[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
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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
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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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