
Seattle or Louisville either.
    These were not cases about desegregation. These were cases 
about racial balancing, politically correct racial balancing, 
and telling children that they could go to this school and they 
couldn't go to that school because of their skin color.
    Now, reasonable people can differ about whether that is a 
good policy or a bad policy. I think it is pretty clearly a bad 
policy. But to say that it is somehow beyond the pale for the 
administration to file a brief saying that that kind of 
discrimination is wrong is, I think, at best a gross 
exaggeration.
    Senator Hatch. Well, thank you.
    Mr. Driscoll, in your testimony you commented on the issue 
I raised earlier at Assistant Attorney General Kim, that is, 
the priority in the present Civil Rights Division to fight 
religious discrimination. Now, you served in the Civil Rights 
Division as this was developing, and I would like you to 
comment on its importance and how it fits into the overall 
mission of the Civil Rights Division. And do you agree with the 
New York Times last week that protecting Americans from 
religious discrimination is a distraction from what the Civil 
Rights Division is supposed to be doing?
    Mr. Driscoll. Thank you for the question. I love to talk 
about the Department's initiatives in this regard when I was 
there because it is something I was proud to be associated 
with. And I think protecting religious liberties fits in very 
well with the historic role of the Division, and I think it is 
at a different point on the curve, so to speak, than some of 
the other types of discrimination the Division combats. What I 
mean by that is when the Division started attacking racial 
discrimination 50 years ago, racial discrimination was very 
overt, you know, by law in many jurisdictions, and people made 
decisions not to hire African-Americans or not to let children 
go to school together explicitly on that basis. And over time, 
discrimination became more subtle and it becomes harder to 
smoke out, and you end up in the very complicated place we are 
today where most race discrimination cases brought by the 
Department, or the major ones that are talked about today, are 
about whether or not a test has a particular disparate impact 
on a group or that cognitive testing is fair to not fair to a 
particular group.
    The religion cases are back where the race cases were in 
1957. You have many jurisdictions that say anyone can rent this 
hall after school is out, anyone can rent the school hall, 
except if you are religious. And that is what the rule says on 
its face. No one is hiding anything. No one says there really 
is no other reason we are doing this. They will tell you 
straight to your face: No, you can't use this hall. You want to 
hold a Christian service in here.
    And to me, that is exciting. To prosecute those cases, I 
felt like some of the long-time members of the Division must 
have felt in the 1960s and 1970s on some of the race cases, 
that you had, you know, people explicitly saying, no, you can't 
wear that particular type of headgear to your job because we 
don't like it and we think it is inconsistent with how we want 
you to look. And to be able to confront discrimination that is 
that egregious was, in my mind, something to be proud of and to 
watch Eric Treene, who has been hired by the Department into a 
career position, manage that operation has made me extremely 
proud.
    I had the privilege of getting to argue one of those cases 
in Louisiana, and it was simply stunning to see the position of 
the school board in question.
    So to me, I think the religious discrimination efforts of 
the Department are to be commended. I think that Congress saw a 
need, acted unanimously, if I recall correctly, on RLUIPA to 
correct it. And so I think that the zoning cases the Department 
has brought are fantastic and needed. There were many places in 
the country where a non-majority religion would try to build a 
temple or a house of worship, and the locals would use the 
zoning ordinances to say, Oh, boy, that temple is going to be 
too high, that steeple might be too high. It is not really that 
there are Mormons moving to town that scares us. It is that we 
do not want 36-foot church steeples. And now with that statute 
the Department has the ability to remedy that injustice.
    And so to me it is exciting, it is needed, and it is 
something the Department is justly proud of, and I was proud to 
be a part of.
