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CHANGING TIDES: EXPLORING THE CURRENT

STATE OF CIVIL RIGHTS ENFORCEMENT WITHIN THE DEPARTMENT OF JUSTICE

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MARCH 22, 2007

Serial No. 110–44

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III)

C O N T E N T S 

MARCH 22, 2007

OPENING STATEMENT 

Page 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 3

WITNESSES 

Mr. Wan J. Kim, Assistant Attorney General, Civil Rights Division, U.S. 

Department of Justice 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 10

Mr. William L. Taylor, Chair, Citizens’ Commission on Civil Rights 

Oral Testimony ..................................................................................................... 55

Prepared Statement ............................................................................................. 56

Mr. Joseph D. Rich, Director, Fair Housing Community Development Project, 

Lawyers’ Committee for Civil Rights Under Law 

Oral Testimony ..................................................................................................... 114

Prepared Statement ............................................................................................. 115

Mr. Roger Clegg, President and General Counsel, Center for Equal Opportunity 

Oral Testimony ..................................................................................................... 121

Prepared Statement ............................................................................................. 122

Mr. Wade Henderson, President and CEO, Leadership Conference on Civil 

Rights 

Oral Testimony ..................................................................................................... 139

Prepared Statement ............................................................................................. 141

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Chairman, Subcommittee on 

the Constitution, Civil Rights, and Civil Liberties ............................................ 2

Prepared Statement of the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Ranking Member, Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties ...................................... 4

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 6

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 223

(1)

CHANGING TIDES: EXPLORING THE CURRENT 

STATE OF CIVIL RIGHTS WITHIN THE DEPARTMENT OF JUSTICE 

THURSDAY, MARCH 22, 2007

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION,

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:07 a.m., in 

Room 2237, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Davis, Ellison, Conyers, Scott, 

Franks, Pence, Issa, and Jordan. 

Staff present: David Lachmann, Chief of Staff; LaShawn Warren, 

Majority Counsel; Crystal Jezierski, Minority Counsel; and Susana 

Gutierrez, Professional Staff Member. 

Mr. NADLER. Good morning. This hearing of the Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties will come to 

order. 

Today’s hearing will examine the work of the Civil Rights Division of the Department of Justice. 

The Chair recognizes myself for 5 minutes for an opening statement. 

Today we begin the Subcommittee’s oversight over the Civil 

Rights Division of the Department of Justice. The Division, established by Civil Rights Act of 1957, is charged with the enforcement 

of our Nation’s civil rights laws, prohibiting discrimination on the 

basis of race, sex, disability, religion and national origin. The Constitution’s promise of equal protection under the laws has, for 

many, remained unfulfilled. Our civil rights laws exist to make 

that promise a reality for all Americans. 

The recently released report by the Citizens’ Commission on Civil 

Rights, ‘‘The Erosion of Rights: Declining Civil Rights Enforcement 

Under the Bush Administration,’’ documents a very troubling pattern of the politicization of the Division’s work. The findings, by 

this bipartisan group of career civil rights professionals, are very 

troubling. They reflect concerns that have been raised for several 

years, and which, until now, have not been subject to the scrutiny 

of this Subcommittee. 

Allegations of the politicization of law enforcement are certainly 

not new to the Members of this Committee. An extremely disVerDate 0ct 09 2002 14:15 Sep 27, 2007 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\CONST\032207\34177.000 HJUD1 PsN: 34177
2

turbing pattern is emerging from this Administration of relentless 

political interference in the basic enforcement of our laws. 

In areas such as the Voting Rights Act, which this Committee 

and the Congress just recently reauthorized last year, we have received allegations that political considerations have trumped the 

recommendations of career staff. In some of these cases, the courts 

have upheld the recommendations of the civil rights professionals 

in the Division and have struck down the political decisions imposed by what some have called the Shadow Civil Rights Division—that is, the political appointees who change the decisions or 

the recommendations of the professional staff and make different 

rulings on behalf of the Division, only to see those rulings upset by 

the courts because the rulings were held to be contrary to law. 

If the rule of law is to have any meaning, if the civil rights laws 

this Committee produces are to have any value, then we must be 

assured that those laws will be enforced without fear or favor or 

political contamination. 

I hope that we can get some answers to these very serious allegations, and I look forward in particular to Mr. Kim’s testimony. 

I will note that we did not get his testimony until yesterday 

evening. This has become a pattern with the Justice Department, 

one that I find unacceptable. I would be interested to know whether the Attorney General thinks he is accountable to anyone, because the contempt the department has shown toward this Committee, among other things, by not giving us that testimony until 

last night and to its Members and the American people is deplorable. 

I realize that this Administration has gotten a free ride for the 

last 6 years, but that is over. This Committee will fulfill its constitutional duty, and I hope that, in the future, we can count on 

the department’s cooperation. 

And that means, among other things, answering our questions 

and giving us testimony before the night before the hearing. 

I yield back the balance of my time. 

I will now yield for an opening statement to the distinguished 

Ranking minority Member, the gentleman from Arizona, Mr. 

Franks. 

[The prepared statement of Mr. Nadler follows:]

PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK, AND CHAIRMAN, SUBCOMMITTEE ON

THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

Today we begin the Subcommittee’s oversight over the Civil Rights Division of the 

Department of Justice. 

The Division, established by Civil Rights Act of 1957, is charged with the enforcement of our nation’s civil rights laws, prohibiting discrimination on the basis of race, 

sex, disability, religion and national origin. The Constitution’s promise of equal protection under the laws has, for many, remained unfulfilled. Our civil rights laws 

exist to make that promise a reality for all Americans. 

The recently released report by the Citizens’ Commission on Civil Rights, ‘‘The 

Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration,’’ documents a very troubling pattern of the politicization of the Division’s work. 

The findings, by this bi-partisan group of career civil rights professionals, are very 

troubling. They reflect concerns that have been raised for several years, and which, 

until now, have not been subject to the scrutiny of this Subcommittee. 

Allegations of the politicization of law enforcement are certainly not new to the 

members of this Committee. An extremely disturbing pattern is emerging from this 

3

administration of relentless political interference in the basic enforcement of our 

laws. 

In areas, such as the Voting Rights Act—which this Committee just reauthorized—we have received allegations that political considerations have trumped the 

recommendations of career staff. In these cases, the courts have upheld the recommendations of the civil rights professionals in the Division, and have struck down 

the political decisions imposed by what some have called the Shadow Civil Rights 

Division. 

If the rule of law is to have any meaning, if the civil rights laws this Committee 

produces are to have any value, then we must be assured that those laws will be 

enforced without fear or favor. 

I hope that we can get some answers to these very serious allegations, and I look 

forward to Mr. Kim’s testimony. 

I will note that we did not get his testimony until yesterday evening. This has 

become a pattern with the Justice Department, one that I find unacceptable. I 

would be interested to know whether the Attorney General thinks he’s accountable 

to anyone, because the contempt the Department has shown toward this Committee, 

to its members, and to the American people is deplorable. 

I realize that this administration has gotten a free ride for the last six years, but 

that’s over. This Committee will fulfill its constitutional duty, and I hope that, in 

the future, we can count on the Department’s cooperation. 

I yield back the balance of my time.

Mr. FRANKS. Well, thank you, Mr. Chairman. I am very pleased 

to be here today to discuss the recent activities of the Civil Rights 

Division in the Department of Justice. 

And, Mr. Kim, thank you for being here, sir. 

The Division performs work that is important to the health of 

this Nation. And the evidence that we have in front of us here 

today indicates that it has been well led in recent years. 

In 2006, the Voting Section filed 17 new lawsuits, which more 

than doubles the average number of lawsuits filed during the preceding 30 years. 

This fall, the Division oversaw the largest election monitoring effort ever conducted by the Department of Justice for a midterm 

election. 

Last year, the Employment Litigation Section filed as many lawsuits challenging a pattern or practice of discrimination as during 

the last 3 years of the previous Administration combined. 

And in the last 6 years, the Division has tripled the number of 

agreements reached with police departments across the country 

and convicted 50 percent more law enforcement officials for misconduct, such as the use of excessive force, as compared to the previous 6 years. 

In fiscal year 2006, the department obtained a record number of 

convictions in the prosecution of human trafficking crimes. Those 

victims were predominantly women and minorities. 

I was also pleased to see the Division’s recent report on its efforts to protect religious liberty. Religious freedom is the cornerstone from which all of our rights, including our civil rights, grow. 

To reject the importance of our religious freedoms is to reject the 

very basis upon which the premise of the statutes the Division is 

charged with—of enforcing. 

My colleagues in this majority have criticized the Division for its 

enforcement activities. They disagree with the chosen priorities of 

the President, the Attorney General and with Mr. Kim. While it is 

certainly their right to disagree with the Division’s decisions, the 

evidence shows that the Division has vigorously pursued those 

4

1 Reynolds v. Sims, 377 U.S. 533, 555 (1964). 

areas of the law that are most critical to civil rights and race relations in this country. 

Under the current Administration, the department has increased 

the number of prosecutions and the number of convictions in key 

areas. 

Similarly, the Division has had no rule 11—the rule under the 

Federal code of civil procedure, which seeks to ensure a certain 

level of good faith in all cases brought in Federal courts violations—no rule 11 violations. I mention this because the Division 

under the leadership of President Clinton and former Attorney 

General Janet Reno was ordered to pay or agreed to pay approximately $4 million for having brought frivolous lawsuits. 

That means the lawsuits and the arguments made in those lawsuits were so lacking in merit that the lawyers of the Division and 

the Division were sanctioned for having even brought them. 

The ultimate goal of the department’s work in all areas should 

be to punish wrongdoing and to remove deserving wrongdoers from 

our communities. 

And while I would hope that the Division is always asking how 

it can do its job better, it seems clear that the Division has been 

working to ensure that it furthers the important mandate it was 

given when formed 50 years ago. 

Over the last few years, the Division has continued to ask itself 

how it can improve its performance while responding to what the 

public views as traditional civil rights violations and working hard 

to respond to emerging civil rights threats. This effort should be 

applauded and not criticized. 

The job of the Division and, quite frankly, the Department of 

Justice as a whole is to provide national leadership on various legal 

issues and to address complex multijurisdictional cases and legal 

issues that promote the dignity of humanity. 

I applaud the Division and the department’s current leadership 

for making these strategic decisions and working to meet new challenges while continuing to address the longstanding issues that 

may sadly remain in some pockets of our Nation. 

Thank you for joining us here today, Mr. Kim. And I look forward to discussing many of these issues with you and our other 

witnesses. 

Thank you, Mr. Chairman. 

[The prepared statemet of Mr. Franks follows.]

PREPARED STATEMENT OF THE HONORABLE TRENT FRANKS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ARIZONA, AND RANKING MEMBER, SUBCOMMITTEE

ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

Thank you Mr. Chairman, 

Mr. Chairman, our work to ensure the franchise to all citizens is not yet done. 

I’m delighted to see that we can all agree, that there must be law to ensure that 

all citizens have protection from false information about elections AND receive 

unencumbered access to the ballot. Voters must be confident that their vote is not 

diluted or cancelled out through voter fraud, by those who would make false statements to illegally participate in elections. As we know, the Supreme Court has held 

that (quote) ‘‘the right of suffrage can be denied by a debasement or dilution of the 

weight of the citizens’ vote just as effectively as by wholly prohibiting the free exercise of the franchise.’’ 1

5

We must ensure that only citizens are participating in elections, and this bill 

brings us closer to that goal by penalizing those who would seek to dilute citizen 

votes. Eligible citizens are able to prove their eligibility and are not dissuaded from 

voting if required to do so. We know that states that have worked to strictly control 

the integrity of their voter rolls have experienced positive results. The issue hits 

close to home for me. 

At the Committee’s field briefing in Arizona, Secretary of State Jan Brewer discussed the effects of the newly enacted identification law known as Proposition 200. 

Under Proposition 200, all voters are required to present identification at the polls 

before casting a ballot, and all new voter registration applications must be accompanied by sufficient proof of citizenship. While identification is required in all Arizona jurisdictions, 15 jurisdictions have successfully implemented a proof of citizenship requirement. Secretary Brewer testified that Arizona has experienced a 15.4 

percent INCREASE in voter registration since the requirements of Proposition 200 

went into effect. 

Currently, state and local governments do not have any effective way to prevent 

non-citizens from registering to vote and voting. Section 303(b)(4)(A) of HAVA requires inclusion of a citizenship box on the National Voter Registration Form. When 

applying to register to vote, individuals must check the box affirming their citizenship. The law provides that registration forms that do not have the box checked 

should be rejected and returned to the individual. However, some states are not enforcing this requirement. Even in states that do enforce the citizenship requirement, 

it is still done on an honor system that relies on the truthful response of the registrant. While the present state of the law leaves the system open to abuse, our 

work in this Committee will take us one step further to help to insure that only 

eligible citizens are voting. 

While there may be disputes about the nature and extent of voter fraud, there 

can be no dispute that it occurs. People must be protected from false information 

about elections and encouraged that their vote will be counted and will not be cancelled out by an illegal vote. 

With these aims in mind, I look forward to seeing our hard work on this issue 

come to fruition today. 

Thank you, Mr. Chairman.

Mr. NADLER. Thank you, Mr. Franks. 

In the interest of proceeding to our witnesses, and we have two 

panels today, and mindful of our busy schedules, I would ask that 

other Members submit their statements for the record. Without objection, all Members will have 5 legislative days to submit opening 

statements for inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing at any time, which I will endeavor not to do unless there are votes on the floor. 

As we ask questions of our witnesses, the Chair will recognize 

Members in the order of their seniority on the Subcommittee, alternating between majority and minority, provided that the Member 

is present when his or her time arrives. 

Members who are not present when their turn begins will be recognized after the other Members have had the opportunity to ask 

their questions. 

The Chair reserves the right to accommodate a Member who is 

unavoidably late or only able to be with us for a short time. 

And I will endeavor not to have to make this announcement at 

every subsequent hearing, but I thought I should do it at this time. 

That will be the policy we will follow in general. 

[The prepared statement of Mr. Conyers follows.]

