2016 Thomson Reuters. No Claim to Original US

Dumoulin-Smith, Adrien 5/29/2016 For Educational Use Only

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

53 Washburn L.J. 509

Washburn Law Journal Summer, 2014

Symposium: Brown v. Board at 60: Looking Back, Looking Forward Articles & Essays

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT

William R. Yeomans a1

I. Introduction

Brown v. Board of Education 1 reset the way we think about equality and set us off on a journey to sort out who we were as a nation and what role race would play in our society. The decision, of course, was met with enormous resistance. But over the next decade--through the efforts of many brave souls, including average people of exceptional courage, civil rights leaders, lawyers, and the business community--the inevitability of the message of Brown appeared to sink in. With the passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Civil Rights Act of 1968, as well as the creation of the Civil Rights Division in the U.S. Department of Justice, the country solidified a commitment through federal law to dismantle the racial caste system that had excluded African Americans so thoroughly from the nation's mainstream institutions. As a corollary, the nation began the process of expanding equality for other racial and ethnic groups, as well as for women, people with disabilities, and members of the LGBT community.

Yet today we live in a society in which African American unemployment is twice that of whites. 2 African American income is roughly fifty percent that of whites. 3 African American wealth is one-sixth that of whites. 4 African Americans fail to finish high school at nearly twice the rate of whites. 5

The many reasons for this inequality run deep in our society, but a major *510 contributing factor is the political resistance to Brown and the civil rights laws that has that shaped our politics and contributed to the state of the law. The politics of resistance have been periodically injected into the law through our political institutions. No such institution has been more affected than the Civil Rights Division of the Department of Justice, which is charged with enforcement of federal civil rights guarantees. Because of its unique role, the Division has also been the focus of a decades-long ideological struggle to slow that effort. As a result, it has served as a barometer, incubator, and advocate for the doctrines of resistance that impede the march toward equality. This Article briefly discusses the state of those doctrines before highlighting the role of the Civil Rights Division and then describing how recent attacks on the Division fit into a broader effort to delegitimize the enforcement of antidiscrimination laws.

II. The Roberts Court and Race

A majority of the U.S. Supreme Court seems intent on limiting efforts to remedy racial disparities. It embraces the ahistorical notion that Brown does not stand for the principle that the exclusion of people based on race is impermissible. Rather, according to a majority of the Roberts Court, Brown stands for the principle that all racial classifications, regardless of purpose or effect, are presumptively prohibited. Justices use this principle to tell school districts that they cannot voluntarily desegregate, 6 employers

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 that they cannot take measures to avoid a disparate impact on minority applicants, 7 universities that they cannot consider race in admissions, 8 and Congress that it lacks authority to protect minority voters from discriminatory practices. 9 Brown truly has been turned on its head.

The Supreme Court has not just ceased being a driver of racial equality. It has systematically closed the space that other actors have in which to pursue equality, whether they are school districts, employers, universities, or Congress. In doing so, the Court seems to be saying that the work of the law is over. Most strikingly, in addressing school desegregation and voting rights, the Court has adopted a line of reasoning that has been prominent in our political discourse. It goes something like: we had a problem. Slavery and Jim Crow were bad, but we passed a series of laws that require equal *511 opportunity. Things have changed for the better. Mission accomplished.

The Roberts Court is split on issues involving racial equality. Four members of the Court take a strict view that any consideration of race is inherently suspect and rarely justified. Four justices are generally more tolerant of efforts to promote equality that may involve consideration of race. Between these two camps floats Justice Kennedy, who speaks in more tolerant terms but consistently rejects consideration of race in practice. Despite his softer rhetoric, Justice Kennedy has voted with Justice Scalia on all but one equal protection case involving race. 10

Nevertheless, Justice Kennedy has proven pivotal to the Roberts Court's decisions on race, especially in Chief Justice Roberts's first majority opinion for the Court in a decision based on the Equal Protection Clause. 11 In Parents Involved in Community Schools v. Seattle School District No. 1, 12 Justice Roberts invoked Brown to strike down two cities' efforts to ensure racial diversity in public schools. Five Justices voted to prohibit Seattle, Washington and Louisville, Kentucky from taking race into account in assigning students to schools. Seattle had preemptively adopted a plan to promote diversity in its schools after being repeatedly threatened with school desegregation litigation at least nine times since the 1970s. 13 Louisville had long been subject to a court ordered desegregation decree. 14 After it was lifted, Louisville adopted the challenged plan to maintain diversity that had been achieved under the decree. 15 Chief Justice Roberts, writing for himself and three other Justices, rejected the argument that achieving diversity could be a compelling interest justifying consideration of race in school assignments. 16 He compared the assignment plans to a time “[b]efore Brown,” when “schoolchildren were told where they could and could not go to school based on the color of their skin.” 17

Chief Justice Roberts ended his opinion in Parents Involved with the *512 admonition that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 18 This line serves as a legal Rorschach test on views toward race. Some see in it simple and profound wisdom. Others find it simplistic, ahistorical, and unhelpful. Justice Kennedy was in the latter category. 19 In a concurring opinion, he found Chief Justice Roberts's views dismissive of the magnitude and complexity of our racial history. To Justice Kennedy, fifty years of experience since Brown have shown that racial isolation persists in our schools, and the Constitution should not be interpreted to bar the pursuit of diversity in such stark terms. 20 Yet, while acknowledging that the quest to overcome racial isolation could justify consideration of race, Justice Kennedy still found that these school systems' use of race was not narrowly tailored. 21 Over four dissenting justices, the Court held that Seattle and Louisville's assignment plans violated the Equal Protection Clause.

In Fisher v. University of Texas at Austin, 22 the Court rejected consideration of race in a university admissions program. Instead of broadly affirming or rejecting the constitutionality of affirmative action programs, which the Court had addressed ten years earlier in Grutter v. Bollinger, 23 it remanded the case. 24 Many had thought that five members of the Court might make a bolder statement than the final opinion, written by Justice Kennedy. Instead, the majority found that the Fifth Circuit

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 had not applied sufficiently strict scrutiny to determine whether the university's admissions plan was narrowly tailored. 25 Two justices who might have been expected to dissent joined the opinion, suggesting that it was a compromise they were eager to join to avoid worse. 26 In fact, Justice Kennedy noted “disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity.” 27 The opinion drives home the narrowness of the space that the Court left for educational institutions to consider race in attempting to build diverse learning environments.

This term, the Court continued its opposition to consideration of race in university admissions in Schuette v. Coalition to Defend Affirmative Action. 28 *513 The plaintiffs challenged a Michigan constitutional amendment that prohibited consideration of race in public decisionmaking. The amendment was adopted by a referendum launched in response to the Court's decision in 2003 upholding the limited consideration of race in admission to the University of Michigan Law School. 29 The referendum was overwhelmingly supported by white voters and opposed by minority voters. The Sixth Circuit agreed with the challengers that the referendum violated the Equal Protection Clause because it restructured the political process to change the rules governing a racial issue and made it more difficult for minorities to secure a benefit. Prior to the referendum, a proponent of race sensitive admissions would have had to convince only the Board of Regents to take race into account, whereas after the change a proponent would have to undertake the far more difficult and expensive task of amending the state constitution. The Court had relied on the political restructuring doctrine to strike down similar referenda. Most notably, it invalidated a Washington referendum that limited the use of busing for voluntary school desegregation. 30 The referendum was adopted in response to the adoption of a school desegregation plan by Seattle.

Justice Kennedy, writing for himself, the Chief Justice, and Justice Alito, narrowed the scope of the political restructuring doctrine in a manner likely to limit severely its relevance for future cases. Justices Scalia and Thomas would have rejected the doctrine altogether.

Justice Sotomayor wrote a vigorous dissent that directly took on the Chief Justice's approach to ending discrimination, suggesting that it remains necessary to deal openly and honestly with matters of race. She recounted the many ways that discrimination continues to affect people's lives. The Chief Justice could not resist writing a bristling response in which he lectured Justice Sotomayor on the effects of discrimination on minorities and faulted her suggestion that opponents of race- consciousness were not dealing openly and candidly with matters of race. The exchange yielded substantial insight into the Court's divide on matters of race and the Chief Justice's dogmatic rejection of the continuing relevance of race in remedying the effects of discrimination or promoting diversity.

The space in which to pursue racial equality narrowed for employers seeking to foster diverse workplaces in Ricci v. DeStefano. 31 The Court held that city officials violated the Civil Rights Act in an attempt to avoid discriminating against racial minorities. 32 The same five justices who joined together in Parents Involved found that the City of New Haven could not *514 throw out the results of a promotion exam for firefighters that produced a racially disparate impact. 33 Title VII of the Act prohibits employment practices that disproportionately exclude people on the basis of race and that are not justified by business necessity. 34 After administering the exam--which African-American candidates passed at a rate half that of white candidates and which would have resulted in no promotions of African Americans--New Haven worried that reliance on it would violate Title VII. 35 The City declined to certify the results and disappointed white firefighters sued. 36 The Court and Congress traditionally encouraged voluntary compliance with Title VII, but here the Court held that the City engaged in intentional racial discrimination against white firefighters. 37

As a result, the Court made it more difficult for employers to justify voluntary action to avoid discrimination. More ominously, the majority in Ricci hinted--and Justice Scalia said directly--that the disparate impact provisions of Title VII may violate the

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

Equal Protection Clause. 38 Under this theory, the threat of disparate impact liability causes employers to take race into account in an effort to avoid an adverse impact on minorities, and doing so amounts to intentional discrimination against the majority. 39 That position is inconsistent with four decades of precedent 40 and conflicts with the intent of Congress in amending Title VII in the Civil Rights Act of 1991 to include an explicit disparate impact provision. 41 As it had with Brown, the Court turned the Civil Rights Act on its head. Each of these cases highlights how dramatically the law has tilted away from traditional protection of minorities toward protection of the rights of the *515 majority. In each instance, a white plaintiff need only show that race was considered in decision-making--generally whether or not the plaintiff was actually affected by the use of race-- and she presumptively wins. 42 By contrast, a minority plaintiff attempting to challenge racial discrimination must prove that the decision-maker intentionally discriminated on the basis of race--generally a difficult burden to satisfy--and that she was harmed by that consideration. 43 Abigail Fisher, for example, had to show only that the University of Texas considered race as one element in its admissions program, regardless of whether she would have been admitted if race had not been considered (she likely would not have been). 44 That showing rendered the admissions program presumptively invalid. By contrast, a minority student alleging that she was denied admission because a university relied on a racially-discriminatory factor--for example, a discriminatory test or a preference for legacy candidates--would have to make the difficult showing that university administrators relied on that factor with the intent of discriminating against her based on race, and she would have to prove that she was harmed.

Finally, last term, the Court struck down a key part of the Voting Rights Act in Shelby County v. Holder. 45 The most innovative and effective provision of the Act as first enacted in 1965 was § 5, which required jurisdictions to submit all changes to their voting laws, procedures, and practices to the Attorney General or a three-judge court in Washington for approval. 46 Section 4 contained the formula for determining which jurisdictions had to submit these changes for preclearance before they could go into effect. 47 The submitting jurisdiction had the burden of proving that the change did not have the purpose or effect of discriminating on the basis of race. 48 This preclearance requirement was necessary because states and localities used a constantly evolving array of tactics to prevent African Americans from registering and voting. 49 Even if the Justice Department or a *516 private plaintiff could devote the time and resources necessary to challenge these practices, and even if a court enjoined a practice, determined legislators and election officials would impose a new obstacle that would again have to be litigated. 50 Preclearance froze the status quo, preventing officials from adopting new tactics unless they could demonstrate that they did not have the purpose and would not have the effect of discriminating. The preclearance requirement proved so successful that it was renewed in 1970, 1975, 1982, and 2006. 51

Writing for the majority, Chief Justice Roberts held § 4 of the Act unconstitutional. 52 Despite a 15,000-page legislative record compiled by Congress to demonstrate the continuing need for preclearance and relevance of the coverage formula, 53 the Court found that § 4 did not reliably identify jurisdictions in which voters needed special federal protection. 54 In striking down § 4, the Court substituted its judgment for that of Congress, which had determined in 2006 that lifting preclearance would be premature and would leave the work of the Voting Rights Act unfinished. Congress renewed the preclearance requirement and the coverage formula by unanimous vote in the Senate and an overwhelming vote in the House of Representatives. 55 The Court in Shelby County ignored Congress's extensive documentation of evolving forms of discrimination in areas such as redistricting and the use of at-large elections. 56 The Court concluded that singling out the states and localities covered by the 2006 reauthorization ran afoul of the doctrine of the equal sovereignty of the states. 57 Strikingly, in 1966 when the Court upheld the constitutionality of the newly enacted Voting Rights Act, it expressly rejected South Carolina's contention that subjecting it to preclearance violated the equal sovereignty of the states. 58 That doctrine, the Court noted, applied only to the terms of