    And if I could address, Senator Hatch, one of your 
questions to Mr. Clegg, I think another reason cases fluctuate 
between administrations--a legitimate reason they can--has to 
do with the standards different administrations apply in 
bringing a case. One of the things Assistant Attorney General 
Boyd and I did before we came to the Department in 2001 was we 
read transcripts of oversight hearings from this Committee and 
the House Judiciary Committee and the Civil Rights Division 
conduct during the Clinton administration. And I felt bad for 
my predecessors in that they got raked over the coals pretty 
good by some of you for cases in which it was alleged the 
Department filed cases without sufficient basis or tried to get 
a remedy from a jurisdiction without a sufficient factual basis 
or legal basis. And so we had a pretty high standard to say, if 
we are going to go to court, we are going to win; and if we are 
going to settle a case, we are not going to settle it for what 
we wouldn't have won in court. And there had been a history, 
when we arrived at the Division, of, I think, $4 to $5 million 
in sanctions, litigation sanctions against the Division for 
positions taken in court for overreaching. And so while it is 
great to be aggressive and everyone wants to aggressively 
enforce the Nation's civil rights laws, if being aggressive 
means paying out $2 million to your opponent because you filed 
a case without legal merit, then maybe being aggressive isn't a 
good thing.
    And so we tried very hard to make sure that if we filed a 
case, we were going to win; and that if we settled the case, we 
recovered only what we could have gotten if we had won in 
court.
    Senator Hatch. Well, I appreciate your comments.
    Mr. Chairman, you know, under the Clinton administration, 
the Division was sanctioned over 1.7 million bucks for 
overreaching on an employment case. Now, you know, I wonder if 
that case would be reported favorably or unfavorably.
    Let me just finish with this, because it is a matter of 
great concern to me. I was in law school when John F. Kennedy 
ran for President, and I saw the prejudice--and at the 
University of Pittsburgh. Pittsburgh was 60 percent Catholic. 
And I saw--
    Senator Cardin. That is my alma mater, also.
    Senator Hatch. Pardon?
    Senator Cardin. University of Pittsburgh is where I went to 
school.
    Senator Hatch. Sure, and we are both--
    Senator Cardin. I am not Catholic, though.
    [Laughter.]
    Senator Hatch. We are both great people, I have to say.
    Senator Hatch. You are catholic if you use the broad 
meaning of the term.
    But let me just say this: that there was a lot of prejudice 
at that time, and I think we broke through that. Then I look 
at--now, I do not mean to dwell on it except that it comes 
personally home to me as well. I don't like discrimination. You 
know that, Wade, Mr. Henderson. I have done an awful lot to try 
and support you over the years, and I am going to continue to 
do so. I was the prime sponsor of the Civil Rights for 
Institutionalized Persons. I am one of the prime sponsors of 
the Emmett Till case, and you can go right on down the line. We 
have not always agreed, but I think we both come from a 
tradition of wanting to do what is right in these areas.
    But I look at Mitt Romney running now, and all of these 
papers that are criticizing this administration are running 
scurrilous comments about his personal religious beliefs, even 
though all of them admit he lives a very morally upright life, 
has a wonderful family, has been an exceptionally great 
business person, made the Winter Olympics the greatest Winter 
Olympics in the history of the business, and yet you cannot 
read an article without some coming close to libel about his 
personal religious beliefs. And I think most people who know of 
his religious beliefs will have to admit they are pretty good 
people, the vast majority of them who live their religion, just 
like others are good people, just like our Catholic friends, 
our Baptist--you name them. And yet we have that going on in 
our society, and it is pure and total bigotry.
    So I could empathize with any one of you who feels deeply 
about these issues, and I want to help you. On the other hand, 
there are differences in statistics. There are differences in 
cases. There are differences in administrations. But the major 
staff stays there regardless, and they are not pushovers. And I 
have lived through those, and I have to say thank goodness they 
are not. But the point is that nobody can walk into the Civil 
Rights Division and just make it whatever they want it to be. 
You can have different points of view. You can have different 
approaches, legitimately, which I think they are in this case.
    I haven't given you a very good chance to respond to some 
of these things, and I will certainly do that. But I just want 
you to know that we take this seriously, but I get a little 
tired of the really rotten media coverage in some of these 
areas. It is good to point out defects. It is good to point out 
things that aren't quite right. But to slant them all in one 
way it just seems to me is just plain wrong. Unfortunately, I 
find that in a lot of these instances they have slanted them in 
the wrong way because they believe one way and others believe 
the other.
    Now, I only cite the Mormon instance because I have just 
seen it in everything ever since Mitt Romney--and I ran for 
President in 1999 for a short period. I wanted to get across 
some ideas, didn't really think I had much of a chance, and 
that proved to be true. But I was sick and tired of some of the 
prejudices that were out there, and I was going to do what I 
can about it and have ever since.