6

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDICIARY, AND MEMBER, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND

CIVIL LIBERTIES

Since its establishment in 1957, the Civil rights Division has been the nation’s 

bulwark against discrimination. Though I may have taken issue with the priorities 

of various administrations over the years, I must state that the policies adopted by 

this administration are truly stunning and without precedent. Just as in the case 

of the U.S. Attorney firings more generally, we have seen an unprecedented 

politicization of the Civil Rights Division. As the report submitted by the Citizens’ 

Commission on Civil Rights details, this administration has seldom missed the opportunity to reduce or redirect the resources of the Division. 

Our concerns date back to the 2002 Mississippi Congressional redistricting plan’s 

preclearance under Section 5 of the Voting Rights Act. In that case, the Division 

ran out the clock on the review process and allowed a Republican dominated threejudge court to take jurisdiction over the case. This situation resulted in a plan that 

favored the Republican candidate and the loss of African-American voter influence 

in the process. That was the first of a series of incidents where the Department used 

the Voting Rights Act as a shield to block the interests of minorities. 

In former Rep. Tom Delay’s drive to redistrict Texas, the Division again succumbed to intense partisan pressure. My colleagues will recall that both the DOJ 

and Homeland Security Offices of Inspector General reported numerous high level 

contacts made in an attempt to pressure their Departments into tracking down 

Democratic legislators who were protesting the process in Austin. 

The stakes involved in the Texas preclearance were immense and should have 

been devoid of the barest hint of partisanship. We later discovered, however, that 

political appointees overruled the career staff at the expense of minority voters, who 

objected to the Delay plan. It was not until this session, after a long legal and political battle, that Latino voters in Texas were finally able to elect their candidate of 

choice to Congress. 

Again, in the case of the Section 5 review of the Georgia photo ID requirement, 

we were to discover that career staff were overruled by the political appointees. This 

time, however, a court stepped in with an injunction to protect the interests of Georgia minorities, calling the plan that you precleared a ‘‘poll tax.’’ Apparently learning 

your lesson, the press reported that the Division hereafter 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. 

Despite the bright sounding statistics cited in your testimony, these kinds of practices have clearly taken a toll on the Division. The Commission’s report details an 

alarming level of attorney and professional turnover throughout the Division, with 

the Voting, Employment and Special Litigation Sections being especially hard hit. 

Since April 2005, the voting Section has experienced over 54% attorney turnover. 

During the same period, only one of the five persons in section leadership—a single 

litigation deputy—remains in the section today. The Employment Section is even 

worse, with over 65% attorney turnover. 

This brain drain will soon come back to haunt the Division. In your testimony, 

you attempt to explain the small number of Title VII pattern and practice cases by 

describing them as ‘‘factually and legally complex, as well as time-consuming and 

resource-intensive.’’

I suspect that the problem is that the Section lacks attorneys with enough tenure 

or experience to bring the cases. The Voting Section is similarly vulnerable. With 

the turnover of Section 5 analyst in particular, you must ask yourself whether, at 

the end of your term, your management has resulted in a stronger or weaker commitment to the protection of civil rights. 

Even after the Division’s illustrious 50 year history, civil rights are still the unfinished business of America. As Assistant Attorney General, you carry the burden of 

ensuring that we continue our progress in civil rights. Unfortunately, that progress 

has been uneven in this Administration. It’s very important that this Committee 

know you are committed to maintaining and resuming progress across the Division’ 

particularly the Employment, Voting and Special Litigation Sections. As we move 

forward today and in the coming year, I hope we can work in a cooperative spirit 

to fulfill our nation’s promise of equal opportunity.

Mr. NADLER. Our first witness is Wan J. Kim, assistant attorney 

general for the Civil Rights Division of the United States DepartVerDate 0ct 09 2002 14:15 Sep 27, 2007 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\CONST\032207\34177.000 HJUD1 PsN: 34177
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ment of Justice. Mr. Kim previously served as a deputy assistant 

attorney general in the Civil Rights Division. 

He has spent most of his career at the Department of Justice, 

having entered through the Attorney General’s honors program as 

a trial attorney in the Criminal Division and later serving as an 

assistant United States attorney for the District of Columbia. 

Mr. Kim also has worked on the staff of the Senate Judiciary 

Committee for former Chairman Orrin G. Hatch and as a law clerk 

to Judge James L. Buckley of the U.S. Court of Appeals for the District of Columbia circuit. 

He was born in Seoul, South Korea, and is a graduate of the 

Johns Hopkins University and the University of Chicago Law 

School. 

Mr. Kim, your written statement will be made part of the record 

in its entirety. I would ask that you now summarize your testimony 

in 5 minutes or less. 

To help you stay within that time, there is a timing light at your 

table. When 1 minute remains, the light will switch from green to 

yellow and then to red when the 5 minutes are up. 

Thank you, and you may proceed when you wish. 

TESTIMONY OF WAN J. KIM, ASSISTANT ATTORNEY GENERAL, 

CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. KIM. Thank you, Mr. Chairman. 

Mr. Chairman, Ranking Member Franks, distinguished Members 

of the Subcommittee, it is a pleasure to appear before you today to 

represent the President, the Attorney General and the dedicated 

professional public servants in the Civil Rights Division. 

I am honored to serve the people of the United States as assistant attorney general for the Civil Rights Division, and I am pleased 

to report that the past year was full of outstanding accomplishments in the Civil Rights Division and a year in which we obtained 

many record levels of enforcement. 

I am proud of the professional attorneys and staff in the Division 

whose talents, dedication and hard work made these accomplishments possible. 

My prepared written statement details the accomplishments of 

each section of the Division, and I will address portions of it here. 

Mr. Chairman, Members of the Subcommittee, I am sorry the 

statement was submitted late. I will assure the Committee that I 

will endeavor to work and make sure that it is submitted more 

timely in the future. 

I would also state, however, that the Department of Justice does 

take seriously its obligation. It was submitted to the interagency 

clearance process in time. It just was returned too late. And I take 

responsibility for that. 

I would just like to take a few minutes to highlight some of the 

accomplishments of the Division recently, beginning with two recent initiatives and the creation of a new unit recently within the 

Criminal Section of the Civil Rights Division. 

Just a few weeks ago, on February 20, 2007, the Attorney General announced a new initiative entitled ‘‘The First Freedom 

Project’’ and released a report on the enforcement of laws protecting religious freedom to highlight and build upon the Division’s 

8

role in enforcing the longstanding Federal laws that prohibit discrimination based on religion. 

This initiative is particularly important to combat religious and 

cultural intolerance in the aftermath of the terrorist attacks of September 11. 

Just 2 months ago, the Attorney General announced a Federal 

indictment charging James Seale for his role in the abduction and 

murders of two African-American teenagers, Henry Dee and 

Charles Moore, in Mississippi in 1964. This case is being prosecuted by the Civil Rights Division and the U.S. Attorney’s Office. 

Shortly thereafter, the Attorney General announced an FBI initiative to identify other unresolved civil rights-era murders for possible prosecution, to the extent permitted by the available evidence 

and the limits of Federal law, an effort in which the Civil Rights 

Division will play a key role. 

On January 31, 2007, the Attorney General announced the creation of a new human trafficking prosecution unit within the 

Criminal Section. 

This new unit is staffed by the C Section’s most seasoned human 

trafficking prosecutors, who work with our partners in Federal and 

State law enforcement and NGOs to investigate and prosecute the 

most significant human trafficking crimes, such as multijurisdictional sex trafficking cases. 

In addition to these recent advances, the Division has done much 

to further the enforcement of our Federal civil rights laws. In the 

past year, the Voting Section has filed 18 new lawsuits in calendar 

year 2006, more than doubling the average number of lawsuits 

filed during the preceding 30 years. 

We successfully mounted the largest election monitoring effort 

ever conducted by the Justice Department for a midterm election. 

The Administration strongly supported passage of the voting rights 

reauthorization legislation which Congress did last year. 

The Criminal Section obtained a record number of convictions in 

the prosecution of human trafficking cases, deplorable offenses of 

fear, force and violence that disproportionately affect women and 

minority immigrants. 

The Housing and Civil Enforcement Section filed more cases alleging discrimination based on sex than in any year in the Division’s history. 

The Housing and Civil Enforcement Section conducted significantly more tests to proactively ensure compliance with the Fair 

Housing Act pursuant to the Attorney General’s Operation Home 

Sweet Home Initiative. And we are working to achieve an all-time 

high number of such tests this year. 

The Disability Rights Section obtained the highest success rate 

to date in mediating complaints brought under the Americans with 

Disabilities Act, 82 percent. 

In the past 6 years, the Disability Rights Section has reached 

more than 80 percent of all the agreements obtained with State 

and local governments under Project Civic Access, a program that 

has made cities across the country more accessible and lives better 

for more than three million Americans with disabilities. 

And in the past 6 years, we have ensured the integrity of law enforcement by more than tripling the number of agreements reached 

9

with police departments and convicting 50 percent more law enforcement officials for willful misconduct such as the use of excessive force, as compared to the previous 6 years. 

Before I close, I would like to note that this year the Division is 

celebrating its 50th anniversary. Consequently, I reflected upon the 

work of the Division not only during my time in service but also 

over the past half century. 

Since our inception in 1957, the Division has accomplished a 

great deal, and we have much of which to be proud. But while 

much has been accomplished, the Division’s daily work demonstrates that discrimination still exists, and our work still continues. 

Thank you, Mr. Chairman and Ranking Member Franks, for the 

opportunity to appear before you today. I look forward to answering 

any questions that you may have. 

[The prepared statement of Mr. Kim follows:]

10

PREPARED STATEMENT OF WAN J. KIM


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Mr. NADLER. Thank you, Mr. Kim. And I commend you for coming in under the 5-minute time limit. 

I will now yield myself 5 minutes for questions. And as I said before, we will alternate from majority to minority in asking questions. 

Mr. Kim, the recent Citizens’ Commission report raises concerns 

about the Division’s role in the pre-clearing mid-decade congressional redistricting plan enacted by the State of Texas. I am sure 

you are familiar with this. Probably everybody in the room is. 

The plan targeted several areas of minority voting strength. The 

career staff of the Voting Section concluded that the plan violated 

section 5 because it resulted in the retrogression of minority electoral opportunity. 

The department’s political appointees rejected the staff’s recommendations and pre-cleared the plan. 

My question is how was the decision made to reject the recommendations of the career staff concerning the Texas redistricting 

plan, and what was the legal basis for the rejection of their recommendation? 

Mr. KIM. Congressman, I appreciate the question on Texas redistricting. My recollection serves that was a plan that was precleared by the Department of Justice in December of 2003. 

We can know a lot about what that plan accomplished today because that plan was the subject of extensive litigation in the Federal court, in the U.S. Supreme Court, and that plan actually produced an election. 

Obviously, with pre-clearance determinations we——

Mr. NADLER. If I recall, it produced exactly what Mr. DeLay intended it to produce. But go ahead. 

Mr. KIM. Mr. Chairman, with respect, the issue in retrogression 

as far as the Department of Justice is concerned is with the effective exercise of the electoral franchise rights by minority citizens. 

And the plan that was adopted in December of 2003, I think, produced a map that had elected, I think, seven Members of Congress 

who are minority representatives from the State of Texas. 

I believe the elections of 2004, which implemented the plan that 

was challenged, produced eight. And so the results of the election 

actually show that that plan was not retrogressive as to minority 

voting strength. 

That plan was also subjected to extensive litigation in the courts. 

Mr. NADLER. But, wait, wait, wait. Wasn’t it true that the court, 

in fact, struck down the Bonilla seat, which is part of that plan, 

so the court held that, in fact, there was retrogression? 

Mr. KIM. No, sir. The court did not hold that there was retrogression. 

Mr. NADLER. Or rather that the court held that the plan was illegal under the Voting Rights Act? 

Mr. KIM. The court held that—could I proceed by saying that 

there was two pieces of litigation with respect to that plan. 

One was before a Federal three-judge panel under the Voting 

Rights Act. That panel blessed the entire plan. They said the entire 

plan was legal under every circumstance, Voting Rights Act as well 

as constitutional. 

41

That plan was then challenged in the Supreme Court. The Supreme Court ruled that 31 districts of the 32 districts were properly constituted and posed no violation whatsoever. 

Mr. NADLER. But my question, excuse me—the professional staff 

of the Division recommended that the plan not be pre-cleared. They 

were overruled by the—let’s call it the political echelon, the recent 

appointees. 

How was that done? That is to say, how was a decision made to 

reject the recommendations of the career staff, and what was the 

legal basis for the rejection? 

Mr. KIM. Well, Mr. Chairman, I am trying to explain the legal 

basis of the decision, which is that the plan was not retrogressive 

as determined by the decision makers back in December 2003. 

And the recommendation——

Mr. NADLER. The political people decided that the decision that 

the plan was retrogressive made by the professionals in the department was wrong and that they knew better. 

Mr. KIM. Mr. Chairman, with respect, I think you are drawing 

those inferences from a lot of leaked documents and news accounts. 

I am not in a position to confirm or deny that. I am in a position 

to tell you how these decisions typically come up. 

Mr. NADLER. No, that is not my question. All right. I thought 

that it was widely acknowledged. Did the political echelon—and by 

that I mean the appointees on the top—did they overrule the recommendations of the career staff? 

Mr. KIM. Mr. Chairman, what I am trying to do is tell you exactly what happened without waiving any privilege. 

Mr. NADLER. No, no, no. Without waiving any privilege, yes or 

no, did they do that or not? Because based on everything that I 

thought was common knowledge, we are assuming that they did. 

If they didn’t, please say so. 

Mr. KIM. Mr. Chairman, the pre-clearance letter was signed by 

a political appointee. 

Mr. NADLER. Obviously. The question is was there a recommendation not to pre-clear by the professional staff and was 

that overruled? 

Mr. KIM. Mr. Chairman, I can say there was a leaked memorandum that reflects a recommendation that was different. I am 

not trying to——

Mr. NADLER. So in other words, your answer is yes, sir, unless 

you say that that leaked memorandum was inaccurate. 