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 admission to the Union. 59 In reversing course, the Roberts Court displayed remarkable disdain for Congress and the *517 Constitution's express empowerment of Congress to enforce the Fourteenth and Fifteenth Amendments. 60

The views of the current conservative majority on the Court coincide closely with the prevailing conservative political agenda. It is not difficult to trace their roots, in part, to the political forces set in motion in reaction to Brown and the civil rights movement. Brown, of course, was met with massive resistance. The Court's “all deliberate speed” standard invited resistance and delay. Although the Court briefly reasserted itself in Cooper v. Aaron, 61 it was not until Green v. New Kent County 62 in 1968 that the Court made clear to recalcitrant jurisdictions that it would not countenance further delay. 63

Green ushered in the high-water period of school desegregation efforts. The Department of Justice and private litigants returned to court to seek further relief in school desegregation cases. This led to Swann v. Charlotte Mecklenberg, 64 in which the Court endorsed busing as a tool, 65 and to Keyes v. Denver, 66 which established that jurisdictions outside of the South could be required to desegregate schools. 67 During this period, the resistance to Brown became commonplace in mainstream politics. In 1964, the crushing defeat of Barry Goldwater, who opposed the Civil Rights Act of 1964, appeared to leave the Republican Party severely weakened. 68 Four years later, the unsuccessful presidential primary run of staunch segregationist George Wallace demonstrated the power of an appeal to the forces of white racial resentment. 69 Richard Nixon recognized the strength of the Wallace message and formulated his southern strategy for his 1972 re-election campaign, which rested on thinly-veiled appeals to this constituency. 70 Using code words such *518 as “law and order” and denouncing busing to achieve desegregation, Nixon won handily and appeals to white resentment became staples of “winning” politics. 71

III. The Civil Rights Division

Over the past five and a half decades, the Civil Rights Division has been the place where each president's administration implemented its own view of the promises of the civil rights laws. As the principal civil rights litigation office in the executive branch, the Division has played a crucial role in the shaping and enforcement of civil rights law. At its best, it has served as a bulwark against attempts to introduce the politics of resistance into the law. At its worst, it has been the gateway for their introduction into the law. Most recently, the Division has been the target of a political campaign to undermine its mission. Opponents of racial equality have extended their campaign beyond the Courts to weaken the enforcement of antidiscrimination laws by delegitimizing the principal institution for their enforcement.

In 1957, Congress passed the first modern civil rights act over the record-setting 24-hour filibuster of Senator Strom Thurmond of South Carolina. 72 The act that emerged was watered down, 73 but it created the office of Assistant Attorney General for Civil Rights in the Department of Justice. 74 The creation of the office led to creation of the Civil Rights Division. 75

Since 1957, the Civil Rights Division has been a distinct unit in the Department of Justice dedicated to the enforcement of civil rights statutes enacted by Congress and those constitutional guarantees that Congress authorized it to enforce. 76 Like all Department of Justice attorneys, Civil *519 Rights Division attorneys are expected to perform their job without regard to their personal political views. The Division, though, has always attracted attorneys who are interested in enforcing civil rights laws. It was understood from the start that its mission was to use the law to dismantle the racial caste system. Because the Division started with limited jurisdiction, its lawyers fanned out across the South to bring lawsuits to enforce the Fifteenth Amendment's guarantee against discrimination in voting. 77 It also began to participate as a friend of the court in school desegregation cases. 78 Following passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act and the federal hate crime law in 1968, the Division was able to become a party to hundreds of school desegregation cases. It also brought cases

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 to combat discrimination in voting, employment, and housing, and prosecuted law enforcement officers for violating rights and individuals for engaging in racially-motivated violence. 79

The Civil Rights Division has often been a lightning rod for criticism because of its involvement in high-profile issues that too often have divided the American people. 80 Much of that criticism, however, is based on an incomplete understanding of the structure and work of the Division. Since its establishment, the Division's central mission has been to enforce the civil rights statutes enacted by Congress. Naturally, just as the focus of those laws was to rid the country of discrimination that had oppressed African Americans and other minorities, the Division's work focused on that goal. That did not mean, however, that the Division was an arm of the civil rights movement. From the start, Division attorneys understood that they worked for the United States and not the civil rights movement or any individual client. Although the interests of the Division often coincided with those of movement lawyers, they could diverge on matters of strategy and decisions about which cases or arguments to pursue. 81

*520 The structure of the Division long served as a safeguard against its capture by any movement or political faction. The Division consists of a large body of career lawyers who customarily have been selected through a merit-based process that emphasizes academic excellence and professional accomplishment. 82 These lawyers are grouped into sections, most of which are defined by the subject matter they address. 83

The career trial attorneys in the sections are the frontline troops who develop, recommend, and litigate enforcement actions. 84 They generally operate from the ground up. Cases come into the Division through complaints from individuals, contact with public interest groups or private attorneys, news reports, and referrals from other agencies. 85 Typically, a case is assigned to an attorney or group of attorneys who will investigate by examining documents, interviewing people with knowledge of the incident, and talking with potential defendants. Investigations of complex matters may also require consultation with statisticians, mental health experts, political scientists, or other experts. Once the factual investigation is complete, it is up to the attorneys to determine whether the facts state a violation of one of the laws the Division enforces and whether the evidence is likely to produce a finding of liability. They then make a recommendation to the political leadership of the Division, which makes the final decision on whether to proceed with a case.

The Division is led by an Assistant Attorney General, who is appointed by the President and confirmed by the Senate. She is assisted by a varying number of politically-appointed Deputy Assistant Attorneys General, Counsels, and Special Assistants. Customarily, one of the Deputies is drawn from the career ranks. 86 Each Deputy supervises one or more of the substantive Sections and is deeply involved in decisions to initiate litigation and criminal prosecutions. 87 Traditionally, the relationship between career and political attorneys has involved considerable back and forth and substantial respect on each side. This organic, interactive relationship has allowed career attorneys to contribute their expertise and knowledge of the *521 law and the institutions of government, while political appointees contribute the perspective of the administration and bring outside contacts and expertise from other sectors to bear. 88

Because the Division is a plaintiff-side enforcement agency, it has both the advantage and burden of substantial prosecutorial discretion. 89 The advantage is that the leadership has flexibility to establish priorities and to determine the most effective use of its resources. The disadvantage is that the existence of that flexibility invites conflict over priorities and opens the door to political considerations. 90 Tensions have periodically flared, and these flare-ups often serve as guideposts for efforts to inject the political agenda of resistance into civil rights enforcement.

When, for example, President Richard Nixon came into office on a platform opposing busing, his political appointees tried to reverse course, but found that it was difficult to do because not just the career attorneys, but courts and key members of Congress

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 opposed his efforts. The Nixon Administration arrived to find that the outgoing administration had filed numerous motions to enforce the mandate of Green. 91 The new Administration listened sympathetically to the entreaties of school districts for delay, but once the Supreme Court held in Alexander v. Holmes 92 that delay would not be tolerated, the Administration fell into line. 93 Similarly, the Nixon Administration had difficulty supporting the busing decree in Swann and filed a brief that supported desegregation without endorsing full relief. 94 Once the Court endorsed busing in Swann, the Administration had little choice but to acquiesce. 95

Although Jimmy Carter was accused during his 1976 campaign of exploiting racially-charged rhetoric to win the votes of Southern whites, 96 the Civil Rights Division returned to vigorous enforcement of the law during his administration. That opened the door for Ronald Reagan to run on a platform *522 that promised significant cutbacks in civil rights enforcement. 97

During the Reagan Administration, the politics of resistance to Brown and the civil rights acts fully merged with a separate strain of the growing conservative legal movement driven by corporate interests. That strain received a substantial boost from a memorandum written in 1971 by then-corporate lawyer Lewis Powell to his friend Eugene Sydnor, who was an official at the U.S. Chamber of Commerce. 98 The memo portrays the business community as ineffective and disengaged and lacking the institutional capacity to take on the forces of liberalism. 99 Powell described those forces as “Communists, New Leftists and other revolutionaries” who were attacking the “American economic system,” along with people from “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences and . . . politicians.” 100

Powell's prescription for a conservative resurgence included funding from business, coordinated by the Chamber of Commerce, that would be used to push back through think tanks, the press, and most importantly the courts. 101 Eschewing the traditional conservative rhetoric of opposition to robust judicial engagement, Powell stated that “with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.” 102 To carry out this plan, he urged the business community to promote its interests in court by mimicking successful civil rights and public interest groups on the left. 103 Powell's appointment to the Court by President Nixon two months after he wrote his memo put him in position to join Nixon's other appointees in pushing for retreat from the Warren Court's jurisprudence on civil rights. 104

The corporate-led backlash advocated by Powell merged with the movement spawned by the reaction to Brown and the civil rights acts to form a powerful legal movement that became a cornerstone of Reagan's political agenda. 105 Indeed, the Reagan Administration's Department of Justice *523 became the crucible for the legal movement of resistance to equality. 106 Chief Justice John Roberts and Justice Samuel Alito both served in the Reagan Department of Justice, 107 as did many of the attorneys who have subsequently led the legal resistance to vigorous civil rights enforcement, including Charles Cooper, Michael Carvin, and Clint Bolick, all of whom served in the Civil Rights Division. 108 The Reagan Department of Justice also turned its Office of Legal Policy into a publicly-funded, ideologically-driven think tank that produced two substantial documents laying out a blueprint for implementing the Reagan agenda through law. 109

Reagan appointed William Bradford Reynolds to head the Civil Rights Division. Reynolds was by traditional measures a curious choice. He was a corporate lawyer who had served briefly in the Office of the Solicitor General in the Nixon Administration. 110 His views on civil rights were largely unknown, but immediately became apparent. 111 Early in Reynolds's tenure, the Reagan Administration switched the government's positions in a matter before the Supreme Court involving Bob Jones University. 112 The University prohibited interracial dating and marriage among students, which had led the Internal Revenue Service to deny

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 it tax-exempt status as a charitable *524 organization. 113 In an overreach that demonstrated how dramatically differently the Reagan appointees thought about racial discrimination and how removed they were from prevailing views on race, the Department of Justice filed a brief in the Supreme Court reversing its support for the Internal Revenue Service and backing Bob Jones University. 114 The brief sparked a firestorm of criticism from career attorneys in the Department, members of Congress, civil rights leaders, and the press. 115 The Court rejected the Department's position, with only Justice Rehnquist supporting the government's position. 116

Unfazed, the Reagan Civil Rights Division proceeded to push an agenda that reflected a full embrace of the legal agenda of resistance to equality. The Division aggressively rejected busing 117 and other forms of school desegregation, including launching a project to end court supervision of extant desegregation decrees 118 ; opposed race-conscious relief, including affirmative action 119 ; rejected disparate impact standards and argued-- contrary to the prevailing law--that only intentional discrimination violated the 1964 Civil Rights Act and the Fair Housing Act 120 ; resisted creation of the results standard in § 2 of the Voting Rights Act 121 ; and consistently construed the scope of civil rights laws as narrowly as possible.

These positions represent a radical reconsideration of the lessons of Brown and of our history. The retreat on school desegregation speaks for itself. Brown's insistence on the inclusion of African-American students took a backseat to the objections of many whites to having their children bear any of the burdens of inclusion. Indeed, a mere decade after the Supreme Court had first approved the use of transportation as a tool for desegregation, the Reagan Department of Justice pushed to have school desegregation decrees *525 dismissed, regardless whether they had achieved any real success, so long as jurisdictions had made a good faith effort. 122

The Reagan Administration rejected group-based remedies for racial discrimination, insisting that discrimination be viewed as peculiar to the individual, removed from history and context. 123 It therefore rejected any role for the law in addressing structural discrimination and did not view the law as a tool for redressing societal discrimination. The obvious disparities and disadvantages that continue to afflict our society as a result of centuries of slavery and decades of Jim Crow laws, according to this view, are irrelevant to the civil rights statutes and the Constitution. Similarly, the law does not consider unconscious bias. The categorical rejection of group-based remedies stripped the civil rights laws of their moral foundation as the response to centuries of racial oppression. Minorities became another special interest group competing for government largesse. 124

The Reagan Administration relied on several limiting doctrines. First, it interpreted the Constitution and civil rights statutes as addressing only intentional discrimination, which it construed narrowly by requiring evidence of overt bias and deemphasizing the probative value of racial disparities. 125 This inquiry obviously limited the likelihood of finding discrimination and restricted the reach of anti-discrimination protections. 126

The focus on intentional discrimination keeps the spotlight on the individual victim of discrimination in the here and now, removed from historical or group context. It rejects the legitimacy of disparate impact as a basis for liability. Therefore, a facially-neutral employment practice that disproportionately excludes minority applicants is not discriminatory, absent some showing of intent to discriminate. The fact that the disparity results from deficiencies that stem from deprivations of wealth, income, education, or opportunity is irrelevant. The doctrine therefore goes far toward wiping away responsibility for the consequences of past injustices.