    But all I can say is that each of you I honor because you 
have taken time to come and be with us. Each of you has your 
respective points of view, but let's understand that I just do 
not believe that these political appointees are bad people, and 
I just do not believe that they can overwhelm the thousands of 
workers at the Justice Department who may or may not agree with 
them.
    Yes, Wade, if you would like to--
    Senator Cardin. I am going to allow Mr. Henderson a brief 
reply now. Senator Hatch has very deep views on this, and we 
have been very understanding on the time. We are now up to 
about 26 or 27 minutes on the 5-minute round, and that is quite 
all right because I think you have made an important point, and 
I think in this hearing we can afford the latitude of a little 
bit of discretion considering the time that we had available.
    So I will let Mr. Henderson respond, and then the Chair 
will have some questions.
    Mr. Henderson. Thank you, Mr. Chairman. I appreciate it. 
And, Senator Hatch, thank you for the courtesy of providing a 
response.
    Let me say at the outset that I think we are in complete 
agreement about the treatment of Governor Romney and the 
question of his religion in the public debate about his 
qualifications for the Presidency. I think we should set that 
aside. I think that should not be the subject of conjecture in 
the way that you have characterized it here, and we would 
agree.
    In addition to my work at the Leadership Conference, 
Senator, I serve as the Joseph Rauh Professor of Public 
Interest Law at the University of the District of Columbia. I 
mention it because I know that you knew Joseph Rauh, who was an 
extraordinary lawyer and advocate on behalf of civil and human 
rights, the long-time pro bono counsel to the Leadership 
Conference on Civil Rights.
    I also know that your personal record as well as that of 
Chairman Cardin is beyond question with regard to your 
commitment to civil and human rights.
    Senator Hatch. Thank you.
    Mr. Henderson. And I think the record that you both bring 
to the table makes a larger point, which is to say that the 
protection of civil rights is not a partisan issue, it is a 
national issue.
    Now, I am reminded that on this, the 50th anniversary of 
the Little Rock nine school case, the effort to integrate the 
high schools in Little Rock, the response of President 
Eisenhower and the response of Congress in passing the Civil 
Rights Act of 1957, which, of course, established the Civil 
Rights Division, was born out of a recognition that more was 
needed to protect the constitutional rights of all Americans. 
The history of the Civil Rights Division under Republican 
leadership and under Democratic leadership in pursuing a goal 
of integrating schools in the Old South made a tremendous 
impact in helping to transform America and having it become the 
``more perfect union'' it is today. It is, of course, not 
perfect but it is a more perfect union than it was 50 years 
ago.
    Senator Hatch. I agree.
    Mr. Henderson. The truth is it gave me great distress to 
see the Justice Department move from the courageous positions 
it took under Eisenhower's Attorney General, Herbert Brownell, 
in helping to integrate schools into an amicus brief filed in 
the Louisville and Seattle desegregation cases that sought to 
limit what may well be the only last best effort to ensure 
integrated public education on a voluntary basis in school 
systems struggling to overcome the difficulty and inequality 
that is inherent in America's education system.
    We know that the struggle for civil and human rights has 
not at the end of the day been entirely as successful as many 
of us, yourself included, would have liked. The truth is our 
school systems today are as unequal, providing as limited an 
opportunity in many respects as they did many years ago, and it 
is only because of Federal efforts of the kind that we are 
talking about here, plus the involvement of local parents and, 
obviously, school boards in trying to change the system which 
we have today.
    I do not take a back seat to anyone in respect for the 
protection of civil rights, and I certainly recognize that the 
Department does have statutory responsibilities that have been 
broadened over the past 50 years. But to suggest that changes 
in administration result in the kinds of fall-off in the 
enforcement of existing civil rights laws that make such a 
difference in the lives of ordinary Americans is, in my 
judgment, to damn the political process beyond what it 
deserves. What we are looking at here is a manipulation of 
discretion and statutory responsibility in a way that 
represents a substantial step back from what most Americans 
believe is the responsibility of our Government to all of its 
citizens. And to those who are on the wrong side, if you will, 
of the rights question--that is to say, to those who are 
struggling to make the meaning of American citizenship reach, 
you know, the fulfillment of what the Constitution promises to 
all, to not have the Justice Department on our side as we 
struggle for these issues, in my judgment, is inconsistent with 
the efforts of the great men and women, both Republican and 
Democrat, who helped to bring this Division into existence.