Mr. KIM. Mr. Chairman, I am trying not to answer that question, 

because that would waive——

Mr. NADLER. Obviously. 

Mr. KIM [continuing]. A privilege the department has never 

waived. I am trying to be as responsive——

Mr. NADLER. You are trying to not answer the question because 

that would waive a privilege? 

Mr. KIM. That the department has never waived, yes, sir. 

Mr. NADLER. And what privilege is that? 

Mr. KIM. Attorney-client privilege. Deliberative process privilege. 

Mr. NADLER. Attorney-client privilege? Who is the client and who 

is the attorney? 

42

Mr. KIM. Well, sir, the recommendations of attorneys made to decision makers—those are typically attorney-client privileged. 

And again, Mr. Chairman, I am trying to be responsive to your 

question. There was a leaked memorandum that purported to interpose an objection. The actual pre-clearance letter——

Mr. NADLER. All right. I have gotten your answer. We have very 

little time. I have one more question for you. 

Mr. KIM. Yes, sir. 

Mr. NADLER. In December of 2005, it was reported in several 

newspapers that the Division had barred staff attorneys from offering recommendations at all in their memoranda to the Division 

leadership. Is this true? If it is, when exactly was the process 

changed and why? 

Mr. KIM. Mr. Chairman, that is not true. 

Mr. NADLER. It is not true. 

Mr. KIM. I have never asked for anything other than recommendations. And every single item of litigation that comes to my 

desk has a recommendation from the career attorneys. 

And so I am—it is absolutely not the case that I bar recommendations from my staff. 

Mr. NADLER. Well, I appreciate that you could answer that question. I appreciate your candor. And I appreciate that you asserted 

no privilege. 

My time is expired. I will now recognize the Ranking Member of 

this Subcommittee, the Ranking minority Member of the Subcommittee, the distinguished gentleman from Arizona——

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. NADLER [continuing]. For 5 minutes. 

Mr. FRANKS. Thank you very much, Mr. Chairman. 

You know, I think sometimes when we are dealing with issues 

that are charged as much as civil rights issues, we should always 

realize that the substance and the essence of true tolerance is not 

in pretending that we have no differences. 

It is in being kind and loving and decent to each other in spite 

of those differences. And I hope that that will always be our central 

focus and goal in this country. 

With that said, Mr. Kim, I want to—if it is all right, if you feel 

you needed to have a chance to further elaborate on the rationale 

that was behind the question you were trying to answer when the 

Chairman was talking to you. Would that help you? 

Mr. KIM. Yes, Mr. Franks, if I could just take a minute. I mean, 

at the end of the day, that decision was—the decision to pre-clear 

that Texas redistricting plan was based on a retrogression analysis. 

It was not based upon a question of partisanship, because I think 

there were many acknowledged positions that the map was drawn, 

in part, for partisan purposes. And that is true in almost every redistricting plan that is ever created. 

These are very difficult questions. A three-judge Federal panel 

approved the entire plan. The Supreme Court, by a vote of 5-4, approved 97 percent of that plan and found a section 2 voting rights 

violation with respect to one district, which was redrawn. 

Under those circumstances, the map that was created in the 

Texas redistricting plan—every court that considered the issue 

ruled that 97 percent of it, at least, was a valid plan. 

43

And so that does not call into question, I think, the Department 

of Justice’s decision back in December 2003 or so to pre-clear that 

plan. 

It would have been inconsistent with those judicial decisions to 

say that that entire plan, all 32 districts, could not be withdrawn, 

when at the end of the day many, many Federal judges, very, very 

smart, careful people, impartial people, looked at that map and 

they drew conclusions that basically said 100 percent or 97 percent 

of that plan should be pre-cleared—I am sorry, you know, should 

go into effect. 

Mr. FRANKS. Well, thank you, Mr. Kim. 

Mr. Kim, what are the Division’s priorities for fiscal year 2007 

and 2008 in general, and how are these priorities—how are they 

arrived at? 

Mr. KIM. Well, Mr. Franks, I will say that my biggest priority, 

given my background as a career Federal prosecutor, and my background at the Department of Justice and what I view my role at 

the Department of Justice to be, first and foremost is to bring every 

available case based upon the facts and the law, without fear or 

favor. 

And I echo and endorse entirely what the Chairman said about 

that being a critical role at the Department of Justice. It is a role 

that I have historically played and it is a role that I continue to 

play. 

With respect to individual initiatives, the Attorney General has 

defined several. First of all, he has focused on the fact that we need 

to do more on human trafficking. 

Congress has shown great leadership in this area by providing 

us tools to more effectively combat this form of modern day slavery. 

It is a problem that we see across the country. t is a problem that 

we have put our attention to from the beginning of this Administration, again, with the legislation enacted by Congress. It is an 

area that we have shown great strides, bringing 500 percent more 

prosecutions over the past 6 years, and it is an area that, quite 

frankly, we can do a lot more on, because the facts of these cases 

are absolutely disgusting. 

Mr. FRANKS. Horrifying. 

Mr. KIM. These are some of the most vile criminals out there in 

the world, someone who would profit from the misery of others and 

profit from the subjection of others. 

And we intend to keep going full bore ahead to make sure that 

we investigate these crimes as proactively and as aggressively as 

possible. 

Mr. FRANKS. Well, Mr. Kim, I think that is a, you know, very 

laudable thing, and I want to be the—you know, very strong record 

my own applause for that kind of effort. 

I also mentioned in the opening statement that your Division has 

been more proactive in religious discrimination issues or discrimination of religious liberty. 

It is my perspective—and I hope the perspective of the Committee here—that, you know, the religious differences that any people have are sometimes, you know, the issues that we really struggle with. 

44

And if we can get that right, if we can respect each other’s faith 

and religion, then a lot of the other kinds of differences between 

us can be respected. 

Can you comment on what you think has been the underlying effect and ongoing efforts related to protecting the religious freedom 

of your clients? 

Mr. KIM. Yes, Congressman. First of all, I certainly share many 

of your sentiments. I mean, I think at the end of the day this country is a country built on diversity. It is a country built on a lot of 

different people. 

I spoke with you briefly before the hearing, and your wife is an 

immigrant. I am an immigrant. My entire family came from a different country. For many Americans, America is not the country of 

their birth. It is the country of their choice. 

And the greatest of America is how it allows people to become 

full, patriotic, participating members of this country without barriers based on race, skin color, national origin, et cetera. 

And that is something that I have truly viewed as one of the 

most blessed things that ever happened to my family, the ability 

to come here and to prosper, and to live a little part of the American dream that has been true for generations of Americans over 

time. 

The protection of religious liberty certainly is an important component of that. It is one of the first things mentioned in the Bill 

of Rights. It has been a consistent theme in laws passed by Congress since the 1964 Civil Rights Act. 

And ever since 9/11, I think we have become more aware of cultural, religious intolerance built of ignorance, and trying to break 

those barriers down is important to a welcoming society that we all 

live in. 

Mr. FRANKS. Thank you, Mr. Kim. 

Mr. NADLER. Thank you. The time of the gentleman has expired. 

I now recognize the distinguished Chairman of the full Committee of the Judiciary Committee, the gentleman from Michigan, 

Mr. Conyers. 

Mr. CONYERS. Thank you so much, Chairman Nadler. 

I welcome you to this hearing. We consider it a very important 

one. And only yesterday the report of the civil rights commission—

Citizens’ Commission on Civil Rights has come out. Did you get a 

chance to peruse it yet? 

Mr. KIM. Yes, sir, I did. 

Mr. CONYERS. And did it seem to be a fairly accurate, unbiased 

analysis of the subject matter they discussed? 

Mr. KIM. With respect, Mr. Chairman, I disagree with many of 

the conclusions raised in the report, and I can offer you some specifics. I would be happy to answer questions more focused from 

you. 

Mr. CONYERS. Well, I would like you to submit to the Committee 

your reservations and objections and criticisms of the report. Could 

you do that subsequently? 

Mr. KIM. Yes. Yes, sir, I would be happy to. 

Mr. CONYERS. That would be very helpful to us. 

Well, do you agree with the thrust of the report, declining civil 

rights enforcement under the Bush administration? 

45

Mr. KIM. Mr. Chairman, I don’t. 

Mr. CONYERS. Okay. 

Mr. KIM. Again, I mean, I could provide you with more focused 

responses. I mean, I think that there are many things in the report 

which is just—things that just are not true based upon my experience. 

The report, for example, suggests——

Mr. CONYERS. Well, I want you to put it all in another document, 

because in 2 minutes or 3 minutes that is not going to give us the 

opportunities that we need. 

Mr. KIM. Yes, Mr. Chairman. 

Mr. CONYERS. Then I take it you disagree about—well, I 

shouldn’t take anything. Let’s just ask you. Political appointees 

intruded into the attorney evaluation process in certain instances. 

Could that have possibly happened? 

Mr. KIM. Mr. Chairman, I don’t do that. I talk with——

Mr. CONYERS. So the answer is no. 

Mr. KIM. Not from me, sir, no. 

Mr. CONYERS. Okay. Well, from anybody. Maybe there are people 

over you, with you or under you—anybody? 

Mr. KIM. Well, Mr. Chairman, I am not in a position to talk 

about everyone who ever served in the Civil Rights Division. I only 

came to be assistant attorney general about 18 months ago. 

What I am in a position to tell you about is what I do, what my 

practices are. 

Mr. CONYERS. Well, I didn’t expect you to do anything else. I 

don’t expect clairvoyance here at these hearings, although we make 

serious demands on our witnesses. 

Now, has any political appointee or management staff ordered 

section chiefs to change staff attorney performance evaluations? 

Mr. KIM. Mr. Chairman, I have never done that. 

Mr. CONYERS. All right. How many employees hired as career 

staff are currently working in the front office of the Division? 

Mr. KIM. Mr. Chairman, I want to provide you with an entirely 

accurate number. I can——

Mr. CONYERS. Surely. 

Mr. KIM [continuing]. Think of three off the top of my head, not 

all from the Civil Rights Division. I have one detail from the Criminal Division. 

But certainly, I think that is very consistent with prior practices. 

I believe that there has always been career attorneys who work 

with the——

Mr. CONYERS. Okay. That is fine. Excellent response. 

Now, Attorney Spakovsky—are you familiar with him? 

Mr. KIM. I am sorry, sir? 

Mr. CONYERS. Are you familiar with Hans von Spakovsky? 

Mr. KIM. Spakovsky, yes, sir. 

Mr. CONYERS. Okay—hired as a career staff attorney. Did he 

work in the front office? 

Mr. KIM. Yes, sir. 

Mr. CONYERS. And how long did he work in the front office, if you 

can remember? 

Mr. KIM. Mr. Chairman, he was there when I came to the Civil 

Rights Division. He left a few weeks after I was confirmed to be 

46

assistant attorney general, so I supervised him, I would say, for 

about 4 weeks or 5 weeks. 

I can get you his exact tenure. I just don’t know off the top of 

my head. 

Mr. CONYERS. Well, I wouldn’t expect you to. Do you know if he 

had a supervisory role? 

Mr. KIM. He played a role in advising the assistant attorney general on primarily voting matters. I know that. 

Mr. CONYERS. Well, if you disagree with this Citizens’ Commission report, I think that forms a basis for questions that will have 

to go on beyond the 5-minute rule, and I am glad that you are open 

to filling this out supplementally. 

We have had a number of questions that go back to the Mississippi congressional redistricting plan’s pre-clearance under section 5 of the Voting Rights Act, and I take it you found no particular problem with that. 

Mr. KIM. I would say that the presentation that I read in the report was incomplete, and I would be happy to supplement what I 

think the complete record would show. 

Okay, for example——

Mr. CONYERS. Well, my time is out, but I have got a number of 

issues that we want to put to you and then have you explain to us 

your impressions of them, especially any matters that happened before you got there. 

Mr. KIM. Yes, sir. And, Mr. Chairman, may I say that I would 

be more than happy to do that. I am prepared to do as much of 

it as I can today off the top of my head. 

I will say that I don’t think that anyone in the Civil Rights Division was shown a copy of this report before it was prepared. Certainly, we would be happy to provide you with our thoughts and 

comments upon it. 

But it came to us a few days ago, and we have had a chance to 

review it. I have some initial impressions. I would be happy to 

flesh them out further. 

Mr. CONYERS. We would be delighted. 

Thank you very much. 

Mr. NADLER. Thank you. 

Thank you, Mr. Kim. 

We will now go for 5 minutes of questioning to the distinguished 

gentleman from California. 

Mr. ISSA. Thank you. I will take my 5 distinguished minutes and 

try to make the best of them. 

I am interested in your report—your finding for a reason, and 

that is it is very clear that since September 11 the Muslim community, the community—particularly their places of worship, have 

been under various levels of attack or the color of discrimination. 

And it appears as though the balance hasn’t been changed dramatically, that your department continues to—more than 5 years 

after, continues to sort of say, ‘‘Okay, we have got so much for 

human trafficking, we have so much for African-American issues, 

we have so much for Native American issues,’’ et cetera. 

What were the new fundings to deal with this, and where did 

they come from? 

47

And to ask the obvious question, how much more would you need 

to do the kind of work to make sure that places of worship and people of faith who happen to be of the same religion as those who attacked us on September 11 don’t find themselves as second-class 

residents? 

Mr. KIM. Well, you know, Congressman, thank you for raising 

that question, because you raise an extremely important issue. It 

is an issue of education. It is an issue of tolerance. 

And ultimately, for us, it is an issue of law enforcement and 

making sure that those types of crimes are aggressively investigated and prosecuted wherever we find enough facts——

Mr. ISSA. Could I have regular order, please? Could I have regular order, please? 

Mr. Chairman, could I have regular order, please? Please. 

Mr. KIM. Thank you, Congressman. One of the first things we did 

after the September 11 attacks was to have a task force formed 

within the Department of Justice to go after ignorant crimes of bigotry based upon people who happen to be of the same race, national origin, religion as the perpetrators of September 11 and, 

quite frankly, people who were mistaken to belong to those races. 