The Reagan Civil Rights Division also embraced the colorblind Constitution. 127 It viewed all racial classifications as equally suspect and *526 rejected any reason for considering race other than as a remedy for identified victims of intentional

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 discrimination. As a corollary, it argued aggressively that remedial consideration of race discriminated against whites. 128 Indeed, absent historical context, differential treatment of any individual is indistinguishable. This embrace of colorblindness necessarily holds that the evil prohibited by the Equal Protection Clause is the classification of individuals on the basis of race. 129 The purpose and effect of the classification become irrelevant. 130 Plainly, these doctrines--planted during the Reagan years--have blossomed in the Roberts Court.

The introduction of these doctrines sparked tension in a Civil Rights Division where many attorneys had started in the 1960s and that had consistently attracted attorneys who were passionate about remedying the harm caused by centuries of racial injustice. 131 Occasional episodes broke into public view, but the Division retained its integrity for several reasons. First, there was a very strong ethic of professionalism in the Division. Attorneys, for the most part, understood that their responsibility was to make the best legal recommendations possible and that ultimate authority for making final decisions rested with the political appointees. On the whole, political appointees respected the integrity and efforts of career attorneys. Assistant Attorney General Reynolds, whose views sparked significant political opposition, was a capable lawyer who respected legal argument.

In addition, much of the traditional work of the Division continued. Attorneys continued to develop cases of intentional discrimination in employment and housing. Some voting work continued and enforcement of criminal laws remained robust. Committed attorneys found worthwhile work.

For particularly controversial matters, the Administration structured work-arounds or a kind of shadow Division. 132 For example, political appointees handled employment cases involving race-conscious remedies, bypassing the traditional career structure and avoiding disputes over the proper scope of race-conscious remedies. 133 Reynolds also hired select *527 attorneys into career positions who shared his opposition to race-conscious policies. These personnel irregularities, however, were limited and the effect was mitigated because most of the individuals hired were qualified.

Most significantly in view of later events, career attorneys generally were not targeted or driven out because of their views and the process for hiring career attorneys remained largely unchanged. Traditionally, career attorneys had taken the lead in the hiring process. The Division identified entry-level attorneys for the Attorney General's Honor Program through a hiring committee composed of career attorneys who fanned out across the country to interview applicants finishing law school or clerkships. 134 The committee considered the applicant's academic performance, clerkships, relevant experience, and desire to enforce civil rights laws. The committee then made recommendations to the Assistant Attorney General, who exercised final hiring authority. It was rare for an Assistant Attorney General to reject a committee recommendation. The traditional process for hiring experienced attorneys also began with career attorneys working in the section seeking to fill a vacancy. 135 They would review applications and the Section Chief would make recommendations to the Assistant Attorney General. With rare exceptions, the process worked well. 136

The George W. Bush Administration, however, took a very different approach. 137 While pursuing policies similar to those introduced by the Reagan Administration, 138 the Bush Administration launched an assault on career attorneys. It transferred attorneys and denied them substantive work for ideological reasons, tampered with performance evaluations, and sponsored buyouts to encourage attorneys to leave the Division. It removed managers and set up non-traditional lines of authority. The crucial exchange *528 of views between career and political attorneys was curtailed. To replace departing attorneys, the Division revamped the hiring process to introduce greater political control and to hire attorneys based on ideology and partisan affiliation. 139 It took principal responsibility for hiring away from the career attorneys and centralized the process in the political appointees. Applications that had once gone to career attorneys on the hiring committee for review were sent

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 directly to a political appointee, who reviewed them and decided which candidates to interview. That appointee made hiring recommendations to the Assistant Attorney General. 140

Advocates of resistance to robust civil rights enforcement became convinced that changing policies from the top down, as the Reagan and George H.W. Bush Administrations had done, did not produce lasting change. Because the design of the Civil Rights Division gave substantial responsibility--including a measure of discretion--to career attorneys, lasting change in their view could not come unless career attorneys reflected the views of the political leadership. 141

Predictably, these changes proved disastrous to the direction, morale, and productivity of the Division. 142 The Division gave principal responsibility for hiring to Bradley Schlozman, who injected his own partisan and ideological views--and those of the Bush Administration--into the process. 143 The Inspector General found that Schlozman had violated the Civil Service Reform Act and Department of Justice policy, as incorporated in the Code of Federal Regulations, by basing hiring and other personnel decisions on the perceived political affiliation or views of career attorneys. 144 He ordered the transfer of attorneys to make room for some “real Americans” 145 and interfered in the regular case assignment process to dictate the assignment of important cases based on whether an attorney was sufficiently conservative. 146

*529 As the Inspector General/Office of Professional Responsibility report details, Schlozman's contempt for attorneys in the Division became quite personal and he did not hesitate to act on it. The report is filled with details, including his reference to Voting Section attorneys as “mold spores” 147 and his statement that “[m]y tentative plans are to gerrymander all of those crazy libs right out of the [voting] section.” 148 He summed up his views in an all-too-characteristic email after leaving the Division: “It has been months since I felt the need to scream with a blood-curdling cry at some commie, partisan subordinate (i.e., most of the [Voting] section staff until recently).” 149 He added that: bitchslapping a bunch of [Division] attorneys really did get the blood pumping and was even enjoyable once in a while. I think now it's all Good Cop for folks there. I much preferred the role of Bad Cop. . . . But perhaps the Division will name an award for me or something. How about the Brad Schlozman Award for Most Effectively Breaking the Will of Liberal Partisan Bureaucrats. I would be happy to come back for the awards ceremony. 150

The report concluded that Schlozman subsequently testified falsely to Congress about his activities and pronounced him unfit for future federal government service. 151 Although Schlozman was the most visible bad actor in the Division, the problem extended to other hires. 152 The effect on the Civil Rights Division was devastating. During this period over half of the attorneys in the Voting and Employment Sections left. 153 Other sections suffered substantial losses of talent, experience, and expertise. 154

*530 The turmoil facilitated dramatic changes in direction that further exacerbated tensions. For example, there was a significant decline in the number of cases filed pursuant to Title VII of the Civil Rights Act of 1964 on behalf of African Americans and Latinos and a substantial increase in the number of cases filed on behalf of white victims. Indeed, by 2007, the Division had filed roughly the same number of cases on behalf of whites as it had on behalf of African Americans and Latinos combined. 155 Not surprisingly, the Division cut back on the number of pattern or practice cases that it pursued. These cases involved multiple victims and traditionally produced the most impact for the investment. They generally challenge employment practices that disproportionately affect large numbers of people on the basis of race or gender. Ralph Boyd, Bush's first Assistant Attorney General for Civil Rights, announced early in the Administration that the Division would not pursue disparate impact

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 cases absent evidence of intentional discrimination, which necessarily meant that the Division would pursue few such cases. 156 Indeed, it failed to file any until 2004. 157 And of the thirteen pattern or practice claims filed by the Bush Administration through June 2007, only four raised disparate impact claims. 158

Nowhere were the changes in enforcement policy more pronounced than in enforcement of the Voting Rights Act. The two central provisions of the Voting Rights Act are § 5 and § 2. Section 5 requires that covered jurisdictions submit proposed election changes to the Attorney General or a three-judge court in the District of Columbia for approval. 159 Section 2 prohibits election practices that result in denial of an equal opportunity to participate in the electoral process on the basis of race, national origin, or membership in a language minority group. 160

*531 Three incidents were widely perceived by Division attorneys as indicating that the Bush Administration allowed political considerations to drive § 5 preclearance decisions. In each, political appointees rejected the recommendation of longtime career attorneys and reached a result favorable to the Republican Party. In 2002, the political leadership delayed action on the recommendation of career lawyers to preclear a Mississippi congressional redistricting plan, which allowed a federal court to enter a plan that created an additional Republican seat. 161 The following year, it disregarded the unanimous recommendation of career attorneys and precleared the unusual mid-decade Texas congressional redistricting plan that was engineered by Tom Delay to increase Republican representation. 162

In 2005, the Division precleared a Georgia law that required voters to produce photo identification. 163 Once again, the political leadership rejected the majority view of the career attorneys that the law would violate § 5. One career attorney, who had recently been hired through the politicized hiring process run by Schlozman, supported the decision of the political appointees and was given a cash bonus for his work, while each of the line attorneys who had urged objection to the law was reprimanded. 164

The Division's enforcement of § 2, along with private lawsuits, has provided substantial protection for African-American and Latino voters since 1965. From 2001 to 2006, however, only one of ten cases filed under § 2 alleged discrimination against African-American voters. 165 The abandonment of enforcement on behalf of African Americans was stark, 166 particularly because career attorneys had developed § 2 suits on behalf of African-American voters that political appointees refused to authorize. 167 The political leadership's decision to file the first § 2 lawsuit on behalf of white voters against African-American defendants in Mississippi highlighted the *532 dramatic shift in enforcement priorities 168 The push to file this lawsuit by political attorneys and the career allies they had hired or promoted produced enormous tension against the background of resistance to filing suits on behalf of African Americans.

After the election of President Barack Obama, the Division faced a dilemma. A significant number of career attorneys had been hired through a politicized process that elevated ideology and political affiliation above merit. That process was found unlawful by the Inspector General and Office of Professional Responsibility. 169 In addition, promotions to leadership positions were made for similar reasons. Rather than contest the validity of those personnel actions, the Obama Administration sought to rebuild the civil rights enforcement program without removing existing personnel to the extent possible. 170

Finally, however, the Obama leadership reached an agreement with Chris Coates, the Chief of the Voting Section, to transfer to the U.S. Attorney's Office in South Carolina. 171 Coates was a controversial figure who had undergone a rightward radicalization late in his career. 172 He was hired into the Division as a career voting rights attorney after doing voting rights litigation for the American Civil Liberties Union (“ACLU”). 173 In 2000, however, he was denied a promotion to Deputy Chief of the Voting

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

Section in favor of a highly-qualified but younger African-American lawyer *533 in the Section. 174 Coates thought that he had been treated unfairly and filed an unsuccessful charge of racial discrimination. 175 In the Bush Administration, he became a favorite of Schlozman and pushed the Division's litigation against African Americans in Mississippi. 176 After John Tanner, who was briefly Chief of the Voting Section, was forced to step aside after making racially-insensitive comments, 177 the Bush Administration picked Coates for the job. Coates's ideological transformation was revealed in an email from Schlozman to Monica Goodling 178 recommending Coates for a position as an immigration judge, which read: “Don't be dissuaded by his ACLU work on voting matters from years ago. This is a very different man, and particularly on immigration issues, he is a true member of the team.” 179

By the time of Coates's departure, he had lost the trust of attorneys in both the Voting Section and the Division's leadership. 180 The final seeds of that distrust were planted during his involvement in suits filed against members of the New Black Panther Party (“NBPP”). 181 On Election Day in 2008, two men dressed in black and wearing berets, with one holding a baton, stood outside a polling place in a predominantly African-American precinct in Philadelphia. 182 A politically-active conservative student from the University of Pennsylvania took video with his cellphone, which made its way to Fox News. 183 Fox ran the video clip for days after the election with the obvious intent of suggesting that Obama supporters were intimidating voters. No voter could be found who alleged intimidation. 184 Indeed, the police arrived at the polling place and escorted the man with the baton off the premises, but he was not arrested. 185 The other man had credentials to serve as a poll *534 watcher and the police allowed him to stay, which he did without incident. 186 That should have been the end of the story, but Coates and Christian Adams--the team that had been involved in the Division's litigation in Mississippi--hurriedly constructed complaints against the two men, the head of the NBPP, and the NBPP itself, charging violations of § 11(b) of the Voting Rights Act, a rarely-used provision that prohibits voter intimidation. 187 The lawsuits were rushed through the political clearance process and filed on the eve of President Obama's inauguration. 188

With every change in administration there is a period of several months before a new Assistant Attorney General is nominated by the President and confirmed by the Senate. Traditionally, during that period career officials step into acting roles to run the Division. Two such officials, Loretta King and Steven Rosenbaum, served during this interregnum as Acting Assistant Attorney General and Acting Deputy Assistant Attorney General, respectively, with responsibility for the Voting Section. 189 The NBPP defendants did not appear in response to the complaints, leaving King and Rosenbaum with responsibility for determining whether to seek default judgments. 190 After much consideration, including heated exchanges with Coates and concern that he had not been forthcoming about the cases, King and Rosenbaum concluded that there was insufficient evidence to proceed in three cases and decided to move forward with only the case against the man with the baton. 191

Although the decision was unexceptional in view of the Division's past reluctance to file civil suits pursuant to § 11(b), opponents of the Obama Administration responded with outrage. 192 They charged that the dismissals were politically and racially motivated, signifying that the Obama Administration was unwilling to enforce the civil rights laws against African Americans.

