The Senate's refusal to confirm Bill Lann Lee as assistant attorney general for civil rights is but the latest chapter in a long-running political struggle over the soul of the Justice Department's Civil Rights Division. As the ranking deputy there for 25 years -- from attorneys general John Mitchell to Janet Reno -- I had a ringside seat for most of this conflict. I can testify that it has caused significant and unnecessary harm to an important law enforcement agency.
On several occasions, the division has been left for long intervals without political leadership -- and therefore unable to make important decisions. Equally distressing, because the controversies have all centered around affirmative action, the conflict has created a damaging public perception that affirmative action is the only civil rights issue there is.
In concept and by law, the division's primary responsibility is to bring legal actions to enforce a large number of discrete civil rights statutes, including those barring discrimination against minorities, women and the disabled. The division's docket also includes extremely sensitive criminal prosecutions of hate crimes, arsons at abortion clinics and police officers charged with violating civil rights. There are shocking cases about unconstitutional conditions in institutions, cases about the exploitation of legal aliens and cases charging that banks and lending institutions discriminate on the basis of race, ethnicity and gender in providing loans and insurance. Under the Voting Rights Act the division must annually check thousands of voting law changes for discrimination. It is fine for our politicians to wrangle over affirmative action, to make their rhetorical points (consistent and otherwise) and to get even for this or that. But when the fallout impairs an organization with these kinds of fundamental responsibilities, something is amiss. Sub-cabinet level agencies such as the Civil Rights Division are hurt every day they have to operate without a presidential appointee.
Twice I was left to keep the division operating for over a year as the "acting" assistant attorney general. In 1989-90, during the Bush administration, I did not report directly to the attorney general but to one of his outriders who, I believe, thought it was his job to keep the division under control by endless, nit-picking review. We did undertake two major initiatives in this period: We aggressively supported passage of the Americans With Disabilities Act and we began a lawsuit against Virginia for maintaining a male-only college, VMI. (After being held in the attorney general's office for more than six months, the division's proposed suit against VMI was approved at the end of January 1990, right after Doug Wilder, a black Democrat, became governor. I can't imagine a presidentially appointed assistant attorney general would have suffered this kind of calculated delay.)
During my other long "acting" stint in 1993-94, during the Clinton administration's first term, my keeper was Associate Attorney General Webb Hubbell. I knew nothing of any other problems he had, but I did know that he was disorganized, constantly delegated review of division proposals to be reinvented by bright young folks from the Clinton campaign and took forever to approve the most straightforward proposals. For a whole year, much of our program was slowed to a crawl.
When I was acting chief, all division proposals attracted special scrutiny; people outside the department with civil rights problems correctly regarded me as a mere placeholder and pursued a higher, "real" official to get those problems addressed. There is no greater lack of interest on the planet than that displayed at a congressional hearing where the witness is merely "an acting."
With yet another controversy about a division chief upon us and yet another vacancy approaching a year, there is a tale worth telling about how the position evolved from a non-political director of the federal government's role in the civil rights revolution to a high-visibility appointment used by the political parties to send rancorous domestic policy signals. As one who watched it all, I am persuaded that the country would profit greatly from a return to the earlier model.
From its creation in 1957 as part of the first civil rights act since Reconstruction, the division's approach was to assemble factually irrefutable cases and to bring as many of them as were needed to encourage compliance with federal law and thereby help the courts reshape American institutions that had been warped by generations of racism.
The Civil Rights Division was first dragged into the political fray after the 1968 election of Richard Nixon. In 1969, the incoming regime hit town full of campaign trail anecdotes about how ideologically rigid attorneys in the division had been insisting on racial balance busing for school desegregation and on black-white work force quotas for employers and labor unions. These broad charges were not true, but without taking time to sort out the facts in the hundreds of cases on the division's docket, Attorney General Mitchell, in what became known as the "Southern Strategy," agreed that the department would take another look at the school desegregation orders to be implemented across the South in the fall of 1969.
Aghast at what they saw as blatant political interference, division regulars circulated and publicized petitions to the attorney general protesting that their work and the law was being trashed for political gain. Civil rights organizations and congressional Democrats took up the cause. Without dissent, the Supreme Court summarily rejected the government-supported plea for more time to study school desegregation.
Nixon's second term began with an attempt to purge the unruly Civil Rights Division. We all had to submit undated resignations. That of David L. Norman, the assistant attorney general, was accepted. The new one, Stanley Pottinger, girded for battle with White House conservatives. Suddenly, however, the administration's political energy was sapped by the Watergate scandal. The division benefited from a kind of pax Watergate in Nixon's final decline through the entire Ford administration.
Combined with the Carter term, this gave us seven years of constructive activity, from 1973 to 1980, in which the division was relatively free to pursue its original law enforcement approach, expanding significantly in size and subject matter.
During the 12-year Reagan-Bush era, the division was regularly exploited to serve the new conservative agenda of limiting the government's enforcement role. President Reagan's new assistant attorney general, William Bradford Reynolds, was confirmed by the Democratic Senate after only routine questions. The opening kickoff in the new game was a reversal of the division's and the Justice Department's position in the Supreme Court on the Internal Revenue Service practice of denying tax exempt status to racially discriminatory private schools. In the Bob Jones University case, the Reagan lawyers decided to argue that the Internal Revenue Service had no authority to do this, a proposition only one justice ultimately thought was right.
We soon had to argue that preventing busing was more important than achieving school desegregation. We watched in wonder as the Reagan administration maneuvered to avoid and then dilute the 1982 extension of the Voting Rights Act. The division was thrust into the administration's "social agenda" cases and had to produce briefs in non-civil rights cases against the right to abortion and for school prayer. The "neo-con" centerpiece was an across-the-board-assault on any form of race-specific relief, no matter how compelling the circumstances, in employment, contracting, college admissions, voting districts and scholarships.
