Civil Rights Focus Shift Roils Staff At Justice Veterans Exit Division as Traditional Cases Decline
By Dan Eggen
Washington Post Staff Writer
Sunday, November 13, 2005; A01

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The Justice Department's Civil Rights Division, which has enforced the nation's anti-discrimination laws for nearly half a century, is in the midst of an upheaval that has driven away dozens of veteran lawyers and has damaged morale for many of those who remain, according to former and current career employees.

Nearly 20 percent of the division's lawyers left in fiscal 2005, in part because of a buyout program that some lawyers believe was aimed at pushing out those who did not share the administration's conservative views on civil rights laws. Longtime litigators complain that political appointees have cut them out of hiring and major policy decisions, including approvals of controversial GOP redistricting plans in Mississippi and Texas.

At the same time, prosecutions for the kinds of racial and gender discrimination crimes traditionally handled by the division have declined 40 percent over the past five years, according to department statistics. Dozens of lawyers find themselves handling appeals of deportation orders and other immigration matters instead of civil rights cases.

The division has also come under criticism from the courts and some Democratsfor its decision in August to approve a Georgia program requiring voters to present government-issued identification cards at the polls. The program was halted by an appellate court panel and a district court judge, who likened it to a poll tax from the Jim Crow era.

"Most everyone in the Civil Rights Division realized that with the change of administration, there would be some cutting back of some cases," said Richard Ugelow, who left the division in 2004 and now teaches law at American University. "But I don't think people anticipated that it would go this far, that enforcement would be cut back to the point that people felt like they were spinning their wheels."

The Justice Department and its supporters strongly dispute the complaints. Justice spokesman Eric Holland noted that the overall attrition rate during the Bush administration, about 13 percent, is not significantly higher than the 11 percent average during the last five years under President Bill Clinton.

Holland also said that the division filed a record number of criminal prosecutions in 2004. A quarter of those cases were related tohuman-trafficking crimes, which were made easier to prosecute under legislation passed at the end of the Clinton administration and which account for a growing proportion of the division's caseload.

In addition, Holland defended the department's decision to approve the Georgia voter law, saying that "career and political attorneys together concluded" that the measure would have no negative effect on minorities.

"This administration has continued the robust and vigorous enforcement of civil rights laws," Holland wrote in an e-mail statement, adding later: "These accomplishments could not have been achieved without teamwork between career attorneys and political appointees."

Attorney General Alberto R. Gonzales, the first Hispanic to hold the job, named civil rights enforcement as one of his priorities after taking office earlier this year and supports reauthorization of the Voting Rights Act.

Although relations between the career and political ranks have been strained throughout the Justice Department over the past five years, the level of conflict has been particularly high in civil rights, according to current and former staffers. The debate over civil rights flared in the Senate in recent weeks after the nomination of Wan J. Kim, who was confirmed on Nov. 4 as the assistant attorney general for the division and is the third person to hold that job during the Bush administration. Kim has been the civil rights deputy for the past two years.

There were no serious objections to Kim's nomination, but Democrats including Sens. Richard J. Durbin (Ill.) and Edward M. Kennedy (Mass.) said they were concerned about serious problems with morale and enforcement within the division.

"Its enforcement of civil rights over the past five years has been negligent," Kennedy said in a statement. "Mr. Kim has promised to look closely at these issues and to increase the division's enforcement, and I believed he should be given a chance to turn the division around."

Critics point to several key statistics in arguing that Gonzales and the previous attorney general, John D. Ashcroft, have charted a dramatically different course for civil rights enforcement than previous administrations of both parties.

The Lawyers' Committee for Civil Rights Under Law, which includes a number of former Justice lawyers, noted in a letter to the Senate Judiciary Committee that the division has filed only a handful of cases in recent years dealing with employment discrimination or discrimination based on the statistical impact on women or minority groups.

The total number of criminal prosecutions is within the range of the Clinton administration, but a growing percentage of those cases involve prosecuting human smugglers, which have become a priority for the division only in recent years. Other types of civil rights prosecutions are down, from 83 in fiscal 2001 to 49 in 2005.

The Bush administration has filed only three lawsuits -- all of them this year -- under the section of the Voting Rights Act that prohibits discrimination against minority voters, and none of them involves discrimination against blacks. The initial case was the Justice Department's first reverse-discrimination lawsuit, accusing a majority-black county in Mississippi of discriminating against white voters.

The change in emphasis is perhaps most stark in the division's appellate section, which has historically played a prominent role intervening in key discrimination cases. The section filed only three friend-of-the-court briefs last year -- compared with 22 in 1999 -- and now spends nearly half its time defendingdeportation orders rather than pursuing civil rights litigation. Last year, six of 10 briefs filed by the section were related to immigration cases.

William R. Yeomans, a 24-year division veteran who took a buyout offer earlier this year, wrote in an essay in Legal Affairs magazine that "morale among career attorneys has plummeted, the division's productivity has suffered and the pace of civil rights enforcement has slowed."

In an interview, Yeomans said some of the problems stem from the way the "front office" at Justice has treated career employees, many of whom have been forced to move to other divisions or to handle cases unconnected to civil rights. As an example of the strained relations, Yeomans points to the recent retirement party held for a widely admired 37-year veteran: Not one political appointee showed up.