The U.S. Commission on Civil Rights championed the cause. The Commission-- which was created by the same Civil Rights Act of 1957 that gave birth to the Civil Rights Division--had done extraordinary work during *535 its first two decades, undertaking much of the investigative work that laid the foundation for the major civil rights legislation of the 1960s. President Reagan, however, decided to reshape the Commission to reflect his restrictive view of civil rights enforcement. He sought to fire commissioners and replace them with compatible ideologues. Congress balked and nearly killed the Commission. Eventually,

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

Congress and Reagan struck a deal to expand the Commission from six to eight members, four of whom would be appointed by the President, two by the House leadership, and two by the Senate leadership. The compromise failed as Reagan commissioners pushed an agenda of retreat and the Commission lapsed into partisan bickering and mismanagement. 193

The Bush Administration abused the appointment process to ensure a partisan advantage. The Commission's charter decrees that no more than four of the eight commissioners can belong to the same political party. 194 Two sitting Republican commissioners, therefore, switched their party affiliations to independent, allowing Bush to appoint two more Republicans, ensuring that the Commission had a 6-2 split in favor of conservatives. 195

The conservative majority decided that the NBPP incident should be its central focus for the year. 196 It issued subpoenas for Coates and Adams, the two principal lawyers behind the original suits. 197 At the time, both still worked for the Department of Justice. 198 The Department traditionally resisted having its career trial lawyers forced to testify before Congress and bodies such as the Commission in order to ensure that they can exercise independent judgment and remain free of outside pressures in performing their duties. As is customary, the politically-appointed head of the Division, Assistant Attorney General Perez, agreed to appear on behalf of the Division even though he assumed office after the complaints had been dismissed. 199 Adams resigned from the Department so that he could appear before the Commission and Coates eventually returned from South Carolina to testify. 200

Adams complained that his unprecedented efforts to sue African Americans in the Mississippi and NBPP cases had been met with disapproval *536 by some attorneys in the Division. 201 He complained that this disapproval represented resistance to “race neutral” and “colorblind” enforcement of the law, which was pervasive in the Division. 202 Coates similarly objected to dismissal of the three complaints. 203

Assistant Attorney General Perez described in detail the process and legal analysis that his predecessors had gone through in deciding to dismiss the three complaints. 204 He noted the high standard of intent necessary to establish a violation of § 11(b) and the fact that the Division had used the statute only three times: unsuccessfully in the Mississippi litigation, in the NBPP cases, and in 1991 against Jesse Helms during his U.S. Senate campaign. 205 Perez described the process for evaluating the evidence and law that King and Rosenbaum conducted. 206 He refused to be drawn into discussion of Adams's charges of race- based enforcement of the law. 207

The Commission finally issued a hurried interim report on the matter that accepted much of the Adams and Coates testimony and was highly critical of the Division and the Obama Administration. 208 The Commission was unable to issue a final report. 209

IV. The Office of the Inspector General Report on the Voting Section

Adams and his supporters went to Congress, where they found sympathetic ears in Republican Representatives Frank Wolf and Lamar Smith, who wrote letters to the Department of Justice Inspector General *537 demanding an investigation into the dismissal of the NBPP complaints. 210 The Inspector General responded that the Office of Professional Responsibility was already investigating the handling of the NBPP litigation and that the Inspector General was prevented by statute from doing so. 211 The Inspector General, however, agreed to initiate a review of the enforcement of civil rights laws by the Voting Section of the Department's Civil Rights Division. This review will examine, among other issues, the types of cases brought by the Voting Section and any changes in these types of

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 cases over time; any changes in Voting Section enforcement policies or procedures over time; whether the Voting Section has enforced the civil rights laws in a non-discriminatory manner; and whether any Voting Section employees have been harassed for participating in the investigation or prosecution of particular matters. 212

This extraordinary commitment gave the political opponents of the Civil Rights Division more than they could have expected. Examination of the Inspector General's website reveals the unprecedented nature of this undertaking. The core of the Inspector General's work is investigating allegations of mismanagement or corruption. Although the Inspector General has been involved in important investigations, including into the memos addressing torture in the Bush Administration 213 and the politicized hiring practices of the Department of Justice under Bush, 214 those investigations examined discrete conduct and did not purport to evaluate long-running programmatic decision-making on substantive matters about which the Inspector General lacks expertise. The political pressure applied by Representatives Smith and Wolf plainly had an impact.

The Inspector General's report is disappointing at best. 215 More than any other single document, it drives home how effectively the forces of resistance have distorted our legal discourse about the enforcement of anti-discrimination laws. While unconvincingly bending over backward to avoid finding fault with enforcement of the law, the report presents the Voting Section as an unprofessional mess torn apart by ideological conflict. The report is peculiarly ahistorical, failing to grasp the import of its prior investigation into the George W. Bush Civil Rights Division and neglecting *538 the considerable efforts of the Obama Administration to overcome the effects of the Bush-era corruption of the Division. In doing so, the report feeds the efforts of opponents of vigorous civil rights enforcement to delegitimize the central institution of the federal government charged with enforcement of civil rights laws.

Most revealingly, the report recommends that the Civil Rights Division no longer prefer applicants for attorney positions who have experience in enforcing civil rights laws or who express an interest in doing so. 216 In other words, the Civil Rights Division should no longer hire civil rights attorneys. The recommendation reflects acceptance of the core reactionary position that vigorous enforcement of anti-discrimination guarantees is driven by liberal ideology, which has no legitimacy in an enforcement agency. It accepts that civil rights attorneys are likely to bring to the job views at odds with the values of colorblindness, rejection of remedies for structural discrimination, and rejection of race-consciousness. It accepts that these views of civil rights attorneys are ideological, while embracing colorblindness is not. This acceptance is the triumph of the politics of resistance.

Curiously, the Office of the Inspector General (“OIG”) report devotes twenty-eight pages to a re-examination of the Department's handling of the NBPP matter, 217 despite having told Congress that “investigation of the Department's handling of the New Black Panther Party litigation, by statute, falls within the Office of Professional Responsibility's jurisdiction rather than the OIG's jurisdiction.” 218 After disregarding its statutory mandate, OIG concluded that the Office of Professional Responsibility got it right by determining that there was no impropriety in dismissal of the complaints.

Much of the report is devoted to a search for some form of bias in the Voting Section's enforcement of the law. 219 The very undertaking is a form of capitulation to the notion that vigorous enforcement of the civil rights laws is somehow an inappropriate exercise of liberal ideology. The report fails to recognize that the OIG has been enlisted in the resistance to civil rights enforcement. 220

The report studiously avoided the obvious in reporting data. For example, it included a table showing that the Voting Section did not file a § 2 case on behalf of African Americans from early 2001 until 2006, when the Division-- following the consternation created by its filing in 2005 of its first *539 lawsuit on behalf of white voters--filed a § 2 complaint in Ohio on behalf of

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

African Americans. 221 Yet it failed to grasp that the failure to enforce the Voting Rights Act on behalf of African Americans for this extended period, followed by the filing of a lawsuit against African Americans in Mississippi for violating § 2, would combine with harsh and unlawful employment practices and the politically-tainted enforcement of the preclearance requirement to create understandable tension in the Voting Section. 222

The report fails to grasp the context in which the events it describes occur. As OIG found previously, the Bush Administration introduced a toxic element into the Division and the Voting Section. 223 Career attorneys working there who were perceived as insufficiently conservative were assaulted personally and professionally. Careers were damaged or ruined by unfair performance evaluations, involuntary reassignments, bad assignments, denied promotions, delayed decision-making, and repeated personal abuse. On top of this, the traditional enforcement priorities of the Division were being distorted, leaving career attorneys to watch as their professional efforts were unraveled. It is a tribute to the professionalism of the great majority of career attorneys in the Division that few responded inappropriately. Yet the report highlights those few instances of unprofessional behavior-- which should be condemned and corrected--as if they were equivalent to the initial abuse. Doing so is tantamount to ejecting the basketball player who responds to a deliberate elbow to the nose with a shove.

The report revealed an OIG that was captured by refugees from the Bush Administration. Having been caught politicizing the Civil Rights Division, Bush officials went on the offensive, 224 alleging that the Obama Administration was itself politicizing the Division by hiring lawyers with civil *540 rights experience. 225 Indeed, one of the signature accomplishments of the Obama Administration has been the reinstitutionalization of merit-based hiring conducted largely by non-political employees. 226 Unable to identify political interference in that process, the critics charged that the very fact of allowing career employees a significant role in hiring meant that the process would produce a liberal bias. By liberal bias, of course, they meant that career lawyers were likely to hire candidates with experience in enforcing and a desire to enforce civil rights laws. Those lawyers, they assume, will likely support vigorous enforcement of civil rights laws and reject the ideology of resistance that demands fealty to the colorblind constitution and rejection of remedies for structural discrimination. 227

The OIG, perhaps without even being aware of it, bought into the ideology of resistance by undertaking the hunt for ideological bias in the Voting Section. 228 It reinforced this proposition by concluding that the Civil Rights Division should no longer hire civil rights lawyers. OIG seemed oddly unfamiliar with its previous investigation in which it found that Schlozman corrupted the hiring process in part by intentionally avoiding hiring attorneys with civil rights experience. 229 OIG found that Schlozman's hiring violated the law during the Bush Administration. 230 It cannot now tell the Obama Administration to follow Schlozman's lead.

*541 V. The Obama Administration

The Division under Obama rejected the OIG recommendation and continues to hire attorneys with experience and commitment to the goals of the civil rights laws. As a result, its enforcement record is extraordinary. 231 It has defended the constitutionality of the Voting Rights Act, enforced the disparate impact standards of both Title VII of the Civil Rights Act of 1964 and the Fair Housing Act of 1968, and supported consideration of race to diversify educational settings. 232

Critics of the Division continue their effort to delegitimize the work of civil rights enforcement. On March 5, 2014, the Senate rejected President Obama's nomination of Debo Adegbile as Assistant Attorney General. 233 Adegbile seemed consummately qualified for the position. After working as a corporate lawyer for a large firm in New York, he spent the past decade at the NAACP Legal Defense and Education Fund (“LDF”), where he litigated numerous civil rights cases and twice argued before

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509 the U.S. Supreme Court in defense of the constitutionality of the Voting Rights Act's preclearance requirement. 234 He was appointed acting head of LDF. As it turned out, however, the very quality that should have been a powerful asset--his experience as a civil rights lawyer--proved disqualifying. 235

Adegbile's representation of Mumia Abu-Jamal contributed most visibly to his rejection. Abu-Jamal had been convicted in 1982 of killing a police officer in Philadelphia and sentenced to death. 236 In 2008, LDF represented Abu-Jamal in a successful effort to overturn his death sentence because of unconstitutional jury instructions. 237 Adegbile participated in filing the brief on appeal. An opposition campaign organized by the Fraternal Order of Police provided the public pressure necessary to convince seven Democratic senators to vote against Adegbile. 238 Not a single Republican senator supported him. 239 Opposition to a lawyer for representing an unpopular client--particularly for a successful challenge to unconstitutional conduct-- is reprehensible. 240 It threatens the basis of our criminal justice system and *542 sends a devastating message to any lawyer who might want to enter public service that she should avoid controversial clients.

Lost in the controversy was the fact that Republicans were expected to oppose Adegbile's nomination because of his record as a civil rights lawyer who argued in favor of robust enforcement of civil rights laws. Indeed, Adegbile's nomination was expected to move only because of the change in Senate rules allowing nominees to advance on a majority vote. Republican opposition to Democratic Civil Rights Division nominees is the norm. Clinton's first nominee, Lani Guinier, was forced to withdraw. 241 Although his second nominee, Deval Patrick, was confirmed, Patrick's successor, Bill Lann Lee, was blocked and finally received a recess appointment. 242 Obama's first nominee, Thomas Perez, was confirmed only after a six-month delay. 243

Indeed, other lawyers who have represented unpopular clients have been confirmed for high office. John Roberts--to his credit-- provided pro bono representation for a serial murderer of eight people prior to his confirmation as Chief Justice, but no senator objected. 244 Traditionally, the bar has celebrated lawyers who defend controversial clients. 245 Adegbile doubtless suffered because he worked for LDF, the organization that led the fight for racial justice and litigated Brown under the leadership of Thurgood Marshall. 246 Adegbile's rejection is the latest measure of the success of the politics of resistance in delegitimizing the enforcement of our civil rights laws and distorting the way we think about racial equality.

VI. Conclusion

Political efforts to to curtail civil rights enforcement reflect the views of conservatives on the Supreme Court who reject the findings of Congress that the Voting Rights Act remains necessary, reject the language of Congress *543 prohibiting practices that produce discriminatory effects, and interpret Brown as authority for leaving schools segregated. 247

Both the conservative political assault and the conservative legal assault attack the foundation of anti-discrimination law. For example, an often-heard objection to reliance on disparate impact standards in anti-discrimination law is that they encourage employers to consider race in hiring in order to avoid creating a racial disparity. 248 Employers will hire by the numbers and, according to critics, that amounts to quota hiring. Yet the Court has told us that in identifying intentional discrimination, a racial disparity is strong evidence--often, the first and most powerful piece of evidence considered in finding discriminatory intent. 249 According to this critique of disparate impact, therefore, it is valid to caution against enforcement of laws prohibiting discriminatory treatment or run the risk of encouraging employers and others to think about race.