There was a great deal of turmoil as discouraged career people complained that most of the division's energy was going to fight "excessive" remedies and precious little to our primary enforcement responsibilities.
When Reynolds was nominated for elevation to associate attorney general in 1985, furious Senate Democrats in charge of the Judiciary Committee vowed there would be no more free passes and came up with a list of grievances against him -- some real, some exaggerated and a few imagined. Indignant Republicans claimed that none of these policy complaints spoke to Reynolds's fitness. (Indeed, in the division there was some sentiment in support of confirmation on the grounds that Reynolds would turn his attention elsewhere.) The Republican minority bitterly complained that Reynolds was turned down not because he was unqualified or unfit, but only because the Democrats disagreed with his legal polices. Although there was no recess appointment for Reynolds, he was given the functionally equivalent position as counselor to Attorney General Ed Meese.
From that time on, confirmation for the position has regularly produced intense partisan wrangling.
After Reynolds's departure, President Bush and his attorney general, Dick Thornburgh, tried to avoid the ideological war by selecting William Lucas, a black Republican county executive and former sheriff from suburban Detroit, in the naive (or cynical) belief that his minority status would immunize him from attack by the Democrats. The move failed when the Judiciary Committee discovered that Lucas had never tried a major lawsuit of any kind and had no working knowledge of the most basic legal principles of civil rights law.
When the committee turned down his party's nominee without even letting his name go to the Senate floor, Sen. Orrin Hatch (R-Utah), argued that it was terribly unfair because the man "reflected not only the opinion of the Attorney General, but the views of the President who nominated him, a President overwhelmingly elected by the people last November." While Senate rules do not mandate consistency, to the naked eye, this is 180 degrees off the position of Hatch now that he is committee chairman. (Another nominee, John Dunne, was found and confirmed.)
When Clinton took office in January 1993, people in the division had great expectations that Democrats at last would restore the division's independence and integrity. But, as the doctors say, there were complications. First, there were several false starts (the failed attempts to nominate lawyer Zoe Baird and then federal judge Kimba Wood as attorney general) before Reno was selected.
To head the division, the president chose Lani Guinier, his law school classmate who had worked in the Carter-era division. I immediately asked Associate Attorney General Hubbell, the president's Arkansas friend to whom I reported, if he was aware that some of Guinier's avant-garde legal musings, which I made available to him, might stir up a real problem. He said I should not worry, that she was being vetted by experts and that all was under control. The Republicans soon began rumbling about her writings, dubbing her a "Quota Queen." When the president himself read her academic work, she was dropped instantly. Over a year into his first term, an extensive search produced Deval Patrick, a Boston lawyer who was quickly confirmed.
But there was no relief from the affirmative action wars. The Piscataway, N.J., school board had fired a white high school teacher solely on the basis of her race so that a black with equal seniority could be retained for the sake of "diversity." I had concurred in filing suit against the school board because the law seemed so clear: From the time Title VII was passed, the division had never urged and no court had ever held that it was proper to fire incumbents to maintain or create diversity. Under pressure from the left, however, the division made an embarrassing effort to change sides and support the school board. The conservatives were handed another reason to denounce the division as a tool of liberals and its position was rejected by two lower courts. (A coalition of civil rights organizations recently paid off the white teacher to end the case and avoid an adverse Supreme Court ruling.)
There are only a handful of cases in the division which will turn on the apparent differences between Chairman Hatch and Bill Lee on affirmative action. But for every such case, there are literally dozens that have nothing to do with the subject. For example, the division's largest current commitment of resources is to the enforcement of the Americans With Disabilities Act. There is no reason why a dispute about whether to advise a court to affirm or throw out California's Proposition 209 should impair this important effort, which has enjoyed the support of both political parties and strives only to provide a mainstream chance for all Americans.
If asked to advise the president on the Lee nomination, I would say that if he is satisfied that Lee has a genuine commitment to enforcing the laws as written by Congress and interpreted by the courts, this would be one of the rare occasions in which a recess appointment, allowing him to serve a limited time without confirmation, would be proper. It may also be the only way to prevent further damage to a law enforcement agency that has been battered quite enough. James P. Turner retired in 1994 as the career deputy assistant attorney general for the Department of Justice's Civil Rights Division. He is chair of the Civil Rights Division Association. CAPTION: DO YOU REMEMBER THESE MEN? The Civil Rights Division was created by Departmental Order No. 155-57 signed by Attorney General William P. Rogers on Dec. 9, 1957. The new division consisted of the Civil Rights Section of the Criminal Division and a handful of recruits operating under Assistant Attorney General Wilson White. Since then, the division has grown to more than 500 employees. ASSISTANT ATTORNEYS GENERAL FOR CIVIL RIGHTS HAROLD TYLER
7/4/60-1/10/61* BURKE MARSHALL
3/29/61-1/15/65 JOHN DOAR
4/7/65-12/29/67 STEPHEN POLLAK
1/2/68-1/20/69 JERRIS LEONARD
1/21/69-4/23/71 DAVID L. NORMAN
8/10/71-2/1/73 J. STANLEY POTTINGER
2/2/73-2/24/77 DREW S. DAYS III
4/10/77-12/31/80 WILLIAM BRADFORD REYNOLDS 7/27/81-12/9/88 JOHN R. DUNNE
4/17/90-1/20/93 DEVAL PATRICK
3/31/94-1/20/97 SOURCE: Civil Rights Division Association Newsletter