For example, one of the regular participant groups in the forums 

that we host are Sikh Americans who, of course, are not Muslim, 

are not Middle Eastern, but are yet often mistaken as such, and 

so——

Mr. ISSA. They include a Sikh who was killed. 

Mr. KIM. Yes, sir. Yes. And so at the end of the day, what we 

have done is we have taken the huge spike in those types of crimes 

after September 11 and investigated those thoroughly. 

I think we have done tremendous work in this area with respect 

to investigating and prosecuting those kinds of crimes. We investigated more than 700, got great cooperation from the FBI along 

the way. 

We were able to prosecute, I think, about 35 defendants criminally. We helped State and local prosecutors bring prosecutions of 

about another 150. 

Thankfully, America was able to become more normal, and 

Americans were able to appreciate and become Americans again 

and recognize that these are silly acts of violence. 

And so the big spike that we saw after September 11 did return 

to better levels—not good levels, but better levels. 

We saw additional smaller spikes after certain incidents in the 

Middle East occurred, and all along this time we have maintained 

regular contacts with people in the communities. 

I meet every 6 weeks or so in my conference room with more 

than 30 representatives of many Middle Eastern, Arab, Muslim 

groups, as well as people from all the departments that are implicated in this issue, from the Department of State, from the Department of Homeland Security, from the FBI, from DHS. 

And we make sure that issues affecting the community are aired. 

I am pleased to say that more and more these issues are not one 

of outright violence and bigotry, although we still get those, and we 

go after those. 

Mr. ISSA. Actually, if I could ask an anecdotal question——

Mr. KIM. Yes, sir. 

48

Mr. ISSA [continuing]. The 35 enforcements and convictions—

would those include the two people that were brought to trial for 

trying to blow up my office in 2001? 

Mr. KIM. You know, Congressman, I don’t know the answer to 

that, but I certainly could find that for you. We have a comprehensive listing of the cases that we have brought. 

Mr. ISSA. I would appreciate a little update information on that. 

Obviously, their prime target was a Muslim mosque, and they just 

took a Christian of half-Lebanese ancestry and threw me into the 

mix. 

But I have a close attachment to the fact that there are people 

of hate who will—it doesn’t matter if it is misguided. Dead is dead. 

But 35 seems like a low number. I know my time is expiring. 

From a resource standpoint, you know, you can always use more 

resources, but how much more would allow you to have a zero tolerance against these kinds of vandalisms and hate crimes targeted 

against Muslims and people from the Middle East or believed to be 

from that region? 

Mr. KIM. Well, Congressman, two points. First, you hit it right 

on the head. Discrimination, bigotry—those are crimes based on ignorance. They are not crimes based on intelligent analysis of the 

facts, and that is why we condemn them uniformly. 

With respect to resources, Congress has been very generous with 

the provision of resources to the Civil Rights Division. We investigate and we prosecute, where appropriate and where jurisdiction 

lies, all of these cases. 

When you say 35 is a relatively low number, I would point out 

that we have investigated more than 700 incidents. And many of 

those never pan out to something that we can prosecute. 

Mr. ISSA. If the gentleman could finish—he had to be stopped 

midstream. 

Mr. KIM. And we have worked collaboratively with State and 

local prosecutors to prosecute 150 more. So at the end of the day, 

we go after these folks. 

We need the assistance from law enforcement, and they have 

been able to provide it. So I have not seen a dearth of resources 

hurt us on this issue. If it does, I certainly would let you know. 

Mr. ISSA. Thank you. 

Thank you, Mr. Chairman. 

Mr. NADLER. Thank you. 

The gentleman from Georgia? 

Mr. DAVIS. The gentleman from Alabama will also——

Mr. NADLER. Alabama, excuse me. 

Mr. DAVIS [continuing]. Allow himself to be recognized. 

Mr. ISSA. Now, there is a form of prejudice if I ever saw it. 

[Laughter.] 

Mr. DAVIS. Thank you, Mr. Chairman. 

Let me try, Mr. Kim, to circle back to some of the questions that 

the Chairman raised at the outset. 

You were somewhat reluctant to answer his questions about exchanges between senior personnel and career attorneys based on 

the doctrine of attorney-client privilege. 

When the United States files a claim in United States District 

Court, who is the client? 

49

Mr. KIM. The United States. 

Mr. DAVIS. And that would presumably not be the attorneys for 

the Department of Justice, would it? 

Mr. KIM. No, sir, it would be the United States of America acting 

through——

Mr. DAVIS. Has there been any assertion by the people of the 

United States of America regarding the scope of attorney-client 

privilege regarding those conversations? Obviously not. 

So my point, and I think the Chairman’s point, was that you 

used the term attorney-client privilege. 

There may be some kind of a work product doctrine that is lurking out there, but I think—I don’t want to certainly spend a lot of 

time on this, Mr. Kim, today, but I think you would agree with me 

as a lawyer that work product is considerably less protected than 

attorney-client privilege. 

And I think secondly—you would agree with that as a general 

proposition. 

Mr. KIM. Yes, sir. 

Mr. DAVIS. And I assume you would also agree with the proposition that the Department of Justice is a taxpayer-subsidized entity that is meant to represent the United States government. 

Congress has oversight functions. I assume that you acknowledge 

that, do you not? 

Mr. KIM. I am here, Congressman, and I acknowledge that fully. 

Mr. DAVIS. So I can’t, frankly, see any way that this institution 

could perform its oversight function if the doctrine of work product 

means that we can’t ask questions about communications. 

So in this spirit, let me do that. The Chairman asked you about 

the standard for overruling career attorneys at the Department of 

Justice who make a recommendation. 

I think he asked you that several times, and each time I think 

you didn’t answer the question. You talked about what the legal 

analysis was. So let me go back to the question. 

Mr. KIM. Sure. 

Mr. DAVIS. What is the standard for determining when senior political appointees will overrule the recommendations of the line attorneys? What is the standard? 

Mr. KIM. I think the standard is one of judgment. 

Mr. DAVIS. Is that judgment based on professional expertise, or 

is it based on something else? 

Mr. KIM. I believe it is based on professional, legal expertise and 

reasoned analysis. 

Mr. DAVIS. All right. Taking those three things, what is the typical experience level of the line attorneys who practice in the Voting Rights Division who make analyses regarding pre-clearance? 

What is their typical experience? 

Mr. KIM. They vary widely, sir. 

Mr. DAVIS. What would be the most experienced that you would 

have who would be involved in making a decision or an evaluation 

regarding pre-clearance? 

Mr. KIM. The chief. 

Mr. DAVIS. Well, no, the line attorneys. We are talking about, 

again, the line attorneys who are making evaluations regarding 

pre-clearance. 

50

In fact, let’s take a specific case, the Texas case. What was the 

experience level of the line attorneys who were involved in making 

those recommendations? 

Mr. KIM. You know, Congressman, I don’t know, because I am 

not familiar with exactly who worked on that case. 

Mr. DAVIS. Well, then let me ask another way. 

Mr. KIM. Sure. 

Mr. DAVIS. The people who make evaluations, who make recommendations to senior management regarding pre-clearance—you 

would agree with me that they are seasoned, experienced attorneys, typically, wouldn’t you? 

Mr. KIM. Yes, sir. 

Mr. DAVIS. In fact, they wouldn’t be in a position to make those 

recommendations but for the fact that they are seasoned and experienced career attorneys. Is that right? 

Mr. KIM. Congressman, I am not trying to disagree with you. I 

just want to make one point for the record. 

Mr. DAVIS. Yes. 

Mr. KIM. Many of the people who make recommendations are analysts who are not attorneys, or paralegals who are not attorneys. 

Mr. DAVIS. But at some point attorneys make the final sign-off. 

Mr. KIM. Absolutely. Absolutely. 

Mr. DAVIS. And they are experienced, seasoned attorneys, would 

you agree? 

Mr. KIM. Yes, sir. 

Mr. DAVIS. Who made the specific decision to grant pre-clearance 

in the context of the Texas redistricting? 

Mr. KIM. That letter was signed by Sheldon Bradshaw, is my understanding. 

Mr. DAVIS. And who was Sheldon Bradshaw? 

Mr. KIM. Sheldon Bradshaw was then the principal deputy assistant attorney general. 

Mr. DAVIS. For Civil Rights Division——

Mr. KIM. Yes, sir. 

Mr. DAVIS [continuing]. Or overall? 

Mr. KIM. Yes, sir, the Civil Rights Division. 

Mr. DAVIS. Okay. And can you compare that individual’s experience level with that of the line attorneys who made the recommendation? Are you able to make the comparison? 

Mr. KIM. Again, because I am not familiar with exactly who 

worked on the Texas pre-clearance matter——

Mr. DAVIS. What about the Georgia Voter I.D.? That is another 

instance where it has been reported that that there was an overruling of career attorneys. 

Can you contrast the experience level—or I would be happy to 

have the information for record eventually. 

Mr. KIM. May I response to the Georgia I.D. matter? 

Mr. DAVIS. Certainly. 

Mr. KIM. With respect to the Georgia I.D. matter, the pre-clearance decision in that case was signed by the career section chief of 

the Voting Rights Section. 

Mr. DAVIS. Well, again, going back to Texas——

51

Mr. KIM. Again, I think Joe Rich, who will testify shortly was the 

section chief at that time. He certainly has decades of experience 

in the Civil Rights Division. 

Mr. DAVIS. Then let me close out on this line of questions, Mr. 

Kim. What we are getting at today is you have experienced career 

attorneys who were there. 

They give you the benefit of their judgment. It would strike me 

that there ought to be a very high standard for a political appointee overruling them. 

And I think as a matter of practice—we don’t have to waste a 

lot of time on this—typically political appointees in these positions, 

no matter what the Administration, are, frankly, not as experienced in day-in, day-out litigation as the career professionals. 

So that is why this is a subject of concern to the Committee. The 

fact that you sometimes have, in at least one instance, recommendations by experienced professionals that have been overruled by individuals who are less experienced. 

Mr. KIM. May I respond to that point, Mr. Chairman? 

Mr. NADLER. Quickly, please. 

Mr. KIM. Congressman, I don’t disagree with you one bit. That 

experience, that expertise is valued. I value it. I used to be a career 

attorney. And I thought that I offered value when I offered a recommendation or made an analysis in a case. 

And it is extremely rare when those recommendations are not 

adopted—in the vast majority of circumstances, certainly as long as 

I have been assistant attorney general. 

But at the end of the day, I come before this Committee. I have 

been confirmed by the Senate. I am accountable. I accept that accountability 100 percent. 

And if I come to this Committee and answer a question as to why 

I did something or why I didn’t do something, and I answer that 

question by saying I took a show of hands and did what the show 

of hands recommended, that would not be a responsible position. 

And at the end of the day, accountability has to rest with the 

person who reports to the Congress. That is my position. 

Mr. NADLER. Thank you, sir. 

We are expecting votes on the floor at about 11:30. I would like 

to see if we can conclude and get to the next panel expeditiously. 

So I think we have—I am sorry, Mr. Pence. I thought we had finished. 

Mr. PENCE. I thank the Chairman. I will pass on the courtesy 

and just meld into the hearing on the next panel. 

Mr. NADLER. Well, thank you. I thank the gentleman. 

Mr. Scott? 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. 

Mr. Chairman, I would ask at this point, Mr. Chairman, if we 

could ask CRS for research on whether or not this attorney-client 

privilege exists, because I think our experience in other matters is 

that there really is no such privilege, and we ought to be able to 

get the information. 

So I would ask for the Committee to consider that. 

Mr. Kim, while we are on Voting Rights Act, if someone had a 

scheme where they intentionally had too few voting machines at a 

52

precinct and created long lines intentionally, if you could prove it, 

would that be a violation of the Voting Rights Act? 

Mr. KIM. If it was based on race, yes, sir. 

Mr. SCOTT. If it was based on race. 

Mr. KIM. Yes, sir, it would be a violation of section 2. 

Mr. SCOTT. Okay. On religious discrimination, about 40-some 

years ago we passed legislation prohibiting discrimination based on 

religion because we felt it was so reprehensible that we made it illegal. Is there any reason to repeal religious discrimination laws in 

employment? 

Mr. KIM. Congressman, that is a matter for Congress, but certainly we enforce the laws vigorously that Congress has passed. 

Mr. SCOTT. Are you recommending taking a position that those 

laws need to be repealed? 

Mr. KIM. Congressman, I am not in a position to make a legislative recommendation to the body. I certainly would take back any 

legislative recommendations the body wanted us to consider. 

Mr. SCOTT. So you don’t have any feeling one way or another 

whether those laws are still important? 

Mr. KIM. Congressman, we enforce all the laws passed by Congress. I believe that the law has historically provided for protection 

from discrimination based on religion in many categories, and I believe those laws are important. And I believe Congress has made 

that judgment as well. 

But certainly Congress is always free to reevaluate how it views 

the propriety of laws. 

Mr. SCOTT. I mentioned to you earlier about the Deaths in Custody Act. Do you have a special litigation section that looks at problems with arrest and custody? 

We have a law that is in effect now where jurisdictions are supposed to report to the Attorney General about any death that occurs in the custody of law enforcement in prison, in jail, process of 

arrest. 

Could you review that information and ascertain whether or not 

you see any pattern of civil rights violations? 

Mr. KIM. Certainly, Congressman. 

Mr. SCOTT. Do you see any civil rights implications if U.S. attorneys are encouraged or coerced to be partisan political officials 

rather than law enforcement officials, or whether or not—any civil 

rights implications if they are evaluated based on partisan political 

implications——

Mr. KIM. Congressman——

Mr. SCOTT [continuing]. If you can prove it? 

Mr. KIM. Congressman, I have worked at Department of Justice 

for most of my career, most of that time as a career attorney. I 

think it is improper for anybody to urge that any DOJ official at 

all take an action that is not based on the facts and the law. 

Mr. SCOTT. And if such activity—if you could show that such activity occurred, partisan political activities, would that have civil 

rights implications? 

Mr. KIM. Congressman, I would have to go back and evaluate the 

statutes. It would really depend on the context in which it would 

occur. And again, I am not suggesting that any of this——

53

Mr. SCOTT. I didn’t say it occurred. I just said if it occurred, kind 

of like ‘‘If I Did It.’’