    So I think it is certainly a perfect opportunity on this, 
the 50th anniversary of the Division and its foundation, that 
Congress examine the core questions of whether the Division is 
living up to the charge that Congress gave it when it was 
created 50 years ago. And I think the testimony that we have 
submitted today is fully consistent with the view of sponsors 
of the Civil Rights Division that went beyond the kind of 
political considerations which we are talking about this 
afternoon.
    Senator Cardin. I thank the panel for their patience. There 
are a couple questions that I do want to ask, though, to try to 
make sure the record is complete.
    Mr. Clegg, I found very disappointing your explanation of 
the Washington Post article, sort of glossing over the content, 
and maybe suggesting that it is the political appointees who 
protect the nonpartisan operations of the Department of Justice 
and it is the career attorneys that you have to watch out are 
the partisan activists. I think that is an affront to the 
employees at the Department of Justice, the career employees 
who have, I think, withstood an awful lot in carrying out their 
work. So let me turn to one of those career employees in the 
Department of Justice, Professor Landsberg, if I might. He is 
not wearing a white jacket, but I do believe he raised--you 
raised a point that to me applies to both career line attorneys 
at the Department of Justice Civil Rights Division as well as 
the political appointees, and that is, they have to say no to 
political pressure.
    We are holding a series of hearings in the Judiciary 
Committee on the problems of the hiring and firing of U.S. 
Attorneys and the political influence that has been used in the 
firing of U.S. Attorneys. I must tell you, I am concerned as to 
whether similar practices are taking place within the Civil 
Rights Division as far as trying to hire individuals that have 
certain leanings rather than looking for career people.
    So I just really want to get your take on the importance of 
not just the career attorneys, but the political appointees 
standing up to political pressure in order to carry out what is 
important tradition of the Civil Rights Division.
    Mr. Landsberg. I think the public expects and deserves fair 
enforcement of the law. If the public believes that enforcement 
of the law is dictated by political pressures, they are not 
going to have confidence in the law; they are not going to have 
confidence in the Department of Justice. A lawyer depends upon 
his or her reputation, his credibility, and I think that 
whenever the Department engages in the kinds of activities that 
you have described, that then the credibility of the Department 
suffers.
    We have seen examples of that over time, and I think a lot 
of these examples are due to the failure of the two groups to 
talk to one another on some occasions. A very good example was 
at the beginning of the Reagan administration, the filing of a 
brief in the Bob Jones case, which was basically saying that it 
was all right for tax-exempt educational institutions to 
discriminate based on race. I think if the political appointees 
had listened, engaged in dialog with the career people, they 
could have avoided a very bad mistake.
    I think, on the other hand, that in my career I have seen a 
number of instances of great courage being demonstrated. I 
mentioned a couple of those in my written testimony. At the 
beginning of the Reagan administration also, I was in Solicitor 
General Lee's office when we were arguing about the position in 
a case, and the Education Department wanted to reverse the 
position of the prior administration in a case. And they 
weren't getting anywhere with the Solicitor General. Finally, 
one of the Education Department lawyers said, ``But we won the 
election.'' And Solicitor General said, ``Well, that has 
nothing to do with what position we ought to take in this case. 
The question is the law.'' And I think that that is what we 
want to see from our law enforcement officials.
    Senator Cardin. The reports in the Washington Post would 
tell us to the contrary. The action taken against Angela Miller 
and Sarah Harrington and other--allegedly. I mean, we will wait 
to see what the facts show, but what these reports are 
indicating is that there were political considerations on 
taking cases away from them, encouraging them to basically 
leave because they voted for the wrong person in the last 
election.
    That is certainly troublesome to me, and we started the 
hearing a little over 3 hours ago, and Mr. Kim has denied any 
of this, and I feel a little bit better knowing he is going to 
take some action to make it clear to his Department that that 
will not be tolerated. I will wait to see the exact language of 
what he issues. But I must tell you, these articles just do not 
come out of thin air.