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

That is the goal behind such doctrines as the “colorblind constitution,” the suspectness of all racial classifications, and Chief Justice Roberts's admonition that the way to stop racial discrimination is to stop discriminating on the basis of race. 250 They all amount to general injunctions against thinking about race, which means not only eschewing remedies that take race into account, but also restricting enforcement of anti-discrimination laws.

Recently, Justice Thomas offered startling insight into the direction he would take the country: “My sadness is that we are probably today more race-and difference-conscious than I was in the 1960s when I went to school. To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up.” 251 Apparently, Justice Thomas thinks that the segregated Georgia of the 1960s was a better place because people didn't talk with him about race. His counterfactual nostalgia embraces the ultimate goal of the politics of resistance: a society in which we do not think or talk about race, despite the persistence of racial discrimination and its effects.

A majority of the Supreme Court emerged from the crucible of resistance to Brown and the civil rights acts of the 1960s. Fortunately, it is a slim and possibly temporary majority. American society is changing. *544 Political resistance to Brown and civil rights statutes was instrumental in shaping the law through the institutions that enforce it. Political change will be equally instrumental in moving the law beyond the politics of resistance. In politics, demography is a powerful factor in destiny. As America becomes a more diverse nation, there is hope that the politics of inclusion will prevail and that the law will follow.

Footnotes a1 Fellow in Law and Government, American University Washington College of Law. I wish to thank the Washburn University School of Law, its faculty, and members of the Washburn Law Journal for inviting me to participate in this Symposium. I also express my great appreciation to Thais-Lyn Trayer for her able research and many helpful conversations during the writing of this Article. Finally, I thank the exceptional attorneys with whom I worked in the Civil Rights Division of the U.S. Department of Justice who regularly demonstrated talent, commitment, and professionalism in enforcing the nation's civil rights laws.

1 347 U.S. 483 (1954).

2 African American unemployment was 13.4 percent in 2013, compared to 6.7 percent for whites, repeating a trend seen “for most of the past six decades.” Drew DeSilver, Black Unemployment Rate is Consistently Twice That of Whites, Pew Research Center (Aug. 21, 2013), http://www.pewresearch.org/fact-tank/2013/08/21/through-good-times-and-bad-black-unemployment-is- consistently-double-that-of-whites/.

3 Signe-Mary McKernan et al., Urban Institute, Less Than Equal: Racial Disparities in Wealth Accumulation 1 (2013).

4 Id.

5 Schott Found. for Pub. Educ., The Urgency of Now: The Schott 50 State Report on Public Education and Black Males 7 (2012), available at http:// blackboysreport.org/urgency-of-now.pdf.

6 See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 749 (2007) (plurality opinion) (holding that primary and secondary schools may not voluntarily take race into account in order to promote racial diversity).

7 See Ricci v. DeStefano, 557 U.S. 557, 593 (2009) (finding a violation of Title VII's disparate treatment provision when city officials threw out the results of a test it suspected had a disparate impact on racial minority test takers).

8 See Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2421-22 (2013) (refusing to find the university's policy, which considered race as one of many factors in admissions, narrowly tailored).

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

9 See Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2631 (2013) (striking down the coverage formula in §4 of the Voting Rights Act as exceeding Congress's constitutional authority).

10 See Parents Involved, 551 U.S. at 787 (“The enduring hope is that race should not matter; the reality is that too often it does.”). Justices Kennedy and Scalia have voted the same way in all but one of nineteen equal protection cases involving race in a non- criminal justice context in their time together on the Court. That case was United States v. Fordice, 505 U.S. 717 (1992).

11 Parents Involved was the first opinion written by Chief Justice Roberts for the Court in an equal protection case involving race. The Court considered an equal protection claim in a 2006 Voting Rights Act case, for which Chief Justice Roberts wrote a concurring opinion. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 492-511 (2006). He also participated in Rice v. Collins, 546 U.S. 333 (2006), involving a habeas petition based on a Fourteenth Amendment Batson challenge.

12 551 U.S. 701.

13 Seattle Sch. Dist. No. 1 of King Cnty., Wash. v. Washington, 473 F. Supp. 996, 1005-06 (W.D. Wash. 1979) (listing legal actions taken against the school district).

14 Newburg Area Council, Inc. v. Bd. of Educ., 510 F.2d 1358, 1361 (6th Cir. 1974) (per curiam) (“We conclude in view of these factors that the school district lines in Jefferson County, Kentucky, have been crossed for the purpose and with the actual effect of segregating school children among the public schools of the county on the basis of race.”).

15 In 2000, a district court found that Jefferson County had achieved unitary status. Parents Involved, 551 U.S. at 720-21.

16 Id. at 725.

17 Id. at 747.

18 Id. at 748.

19 See id. at 782-98 (Kennedy, J., concurring).

20 See id. at 788 (“The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion.”).

21 Id. at 797-98.

22 133 S. Ct. 2411 (2013).

23 539 U.S. 306 (2003).

24 Fisher, 133 S. Ct. at 2422.

25 Id. at 2420. (“Rather than perform this searching examination... the Court of Appeals held petitioner could challenge only ‘whether [the University's] decision to reintroduce race as a factor in admissions was made in good faith.”’).

26 Justices Breyer and Sotomayor joined Justice Kennedy's opinion. Id. at 2414. Justice Kagan did not participate and Justice Ginsburg filed the sole dissent. Id. at 2414, 2432-34.

27 Id. at 2419.

28 134 S. Ct. 1623 (2014).

29 Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

30 Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 479-80 (1982); see also Hunter v. Erickson, 393 U.S. 385, 392 (1969) (invalidating a referendum amending a city charter to require that any measure promoting fair housing be approved by referendum).

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

31 557 U.S. 557 (2009).

32 Petitioners brought both Title VII and equal protection claims, but the Court did not decide the constitutional question. Id. at 563, 593.

33 Id. at 593 (“[T]he City was not entitled to disregard the tests based solely on the racial disparity in the results.”).

34 42 U.S.C. §2000e-2(k)(1)(A)(i) (2012). Even if this business necessity is proved, a plaintiff once more has the opportunity to show that the employer could have but refused to adopt a less discriminatory, alternative employment practice. Id. §2000e-2(k)(1)(A)(ii).

35 Ricci, 557 U.S. at 574.

36 The petitioners included seventeen white firefighters and one Hispanic firefighter. Id. at 619.

37 The City's “race-based action” could only be permissible under Title VII if it could show a “strong basis in evidence” that without considering race, it would violate the statute's disparate impact provision. Id. at 563. The city failed to satisfy this standard, as “a threshold showing of a significant statistical disparity... and nothing more--is far from a strong basis in evidence.” Id. at 587 (quoting Connecticut v. Teal, 457 U.S. 440, 446 (1982)).

38 Compare id. at 585 (“Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case.”), with id. at 594 (Scalia, J., dissenting) (“[I]f the Federal Government is prohibited from discriminating on the basis of race, then surely it is also prohibited from enacting laws mandating that... employers... discriminate on the basis of race.”) (internal citations omitted).

39 Id. at 594 (“Title VII's disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is... discriminatory.”).

40 The Supreme Court first recognized disparate impact claims in Griggs v. Duke Power Co., 401 U.S. 424 (1971).

41 See 42 U.S.C. §2000e-2(k) (2012). Congress intended the disparate impact provisions of the Civil Rights Act of 1991 to overrule Ward's Cove Packing Co., Inc. v. Antonio, 490 U.S. 642 (1989). The Court in Ward's Cove held that racial imbalance in the workforce does not in and of itself create disparate impact liability, and that the burden of persuasion at all times lies with the plaintiff. See id. at 659.

42 See, e.g., Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2419 (2013) (finding that “any official action that treats a person differently on account of his race... is inherently suspect,” and placing the burden to satisfy strict scrutiny on the government).

43 See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”); Washington v. Davis, 426 U.S. 229 (1976) (holding that disproportionate impact, without proof of discriminatory intent, is insufficient to establish an equal protection violation).

44 According to the University, even if Fisher had received a perfect score on the part of the admissions grading rubric where race was considered, her overall score would not have been enough to gain her admission. Brief in Opposition to Petition for Writ at 13 n.6, Fisher, 133 S. Ct. 2411 (no. 11-345).

45 133 S. Ct. 2612 (2013).

46 Voting Rights Act of 1965, Pub. L. No. 89-110, §5, 79 Stat. 437, 439 (1965).

47 Id. §4, 79 Stat. at 438-39. Section 4(b) targeted states that had used voting tests or devices in 1964 and that had less than fifty-percent voter registration or turnout. Id. §4(b), 79 Stat. at 438.

48 Id. §5, 79 Stat. at 439.

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

49 See South Carolina v. Katzenbach, 383 U.S. 301, 312-13 (1966), abrogated by Shelby Cnty., 133 S. Ct. at 2612 (describing how southern states would require black voters to pass difficult versions of voting qualification tests, as opposed to white voters, who were given easy versions or received extensive help from voting officials).

50 See id. at 314.

51 See Shelby Cnty., 133 S. Ct. at 2620-21 (recounting the history of the Voting Rights Act reauthorizations). Although the Court issued “no holding on §5 itself,” without a coverage formula, §5 is effectively no more. Id. at 2631.

52 Id. at 2631.

53 Id. at 2646 (Ginsburg, J., dissenting).

54 See id. at 2630-31 (majority opinion) (finding that it was “irrational for Congress to distinguish between States... based on 40-year- old data, when today's statistics tell an entirely different story”).

55 Justice Scalia characterized the unanimous vote in the Senate and overwhelming support in the House as “very likely attributable[] to a phenomenon that is called perpetuation of racial entitlement.” Transcript of Oral Argument at 46, Shelby Cnty., 133 S. Ct. 2612 (no. 12-18), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf.

56 See, e.g., H.R. Rep. 109-478, at 37-45 (2006).

57 See Shelby Cnty., 133 S. Ct. at 2623-24 (insisting that, despite the Court's earlier position in Katzenbach, “the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States”).

58 See South Carolina v. Katzenbach, 383 U.S. 301, 328-29 (1966) ( “The doctrine of the equality of States... applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”).

59 Id.

60 U.S. Const. amend. XV, §2 (“The Congress shall have power to enforce this article by appropriate legislation.”); U.S. Const. amend. XIV, §5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”); Katzenbach, 383 U.S. at 326 (“Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting.”).

61 358 U.S. 1 (1958) (holding that the Arkansas government and legislature could not ignore the Court's decision in Brown that racial segregation in schools was an equal protection violation).

62 391 U.S. 430 (1968).

63 See id. at 441(rejecting the New Kent School Board's “freedom of choice plan” as inadequate compliance with Brown v. Board of Education of Topeka, 349 U.S. 294 (1955) (Brown II)). The plan was instituted ten years after Brown II, and during the three years it was in effect, not a single white child chose to attend a formerly black school. Id. at 438, 441-42.

64 402 U.S. 1 (1971).

65 Id. at 30.

66 413 U.S. 180 (1973).

67 Id. at 217 (Powell, J., concurring in part and dissenting in part) (“This is the first school desegregation case to reach this Court which involves a major city outside the South.”). The Denver, Colorado school system had never operated under a law mandating or permitting racial segregation. Id. at 191.

68 President Johnson won with sixty-one percent of the vote after Goldwater attacked the Civil Rights Act as “special appeals for special welfare.” See Nancy MacLean, Freedom is Not Enough: The Opening of the American Workplace 72-73 (2006).

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

69 See Ian Haney Lopez, Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class 23 (2014). In fact, Nixon began feeling pressure “toward race-baiting” from Wallace as early as the 1968 presidential election. Id.

70 See Rick Perlstein, Exclusive: Lee Atwater's Infamous 1981 Interview on the Southern Strategy, The Nation (Nov. 13, 2012), http:// www.thenation.com/article/170841/exclusive-lee-atwaters-infamous-1981-interview-southern-strategy#. Reagan political strategist Atwater described how Republican strategy first developed coded racial appeals. Id. “You start out in 1954 by saying, ‘Nigger, nigger, nigger.’ By 1968 you can't say ‘nigger'-- that hurts you, backfires. So you say stuff like, uh, forced busing, states' rights, and all that stuff, and you're getting so abstract.” Id. This strategy further evolved during Reagan's campaign: Now, you're talking about cutting taxes, and all these things you're talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites... ‘We want to cut this,’ is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than ‘Nigger, nigger.’ Id.; see also Lopez, supra note 69, at 56-57.