Mr. KIM. Congressman, if someone urged or told a prosecutor to 

do something that wasn’t supported by the facts and the law, I 

think that would be improper on many levels. 

Mr. SCOTT. Okay. 

Mr. KIM. And I think at a very fundamental level, that is not the 

role of a prosecutor. 

Mr. SCOTT. Does your office have jurisdiction over discrimination 

against Black farmers? 

Mr. KIM. I believe, Congressman, you may be referring to the 

USDA matter. I believe that that is a matter which we did not 

have jurisdiction. 

Again, Black farmers in what context would be the question. Obviously, if thy were being victimized physically, you know, certainly, that might invoke our jurisdiction. It really depends on the 

facts and circumstances of each case. 

Mr. SCOTT. So that is not something you are presently very much 

involved in? 

Mr. KIM. The litigation involving the Department of Agriculture, 

Congressman? 

Mr. SCOTT. Well, Black farmer discrimination generally. 

Mr. KIM. I can’t answer that question, because——

Mr. SCOTT. Have you been doing work in discrimination in housing? 

Mr. KIM. Yes, sir. 

Mr. SCOTT. And mortgages? 

Mr. KIM. Yes, sir. In fact, we recently brought a major redlining 

case against Centier Bank in Indiana just a few months ago. 

Mr. SCOTT. Church burnings? 

Mr. KIM. Sir, we remain vigilant on the church burning front. I 

know that you raised an issue a few years ago regarding a rash of 

burnings in your area. We have met extensively with the ATF to 

try to pursue those to the fullest extent permissible. 

Mr. SCOTT. And I guess I have a couple of seconds left. Community relations—do you have resources to help communities deal 

with racial problems? And how is that going? 

Mr. KIM. Congressman, that is committed to the jurisdiction of 

the Community Relations Service, which Congress established in 

the 1964 act. They are doing a very good job, as far as I can tell, 

and we coordinate with them often on areas where their expertise 

may be put to good use. 

Mr. SCOTT. Thanks, Mr. Chairman. 

Mr. NADLER. Thank you. The time of the gentleman has expired. 

I thank the witness. Thank you, Mr. Kim. 

Mr. KIM. Thank you. Thank you, Mr. Chairman. 

Mr. NADLER. I would now like to introduce our second panel, and 

I will start reading the introductions while they come up, because 

we have votes on the floor all too soon. 

Our first witness is William Taylor. He is a lawyer, teacher and 

writer in the fields of civil rights and education. 

He will testify today in his capacity as the chairman of the Citizens’ Commission on Civil Rights, a bipartisan group of former 

54

Federal officials which has monitored Federal civil rights policies 

and enforcement efforts since the early 1980’s. 

The commission has just released a study entitled ‘‘The Erosion 

of Rights: Declining Civil Rights Enforcement Under the Bush Administration.’’ Their work addresses many of the issues before the 

Subcommittee today. 

Mr. Taylor has had a long and distinguished legal career beginning in 1954 when he worked for Thurgood Marshall and the 

NAACP Legal Defense and Education Fund. 

In the 1960’s he served as general counsel and later staff director 

of the U.S. Commission on Civil Rights, where he directed major 

investigations and research studies that contributed to the civil 

rights laws enacted in that decade. 

Our second witness is Joseph Rich, the director of the Fair Housing and Community Development Project at the Lawyers’ Committee for Civil Rights Under Law. 

Prior to joining the Lawyers’ Committee in May 2005, Mr. Rich 

spent almost 37 years in the Department of Justice’s Civil Rights 

Division, where he was hired as part of the honors program in 

1968. 

He most recently spent 6 years as the chief of the Voting Section, 

from 1999 to 2005. Prior to his tenure in the Voting Section, Mr. 

Rich served for 12 years as deputy chief in the Housing and Civil 

Enforcement Section enforcing fair housing and fair lending laws. 

He also served as deputy chief and trial attorney in the Educational Opportunities Section. He received his B.A. from Yale University and his J.D. cum laude from the University of Michigan, 

where he was an assistant editor of the Michigan Law Review. 

Our third witness is Roger Clegg, president and general counsel 

of The Center for Equal Opportunity, a conservative research and 

educational organization based in Falls Church, Virginia that specializes in civil rights, immigration and bilingual education issues. 

From 1982 to 1993, Mr. Clegg held a number of positions at the 

U.S. Department of Justice, including assistant to the solicitor general, where he argued three cases before the United States Supreme Court, and as the number two official in the Civil Rights Division and Environment Division. 

From 1993 to 1997, Mr. Clegg was vice president and general 

counsel of the National Legal Center for the Public Interest, where 

he wrote and edited a variety of publications on legal issues of interest to business. He is a graduate of Rice University and Yale 

Law School. 

Our fourth and final witness is Wade Henderson, the executive 

director of The Leadership Conference on Civil Rights and counsel 

to the Leadership Conference’s Civil Rights Education Fund. 

Prior to joining The Leadership Conference, Mr. Henderson was 

the Washington bureau director of the National Association for the 

Advancement of Colored People. 

He was also previously the associate director of the Washington 

national office of the American Civil Liberties Union, where he 

began his career as a legislative counsel. 

Mr. Henderson is a graduate of Howard University and the Rutgers University School of Law. 

55

I am pleased to welcome all of you. As a reminder, each of your 

written statements will be made part of the record in its entirety. 

I would ask that you now summarize your testimony in 5 minutes or less. To help you stay within that time, there is a timing 

light at your table. When 1 minute remains, the light will switch 

from green to yellow, and then red when the 5 minutes are up. 

And I would ask that we be a little more strict on time on this 

panel than with Mr. Kim, because we do have votes on the floor 

coming up, and I don’t want to have to ask you to wait around till 

2:30 to complete your testimony. So thank you. 

And the first witness is, I believe, Mr. Henderson. Mr. Taylor is 

the first witness, I am sorry. 

Mr. Taylor is recognized for 5 minutes. 

TESTIMONY OF WILLIAM L. TAYLOR, CHAIR,

CITIZENS’ COMMISSION ON CIVIL RIGHTS 

Mr. TAYLOR. Age before beauty, I see. [Laughter.] 

Thank you, Mr. Chairman and Mr. Chairman of the full Committee, and Ranking Member Franks and Members of the Committee. That is a powerful incentive to stay within the time limit. 

The commission, I think most of you know, is a bipartisan organization consisting largely of people who held cabinet or other highranking positions involving civil rights, founded in 1982 to monitor 

Federal policy on important issues of equal opportunity. 

The report that we presented to the Committee is the eighth in 

a series that looks at the incumbent Administration and says as 

best we can what is going on. And that is a part of your record, 

I believe. 

I also attached a letter from William Brown, who is a member 

of our commission and a former chair of the Equal Employment 

Opportunity Commission under President Nixon. 

Mr. Brown, who is a Republican, notes that civil rights progress 

has been made in the past only through bipartisan cooperation, 

and he is deeply concerned about the lack of Republican participation——

Mr. NADLER. Mr. Taylor, you will submit the report and we will 

admit it into the record. 

Mr. TAYLOR. Yes. Thank you very much. 

The most distressing part of this report is the account of six 

former lawyers of the Civil Rights Division of the Department of 

Justice on how the Bush Administration has undermined the work 

of the Division. 

As you know, the Division was established in 1957 and has been 

a pillar of successful efforts to transform this Nation from a White 

male society to one in which African-Americans and other persons 

of color and women and others who have been discriminated 

against have become active participants in our political and legal 

systems and in which people who were formerly excluded now have 

opportunities for education and for productive employment. 

Yet as the Division approaches its 50th anniversary, it is in deep 

trouble because the Bush administration has used it as a vessel for 

its own political objectives, often disregarding the law and sullying 

the group’s reputation for professionalism and integrity. 

56

Some of the details of the Administration’s actions will be presented by Joe Rich, who wrote and edited a good deal of the section 

on the Division. And I think in the interest of time, I will exclude 

even my summary of what he will summarize. 

But the professional staff has been downgraded. Priorities have 

been changed without making sure that old priorities like hate 

crimes and misconduct of officers are still fully attended to by the 

Criminal Civil Rights Section. 

And I would say that the assault of the Administration on the 

Civil Rights Division, taken together with the nomination of judges 

who are hostile to the enforcement of laws that ban discrimination, 

have left many people without the protections of laws on which 

they have come to rely. 

Our report also deals with other important subjects including 

several where executive policy has had a major impact on the poor. 

Among our concerns and reflected in the report is the maltreatment of immigrants and the seeming inability of the Administration to secure the enactment of reforms that will supply stability 

and end the growing interethnic conflict. 

In addition, emblematic of the Administration’s failures—the Nation’s failures to address the needs of the poor is the lack of advocacy of affordable housing in places that will afford people access 

to good jobs, schools and services. 

We will, if the Committee deems it permissible, try to respond 

to Mr. Kim’s testimony and the additional testimony he supplies. 

I have to say that this program called Home Sweet Home does 

not represent a real effort on the part of the Administration and 

on Justice Department—other Divisions to supply housing opportunities for people who need them. It must be treated with some 

irony by the people down in New Orleans. 

Finally, we commend the Committee for its readiness to take on 

an agenda already loaded with the need for oversight in crucial 

areas in order to examine these failures of enforcement in civil 

rights. 

I am finishing. We recommend that the Congress do more, and 

we have recommendations for a select committee to be appointed 

in this area, House and Senate, and the critical Committees are 

Civil Rights—this is a tall order, but we believe that the dire circumstances of civil rights enforcement compel such steps. 

And as our society grows more diverse, strong civil rights laws 

are essential not only to equal justice but to ensuring the unity and 

stability of the Nation. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Taylor follows:]

PREPARED STATEMENT OF WILLIAM L. TAYLOR

INTRODUCTION

Thank you for the opportunity to testify on behalf of the Citizens’ Commission on 

the implementation of civil rights laws by the current Administration. The Commission is a bipartisan organization consisting largely of people who held cabinet or 

other high ranking positions involving civil rights. It was founded in 1982 to monitor federal policy on important issues of equal opportunity. 

The report that we are presenting to the Committee is the eighth in a series of 

such studies that we have published to make information available on how civil 

rights laws have fared under incumbent Administrations. 

57

I would like to place in the record a copy of our report—‘‘The Erosion of Rights: 

Declining Civil Rights Under the Bush Administration,’’ just publicly released. I also 

would offer a letter to the Committee from William H. Brown, a member of our 

Commission and former Chair of the Equal Employment Opportunity Commission 

under President Nixon. Mr. Brown, a Republican, notes that civil rights progress 

has been made in the past only through bipartisan cooperation and he is deeply concerned about the lack of Republican participation in preserving and extending rights 

now. 

THE ATTACK ON THE CIVIL RIGHTS DIVISION

The most distressing part of this report is the account of six former lawyers of 

the Civil Rights Division of the Department of Justice on how the Bush Administration has undermined the work of the Division. 

The Division, as many of you know, was established fifty years ago as part of the 

Civil Rights Act of 1957. It has been a pillar of successful legal efforts to transform 

the nation from a privileged white male society to one in which African Americans 

and other persons of color and women have become active participants in our political and legal systems and in which people formerly excluded now have opportunity 

for education and productive employment. 

Yet as the Division approaches its 50th anniversary, it is in deep trouble because 

the Bush Administration has used it as a vessel for its own political objectives, often 

disregarding the law and sullying the group’s reputation for professionalism and integrity. 

Some of the details of the Administration’s actions will be presented by Joe Rich 

who wrote and edited a good deal of our section on the Division. I would summarize 

only by saying that what we have been witnessing is an attack on the professionalism of the Division, with political leaders of the agency not only rejecting but 

failing to even consult these respected, experienced lawyers. We have also witnessed 

a shifting of priorities in the Criminal Civil Rights Section by moving into that section cases that have been ordinarily handled outside the Division by federal prosecutors. The cost has been to cases involving hate crimes and official misconduct that 

have been the staple of the Section’s work. 

In employment, the effective attack on patterns and practices of discrimination 

has been marred by a shift away from cases of discrimination against African Americans to what are described as ‘‘reverse discrimination’’ cases filed by white plaintiffs. 

Nowhere is the downgrading of professional staff more damaging than in the area 

of voting where the Department has special responsibilities to approve electoral 

changes by states and localities. Because of the political sensitivity of such reviews, 

the Department has adopted procedures to ensure the integrity of the process. But 

the Administration has cast aside these protections in several cases, just as it seems 

to have done in punishing U.S. attorneys for not being political enough in their handling of vote fraud cases. 

The assault of the Administration on the Civil Rights Division, taken together 

with the nomination of judges who are hostile to the enforcement of laws that ban 

discrimination, has left many persons without the protections of law on which they 

have relied. 

EQUALITY OF OPPORTUNITY

Our report also deals with other important subjects including several where executive policy has a major impact on the poor. Among the Commission’s concerns is 

the maltreatment of immigrants and the seeming inability of the Administration to 

secure enactment of reforms that will supply stability and end the growing interethnic conflict. In addition, emblematic of the nation’s failures to address the needs 

of the poor is the lack of advocacy for affordable housing that will afford people access to good jobs, schools and services. 

CONCLUSION

We commend the Committee for its readiness to take on an agenda already loaded 

with the need for oversight in several crucial areas in order to examine these failures of enforcement in civil rights. Indeed we recommend that the Congress do more 

by establishing a select committee of both Houses to undertake a two year review 

of the implementation of federal civil rights laws. The Committee should be composed of senior members of both parties who serve on the Judiciary Committees and 

on other committees that deal with education, employment, housing and the administration of justice. 

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This is a tall order, but we believe that the dire circumstances of civil rights enforcement compel such steps. As our society grows more diverse, strong civil rights 

laws are essential not only to equal justice under law but to ensuring the unity and 

stability of the nation.

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Mr. NADLER. Thank you, Mr. Taylor. 

Mr. Rich? 

TESTIMONY OF JOSEPH D. RICH, DIRECTOR, FAIR HOUSING 

COMMUNITY DEVELOPMENT PROJECT, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 

Mr. RICH. Mr. Chairman and Members of the Committee, I want 

to thank you for the opportunity to testify at this hearing. 