At the same time, Ashcroft implemented procedures throughout Justice that limited the input of career lawyers in employment decisions, resulting in the hiring of many young conservatives in civil rights and elsewhere in the department, former and current lawyers have said.

"The more slots you open, the more you can populate them with people you like," said Stephen B. Pershing, who left the division in May and is now senior counsel at the Center for Constitutional Litigation, a Washington law firm that handles civil rights cases. "It's pretty simple really."

To Roger Clegg, the situation is also perfectly understandable. A former civil rights deputy in the Reagan administration who is now general counsel at the Center for Equal Opportunity, Clegg said the civil rights area tends to attract activist liberal lawyers who are philosophically opposed to a more conservative approach.

"If the career people are not reflecting the policy priorities of the political appointees, then there's a problem," Clegg said. "Elections have consequences in a democracy."

Holland, the Justice spokesman, said critics are selectively citing statistics. For example, he said, the department is on the winning side of court rulings 90 percent of the time compared with 60 percent during the Clinton years. Federal courts are "less likely to reject our legal arguments than the ones filed in the previous administration," he said.

Ralph F. Boyd Jr., the civil rights chief from 2001 to 2003, agreed: "It's not a prosecutor's job to bring lots of cases; it's a prosecutor's job to bring the right cases. If it means fewer cases overall, then that's what you do."

Links to Civil Rights Legal Information and Assistance

Staff Opinions Banned In Voting Rights Cases
Criticism of Justice Dept.'s Rights Division Grows
By Dan Eggen, Washington Post Staff Writer
Saturday, December 10, 2005; A03

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The Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act cases, marking a significant change in the procedures meant to insulate such decisions from politics, congressional aides and current and former employees familiar with the issue said.

Disclosure of the change comes amid growing public criticism of Justice Department decisions to approve Republican-engineered plans in Texas and Georgia that were found to hurt minority voters by career staff attorneys who analyzed the plans. Political appointees overruled staff findings in both cases.

The policy was implemented in the Georgia case, said a Justice employee who, like others interviewed, spoke on condition of anonymity because of fears of retaliation. A staff memo urged rejecting the state's plan to require photo identification at the polls because it would harm black voters.

But under the new policy, the recommendation was stripped out of that document and was not forwarded to higher officials in the Civil Rights Division, several sources familiar with the incident said.

The policy helps explain why the Justice Department has portrayed an Aug. 25 staff memo obtained by The Washington Post as an "early draft," even though it was dated one day before the department gave "preclearance," or approval, to the Georgia plan. The state's plan has since been halted on constitutional grounds by a federal judge who likened it to a Jim Crow-era poll tax.

The policy shift's outlines were first reported by the Dallas Morning News. Sources familiar with the change said it was implemented by John K. Tanner, the voting section chief, who is a career employee.

In response to a request to comment yesterday, Justice Department spokesman Eric Holland wrote in an e-mail: "The opinions and expertise of the career lawyers are valued and respected and continue to be an integral part of the internal deliberation process upon which the department heavily relies when making litigation decisions." He declined to elaborate.

Tensions within the voting section have been rising dramatically, culminating in an emotionally charged meeting last week in which Tanner criticized the quality of work done by staff members analyzing voting rights cases, numerous sources inside and outside the section said. Many employees were so angered that they boycotted the staff holiday party later in the week, the sources said.

Under Section 5 of the Voting Rights Act of 1965, Georgia, Texas and other states with a history of discriminatory election practices are required to receive approval from the Justice Department or a federal court for any changes to their voting systems. Section 5 prohibits changes that would be "retrogressive," or bring harm to, minority voters.

For decades, staff attorneys have made recommendations in Section 5 cases that have carried great weight within the department and that have been passed along to senior officials who make a final determination, former and current employees say.

Preventing staff members from making such recommendations is a significant departure and runs the risk of making the process appear more political, experts said.

"It's an attempt by the political hierarchy to insulate themselves from any accountability by essentially leaving it up to a chief, who's there at their whim," said Jon Greenbaum, who worked in the voting section from 1997 to 2003, and who is now director of the Voting Rights Project at the Lawyers' Committee for Civil Rights Under Law. "To me, it shows a fear of dealing with the legal issues in these cases."

Many congressional Democrats have sharply criticized the Civil Rights Division's performance, and Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said this week that he is considering holding hearings on the Texas redistricting case. Sen. Edward M. Kennedy (D-Mass.) said in a statement yesterday: "America deserves better than a Civil Rights Division that puts the political agenda of those in power over the interests of the people its serves."

Attorney General Alberto R. Gonzales and other Justice officials have disputed such criticism, saying that politics play no role in civil rights decisions. In a letter to Specter this week, Assistant Attorney General William E. Moschella criticized The Post's coverage and said the department is aggressively enforcing a range of civil rights laws.

"From fair housing opportunities, equal access to the ballot box and criminal civil rights prosecutions to desegregation in America's schools and protection of the rights of the disabled, the division continues its noble mission with vigor," Moschella wrote.