71 See Lopez, supra note 69, at 26 (describing Nixon's emphasis on “law and order” as a coded appeal to previous Southern politicians' characterizations of racial activists as “lawbreakers”).

72 See generally Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634 (codified as amended in scattered sections of 28 and 42 U.S.C.); “The Last, Hoarse Gasp”, Time, Sept. 9, 1957.

73 Civil Rights Act of 1957 §106, 71 Stat. at 636.

74 The 1957 Act “elevated the Civil Rights Section to a division in the Department of Justice with authority to bring injunctive actions against race discrimination by voting authorities.” See Brian K. Landsberg, Enforcing Civil Rights: Race Discrimination and the Department of Justice 12 (1997).

75 Attorney General Rogers issued the formal order establishing the Civil Rights Division on December 9, 1957. Id. at 12 n.38. The 1957 Act also gave the Attorney General authority to enforce the Fifteenth Amendment in court and created the U.S. Commission on Civil Rights. Civil Rights Act of 1957 §§101, 121, 71 Stat. at 634, 437.

76 Congress expanded the Civil Rights Division mandate with the enactment of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. Sen. Edward M. Kennedy, Restoring the Civil Rights Division, 2 Harv. L & Pol'y Rev. 211, 211 (2008). The Division furthermore enforces the Americans with Disabilities Act, 42 U.S.C. §§12101-12213 (2012), the Freedom of Access to Clinic Entrances Act, 18 U.S.C. §248, and the Matthew Shepard & James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. §249.

77 See Landsberg, supra note 74, at 121-22 (observing that during the Kennedy administration “Civil Rights Division attorneys abandoned their Washington offices for the field, heading South to enforce voting rights legislation”).

78 See Landsberg, supra note 74, at 86 (highlighting the Department's submission of amicus briefs in cases like Sweatt and Brown as part of a larger strategy to influence the development of governing legal standards).

79 Before the enactment of the Civil Rights Act of 1964, the Department of Justice played a limited role in school desegregation. After filing briefs in Brown I and II, it stepped in to enforce the order to desegregate the Little Rock schools. Landsberg, supra note 74, at 138. It also intervened in a handful of cases involving violence, but stayed out of most enforcement activity. Id. Congress gave the Department explicit authority to seek desegregation in the Civil Rights Act of 1964, but limited its participation to instances in which it had received a signed complaint from a parent. Id.; see also Title IV of Civil Rights Act of 1964, 42 U.S.C. §2000c-6(a).

80 See Kennedy, supra note 76, at 212 (“Inevitably, disputes arose over the scope of remedies the Division should seek and its interpretations of these civil rights laws.”).

81 Reflecting on his time as Chair of the Student Non-Violent Coordinating Committee, Representative John Lewis noted that he and others in the civil rights movement viewed the Division as truly “a federal referee in the struggle for civil rights and civil justice.” The 50th Anniversary of the Civil Rights Act of 1957 and its Continuing Importance: Hearing Before the S. Comm. on the Judiciary,

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

110th Cong. 7 (2007) (statement of Rep. John Lewis). The suggestion that the Division was a referee hints at the independence with which it was traditionally perceived.

82 See 28 C.F.R. §42.1 (2013) (“It is the policy of the Department of Justice to seek to eliminate discrimination on the basis of... political affiliation... in employment within the Department.”).

83 The Division is divided into eleven sections. U.S. Dep't of Justice, The Civil Rights Division's Accomplishments, 2009-2012 9 (2012) [hereinafter Civil Rights Accomplishments].

84 See Landsberg, supra note 74, at 112 (elaborating on the “J-memo,” which is written by the lawyer initially assigned to the matter and addresses how the proposed litigation fits the Division's litigation priorities).

85 Id. at 121.

86 See Kennedy, supra note 76, at 214.

87 Id.

88 Id. at 214 (maintaining that the “relationship between career and political officials is one of reciprocal responsibilities”).

89 The Division engages in both civil enforcement and criminal prosecution. See Landsberg, supra note 74, at 72 (providing a summary of civil damages and criminal sanctions in Civil Rights Division suits). Both require the exercise of substantial discretion in deciding whether to proceed with a matter.

90 See, e.g., Landsberg, supra note 74, at 156-63 (describing the various factors producing tension between career lawyers and political appointees in enforcing the law while also carrying out the policies of the administration in power).

91 The Supreme Court agreed to hear an appeal initiated by the Johnson Administration less than six weeks after President Nixon's inauguration. Landsberg, supra note 74, at 141.

92 396 U.S. 19 (1969).

93 See Landsberg, supra note 74, at 142.

94 See id.

95 The Nixon Administration successfully resisted the extension of school desegregation remedies to major metropolitan areas in Milliken v. Bradley, 418 U.S. 717 (1974). See generally Landsberg, supra note 74, at 145 (“The Nixon administration made a calculated judgment to seek to limit the scope of busing plans, which the Court adopted in Milliken.”).

96 Carter spoke of the sanctity of ethnic neighborhoods and was roundly criticized for using the term “ethnic purity” during the campaign. See Lopez, supra note 69, at 56. He carried forty-eight percent of the white vote, compared to the thirty percent that George McGovern mustered against Richard Nixon four years earlier. Id.

97 Reagan's campaign appealed openly to white resentment. See Lopez, supra note 69, at 58. He gave his first speech following his nomination in Philadelphia, Mississippi, the town where civil rights workers Goodman, Schwerner, and Cheney had been slain in 1964. Id.

98 See William Yeomans, How the Right Packed the Court, The Nation, Oct. 8, 2012, at 14, 14.

99 See generally Memorandum from Lewis F. Powell, Jr. to Eugene B. Sydnor, Jr., Chairman, U.S. Chamber of Commerce Education Committee 2-3 (Aug. 23, 1971), available at http://law.wlu.edu/deptimages/Powell% 20Archives/PowellMemorandumPrinted.pdf.

100 Id. at 1.

101 See id. at 3-7.

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

102 Id. at 6.

103 Id. (“Business must learn the lesson, long ago learned by labor and other self-interest groups.”).

104 The memo did not surface until after Justice Powell's confirmation. See Yeomans, supra note 98. Nixon's appointments of Warren Burger as Chief Justice and William H. Rehnquist as Associate Justice contributed substantially to changing the Court's direction. His appointment of Harry Blackmun took an unintended turn.

105 See Steven M. Teles, The Rise of the Conservative Legal Movement (2008) for an in depth description of the rise of the conservative legal movement.

106 Lee Cokorinos describes the Reagan Justice Department as “[a]n inner core of ideological hard-liners” who “gained a reputation among civil rights leaders for collaborating to undermine civil rights protection under the guise of legal principle.” Lee Cokorinos, The Assault on Diversity: An Organized Challenge to Racial and Gender Justice 21 (2003).

107 Roberts was special assistant to the Attorney General, while Alito was assistant to the Solicitor General, as well as Deputy Assistant Attorney General in the Office of Legal Counsel. Michael Avery & Danielle McLaughlin, The Federalist Society: How Conservatives Took the Law Back from Liberals 23 (2013).

108 See Cokorinos, supra note 106, at 7, 22, 25, 60, 82 (outlining the contributions of Cooper, Carvin, and Bolick in creating and implementing the conservative right's assault on affirmative action, in particular). Charles Cooper was Assistant Attorney General for the Office of Legal Counsel under Attorney General Meese, and brought to the Office as his assistant Michael Carvin. Id. at 60. Of note, recently Cooper has been active in resisting marriage equality, arguing in the Supreme Court in support of California's ban. Carvin was a leader in the successful effort to challenge the preclearance requirement of the Voting Rights Act. Reagan, of course, appointed Antonin Scalia and Anthony Kennedy to the Supreme Court. See Raymond Wolters, Right Turn: William Bradford Reynolds, the Reagan Administration, and Black Civil Rights 11-12 (1996) (detailing the influential role of Assistant Attorney General Reynolds in Reagan's Supreme Court Justices nominations). Clarence Thomas did not work in the Reagan Department of Justice, but he was appointed by Reagan as Chair of the Equal Employment Opportunity Commission before George H.W. Bush appointed him to the Court. See Avery & McLaughlin, supra note 107, at 122. With the subsequent appointments of John Roberts and Samuel Alito, the Reagan Administration, which ended in 1989, remains responsible in varying degrees for five Justices now on the Court.

109 See Office of Legal Policy, U.S. Dep't of Justice, Guidelines on Constitutional Litigation (1988); Office of Legal Policy, U.S. Dep't of Justice, The Constitution in the Year 2000: Choices Ahead in Constitutional Interpretation (1988) [hereinafter Office of Legal Policy, Year 2000]. The latter document argued that “judicial appointments are crucial to restrict civil rights law.” Reva Siegel, The Supreme Court 2012 Term, Foreword: Equality Divided, 127 Harv. L. Rev. 1, 28 (2013). Both documents emphasized the importance of a return to originalism, and illustrated for the public how the selection of judges who would preserve the original meaning of the Constitution would matter in deciding questions concerning the ‘social issues'--issues such as ‘law and order, abortion, busing, quota systems'--that President Reagan had for a decade employed to appeal to voters traditionally aligned with the Democratic Party. Id. at 27.

110 See Wolters, supra note 108, at 7.

111 Reynolds “had no background in civil rights.” Lopez, supra note 96, at 70.

112 See generally Bob Jones Univ. v. United States, 461 U.S. 574 (1983).

113 Id. at 580-82.

114 See Landsberg, supra note 74, at 122 (describing this switch in position as contradicting the unanimous advice of career attorneys throughout the government).

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

115 The incident was seen as “a public policy debacle.” Id.

116 See Bob Jones Univ., 461 U.S. at 612.

117 See, e.g., Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) (rejecting the Reagan Justice Department's view, which was the opposite of the previous administration, to find a state-adopted plan prohibiting busing unconstitutional); see also Drew S. Days, The Courts' Response to the Reagan Civil Rights Agenda, 42 Vand. L. Rev. 1003, 1010-11 (1989) (highlighting the Reagan Administration's strategy of “work[ing] out consent decrees that entailed no mandatory busing”).

118 U.S. Seeks to Free Schools From Court Supervision, Associated Press, Mar. 6, 1988, available at http:// www.nytimes.com/1988/03/06/us/us-seeks-to-free-schools-from-court-supervision.html.

119 See Charles Fried, Order and Law: Arguing the Reagan Revolution--A Firsthand Account 105 (1991) (“[Reynolds] bridled at government-imposed preferences and ‘race-conscious relief,’ even as a remedy for proven discrimination.”); Lopez, supra note 96, at 69-71 (assessing the Reagan Administration's hostility to affirmative action); see also, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984).

120 See Office of Legal Policy, Year 2000, supra note 109, at 50 (warning against the “dramatic” consequences of extending “the ‘disparate impact’ definition of discrimination by extending the Griggs analysis to the equal protection area”).

121 See Fried, supra note 119, at 104 (conceding that the Administration “lost all credibility and control over the situation” by opposing any extension of the Voting Rights Act due to its opposition to the results standard).

122 See Wolters, supra note 108, at 442 (documenting Reynolds's position that “once a school board had fully and faithfully implemented an appropriately tailored court order, the court's authority” should end).

123 See Fried, supra note 119, at 107 (describing Reynolds's insistence on “victim-specific” remedies and rejection of consent decrees favoring groups of victims).

124 See Lopez, supra note 69, at 77-103 (documenting the appeal of “colorblindness” to Reagan and other leaders as “denying that there's discrimination against minorities, elevating whites as racial victims, justifying white superiority, and facilitating dog whistle racial appeals that emphasize culture and comportment”). Id. at 103.

125 See Siegel, supra note 109, at 26 (pointing to a 1987 Office of Legal Policy report in which the Reagan Administration “endorsed intent standards and attacked effects standards in antidiscrimination legislation”).

126 Id. at 47. Notably, the Reagan Administration continued vigorous enforcement of criminal civil rights laws that depend on a showing of specific intent to deprive individuals of rights. See, e.g., 18 U.S.C. §§241-242 (2012).

127 See Siegel, supra note 109, at 28 (“[T]he Justice Department under Attorney General Edwin Meese... associated the original meaning of the Equal Protection Clause with the colorblind Constitution.”).

128 See Wolters, supra note 108, at 4 (showing how Reagan equated civil rights enforcement with “enforce[ment of] discrimination in favor of some groups”).

129 See Balkin & Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination, 58 U. Miami L. Rev. 9 (2003), for a discussion of the anticlassification and antisubordination strains in equality law.

130 As the Chief Justice later stated in Parents Involved, it makes no difference whether the classification is for the purpose of inclusion, as in that case, or invidious exclusion, as in Brown. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 732 (2007) (plurality opinion) (“Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.”’).

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

131 Many career attorneys “were attracted to the division... because of their commitment to the laws that it enforces.” Landsberg, supra note 74, at 159.