Since its creation in 1957, the Civil Rights Division has been the 

primary guardian for protecting our citizens against legal, racial, 

ethnic, religious and gender discrimination. 

Through both Republican and Democratic administrations, the 

Division has developed a well-earned reputation for expertise and 

professionalism in its civil rights enforcement efforts. 

Partisan politics were rarely, if ever, injected into decision making, in large measure because decisions usually arose from career 

staff and were normally respected by political appointees. 

Career staff play a central role in recommending new career 

hires, and those recommendations were almost always respected. 

Unfortunately, since this Administration took office, that professionalism and non-partisan commitment to the historic mission of 

the Division has been replaced by unprecedented political decisionmaking. 

The result is that the essential work of the Division to protect 

the civil rights of all Americans is not getting done. 

Furthermore, the conscious effort to politicize the Division has 

depleted its institutional knowledge by driving away the talent and 

history of its career staff. 

The political decision-making process that led to the questionable 

dismissal of 8 U.S. attorneys was standard practice in the Civil 

Rights Division before these revelations. 

And even today, there is another story coming out of the Civil 

Division tobacco litigation that is similar to this. These connections 

should not be minimized. 

It was evident in several ways: A hostility to career employees 

expressed as agreement with political appointees—or were perceived as disloyal was evident early on. 

For example, during my tenure as section chief for the Voting 

Section, I was ordered to change standard performance evaluations 

of attorneys under my supervision to include critical comments of 

those who had made recommendations that were counter to the political will of the front office and to improve evaluations of those 

who were politically favored. 

In my 32 years of management in the Division before this Administration, I was never asked to alter my performance evaluations. 

Furthermore, four section chiefs, two deputy chiefs and a special 

counsel were either removed or marginalized because they were 

disfavored for political reasons or perceived as disloyal. 

In past Administrations, the front office has only rarely weighed 

in on the fate of section chiefs and, to my knowledge, never 

weighed in on the fate of deputy chiefs. In fact, this hostility was 

not lost on career staff. For example, since I left the Voting Section, 

115

approximately 55 percent to 60 percent of the attorney staff has 

left the department or transferred to other sections. 

In the important section 5 Unit in the Voting Section, the deputy 

section chief for Section 5 Unit, with vast section 5 experience, was 

involuntarily transferred out of the section in 2006. 

In addition, the number of civil rights analysts has been reduced 

from 26 in 2001 to 10 today, and attorneys who reviewed these 

submissions have been reduced from seven to two. This depletion 

of intellectual resources has the potential to be disastrous. 

The drastic reduction in section 5 staff makes it virtually impossible for the section to meet its responsibilities and will be even 

more of an impediment to adequate voting rights enforcement as 

we move closer to the 2010 census. 

The major exodus of career attorneys was accompanied by a 

major change in hiring policy in 2002, replacing a hiring process 

created in 1954 by the department to remove the perception of political favoritism and cronyism. 

Involvement of career staff, which was central to the process for 

more than 35 years, completely ended and was replaced by exclusive control of political appointees making hiring decisions based 

not on the applicant’s civil rights experience and commitment but 

on a demonstrated fidelity to the Republican partisan interests. 

Politicization has affected Division enforcement record as well. 

For example, in a 5-year period, the department brought no voting 

cases and only one employment pattern and practice case on behalf 

of African-Americans and no voting cases on behalf of Native 

Americans. 

At the same time, there were several reverse discrimination employment cases brought and the first case ever on behalf of White 

voters alleging discrimination against an African-American Democratic Party operative in Mississippi. 

Most disturbing has been the brazen insertion of partisan politics 

into decision making under section 5. Section 5 decisions in Mississippi and Texas redistricting matters in 2002 and 2003 and the 

Georgia Voter I.D. matter in 2005 were made for clear partisan political reasons over strong recommendation. 

I want to talk a little bit about Georgia, but I will leave that for 

questioning. Thank you. 

[The prepared statement of Mr. Rich follows:]

PREPARED STATEMENT OF JOSEPH D. RICH

My name is Joe Rich. Since May, 2005 I have been Director of the Housing and 

Community Development Project at the Lawyers’ Committee for Civil Rights Under 

Law. Previously I worked for the Department of Justice’s Civil Rights Division for 

almost 37 years. The last six years—from 1999–2005—I was Chief of the Division’s 

Voting Section. Prior to that, I served as Deputy Chief of the Housing and Civil Enforcement Section for twelve years and Deputy Chief for the Education Section for 

ten years. During my nearly 37 years in the Division, I served in Republican administrations for over 24 years and Democratic administrations for slightly over 12 

years. 

I want to thank the Committee for the opportunity to testify at this oversight 

hearing. Enforcement of our nation’s civil rights laws is one of the Department of 

Justice’s most important and sensitive responsibilities, and careful oversight of this 

work is crucial. For too long, there has been virtually no Congressional oversight 

during a time in which the Division has strayed seriously from its historic mission 

and traditions. 

116

1See ‘‘An Uncivil Division,’’ Legal Affairs, (August-September, 2005). The author of this article, William Yeomans, was a 23 year career Civil Rights Division attorney who had served as 

Chief of Staff to Assistant Attorney General Bill Lann Lee from 1997 until 2000. 

Since its creation as a Congressionally mandated unit of the Department of Justice in the Civil Rights Act of 1957, the Civil Rights Division has been the primary 

guardian protecting our citizens against illegal racial, ethnic, religious, and gender 

discrimination. Through both Republican and Democratic Administrations, the Division earned a reputation for expertise and professionalism in its civil rights enforcement efforts. 

During much of the history of the Division, its civil rights enforcement work has 

been highly sensitive and politically controversial. It grew out of the tumultuous 

civil rights movement of the 1960’s, a movement which generated great passion and 

conflict. Given the passions that civil rights enforcement generates, there has always been potential for conflict between political appointees of the incumbent administration, who are the ultimate decision makers within the Division and the Department, and the stable ranks of career attorneys who are the nation’s front line 

enforcers of civil rights and whose loyalties are to the department where they work. 

Career attorneys in the Division have experienced inevitable conflicts with political 

appointees in both Republican and Democratic administrations. These conflicts were 

almost always resolved after vigorous debate between the career attorneys and political appointees, with both learning from the other. Partisan politics was rarely injected into decision-making, in large measure because decisions usually arose from 

career staff and, when involving the normal exercise of prosecutorial discretion, 

were generally respected by political appointees. In a similar fashion, the hiring 

process for new career employees began with the career staff, who made recommendations to the political appointees that were generally respected. 

During the Bush Administration, dramatic change has taken place. Political appointees made it quite clear that they did not wish to draw on the expertise and 

institutional knowledge of career attorneys. Instead, there appeared to be a conscious effort to remake the Division’s career staff. Political appointees often assumed 

an attitude of hostility toward career staff, exhibited a general distrust for recommendations made by them, and were very reluctant to meet with them to discuss 

their recommendations. The impact of this treatment on staff morale resulted in an 

alarming exodus of career attorneys—the longtime backbone of the Division that 

had historically maintained the institutional knowledge of how to enforce our civil 

rights laws tracing back to the passage of our modern civil rights statutes. 

Compounding this problem was a major change in hiring procedures which virtually eliminated any career staff input into the hiring of career attorneys. This has 

led to the perception and reality of new staff attorneys having little if any experience in, or commitment to, the enforcement of civil rights laws and, more seriously, 

injecting political factors into the hiring of career attorneys. The overall damage 

caused by losing a large body of the committed career staff and replacing it with 

persons with little or no interest or experience in civil rights enforcement has been 

severe and will be difficult to overcome. 

In August, 2005, the first article bringing to light the problems in the Civil Rights 

Division was written by William Yeomans for Legal Affairs.1 Following this, there 

was a flurry of articles in many newspapers and broadcasts on NPR over a four 

month period revealing not only the change in personnel and hiring policies in the 

Division, but also, alarmingly, the crass politicization of decision-making. Constant 

oversight of the Division is necessary to address these very serious problems. 

RELATIONSHIP OF POLITICAL APPOINTEES AND CAREER STAFF

Brian K. Landsberg was a career attorney in the Civil Rights Division from 1964–

86 during which he was chief of the Education Section for five years and then chief 

of the Appellate Section for twelve years. He now is professor of law at McGeorge 

Law School. In 1997, he published Enforcing Civil Rights: Race Discrimination and 

the Department of Justice (University Press of Kansas), a careful and scholarly analysis of the history and operation of the Division. Landsberg devoted a full chapter 

to the ‘‘Role of Civil Servants and Appointees.’’ He summarizes the importance of 

the relationship between political appointees and career staff at page 156:

Although the job of the Department of Justice is to enforce binding legal norms, 

three factors set up the potential for conflict between political appointees, who 

represent the policies of the administration then in power, and civil servants, 

whose tenure is not tied to an administration and whose loyalties are to the department where they work and the laws they enforce: the horizontal and 

vertical separation of powers; the indeterminacy of some legal norms; and the 

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lack of a concrete client. The vertical separation of powers was designed to enable both civil service attorneys and political appointees to influence policy. This 

design, as well as wise policy, requires cooperation between the two groups to 

achieve the proper balance between carrying out administration policy and carrying out core law enforcement duties. Where one group shuts itself out from influence by the other, the department’s effectiveness suffers. (emphasis added)

Rather than making efforts to cooperate with career staff, it became increasingly 

evident during the Bush Administration that political appointees in the Division 

were consciously walling themselves off from career staff. Indeed, on several occasions there was hostility from political appointees toward those who voiced disagreement with their decisions and policies or were perceived to be disloyal. This was apparent in many ways:

• Longtime career supervisors who were considered to have views that differed 

from those of the political appointees were reassigned or stripped of major responsibilities. In April, 2002, the employment section chief and a longtime 

deputy chief were summarily transferred to the Civil Division. Subsequently, 

a career special litigation counsel in the employment section was similarly 

transferred. In 2003, the chief of the housing section was demoted to a deputy 

chief position in another section and shortly thereafter retired. Also in 2003, 

the chief of the special litigation section was replaced. In the voting section, 

many of the enforcement responsibilities were taken away from the chief and 

given directly to supervisors or other attorneys in the section who were 

viewed as loyal to political appointees. In 2005, the chief of the criminal section was removed and given a job in a training program, and shortly after 

that, the deputy chief in the voting section for Section 5 of the Voting Rights 

Act was transferred to the same office. On only one occasion in the past had 

political appointees removed career section chiefs, and on that occasion it was 

on a more limited basis. In short, it is rare for political appointees to remove 

and replace career section chiefs for reasons not related to their job performance. Never in the past had deputy section chiefs been removed by political 

appointees.

• Regular meetings of all of the career section chiefs together with the political 

leadership were virtually discontinued from the outset of the Administration. 

Such meetings had always been an important means of communication in an 

increasingly large Division that was physically separated in several different 

buildings.

• Communication between the direct supervisors of several sections at the deputy assistant attorney general level and section staff also was greatly limited. 

In the voting section, for instance, section management was initially able to 

take disagreements in decisions made at the Deputy Assistant Attorney General level to the Assistant Attorney General for resolution. But it became increasingly evident that such debate, which is so important to the healthy development of policy, was frowned on. In 2003, it was made very plain that 

efforts to raise with the Assistant Attorney General issues on which there 

was disagreement would be discouraged. In past administrations, section 

chiefs had open access to the Assistant Attorney General to raise issues of 

particular importance. Attempts to hold periodic management meetings with 

political appointees were also usually not acted upon. This resulted in political appointees not receiving the expertise and institutional knowledge of career staff on many matters. Indeed, a political special counsel in the front office was assigned to work solely on voting matters and often assumed many 

of the responsibilities of the chief of the section.

• Communication between sections was also discouraged. This was especially 

true when the appellate section was handling the appeals of trial section 

cases or amicus briefs on the subjects handled by a trial section. When drafting briefs in controversial areas, appellate staff was on several occasions instructed not to share their work with the trial sections until shortly before 

or when the brief was filed in court. This was extremely frustrating for career 

staff in both the trial and appellate sections and hindered the adequate development of briefs and full debate of issues in the briefs.

• Political appointees have inserted themselves into section administration to 

a far greater level than in the past. For example, on many occasions, assignments of cases and matters to section attorneys were made by political employees, something that was a rarity in the past. Moreover, assignment of 

work to sections and attorneys was done in a way that limited the civil rights 

work being done by career staff. This was especially true of attorneys in the 

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2See Confirmation Hearings for Wan Kim, October, 2005. Answer No. 12 to Written questions 

of senator Durbin (‘‘According to available records, it is my understanding that during FY 2005, 

the Appellate Section filed 120 appellate briefs in the Office of Immigration Litigation, and that 

for the first three quarters of FY 2005 for which information is currently available, approximately 38.8% of attorney hours in the Appellate Section of the Civil Rights Division have been 

spent on cases regarding the Immigration and Nationality Act. 

appellate section, where close to 40% of attorney time was devoted to deportation appeals during 2005.2 Similarly, selected career attorneys in that Section 

were informed that they would no longer receive assignments to civil rights 

cases, and disfavored employees in other sections were assigned the deportation appeal cases. Political appointees also intruded into the attorney evaluation process in certain instances, something that did not happen in the past. 

IMPACT ON MORALE OF CAREER EMPLOYEES

It is hard to overemphasize the negative impact that this type of administration 

of the Division has had on the morale of career staff. The best indicator of this impact is in the unprecedented turnover of career personnel. It should be noted that 

the impact has been greater in some sections than others, and often attorneys in 

the sections most directly affected by the hostility of political appointees transferred 

to other sections in which the impact was less. The sections most deeply affected 

have been voting, employment, appellate, and special litigation. 

VOTING SECTION

• Based on a review of personnel rosters in the voting section, 20 of the 35 attorneys in the section (over 54%) have either left the Department, transferred to 

other sections (in some cases involuntarily), or gone on details since April 2005. 

During the same period, of the five persons in section leadership at the beginning 

of 2005 (the chief and four deputy chiefs), only one deputy chief remains in the 

section today.