    Mr. Landsberg. Mr. Chairman, I have to tell you that in my 
20-some-odd years at the Division, I made lots of 
recommendations to lots of Assistant Attorneys General that 
they rejected. I wasn't happy they rejected them. But never did 
I lose a job because I disagreed with an Assistant Attorney 
General. I had many very vehement discussions with Assistant 
Attorney General William Bradford Reynolds, who was the last 
one I worked for. We disagreed quite a bit. Never was there a 
suggestion that I would lose my job, that I would be removed as 
the head of the Appellate Section because I disagreed with him.
    So I think that there is a difference. I think that it is a 
healthy thing. I agree the political appointee should not just 
rubber stamp what the career people have to say. Obviously they 
have their own responsibility. But they do have a--there is a 
process that I think is essential to follow, and the process 
includes respectful consideration of what the career people 
have to say. If you disagree with what they have to say, then 
let's have a discussion of it. Let's hash it out. Let's see if 
we can reach some agreement. If we can't reach some agreement 
at the end of the day, obviously the boss has the final word. 
But the final word is not, ``I am going to fire you because I 
disagreed with you.''
    Senator Cardin. I think that is what troubles a lot of us 
about what is happening in this administration. We understand 
that the administration has the right to have its priorities 
pursued, and we understand there are different priorities, even 
within the Office of Civil Rights, and that is the prerogative 
of the administration. It is also the prerogative of the 
administration to make the final judgments. But the political 
interference here appears to have gone beyond what has been the 
historical record of the Civil Rights Division, but also what 
is permitted by law.
    Mr. Clegg, I just want to make sure I get on the record, 
and Mr. Driscoll, whether you believe that the two provisions 
that are--one a regulation of the Department of Justice making 
it wrong to discriminate on political affiliation, and the 
other civil rights rules that it would be a prohibited practice 
to discriminate based upon political affiliation. Do you agree 
with those provisions that are in regulation and law?
    Mr. Clegg. Yes, I do, and, of course, it is sort of beside 
the point whether I agree with them are not. They are the law, 
and they have to be followed.
    Senator Cardin. Well, I know, but we could change them. We 
have the ability to change the civil service laws. It is in the 
United States Code. We could change it.
    Mr. Clegg. I think that that is fine. You know, my only 
caveat, as I said in my written testimony, is that I think it 
is appropriate in deciding who gets hired to try to hire the 
person who is the best person for the job. And that can include 
the fact that that person shares a commitment to the 
enforcement agenda that the administration has. The example 
that I gave--
    Senator Cardin. So would it be appropriate to suggest that 
the appointments come from the political party's attorney list 
that have been involved in election laws for that political 
party?
    Mr. Clegg. No. I think that--
    Senator Cardin. Well, perhaps if your priority in your 
administration is to make sure that the election laws are 
fairly applied, wouldn't you go to your political party then 
and get their best lawyers?
    Mr. Clegg. No, because I don't think that that is a very 
good proxy for getting enough lawyers.
    Senator Cardin. But I am not sure I understand how you get 
the right people.
    Mr. Clegg. Well, let me give you an example. You know, 
suppose that Bobby Kennedy, when he was the Attorney General, 
was hiring people to work in the Civil Rights Division, and he 
had two applicants, both of whom had great credentials, and--
    Senator Cardin. We are talking about for a career position, 
not a political appointment.
    Mr. Clegg. A career position.
    Senator Cardin. And the Attorney General is doing the 
interviewing himself.
    Mr. Clegg. Right. Or, you know, make it Burke Marshall, if 
you want.
    Senator Cardin. Well, no, I raise that because prior to 
Attorney General Ashcroft, these appointments were vetted 
through career individuals, these appointments. It is only 
under Attorney General Ashcroft and this administration that 
that was taken over by political appointees.
    Mr. Clegg. Now, I read that, too, but I have to tell you, 
Senator, that when I was a political deputy in the Civil Rights 
Division, I was involved in deciding who got hired as a line 
attorney--
    Senator Cardin. You did the interviewing process and you 
were the principal person?
    Mr. Clegg. Sometimes--no, I wasn't the principal person, 
but I was--
    Senator Cardin. Who was the principal person?
    Mr. Clegg. Well, I think the final decision was the head of 
the Division.
    Senator Cardin. But who vetted--who went through the 
applications? Who was the one who did the preliminary work?