132 See id. at 168 (describing Reynolds's hiring of non-civil service attorneys, whom he authorized to act “independently of the normal structure”).

133 See, e.g., In re Birmingham Reverse Discrimination Employ't Litig., 833 F.2d 1492 (11th Cir. 1987). For another example of case handling by “secret operation” without “consult[ing] with the division personnel normally responsible for [such] cases,” see Landsberg, supra note 74, at 168 (citing Williams v. City of New Orleans, 729 F.2d 1554 (5th Cir. 1984) (en banc)).

134 The Attorney General's Honors Program has been the primary method of hiring lawyers since 1954. See Landsberg, supra note 74, at 157.

135 See Office of the Inspector Gen. and Office of Prof'l Responsibility, U.S. Dep't of Justice, An Investigation of Allegations of Politicized Hiring and Other Improper Personnel Actions in the Civil Rights Division 11 (2008) [hereinafter IG Hiring Report].

136 Charles Cooper, a Deputy Assistant Attorney General in the Civil Rights Division under President Reagan, endorsed the traditional hiring system by stating: [t]here was obviously oversight from the front office, but I don't remember a time when an individual went through that process and was not accepted. 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. Charlie Savage, Civil Rights Hiring Shifted in Bush Era, Boston Globe, July 23, 2006, at A1.

137 See generally IG Hiring Report, supra note 135.

138 President Bush made clear through his selection of John Ashcroft as Attorney General that his Administration would pursue an agenda based on a restrictive view of civil rights enforcement. Following Ashcroft's nomination, senators expressed serious concerns about his views on race and the law. Neil A. Lewis, Ashcroft Battle Likely to Focus on Race Issues, N.Y. Times (Jan. 14, 2001), http://www.nytimes.com/2001/01/14/us/ashcroft-battle-likely-to-focus-on-race-issues.html. Forty-two senators voted against his nomination, the most until then to have voted against a nominee for Attorney General. Alison Mitchell, Senate Confirms Ashcroft as Attorney General, Closing a Five-Week Battle, N.Y. Times (Feb. 2, 2001), http://www.nytimes.com/2001/02/02/us/ senate-confirms-ashcroft-as-attorney-general-58-42-closing-a-five-week-battle.html.

139 IG Hiring Report, supra note 135, at 14.

140 See Kennedy, supra note 76, at 213-17. The quality of attorney hires changed dramatically. The academic qualifications of successful applicants dipped and the Division hired far fewer attorneys with civil rights experience. See Charlie Savage, Justice Department's Hiring for Civil Rights Shifts Under Obama, N.Y. Times, June 1, 2011, at A19.

141 See John J. Miller, Fort Liberalism: Can Justice's Civil Rights Division be Bushified?, Nat'l Rev., May 6, 2002, at 26, 26-27 (urging a political takeover of the hiring of career attorneys in the Civil Rights Division and the ouster of career management).

142 See William Yeomans, An Uncivil Division, Legal Affairs, Sept./Oct. 2005, at 20.

143 Schlozman was supported by the political leadership of the Division and the Department. The Inspector General chastised Assistant Attorney General Alexander Acosta and Deputy Assistant Attorney General Bradshaw for failure to supervise Schlozman. It is not credible that Acosta and the Department's leadership, who had selected Schlozman for his position, did not know what he was doing. Notably, key political officials in the Division refused to be interviewed by the Inspector General. IG Hiring Report, supra note 135, at 1-2.

144 Id. at 64.

145 Id. at 35-43.

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

146 Schlozman told the Chief of the Appellate Section that a certain attorney should not argue a case the attorney had worked on because “[t]he potential stakes are too great to entrust this either to a lib or an idiot.” Id. at 43. He further decreed that an attorney, who her supervisor thought to be one of the best, could not work on anything significant. Id. at 43-44. He also prohibited one of the long- serving Deputy Chiefs of the Appellate Section “from reviewing any important cases.” Id. at 44. The Division began assigning appeals from the Office of Immigration Litigation (“OIL”) to disfavored attorneys. See, e.g., id. at 37-39; Office of the Inspector Gen., U.S. Dep't of Justice, A Review of the Operations of the Voting Section of the Civil Rights Division, 140-42 (2013) [hereinafter IG Voting Report]. OIL, which is in the Civil Division, defends orders of deportation. The Division leadership fully understood that such work was inconsistent with the reason that most attorneys worked in the Division. Wan Kim testified as Assistant Attorney General in 2005 that forty percent of the time of Appellate Section Attorneys in the Division had been spent on OIL cases in the preceding year and that some 120 OIL appellate briefs had been handled by the Division. Changing Tides: Exploring the Current State of Civil Rights Enforcement Within the Dep't of Justice: Hearing before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. 118 (Mar. 22, 2007) (statement of Joseph D. Rich) [hereinafter Rich Testimony]. That, of course, meant a large diversion of resources from enforcement of civil rights laws to enforcement of immigration laws.

147 IG Hiring Report, supra note 135, at 20 n.13.

148 Id. at 21 n.13.

149 Id.

150 Id.

151 Id. at 64.

152 For example, Hans von Spakovsky, a Republican political operative, was hired as a career attorney in the Voting Section but spent his tenure supervising voting matters for political appointees, often acting outside the traditional chain of command. See Dahlia Lithwick, Do Not Vote for This Guy, SLATE (Sept. 25, 2007), http://www.slate.com/articles/news_and_ politics/jurisprudence/2007/09/ do_not_vote_for_this_guy.html. Von Spakovsky received a recess appointment to the Federal Election Commission. The Senate refused to move his subsequent nomination for the same position. Hans von Spakovsky Withdraws FEC Nomination, POLITICO (May 16, 2008), http:// www.politico.com/blogs/thecrypt/0508/Hans_von_Spakovsky_withdraws_FEC_ nomination.html.

153 See Rich Testimony, supra note 146, at 118.

154 See, e.g., IG Hiring Report, supra note 135, at 35-45 (detailing forced transfers within the Appellate Section).

155 See Kennedy, supra note 76, at 224.

156 Id.

157 Id.

158 Id. at 225. Richard Ugelow, former Deputy Chief of the Employment Litigation Section, testified in September 2007: Of the 47 Title VII cases brought by the Bush Administration, twelve include a claim of a pattern or practice or systemic discrimination. Seven of these twelve cases contain an allegation of race discrimination. However, two of the race discrimination cases are “reverse” discrimination cases, alleging discrimination against whites. Another case alleges discrimination against Native Americans and one case was filed by the U.S. Attorney's Office for the Southern District of New York. Thus, the Employment Litigation Section can lay claim to filing and staffing exactly three pattern or practice cases in almost seven years that allege discrimination against African-Americans. It is troubling that the Employment Litigation Section's first pattern or practice case was not filed until April 3, 2006, more than five years into the Bush Administration. By comparison, in its first two years the Clinton Administration filed 13 pattern or practice cases, eight of which raised race discrimination claims. Oversight Hearing on Emp't Section of the Civil Rights Div. of the U.S. Dep't of Justice Before the Subcomm. On the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. 5 (Sept. 25, 2007) (statement of Richard S. Ugelow), available at http:// washingtonindependent.com/wp-content/uploads/2009/01/ugelow-testimony.pdf.

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

159 See supra text accompanying notes 45-60.

160 42 U.S.C. §1973 (2012).

161 The Attorney General has sixty days within which to interpose an objection pursuant to §5. 42 U.S.C. §1973c. Failure to do so allows the change to go into effect. Id. The Division, however, can acquire an additional sixty days within which to act by requesting more information. See 28 C.F.R. §51.37 (2013). In this matter, the Division leadership stalled by sending a request for more information, which started the sixty-day clock running again and allowed the federal court to enter its alternative plan. Id.

162 See Kennedy, supra note 76, at 220. The career attorneys reviewing the plan unanimously concluded that it would dilute the votes of minority voters. Id.

163 Id.

164 Id. The Section Chief, who had been selected by Schlozman, also supported preclearance. The law was subsequently struck down as a poll tax and was replaced with a less severe requirement. See United States v. Billings, No. 07-12113, 2008 WL 194912 (11th Cir. Jan. 24, 2008).

165 See Kennedy, supra note 76, at 222.

166 The Division laudably picked up the pace of filing suits alleging discrimination against Spanish-speaking language minority groups. The increase coincided with the Republican Party's push to win Hispanic voters. See Oversight of the Civil Rights Div.: Hearing Before the Subcomm. on the Judiciary, 109th Cong. 52 (2006) (Responses of Wan J. Kim to questions submitted by Sens. Leahy, Specter, Kennedy, Feingold, Schumer, and Durbin) (highlighting a §2 suit against Long County, Georgia, for improper challenges to Hispanic voters); IG Voting Report, supra note 146, at 29-31 (summarizing cases filed during the Bush Administration to protect Hispanic voters).

167 IG Voting Report, supra note 146, at 25 (“Some current or former career employees in the Voting Section told us that they believed that some Civil Rights Division leaders during the 2001 to 2008 period were reluctant or resistant toward bringing Section 2 cases.”).

168 See generally United States v. Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007), aff'd, 561 F.3d 410 (5th Cir. 2009). Although the Division won the case and survived appeal to the Fifth Circuit, there remains a question of whether §2 can properly be applied in many instances to protect white voters. Id. As the Senate Report on §2 makes clear, application of the results standard should take into account “the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process” and “the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.”S. Rep. No. 97-417, at 28-29 (1982). Such factors affecting, for example, white Mississippians are unlikely to be found. Both Christopher Coates and Christian Adams also insisted that §5 should be invoked to protect the white voters in Mississippi. See U.S. Comm'n on Civil Rights, Race Neutral Enforcement of the Law? The U.S. Dep't of Justice and the New Black Panther Party Litigation, An Interim Report, 50-59 (2011) [hereinafter USCCR Report]. That proposition is even more problematic. First, §5 prohibits measures that are retrogressive, which means they make voters worse off than before the change. See 42 U.S.C. §1973c(b) (2012). If §5 applies to all voters, most election changes will become problematic because someone will almost always be made worse off. See Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L.J. 174, 216-18 (2007). Moreover, as Shelby County emphasized, §5 preclearance is an extraordinary remedy that was justified only because of the extraordinary history of discrimination against minority voters in covered jurisdictions. See Shelby Cnty. v. Holder, 133 S. Ct. 2612, 2628 (2013). The United States lacks a comparable history of discrimination against white voters that would justify congressional imposition of preclearance. For these reasons, neither the Attorney General nor courts have applied §5 to block changes that adversely affect white voters. See Persily, supra, at 217 n.167.

169 See IG Hiring Report, supra note 135, at 64.

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

170 It found, however, that the brain drain of the Bush years had left the Division short of experienced litigators to pursue complex litigation such as pattern or practice employment discrimination cases. See Charlie Savage, Justice Department to Recharge Civil Rights Enforcement, N.Y. Times, Sept. 1, 2009, at A1.

171 IG Voting Report, supra note 146, at 183.

172 Adam Serwer, The Battle for Voting Rights, The Am. Prospect (Jan. 8, 2010), http://prospect.org/article/battle-voting-rights-0.

173 Id.

174 Id.

175 Id.

176 Schlozman promoted Coates to Principal Deputy Chief of the Voting Section. IG Voting Report, supra note 146, at 178.

177 See Jeff Zeleny, Obama Calls for Ouster of Official After Remark, N.Y. Times (Oct. 21, 2007), http:// www.nytimes.com/2007/10/21/ us/politics/21justice.html?_r=0.

178 Monica Goodling served in the Office of the Attorney General where she supervised hiring. She was found by the Inspector General and Office of Professional Responsibility to have engaged in improper politicized hiring. Office of the Inspector Gen. and Office of Prof'l Responsibility, U.S. Dep't of Justice, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General 135 (2008). She testified before Congress under a grant of immunity and admitted to wrongdoing. Id. at 1-2.

179 IG Hiring Report, supra note 135, at 21. Schlozman's use of “on the team,” as well as terms such as “real American” or “right-thinking American,” “refer[ed] to politically conservative applicants and attorneys.” Id.

180 See IG Voting Report, supra note 146, at 119 n.92 (referencing the “real climate of distrust” in the Division).

181 See generally Office of Prof'l Responsibility, U.S. Dep't of Justice, Investigation of Dismissal of Defendants in United States v. New Black Panther Party for Self-Defense, Inc. (2011) [hereinafter OPR NBPP Report], available at http:// democrats.judiciary.house.gov/ sites/democrats.judiciary.house.gov/files/OPR% 20Report_0.pdf.

182 Id. at 6.

183 The student was a Republican poll watcher. Id.

184 See id. at 9-10.

185 Id. at 8 & n.7. Eyewitnesses reported that the two men were present for approximately one hour before the police arrived. Id. at 7 n.5.

186 Id. at 8.

187 See IG Voting Report, supra note 146, at 49-50 (summarizing the complaint). The Voting Section brought only two §11(b) actions from 1993 to 2012. Id. at 24.