• Equally disturbing is the decimation of voting section staff assigned to the important work required by Section 5 of the Voting Rights Act. Prior to the Bush Administration, Section 5 staff was uniformly strengthened, and by 2001—the year 

that the new round of redistricting submissions began—approximately 40% of Section staff was assigned to this work, including a Deputy Section Chief, Robert 

Berman, who oversaw the Section 5 work; 26 civil rights analysts (including 8 supervisory or senior analysts) responsible for reviewing, gathering facts, and making recommendations on over 4,000 Section 5 submissions received every year; 

and over six attorneys who spent their full-time reviewing the work of the analysts. Since then, and especially since the transfer of Deputy Chief Berman from 

the Section in late 2005, this staff dropped by almost two-thirds. There are now 

only ten civil rights analysts (none of whom hold supervisory jobs and only three 

of whom are senior) and two full-time attorney reviewers. During my tenure as 

Section Chief until 2005, I made several requests to fill civil rights analyst vacancies, but these requests were always rejected. It is difficult to understand how this 

Administration expects to fulfill its Section 5 responsibilities—especially the coming redistricting cycle—with such a reduced staff. 

EMPLOYMENT SECTION

• Based on a review of personnel rosters in the employment section, the section 

chief and one of four deputy chiefs were involuntarily transferred to the Civil Division in April, 2002. Shortly after that, a special counsel was involuntarily transferred to the Civil Division. And, since then, two other deputy chiefs left the section or retired. Overall, since 2002, the section chief and three of the four deputy 

chiefs have been involuntarily reassigned or left the section. In addition, in that 

period, 21 of the 32 attorneys in the section in 2002 (over 65%) have either left 

the Division or transferred to other sections.

• Loss of paralegals in the employment section has also been significant. Twelve 

professionals have left, many with over 20 years of experience.

• In the appellate section, since 2005, six of the 12–14 line attorneys in the section 

transferred to other sections or left the Department. Two of the transfers were 

involuntary.

There has always been normal turnover of career staff in the Civil Rights Division, but it has never reached such extreme levels and never has it been so closely 

related to the manner in which political appointees have managed the personnel in 

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3Landsberg, Enforcing Civil Rights at p. 157. 4 Charlie Savage, Civil Rights Hiring Shifted in the Bush Era, July 23, 2006 at A1. 5 Id.

the Division. It has stripped the division of career staff at a level not experienced 

before. 

HIRING PROCEDURES

Compounding the impact of the extraordinary loss of career staff in recent years 

has been a major change in the Division’s hiring practices. Since 1954, the primary 

source of attorneys in all divisions in the Department has been the attorney general’s honors program. This program was instituted by then Attorney General Herbert Brownell in order to end perceived personnel practices ‘‘marked by allegations 

of cronyism, favoritism, and graft.’’ 3 Since its adoption, the honors program has 

been consistently successful in drawing top law school graduates to the Department. 

Until 2002, career attorneys in the Civil Rights Division played the central role 

in the process followed in hiring attorneys through the honors program. Each year, 

career line attorneys from each section were appointed to an honors hiring committee which was responsible for traveling to law schools to interview law students 

who had applied for the program. Because of the tremendous number of applications 

for the honors program, committee members generally would limit their interviews 

to applicants who had listed the Civil Rights Division as their first choice when applying. The Civil Rights Division had earned a reputation as the most difficult of 

the Department’s divisions to enter through the honors program because only a few 

positions were open each year and so many highly qualified law students desired 

to work in civil rights. 

After interviewing was completed, the hiring committee would meet and recommend to the political appointees those who they considered the most qualified. 

Law school performance was undoubtedly a central factor, but a demonstrated interest and /or experience in civil rights enforcement and a commitment to the work 

of the Division were the qualities that interviewers sought in candidates selected 

to join the career staff of the Division. Political appointees rarely rejected these recommendations. 

Hiring of experienced attorneys—so-called ‘‘lateral’’ hires—followed a similar process. Individual sections with attorney vacancies would review applications and select those to be interviewed. They would conduct initial interviews and the section 

chief would then recommend hires to Division leadership. Like recommendations for 

honors hires, these recommendations were almost always accepted by political appointees. 

These procedures have been very successful over the years in maintaining an attorney staff of the highest quality—in Republican as well as Democratic administrations. A former Deputy Assistant Attorney General in the Reagan Administration, 

who was interviewed for a recent Boston Globe article about Division hiring practices, said that the system of hiring through committees of career professionals 

worked well. The article quoted him as saying: ‘‘There 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 litmus test on . . . the individuals who were ultimately determined to be 

best qualified.’’ 4

But, in 2002, these longstanding hiring procedures were abandoned. The honors 

hiring committee made up of career staff attorneys in the Civil Rights Division was 

disbanded and all interviewing and hiring decisions were made directly by political 

appointees with little or no input from career staff or management. As for ‘‘lateral’’ 

hires, the political appointees similarly took a much more proactive role in selecting 

those persons who received interviews, and almost always participated in the interviewing process. In my experience as chief of the voting section, section leadership 

had no input into interviewing or hiring decisions of experienced attorneys. 

Not surprisingly, these new hiring procedures have resulted in the resurfacing of 

the perception of favoritism, cronyism, and political influence which the honors program had been designed to eliminate in 1954. Indeed, information that has come 

to light recently indicates that in many instances, this is more than perception. In 

July, 2006, a reporter for the Boston Globe obtained pursuant to the Freedom of Information Act the resumes and other hiring data of successful applicants to the voting, employment, and appellate sections from 2001–2006.5 His analysis of this data 

indicated that: 

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6 American Constitution Society, The Role of Political and Career Employees of the U.S. Department of Justice, Civil Rights Division, December 14, 2005; video available at 

www.acslaw.org. 

• ‘‘Hiring of applicants with civil rights backgrounds—either civil rights litigators or members of civil rights groups—have plunged. Only 19 of the 45 [42 

percent] lawyers hired since 2003 in the [employment, appellate, and voting] 

sections were experienced in civil rights law, and of those, nine gained their 

experience either by defending employers against discrimination lawsuits or 

by fighting against race-conscious policies.’’ By contrast, ‘‘in the two years before the change, 77 percent of those who were hired had civil rights backgrounds.’’

• ‘‘Meanwhile, conservative credentials [of those hired] have risen sharply. 

Since 2003, the three sections have hired 11 lawyers who said they were 

members of the conservative Federalist Society. Seven hires in the three sections are listed as members of the Republican National Lawyers Association, 

including two who volunteered for Bush-Cheney campaigns.’’

The reporter noted that current and former Division staffers ‘‘echoed to varying 

degrees’’ that this pattern was what they observed. For example, a former deputy 

chief in the Division who now teaches at the American University Law School testified at an American Constitution Society panel on December 14, 2005 that several 

of his students who had no interest in civil rights and who had applied to the Department with hopes of doing other kinds of work, were often referred to the Civil 

Rights Division. He said every one of these persons was a member of the Federalist 

Society.6

Early on in the Bush Administration, the hiring in the voting section was overtly 

political. In March, 2001, after the contested 2000 election, Attorney General 

Ashcroft announced a Voting Rights Initiative. An important part of this Initiative 

was the creation of a new political position—Senior Counsel for Voting Rights—to 

examine issues of election reform. Two voting section career attorney slots were 

filled as part of this initiative to help this appointee. The decision to create these 

new positions was made with no input from career staff and, once the new hires 

were on board, they operated separately from the voting section on election reform 

legislation. The person named as the Senior Counsel for Voting Rights was a defeated Republican candidate for Congress. The two line attorneys who filled career 

attorney slots assigned to the voting section were hired with no input from the section and had been active in the Republican party. One of those ‘‘career’’ attorneys, 

Hans von Spakovsky, was promoted to a political position in 2003—special counsel 

to the Assistant Attorney General. For the two and a half years that this attorney 

held this position, he spent virtually all his time reviewing voting section work and 

setting the substantive priorities for the section. Although he was clearly in a political supervisory position, he continued to be listed as a voting section line attorney 

and enjoyed career status until he received a recess appointment to the Federal 

Election Commission in December, 2005. 

CONCLUSION

During the Bush Administration, there has been an unprecedented effort to 

change the make-up of the career staff at the Civil Rights Division. This has resulted in a major loss of career personnel with many years of experience in civil 

rights enforcement and in the invaluable institutional memory that had always been 

maintained in the Division until now—in both Republican and Democratic administrations. Replacement of this staff through a new hiring process resulted in the perception and reality of politicization of the Division, and high profile decisions in voting matters have added significantly to this. The overall impact has been a loss of 

public confidence in the fair and even-handed enforcement of civil rights laws by the 

Department of Justice. 

The damage done to one of the federal government’s most important law enforcement agencies is deep and will take time to overcome. Crucial to this effort is careful and continuous Congressional oversight, now and in the future. This is the first 

House Judiciary committee oversight hearing in at least three years, and until November, 2006 there had not been a Senate Judiciary Committee oversight hearing 

of the Civil Rights Division for over four years. 

The recent revelations concerning the firing of eight United States Attorneys reflect the alarming practices of the Bush Administration’s Department of Justice that 

first came to light in revelations about the Civil Rights Division. Vigilant oversight 

is an absolute necessity to restore the Civil Rights Division and the Department of 

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Justice to the historic role of leading the enforcement of civil rights laws and protection of equal justice under the law.

Mr. NADLER. Thank you. 

The next witness is Mr. Clegg. 

TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL 

COUNSEL, CENTER FOR EQUAL OPPORTUNITY 

Mr. CLEGG. Thank you very much, Mr. Chairman. 

You know, with all respect, we are not hearing very much new 

today. This is very typical of what happens whenever we have oversight hearings like this. 

There will be some Members who believe that—and there are 

some interest groups who think that—there are not enough cases 

being brought of the kind that they like. And there will be Members and interest groups who think that there are being too many 

cases being brought of the kinds that they don’t like. And there will 

be an assertion that the department is being politicized in some 

way, that the Civil Rights Division in particular is being politicized. I am confident that there is nothing to these allegations, and 

I explain why in my written statement, which I won’t rehash here. 

I think that Mr. Kim gave a very good account of himself at 

these hearings this morning and at the Senate hearing that basically covered the same ground a few months ago. 

You know, the fact of the matter is that the career staff in the 

Civil Rights Division tends to be made up of people who are left 

of center. And there is nothing wrong with that, but there will inevitably be friction in Republican administrations because Republican Political appointees tend to be right of center. Judges interpret the law differently. So do Government lawyers. 

And wholly aside from that, changing times will mean that there 

will be differences in enforcement priorities. Congress passes new 

statutes. Those new statutes have to be enforced. That requires a 

reallocation of resources. The demographics of the country change. 

That means that more cases are going to be brought about discrimination against the groups that are growing. There is nothing 

sinister in any of that, either. 

With respect to the report that the Citizens’ Commission on Civil 

Rights has handed out, I am underwhelmed by it. I think if you 

all read it carefully, you will be underwhelmed by it, too. 

For instance, look at the three chapters by career folks. One of 

them basically concludes that there is no problem at present—this 

is the chapter on the Criminal Section—just that there is the potential that if proactive steps aren’t taken there will be a diminution in the number of traditional kinds of police brutality and involuntary servitude cases. But it says up front that that is not a problem right now, that the number of traditional police brutality cases 

and traditional involuntary servitude cases is about at the level 

that it has always been. 

I also think that when you talk about the number of reverse discrimination employment cases, if you read the report carefully, this 

flood of reverse discrimination cases that is being asserted to 

amounts to two out of 32 ttle VII cases. That is hardly a flood. 

I think that the Division is not being aggressive enough in challenging discrimination that is overtly and unapologetically disVerDate 0ct 09 2002 14:15 Sep 27, 2007 Jkt 000000 PO 00000 Frm 00125 Fmt 6633 Sfmt 6601 H:\WORK\CONST\032207\34177.000 HJUD1 PsN: 34177
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criminatory against Caucasians in some cases, against Asians in 

other cases, against Arab-Americans in other cases, because such 

lawsuits are thought to be politically incorrect. I wish the department were doing more along those lines. 

Finally, I want to just say that I think that the tone of these 

hearings is unfortunate. I thought that the tone was unfortunate 

in the Senate. 

I think that there ought to be a great deal of respect when the 

head of an enforcement Division in a co-equal branch of Government is brought before you. 

And I think that allegations like the one that Mr. Taylor just 

made, that the Administration is nominating judges ‘‘hostile to the 

enforcement of civil rights laws,’’ is demagogic and irresponsible. 

And I don’t think that there is any place for that in civil political 

discourse or in hearings of this type. Thank you very much. 

[The prepared statement of Mr. Clegg follows:]

PREPARED STATEMENT OF ROGER CLEGG

Thank you very much, Mr. Chairman, for the opportunity to testify today. My 

name is Roger Clegg, and I am president and general counsel of the Center for 

Equal Opportunity, a nonprofit research and educational organization that is based 

in Falls Church, Virginia. Our chairman is Linda Chavez, and our focus is on public 

policy issues that involve race and ethnicity, such as civil rights, bilingual education, and immigration and assimilation. 

I should also note that I was a deputy in the U.S. Department of Justice’s Civil 

Rights Division for four years, from 1987 to 1991. My career at the Justice Department began, however, five years before that, when I was first hired to a nonpolitical 

slot there, in a different office. Then I held several positions as a political appointee, 

but I went back to nonpolitical status when I was Assistant to the Solicitor General. 

I finished my service at the Department as a political appointee, including my four 

years as a Deputy Assistant Attorney General in the Civil Rights Division. 

Mr. Chairman, as you know, I have to submit my testimony—reasonably 

enough—in advance of when the head of the Civil Rights Division, Mr. Wan Kim, 

will be questioned by the Subcommittee, but I am going to assume—based on similar hearings before the Senate Judiciary Committee last November 16, news accounts, and my own experience in Washington, including my time at the Civil 

Rights Division—that the Division’s record will be criticized in three basic ways. 

These are the same criticisms that are always made during oversight hearings of 

the Division. 