    Mr. Clegg. I don't even remember. I think it was probably 
the section chief. But my point is--let me finish my example, 
if I could. If Kennedy was trying to decide which of two 
applicants to hire and both applicants had superb 
qualifications, but one of them had a real visceral commitment, 
a passionate commitment to dismantling Jim Crow, and, really 
had the fire in the belly to get down there and enforce the 
laws and thought that Brown v. Board of Education was rightly 
decided and that the civil rights laws needed to be enforced, 
and the other one didn't and thought that Brown was wrongly 
decided and was really lukewarm, I think it would be perfectly 
appropriate for the administration to say, well, this guy, the 
first guy, is better for the job.
    Senator Cardin. We are not going to see eye to eye on this 
because I want the process within the Department of Justice to 
look at the qualifications of the individuals, not just what 
they say and what they are committed to, but take a look at 
their record. I want experienced individuals that know what the 
civil rights laws are about, know how to enforce those civil 
rights laws, have experience and are going to be competitive 
against the forces they have to come against.
    Mr. Clegg. I do, too.
    Senator Cardin. That is who I want there.
    Mr. Clegg. I do, too.
    Senator Cardin. So I am not interested in interviewing 
people and giving them a litmus test on a particular issue. I 
want to get the best career people. And what worries me is that 
I think your thoughts are what is currently being used by the 
Department of Justice, that is, to look beyond the 
qualifications of the attorneys that apply for these positions, 
but to start looking at certain litmus tests that are very much 
related to party affiliation. And that should have no place in 
the Civil Rights Division, should have no place in hiring 
attorneys that are career attorneys.
    We are not going to agree on the process for hiring 
attorneys, but I did want to get your view on the current law, 
and I did not get Mr. Driscoll's. Just for the record--you can 
answer yes or no--do you support the current prohibitions 
against discrimination based upon party affiliation?
    Mr. Driscoll. I do. I think they are appropriate.
    Senator Cardin. Thank you. I would just like to get your 
reaction to the reports in the Washington Post today. Is that 
just business as usual? Or do you see that as just partisan 
snips by the individuals involved? Or do you think it is 
serious issues?
    Mr. Clegg. I think it is a newspaper article. I don't know 
how much of it is true.
    Senator Cardin. I take it when you were--
    Mr. Clegg. I think there are some parts of it--if some 
parts of it are true, they are disturbing.
    Senator Cardin. I have had many positions I have held in 
public life, including responsible positions on the Ethics 
Committee having to investigate actions. And I must tell you, I 
treat articles in the paper with the respect they should 
receive; that is--no, because it affects public opinion, it 
affects what the public out there is seeing. And if there is 
something out there that is wrong, I want to correct it.
    So what is in this paper concerns me greatly, and if it is 
false, let us get the facts out to show it. But to say it is 
just an article, I think that is what Mr. Putin says: These are 
just articles, so, therefore, we will control the press.
    Mr. Clegg. My point is--
    Senator Cardin. Mr. Driscoll, how do you feel about the 
articles that are in the paper? How about this? I am going to 
give you a chance for record.
    Mr. Clegg. I didn't say it was ``just an article.'' I said 
``it is a newspaper article.''
    Mr. Driscoll. I guess I am waiting to see--I know it is 
under review, it is under investigation. I certainly think that 
it is an interesting timing that the article came out the day 
Mr. Kim was going to testify concerning events that happened 
multiple years ago. But I think it raises serious allegations 
that deserve to be investigated. But I know the Department has 
strong protections and it is an employee personnel matter that 
the Department can handle.
    Senator Cardin. The Department can handle. OK. Thank you 
for your responses.
    Professor Norton, I want to give you a chance. Mr. Clegg 
has several times referred to your testimony as far as the 
numbers. During his direct testimony, he compared the 
circumstances in the 1960s to today and said that clearly the 
challenges are different today than they were in the 1960s.
    Now, your testimony, I thought, dealt with the comparison 
between the Clinton administration and the Bush II 
administration. And I haven't noticed a dramatic change in the 
landscape in the last--well, maybe I have noticed a change in 
the landscape, but it is not necessarily all positive in the 
last 6\1/2\ years. So I want to give you a chance to talk a 
little bit more about the type of cases, the number of cases, 
the quality of cases that you referred to in your direct 
testimony that has been now referred to several times, I think 
by both Mr. Driscoll and Mr. Clegg.