188 See id. at 49 (confirming that had an expedited procedure not been followed, the complaint would not have been filed before President Obama took office).

189 King was appointed Deputy Assistant Attorney General in 1994, after serving several years in the Voting Section. OPR NBPP Report, supra note 181, at 25 n.21. Rosenbaum was Chief of the Housing and Civil Enforcement Section and had previously served as Chief of the Voting Section. Id. at 26 n.22.

190 Id. at 7-8.

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

191 Id. at 54-63; 67-70.

192 According to the Division, only three suits pursuant to §11(b) have ever been brought, two of which, including the NBPP complaints, were filed by the George W. Bush Administration against black defendants. U.S. Comm'n on Civil Rights, Hearing on the Department of Justice's Actions Related to the New Black Panther Party Litigation and its Enforcement of Section 11(b) of the Voting Rights Act (2010) (testimony of Assistant Att'y Gen. Thomas Perez) [[hereinafter Perez Testimony]; see IG Voting Report, supra note 146, at 29-31.

193 See generally Mary Frances Berry, And Justice for All: The United States Commission on Civil Rights and the Continuing Struggle for Freedom in America (2009).

194 See Charlie Savage, Maneuver Gave Bush a Conservative Rights Panel, Boston Globe (Nov. 6, 2007), http:// www.boston.com/news/ nation/washington/articles/2007/11/06/maneuver_gave_bush_a_ conservative_rights_panel/?page=full.

195 Id.

196 This decision was too much even for one of the conservative commissioners, who accused her fellow conservatives of focusing on the issue as a means to bring down President Obama and refused to support the final effort. “This doesn't have to do with the Black Panthers; this has to do with their fantasies about how they could use this issue to topple the [Obama] administration,” said Commissioner Abigail Thernstrom. See Ben Smith, A Conservative Dismisses Right-Wing Black Panther ‘Fantasies', Politico (July 19, 2010), http://www.politico.com/news/stories/0710/39861.html.

197 USCCR Report, supra note 168, at 69.

198 Id. at 69-70.

199 Id. at 70.

200 Id. at 70-71.

201 Id. at 48-60.

202 Id.

203 See OPR NBPP Report, supra note 181, at 61-62. The Office of Professional Responsibility report noted: Coates believed that if a factually similar case arose under the Obama Administration in which the wrongdoers were white Ku Klux Klan members wearing their uniforms, with a nightstick in hand, and shouting racial slurs at African-American voters, he has no doubt that the current Administration would initiate and prosecute a claim under section 1l(b). Id.

204 See generally Perez Testimony, supra note 192.

205 Id. at 16-20.

206 Id. at 23.

207 Id. at 36.

208 See generally USCCR Report, supra note 168.

209 Conservative Commissioner Thernstrom issued this dissent: I cannot support the majority report on the New Black Panther Party investigation. This investigation lacked political and intellectual integrity from the outset, and has been consistently undermined by the imbalance between the gravity of the allegations and the strength of the evidence available to support such charges. Some commissioners offered serious, principled critiques of the process, and questioned the evidentiary record. Their views were contemptuously ignored by the commission's majority. The majority

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

charges that racial double standards govern the enforcement of the Voting Rights Act in the Holder Justice Department. If that can be convincingly demonstrated, it will be a grave indictment of this administration. But that evidentiary showing awaits further investigation by the Department of Justice and Congress. I applaud that investigation, and hope that it will shed more light on this important question than the tendentious report provided by the commission's majority. Id. at 174.

210 IG Voting Report, supra note 146, at 223. The tone of the demands of Wolf and Smith in attempting to elevate the NBPP incident to the level of a scandal was a precursor to the politically-charged efforts to tar the Obama Administration with scandal around the events in Benghazi, the tragic killing of a Border Patrol agent examined in the Fast and Furious investigation, and the IRS processing of 501(c)(4) applications.

211 Letter from Inspector Gen. Glenn A. Fine to Rep. Lamar Smith and Rep. Frank Wolf (Sept. 13, 2010), available at http:// www.usccr.gov/NBPH/LetterFine2Wolfreenforcementcivilrightsl_09-13-10.pdf [[hereinafter Fine letter].

212 Id.

213 See generally Office of the Inspector Gen., U.S. Dep't of Justice, A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq (2008).

214 See generally IG Hiring Report, supra note 135.

215 See generally IG Voting Report, supra note 146.

216 Id. at 221-22.

217 Id. at 45-72.

218 See generally Fine letter, supra note 211.

219 See IG Voting Report, supra note 146, at ch. 3.

220 Any doubt that the Bush-era leadership of the Voting Section did not share the Section's mission was dispelled when Schlozman, Coates, Adams, and von Spakovsky joined an amicus brief in the Supreme Court in Shelby County, arguing that the law's formula for determining which jurisdictions had to seek preclearance was unconstitutional. See generally Brief of Former Gov't Officials as Amici Curiae in Support of Petitioner, Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) (No. 12-96). In other words, they asked the Court to strike down the very law that they had been charged with enforcing.

221 See IG Voting Report, supra note 146, at 29-31.

222 See supra text accompanying notes 137-168.

223 See generally IG Hiring Report, supra note 135.

224 Part of this offensive tried to blame the Clinton Administration for engaging in politicized hiring. Although the report does not address enforcement of the law during the Clinton Administration, it examined hiring in the final months of that Administration. See IG Voting Report, supra note 146, at 184-88. In 2000, the Civil Rights Division, after years of requests, finally was awarded a substantial budget increase that allowed for the hiring of a number of attorneys. During the preceding decade, the Division had taken on the enforcement of several new statutes without commensurate budget increases, including the Americans with Disabilities Act, the Freedom of Access to Clinic Entrances Act, and authorization to seek civil remedies against law enforcement for the deprivation of rights. It therefore moved expeditiously to fill these positions. The author was Chief of Staff for the Division at the time and is mentioned in the report. The Office of the Inspector General (“OIG”) found no impropriety in the hiring, but concluded that it had left the impression with the incoming Bush Administration officials that the outgoing administration was trying to fill career jobs with people who supported its views. Id. at 188. OIG, of course, had previously examined politicization of the Division's hiring and had never mentioned the incident or the conclusion. The difference was that Bush officials, who had been caught corrupting the hiring process, went on the offensive to convince OIG that they were only doing what the previous administration had done. OIG,

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

therefore, tarred individuals who had done nothing wrong based on the after-the-fact tale told by Bush officials. Interestingly, after reading a draft of the report, Bill Lann Lee, who had been Assistant Attorney General and was in charge of hiring during the period in question, asked the Inspector General to interview him so that he could rebut inaccuracies in the draft report. Speaking volumes about the objectivity of his investigation, the Inspector General never responded to his request and, therefore, never interviewed the person who was most knowledgeable about the hiring in question.

225 The incoming Obama officials found that the departure of senior and experienced litigators during the Bush years had left the Division in urgent need of experienced civil rights litigators. See supra note 170.

226 In the last year of the Bush Administration, Attorney General Michael Mukasey rejected the politicized hiring process of his predecessors and started the process of returning hiring to its traditional reliance on merit. Oversight of the U.S. Dep't of Justice: Hearing Before the Subcomm. on the Judiciary, 110th Cong. 5-7 (2008) (remarks of Att'y Gen. Michael B. Mukasey).

227 This criticism of the hiring process was complemented by the attempt to portray the Division--and by extension President Obama-- as “racialist” for dismissing three of four of the NBPP complaints. See J. Christian Adams, Breaking: Inspector General Report on Racialist Dysfunction Inside DOJ, PJ Media (Mar. 12, 2013), http:// pjmedia.com/jchristianadams/2013/03/12/breaking-inspector- general-report-on-racialist-disfunction-inside-doj/.

228 OIG seems not to distinguish between hiring on the basis of ideology or partisanship, often regardless of qualifications as the Bush Administration did, and hiring the most qualified people to enforce civil rights laws, a majority of whom are likely to be liberal. It simply should not be the job of OIG to police the ideology of attorneys, so long as those attorneys are hired according to criteria designed to identify the most qualified attorneys for their jobs. There can be no doubt that experience in doing the job--enforcing civil rights laws--enhances the attractiveness of an applicant, as does a commitment to enforcing the law. These relevant factors should be considered along with other indicia of fitness, such as academic qualifications, in evaluating an application. Just as the Tax Division should favor experience with tax law and the Criminal Division should look favorably on criminal law experience, the Civil Rights Division should consider experience with civil rights law. See generally Office of the Inspector Gen. Oversight and Review Div., U.S. Dep't of Justice, A Review of the Operations of the Voting Section of the Civil Rights Division (Mar. 2013). See IG Voting Report, supra note 146, at app. A.

229 IG Hiring Report, supra note 135, at 17. Schlozman “disfavored” civil rights experience: [W]hen we start asking about, ‘what is your commitment to civil rights'.... [ [H]ow do you prove that? Usually by membership in some crazy liberal organization or by some participation in some crazy cause.... Look, look at my resume--I didn't have any demonstrated commitment, but I care about the issues. So, I mean, I just want to make sure we don't start confining ourselves to, you know, politburo members because they happen to be a member of some, you know, psychopathic left-wing organization designed to overthrow the government. Id at 15, 17.

230 Id. at 54.

231 See generally Civil Rights Accomplishments, supra note 83.

232 Id.

233 Jonathan Weisman & Michael D. Shear, Democrats in Senate Reject Pick by Obama, N.Y. TIMES, Mar. 6, 2014, at A16.

234 See Carrie Johnson, Senate Democrats Defect on Obama Civil Rights Nominee, Nat'l Pub. Radio (Mar. 5, 2014), http:// www.npr.org/blogs/itsallpolitics/2014/03/05/286393192/senate-rejects-obama-nominee-for-key-civil-rights-post. President Obama described Adegbile “as an illustration of the American dream.” Id.

235 According to Senator Mitch McConnell, Adegbile's career has been “a long record of left wing advocacy marked by ideologically driven positions and very, very poor judgment.” Id.

236 Adam Serwer, A Past Client is Used Against an Obama Nominee, MSNBC (Mar. 10, 2014), http://www.msnbc.com/msnbc/obama- pick-targeted-where-others-were-spared.

THE POLITICS OF CIVIL RIGHTS ENFORCEMENT, 53 Washburn L.J. 509

237 Id.

238 See Johnson, supra note 234.

239 Id.

240 Fox News called Adegbile a “cop killer coddler.” See Serwer, supra note 236.

241 See Barbara Bennett Woodhouse, The Right-wing Smear Attacks on Lani Guinier, Philly.com (May 26, 1993), http:// articles.philly.com/1993-05-26/news/25963877_1_quota-small-states-voters.

242 See John F. Harris & Helen Dewar, President Bypasses Congress, Appoints Lee on ‘Acting’ Basis, Wash. Post, Dec. 16, 1997, at A1.

243 See Adam Serwer, Why Can't Tom Perez Get Confirmed, Am. Prospect (Sept. 17, 2009), http://prospect.org/article/why-cant-tom- perez-get-confirmed-0.

244 See Serwer, supra note 236.

245 American Bar Association President James R. Silkenat testified to the Senate Judiciary Committee: a fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel. Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government--even to those accused or convicted of terrible crimes. Dahlia Lithwick, Guilt by Association, Slate (Mar. 5, 2014), http:// www.slate.com/articles/news_and_politics/ jurisprudence/2014/03/debo_adegbile_ senate_blocks_obama_s_pick_to_head_the_justice_department.html.

246 “If you're a talented young lawyer with lofty public-service ambitions the lesson here is don't affiliate yourself with advocacy groups, don't take pro bono cases, keep your nose buried in corporate work.” Brian Beutler, Race-baiting and Misunderstanding the Law: Why the Senate Destroyed Obama Nominee Debo Adegbile, Salon (Mar. 6, 2014), http:// www.salon.com/2014/03/06/ race_baiting_and_misunderstanding_of_law_slimes_ presidents_nominee/.

247 See supra text accompanying notes 12-60.

248 See Roger Clegg, The Bad Law of “Disparate Impact”, 138 Nat'l Affairs 79, 89 (2000) (“The disparate-impact approach also encourages the already widespread tendency, on the Right and Left, to view every social problem through a racial lens.”); see Amy L. Wax, Disparate Impact Realism, 53 Wm. & Mary L. Rev. 621, 626 (2011) (stating that disparate impact liability “encourages [employers] to engage in perverse, inefficient, and evasive tactics, including de facto affirmative action”).

249 Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08(1977); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

250 See supra text accompanying notes 18-19.

251 Jonathan Chait, Clarence Thomas Nostalgic for Race-Neutral Days of 1960's Georgia, Daily Intelligencer (Feb. 11, 2014 4:08 PM), http:// www.nymag.com/daily/intelligencer/2014/02/thomas-nostalgic-for-race-neutral-1960s-georgia.html. 53 WBNLJ 509