Attorney General Eric H. Holder Jr.

White House Plans to Shift Efforts at Civil Rights Division

WASHINGTON (By Charlile Savage, AP) September 1, 2009 — Seven months after taking office, Attorney General Eric H. Holder Jr. is reshaping the Justice Department’s Civil Rights Division by pushing it back into some of the most important areas of American political life, including voting rights, housing, employment, bank lending practices and redistricting after the 2010 census.

As part of this shift, the Obama administration is planning a major revival of high-impact civil rights enforcement against policies, in areas ranging from housing to hiring, where statistics show that minorities fare disproportionately poorly. President George W. Bush’s appointees had discouraged such tactics, preferring to focus on individual cases in which there is evidence of intentional discrimination.

To bolster a unit that has been battered by heavy turnover and a scandal over politically tinged hiring under the Bush administration, the Obama White House has also proposed a hiring spree that would swell the ranks of several hundred civil rights lawyers with more than 50 additional lawyers, a significant increase for a relatively small but powerful division of the government.

The division is “getting back to doing what it has traditionally done,” Mr. Holder said in an interview. “But it’s really only a start. I think the wounds that were inflicted on this division were deep, and it will take some time for them to fully heal.”

Few agencies are more engaged in the nation’s social and cultural debates than the Civil Rights Division, which was founded in 1957 to enforce anti-discrimination laws.

The division has been at the center of a number of controversies over the decades, serving as a proxy for disputes between liberals and conservatives in matters like school busing and affirmative action. When the Nixon administration took office, it sought to delay school desegregation plans reached under former President Lyndon B. Johnson. The Reagan administration dropped the division’s policy of opposing tax-exempt status for racially discriminatory private schools. And former President Bill Clinton withdrew his first nominee to lead the division, Lani Guinier, after her writings about racial quotas were criticized.

But such dust-ups were minor when compared with sweeping changes at the division under the Bush administration, longtime career civil rights lawyers say.

Now the changes that Mr. Holder is pushing through have led some conservatives, still stinging from accusations that the Bush appointees “politicized” the unit, to start throwing the same charge back at President Obama’s team.

The agency’s critics cite the downsizing of a voter intimidation case involving the New Black Panther Party, an investigation into whether an Arizona sheriff’s enforcement of immigration laws has discriminated against Hispanics, and the recent blocking of a new rule requiring Georgia voters to prove their citizenship. (Under the Bush administration, the division had signed off on a similar law requiring Georgia voters to furnish photographic identification, rejecting criticism that legitimate minority voters are disproportionately more likely not to have driver’s licenses or passports.)

Among the critics, Hans von Spakovsky, a former key Bush-era official at the division, has accused the Obama team of “nakedly political” maneuvers.

Tracy Schmaler, a Justice Department spokeswoman, rejected such criticism, saying those cases were decided “based on the facts and the law.”

Under the Bush administration, the agency shifted away from its traditional core focus on accusations of racial discrimination, channeling resources into areas like religious discrimination and human trafficking.

Department officials are working to avoid unleashing potential controversies as they rebuild the division’s more traditional efforts on behalf of minorities.

They are not planning to dismantle the new initiatives, rather to hire enough additional lawyers to do everything. The administration’s fiscal year 2010 budget request includes an increase of about $22 million for the division, an 18 percent increase from the 2009 budget. Other changes are already apparent.

The division has filed about 10 “friend of the court” briefs in private discrimination-related lawsuits since Mr. Obama’s inauguration, a practice that had dwindled in the previous administration.

In July, moreover, the division’s acting head, Loretta King, sent a memorandum to every federal agency urging more aggressive enforcement of regulations that forbid recipients of taxpayer money from policies that have a disparate impact on minorities.

The division has also lifted Bush-era rules that some career staff members saw as micromanagement or impediments, like restrictions on internal communications and a ban on front-line career lawyers’ making recommendations on whether to approve proposed changes to election laws.

Other changes from the Bush years may be harder to roll back. The division’s downgrading of the New Black Panther Party charges, which were filed in the final days of the Bush administration, has had rippling consequences. It apparently prompted Senate Republicans to put a hold on President Obama’s nominee to lead the division as assistant attorney general for civil rights, Thomas Perez.

The delay in Mr. Perez’s arrival, in turn, is stalling plans to review section managers installed by the Bush team, including several regarded with suspicion by civil rights advocacy groups. Under federal law, top-level career officials may not be transferred to other positions for the first 120 days after a new agency head is confirmed.

Bush-era changes to the division’s permanent rank may also have lingering effects. From 2003 to 2007, Bush political appointees blocked liberals from career jobs and promotions, which they steered to fellow conservatives, whom one such official privately described as “real Americans,” a department inspector general report found. The practice, which no previous administration had done, violated civil service laws, it said.

As morale plunged among veterans, turnover accelerated. The Obama transition team’s confidential report on the division, obtained by The New York Times, says 236 civil rights lawyers left from 2003 to 2007. (The division has about 350 lawyers.)

Many of their replacements had scant civil rights experience and were graduates of lower-ranked law schools. The transition report says the era of hiring such “inexperienced or poorly qualified” lawyers — who are now themselves protected by civil service laws — has left lasting damage.

“While some of the political hires have performed competently and a number of others have left, the net effect of the politicized hiring process and the brain drain is an attorney work force largely ill-equipped to handle the complex, big-impact litigation that should comprise a significant part” of the division’s docket, the transition report said.

At the end of the Bush administration, the attorney general at the time, Michael B. Mukasey, began to make changes intended to reduce political influence over entry-level career lawyer hiring. The Civil Rights Division is now seeking to expand those changes.

It is developing a new hiring policy under which panels of career employees — not political appointees — would decide both whom to hire and to promote for positions from interns to veteran lawyers. The policy could be completed as early as this month.

“We wanted to create a very transparent policy that will stand the test of time and ensure that we hire the best and brightest,” said Mark Kappelhoff, a longtime civil rights lawyer who is the division’s acting principal deputy assistant attorney general.

Some conservatives are skeptical that such a policy will keep politics out of hiring, however. Robert Driscoll, a division political appointee from 2001 to 2003, said career civil rights lawyers are “overwhelmingly left-leaning” and will favor liberals.

“If you are the Obama administration and you allow the career staff to do all the hiring, you will get the same people you would probably get if you did it yourself,” he said. “In some ways, it’s a masterstroke by them.”

Mr. Holder has elsewhere called for social changes with civil rights overtones, like the passage of a federal hate-crimes law, the elimination of the sentencing disparity between crack and powder cocaine and greater financing for indigent defense.

By contrast, he described his Civil Rights Division efforts as more restoration than change. The recent moves, he argued, are a return to its basic approach under presidents of both parties — despite some policy shifts between Republican and Democratic administrations — before the “sea change” and “aberration” of the Bush years.

“Of course there are going to be critics,” Mr. Holder said. But, he argued, “any objective observer” would see the recent approach as consistent with “the historical mission of the division, not straying into some kind of liberal orthodoxy. It really is just a function of enforcing the statutes.”