    Ms. Norton. Thank you, Mr. Chairman. There are at least two 
points on which I agree with Mr. Clegg, but perhaps very little 
else.
    First, I agree that we should not expect the numbers to 
remain in complete and perfect lockstep from administration to 
administration, but what we are seeing between the previous 
administration and this one is not a minor change in numbers, 
but a dramatic change. We are talking about basically half of 
the Title VII enforcement activity that we saw during the 
Clinton years. That is not a minor variation. That is a 
dramatic change.
    Second, I also agree with him that race discrimination is 
not the problem in 2007 that it was in 1967. However, I find it 
hard to believe that race discrimination is only half the 
problem in 2007 than it was in 1997. And, again, that is what 
the enforcement numbers would lead one to believe because we 
are seeing half the enforcement activity with respect to Title 
VII than we saw during the previous administration.
    Folks talk about the fact that priorities change from 
administration to administration. That is true. It is true that 
the Civil Rights Division has many important and competing 
responsibilities. However, given the genesis of both Title VII 
and the Civil Rights Division itself in the civil rights 
movement on behalf of African-Americans, I find it hard to 
believe that fighting job discrimination against African-
Americans and Latinos could ever fail to be a priority.
    But even if you disagree with me about that and you think 
that there should be other priorities or there are other types 
of discrimination that should command more attention today, let 
me know that the enforcement activity has dropped across the 
board so that workers of all protected classes are suffering. 
There are two exceptions. The two areas in which the Employment 
Litigation Section enforcement activity has increased are 
these: No. 1, there has been a rise in the number of pattern 
and practice cases alleging religious discrimination; and, No. 
2, there has been a rise in the number of pattern and practice 
cases alleging discrimination against white men.
    Every other measure has declined, and declined steeply. If 
all we were talking about were those two changes, if those were 
the only two changes and everything else had remained the same, 
I wouldn't be here today, or at least I would have very little 
to say. But the problem is that everything else, every other 
measure has dropped--measures for African-Americans, for 
Latinos, for women, for victims of retaliation, and for 
individual victims of religious discrimination. I will note 
that those numbers have dropped substantially. During the 
Clinton administration, at least 11 claims were brought on 
behalf of individual victims of religious discrimination. We 
have seen only two during the current administration.
    Senator Cardin. So it is numbers. Are there examples of 
opportunities that the Department of Justice Civil Rights 
Division has not been aggressive that could have made a major 
difference? We know of a couple cases that you mentioned where 
they did get involved, and I appreciate your clarification of 
the record on those two cases that I referred to with Mr. Kim. 
But the numbers tell us one thing. Are there stories that we 
know where we would have hoped that the Department would have 
been more conscientious and they did not move forward?
    Ms. Norton. Well, I guess I could offer a couple of things 
for your consideration. Each year the EEOC refers several 
hundred cases to the Department of Justice for possible 
litigation. These are cases in which individual employees of 
State and local governments have charged discrimination, that 
the EEOC has investigated those claims and concluded that there 
is reasonable cause to believe that discrimination has 
occurred, and has referred the matter to the Department of 
Justice for possible litigation. Several hundred a year. They 
vary from 200 to 500 a year. Yet over the last 6\1/2\ years--so 
that is thousands of cases; I would say over 3,000 cases over 
those year, 3,000 referrals--we have seen 28 individual claims 
brought. It seems to me there is a whole pool of possible cases 
that are not being tapped into right now.
    Senator Cardin. And I believe I am correct that the number 
of attorneys has actually increased, so they actually have more 
attorneys to--
    Ms. Norton. Yes, approximately 20 percent more attorneys 
have been assigned to the Employment Litigation Section during 
the Bush administration compared to the previous 
administration, which is very troubling. Basically what we are 
seeing is the current administration doing considerably less 
despite considerably greater resources.
    Senator Cardin. Well, let me thank the panel for their 
patience. I know it has been a long hearing. These are issues 
that are important for our Committee to review.
    The hearing record will remain open for 1 week for 
additional written submissions. The Committee will stand in 
recess. Thank you all very much.
    [Whereupon, at 5:06 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follows.]

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