Context of '2005: Justice Department’s Civil Rights Division Supports ‘Jim Crow’-Style Voting Law'

Civil rights division logo. [Source: US Department of Justice]The Bush administration embarks on a program to politicize the Justice Department’s civil rights division (CRD). The CRD is staffed by some 350 permanently employed lawyers who take complaints, investigate problems, propose lawsuits, litigate cases, and negotiate settlements. For decades, the decisions on who should fill these positions have been made by civil servants and not by political appointees. The CRD is an obvious target for politicization, and until now the Justice Department has tried to ensure that no such politicization ever took place. “There was obviously oversight from the front office [where the political appointees work], but I don’t remember a time when an individual went through that process and was not accepted,” Charles Cooper, a former lawyer in the CRD during the Reagan administration, will later recall. “I just don’t think there was any quarrel with the quality of individuals who were being hired. And we certainly weren’t placing any kind of political litmus test on… the individuals who were ultimately determined to be best qualified.”
Hiring Conservatives in Place of Career Lawyers - But Attorney General John Ashcroft changes those rules, without making any sort of official announcement. The hiring committee is not formally disbanded, but it stops having meetings scheduled, and the political appointees begin making career hiring decisions. In 2007, author and reporter Charlie Savage will write, “The result of the unprecedented change was a quiet remaking of the civil rights division, effectively turning hundreds of career jobs into politically appointed positions.” No longer would career attorneys be hired for their civil rights background; instead, lawyers from conservative law schools or from conservative legal organizations such as the Republican National Lawyers Association are given favorable treatment. Some of the new hires worked with Kenneth Starr’s Whitewater investigative team or had worked with other prominent conservatives, including former Attorney General Edwin Meese or Senator Trent Lott (R-MO). Some list themselves as belonging to prominent Christian political organizations that promote socially conservative views such as opposition to abortion and to affirmative action.
Shift towards 'Reverse Discrimination' Cases - After the new hires are in place, the division shifts its focus: instead of working on voter rights, employment discrimination, and other such cases affecting African-Americans and Hispanics, the division begins working to develop “reverse discrimination” cases in favor of whites and Christians. [Savage, 2007, pp. 295-297]
Driving Career Employees Away - Over the next few years, the types of cases pursued by the CRD changes drastically (see 2005, 2006, and 2006), and career attorneys with decades of service begin leaving the division in large numbers. The Justice Department will even encourage older hires to leave by offering them a buyout. Savage will write, “With every new vacancy, the administration gained a new change to use the new rules to hire another lawyer more in line with its political agenda.” CRD attorney David Becker will tell a 2006 NAACP hearing: “Even during other administrations that were perceived as being hostile to civil rights enforcement, career staff did not leave in numbers approaching this level. In the place of those experienced litigators and investigators, this administration has, all too often, hired inexperienced ideologues, virtually none of which have any civil rights or voting rights experience.” Some supporters say that the Bush administration is merely righting an imbalance, where the CRD was previously top-heavy with liberal lawyers interested in protecting African-Americans over other groups, but one of the CRD’s top career lawyers from 1965 through 1994, Jim Turner, says, “To say that the civil rights division had a special penchant for hiring liberal lawyers is twisting things.” [Savage, 2007, pp. 298-299]

A five-member team in the Justice Department’s civil rights division reviews a new Georgia law requiring voters to present a photo ID or buy one for $20. Four of the five members say the law will disproportionately suppress minority votes because minorities are less likely to have a driver’s license or passport. Division supervisors—Bush administration political appointees—approve the law in spite of the team’s conclusion. A judge later throws the law out, comparing it to a Jim Crow-era poll tax (see September 19, 2006). The single member of the division team who favored the law is a recent political hire, a graduate of the University of Mississippi Law School, and a member of the Federalist Society and the Christian Legal Society (see Fall 2002 and After). [Savage, 2007, pp. 297]

Bradley Schlozman, the head of the voting rights section of the Justice Department’s Civil Rights Division (CRD), writes an op-ed published in the Atlanta Journal-Constitution alleging that the newspaper is guilty of “confus[ing] and misrepresent[ing]” the facts surrounding his office’s approval of a controversial Georgia voter identification statute (see 2005). The voter ID law has been criticized as being discriminatory against minorities and being designed to suppress minority voting. Schlozman says that the newspaper’s publication of a leaked internal memorandum from his office was unfair, as it “was merely a draft that did not incorporate the analytical work and extensive research conducted by all the attorneys assigned to the matter.” He goes on to accuse the paper of failing to report that the memo “did not represent the recommendation of the veteran career chief of the Civil Rights Division’s voting section, to whom preclearance approval decisions are expressly delegated by federal regulation.” Schlozman says that the voter ID law is “clearly not racially retrogressive within the limited scope of the Voting Rights Act,” and denies that demanding a number of identification papers from minority voters has ever been shown to have “any adverse impact on minority voters.” Data in the leaked memo showed that a significant proportion of African-American voters would be prevented from voting by the voter ID law; Schlozman writes that “corrected data… not incorporated in the leaked memo… indicate that African-American citizens are actually slightly more likely than white citizens to possess one of the necessary forms of identification.” He concludes: “Attorneys of the voting section have worked diligently to enforce voting laws and have achieved concrete, measurable advances for a record number of minority voters. We are enormously proud of this accomplishment.” [Atlanta Journal-Constitution, 11/25/2005] The Georgia voter identification law will be overturned by a federal court as illegal and discriminatory (see September 19, 2006).

The Justice Department’s civil rights division threatens to sue Southern Illinois University over its paid fellowships for women and minorities on the ground that the program discriminates against white males. The university discontinues the fellowships. The case was developed by a 2004 political hire of the division who belongs to the conservative Federalist Society and had previously worked for the Center for Individual Rights, an organization that opposes affirmative action programs (see Fall 2002 and After). [Savage, 2007, pp. 297]

Georgia’s controversial state voter identification law, which was touted by Bradley J. Schlozman, the Justice Department’s head of the voting rights section, as not being discriminatory towards minority voters (see November 25, 2005), is declared unconstitutional by Fulton County Superior Court Judge T. Jackson Bedford Jr., who said this law “cannot be.” The law, pushed through the Georgia legislature by Governor Sonny Perdue (R-GA) and state Republicans in order to fight what they call persistent voter fraud (see 2005), says that forcing citizens to pay money for a state voter identification card disenfranchises citizens who are otherwise qualified to vote. The state voter ID would require what the law calls “proof of citizenship.” Many poor and minority voters lack birth certificates, some because they lack the financial means to obtain them and others because they were born in a time and area in which birth certificates were not routinely issued. Rosalind Lake, an elderly and visually disabled voter, brought a lawsuit against the state because she says she is unable to drive and would not easily be able to obtain such an ID. Even though the state offered to deliver an ID to Lake’s home, her lawyer, former Governor Roy Barnes (D-GA), says others in her position would not be given such an offer. “We have a low voter participation,” he says. “We’re going to make it more difficult?” Under earlier law, Georgia voters could submit any of 17 types of identification to prove their identity. The new law poses one voter ID that would require a birth certificate. Perdue and others have cited information showing that 5,000 dead people “voted” in the eight elections preceding the 2000 elections, but Barnes notes that those votes were all cast by absentee ballots, which would not be affected by the new law. Barnes says, “This is the most sinister scheme I’ve ever seen, and it’s going on nationwide.” The law was already rejected by US District Judge Harold L. Murphy, who likened it to Jim Crow-era legal restrictions designed to stop African-Americans from voting. The Georgia General Assembly rewrote the law to remove the $20 fee for its acquisition, but Murphy refused to lift his injunction against the law. Bedford rules that the law places an unwarranted burden of proof on voters. “Any attempt by the legislature to require more than what is required by the express language of our Constitution cannot withstand judicial scrutiny,” he says. [Washington Post, 9/20/2006]

Bradley Schlozman. [Source: US Department of Justice]Congress’s new Democratic leadership decides to investigate the Bush administration’s politicization of the Justice Department’s civil rights division (CRD—see Fall 2002 and After). The investigation is part of a parallel investigation into the firing of nine US attorneys for allegedly political reasons. One of the first replacement US attorneys, Bradley Schlozman, had spent three years as one of the CRD’s political hires most responsible for hiring conservative ideologues to replace CRD career lawyers. The complaints also dovetail with a report that another key figure in the US attorney firing, the Justice Department’s White House liaison Monica Goodling, was being investigated for using partisan political affiliations as part of her decisions to hire career assistant prosecutors, a practice forbidden by federal law. Goodling will later admit to having “crossed the line” by using political litmus tests in her career hiring decisions. Scholzman will admit to having bragged about hiring only Republicans at the Justice Department, but will deny asking any job applicants about their political views or partisan affiliations. [Savage, 2007, pp. 299]

Facing a Congressional investigation into the practice of hiring conservative ideologues for the Justice Department’s civil rights division (CRD—see Fall 2002 and After and Spring 2007), the Department reverses its 2002 decision to give political appointees the power to decide who will be hired as career CRD lawyers. Such hiring now reverts to a committee of career civil servants, as has been the case for decades. Skeptics say that the reversal means little, as the career ranks are now packed with inexperienced conservative ideologues instead of the traditional veteran, highly experienced career lawyers. William Yeomans, a 24-year CRD veteran who accepted a 2005 buyout, says the Bush administration attempted to go farther than previous conservative administrations such as Nixon and Reagan. To make changes permanent, Yeomans notes, one has to entirely reshape the CRD bureaucracy. “Reagan had tried to bring about big changes in civil rights enforcement and to pursue a much more conservative approach, but it didn’t stick,” Yeomans says. “That was the goal here—to leave behind a bureaucracy that approached civil rights the same way the political appointees did.” [Savage, 2007, pp. 300]