First, some members of the subcommittee will say that the Division is not bringing enough of the kinds of cases they would like. Second, and conversely, some 

members will argue that the Division is bringing too many of the kinds of cases that 

they do not like. And, third, some members will say that the hiring process and 

other ways in which political appointees deal with career lawyers has become 

wrongly politicized. 

Since Congress appropriates money for the Division and wants it to enforce the 

laws it has passed, it makes sense for the members to keep on eye on what sort 

of job the Division is doing—so long, of course, as the oversight process does not 

become so onerous that it actually prevents the Division from doing its job. If the 

members don’t agree with the way the Division is interpreting the law, or doesn’t 

like the enforcement priorities it has set, they can certainly argue with the Division 

leadership about these matters. But ultimately the call is, of course, the Executive 

Branch’s. 

And the questioning at hearings like these should be civil, as befits conversations 

between two coequal branches of government. There will inevitably be differences 

of opinion about how to interpret laws and what the Division’s priorities ought to 

be. There is nothing sinister about this. I have to say, Mr. Chairman, that when 

I read the transcript of last fall’s oversight hearings before the Senate Judiciary 

Committee, I discerned a distinct lack of civility in some Senators’ questioning of 

Mr. Kim. I hope that this doesn’t repeat itself at your hearings. 

There will be legitimate differences of opinion—among members of the Subcommittee, between members and the administration, and between political and career lawyers in the Division—about how to interpret the civil rights laws. Judges 

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don’t interpret the laws the same way; neither do government lawyers. And, of 

course, outside groups like mine will sometimes be critical of the Division. I have 

criticized the Division during the Clinton administration, and I have criticized it 

during the Bush administration. Many of you think the Division has been too conservative; well, I think it has not been conservative enough. 

I am including with my statement today a paper that I delivered at a political 

science conference last year at the University of Virginia, comparing the enforcement policies of the employment antidiscrimination laws at the Civil Rights Division 

during the Clinton and Bush administrations, respectively. I noted there in particular differences I saw with respect to disparate impact lawsuits and challenges 

to what I call ‘‘affirmative discrimination’’—a.k.a. reverse discrimination. The Clinton administration was more aggressive—so aggressive, for example, that it was 

fined over $1.7 million for overreaching in one matter—in bringing disparate impact 

cases (which is too bad, since such the theory on which such cases depend is misguided, and they often result in more rather than less discrimination), and with 

only one possible exception never challenged affirmative discrimination (which is 

also too bad, since the civil rights laws ought to be interpreted to protect all of us 

from discrimination on the basis of race, ethnicity, or sex). But the Bush administration has, nonetheless, brought and continued to litigate some disparate impact lawsuits, and it has not been terribly aggressive in challenging affirmative discrimination, so it has not been perfect either, at least by my lights. 

There will also be differences of opinion—again, among members of the Subcommittee, between members and the administration, and between political and career lawyers in the Division—about how to set law-enforcement priorities. The lack 

of enthusiasm that the Clinton administration had for challenging affirmative discrimination had to do, I suspect, not only with a difference of opinion in how it read 

the law, but also with a belief—misguided in my opinion—that fighting such discrimination was just not as important as other items on its agenda. The Bush administration’s greater care in bringing disparate impact cases may reflect, again, not 

just a difference in how it reads the statutes, but also in a belief that, say, human 

trafficking is a more pressing problem than, say, a fire department’s alleged overemphasis on one kind or another of physical conditioning. 

In addition, even without differences in law-enforcement philosophy, the Division’s priorities will change over time. Congress will pass new laws. Lawbreaking 

will become more common in some areas, and less common in others. 

For instance, the Bush administration has spent much time enforcing the Help 

America Vote Act, which was just passed in 2002. New statutes often require a 

great deal of enforcement attention, to educate those affected to its requirements. 

The administration has spent more time, proportionately, enforcing the foreign-language ballot provisions of the Voting Rights Act than the Division did several decades ago. This probably reflects the fact that we have many more jurisdictions and 

voters affected by those provisions now than we did back then, because of increases 

in immigration. I say this, by the way, even though in my opinion those provisions 

of the Voting Rights Act are misguided as a policy matter and unconstitutional as 

a matter of law. The Division is also spending a lot of time enforcing laws that prohibit discrimination against servicemen and servicewomen; this is also unsurprising, 

since there will probably be more such cases in a time of war than in a time of 

peace. 

Some people have criticized the Division for concentrating proportionately fewer 

resources than in years past on bringing cases that allege discrimination against African Americans. But in assessing this criticism, one must bear in mind, first, that 

the Division now has many more laws to enforce, and, second, that discrimination 

against African Americans is less pervasive now than it was in 1964. To give just 

one example, we would hardly expect a southern city to discriminate to the same 

degree in its municipal hiring today—when African Americans have much more political power and may even constitute a majority of its city council and other municipal offices, including mayor—as when the government there was lily white and 

black people were disenfranchised. I’m not saying that antiblack discrimination has 

vanished; it hasn’t, and there will always be bigots, of all colors, in a free society. 

But anyone who thinks that antiblack discrimination is the same problem in 2007 

that it was in 1964 is delusional. 

I hasten to add, Mr. Chairman, that of course none of this means that the Division is free to interpret the law in bad faith, or to set enforcement priorities, for 

partisan political purposes. But charges that the Division is doing so are serious indeed, and should not be made lightly. For Congress to do so, without strong evidence, is itself irresponsible, in addition to being demagogic. The examples that I’ve 

seen cited to date—mostly involving a handful of cases under the Voting Rights 

Act—are unpersuasive; the Senate hearings last fall, I think, showed as much 

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(Chairman Specter, who came into the hearings like a lion, seemed to me to go out 

like a lamb). 

This brings us to, and overlaps with, the relationship between political appointees 

and career lawyers. Here, too, I think it ought to be easy to agree on some basic 

boundaries. 

On the one hand, no career lawyer should be penalized for partisan political reasons. What’s more, political appointees should be eager to draw upon the institutional memory and expertise of the career staff. I know that I always was. 

On the other hand, our government is a democratic republic, and the Executive 

Branch is accountable to the American people. Elections have consequences. That 

means that the President and his appointees have the responsibility and the right 

to run the Executive Branch—to set its priorities, to make the call on how to interpret the law (consistent with decisions by the Judicial Branch, of course), and even 

to decide which lawyers will best serve the Division’s interests by most intelligently, 

enthusiastically, and resourcefully litigating its cases. 

The picture that is frequently painted, then, of political hacks (ignorant of the law 

and interested only in winning political elections) overruling disinterested, whitelab-coat-wearing career lawyers is, to put it mildly, misleading. Political appointees, 

in my experience, are frequently at least as knowledgeable about the law as the career people whom they supervise (and, again, I have been on either side of the 

table); conversely, the career lawyers are frequently at least as partisan and ideological in their orientation. When there is friction between the two, I would not jump 

to the conclusion that it is the fault of the political appointees, or that they are 

showing an unprofessional lack of respect to the career lawyers, rather than vice 

versa. 

Thank you again, Mr. Chairman, for the opportunity to testify today. I would be 

happy to try to answer any questions the Subcommittee may have for me.

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Mr. NADLER. Thank you. 

And I will commend the witness for coming in under 5 minutes. 

Mr. Henderson, Wade Henderson? 

TESTIMONY OF WADE HENDERSON, PRESIDENT AND CEO, 

LEADERSHIP CONFERENCE ON CIVIL RIGHTS 

Mr. HENDERSON. Good morning, Mr. Chairman. And thank you, 

Members of the Subcommittee, for the opportunity to appear before 

you. Indeed, my name is Wade Henderson. I am president of the 

Leadership Conference on Civil Rights. 

The Leadership Conference is the Nation’s premier civil and 

human rights coalition, with approximately 200 national organizations working to build an America as good as its ideals. 

The Leadership Conference has coordinated the national legislative campaigns on behalf of every major civil rights law since 1957, 

including the work to pass the historic 1957 Civil Rights Act, which 

created the Civil Rights Division 50 years ago this year. 

Now, the recent allegations that eight U.S. attorneys were fired 

to further a political agenda were surprising to many. To those of 

us who have been watching the Civil Rights Division over the past 

several years, it was not. 

Over the last 6 years, we have seen politics trump substance and 

alter the prosecution of our Nation’s civil rights laws in many parts 

of the Division. 

We have seen career civil rights Division employees—section 

chiefs, deputy chiefs and line lawyers—forced out of their jobs in 

order to drive political agendas. We have seen whole categories of 

cases not being brought, and the bar made unreachably high for 

bringing suit in other cases. 

We have seen some outright overruling of career prosecutors for 

political reasons, and also many cases being slow-walked to death. 

For example, in the Housing Section alone, the total number of 

cases filed has fallen 42 percent since 2001, while the number of 

cases involving allegations of race discrimination has gone down by 

60 percent from 20 in 2001 to eight in 2006. 

Changes in Administration have often brought changes in priorities within the Division, but these changes have never before challenged the core function of the Division. 

And never before has there been such a concerted effort to structurally change the Division by focusing on personnel changes at 

every level. 

The Division’s record on every score has undermined effective enforcement of our Nation’s civil rights laws, but it is the personnel 

changes to the career staff that are in many ways most disturbing, 

for it is the staff that builds trust with communities, develops the 

cases, negotiates effective remedies. 

Career staff has always been soul of the Division, and it is under 

attack. The blueprint for this attack appeared in an article in National Review in 2002. 

The article entitled, ‘‘Fort Liberalism: Can Justice’s Civil Rights 

Division be Bushified,’’ argued that previous Republican administrations were not successful in stopping the Civil Rights Division 

from engaging in aggressive civil rights enforcement because of the 

entrenched career staff. 

140

The article proposed that ‘‘the administration should permanently replace those section chiefs it believes it can’t trust and, further, that Republican political appointees should seize control of 

the hiring process, rather than leave it to career civil servants,’’ a 

radical change in policy. 

It seems that those running the Division, however, did get the 

message. To date, four career section chiefs have been forced out 

of their jobs, along with two deputy chiefs, including the long-serving veteran who was responsible for overseeing enforcement of section 5 of the Voting Rights Act. 

The amount of expertise in civil rights enforcement that has been 

driven out of the Division will be difficult to recapture. 

Fifty years ago, the attempt to integrate Little Rock High School 

demonstrated the need for the Federal Government to finally say, 

‘‘Enough.’’ Enough of allowing the States to defy the U.S. Constitution and the courts. Enough of Congress and the executive branch 

sitting idly by while millions of Americans were denied their basic 

rights of citizenship.’’

The 1957 act and the creation of the Civil Rights Division were 

the first steps in responding to a growing need. Now, for years, we 

in the civil rights community have looked to the Department of 

Justice as a leader in the fight for civil rights. 

In the 1960’s and 1970’s, it was the Civil Rights Division that 

played a significant role in desegregating schools in the old South. 

In the 1970’s and 1980’s, it was the Division that required police 

and fire departments across the country to open their ranks to racial and ethnic minorities and women. 

It was the Civil Rights Division that forced counties to give up 

election systems that locked out minority voters. 

And it was the Civil Rights Division that prosecuted hate crimes 

when no local authority had the will. 

Members of the Committee, today you begin a process that is 

long overdue, a process that will help us to understand the extent 

of the damage that has been done to the Civil Rights Division and 

hopefully a road map for our way back to vigorous enforcement, integrity and justice, and to a Civil Rights Division the Nation can 

again be proud of. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Henderson follows:]

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PREPARED STATEMENT OF WADE HENDERSON


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Mr. NADLER. Thank you. 

I will yield myself 5 minutes for question. I will start with Mr. 

Rich. 

According to your written testimony, sir, political appointees 

intruded into the attorney evaluation process in certain instances, 

something that did not happen in the past. 

Could you tell us how the appointees intruded into the attorney 

performance evaluations, what happened, when, and how frequently did this happen? And try to keep your answers brief, because we are running up against——

Mr. RICH. Okay. It happened approximately seven or eight times. 

It happened primarily in 2003. The group of attorneys who had 

worked on different matters, that the supervisors in the front office 

disagreed with those judgments, and——

Mr. NADLER. Give us an example, such as. 

Mr. RICH. Such as my recollection was one of the cases that was 

recommended had to do with sending some observers to Texas, and 

the judgment was that it wasn’t necessary. That was accepted. 

Six months later, when I wrote the evaluation for this particular 

person, I was actually sent back and told to include in that evaluation criticism of the work on that particular matter. 

Mr. NADLER. Even though that work had been accepted at the 

time. 

Mr. RICH. Yes. I mean, well, it was—they disagreed and didn’t 

approve it, but it was not a matter of something that would go in 

an evaluation, in my judgment. 

Even more particular, there was another matter in which there 

was disagreement initially. Eventually, the supervisors agreed with 

us, but when it came time to performance evaluations, a criticism 

was made concerning their initial recommendation. 

Mr. NADLER. Okay. And in this connection, were you put under 

political pressure directly to hire or promote personnel based upon 

specific political objectives, or were you put under political pressure 

to make specific decisions or recommendations based upon political 

concerns? 

Mr. RICH. Well, I am not sure that that is quite what happened. 

Certainly, there was a sense in the section 5 decisions that I have 

discussed in my article that there were political considerations that 

overruled the recommendations of career staff, the Mississippi, 

Texas and Georgia, and——

Mr. NADLER. Yes, but were you put under political pressure to 

hire or promote personnel based upon——

Mr. RICH. Well, we did not have any real authority to hire. 

Mr. NADLER. Okay. 

Mr. RICH. So I didn’t get involved in hiring. And the hiring process changed. Promotions——

Mr. NADLER. Okay. Now, in the matter of the Georgia photo I.D. 

case——

Mr. RICH. Yes. 

Mr. NADLER [continuing]. According to a November 17th Washington Post article, a team of Justice Department lawyers and analysts who reviewed the case recommended rejecting it because it 

was likely to discriminate against Black voters but were overruled 

the next day by higher ranking officials. 

215

Did this section 5 submission go through the normal review process? 

Mr. RICH. I was not there, but I have read the same materials 

you have. I had left by that time. But I can tell you that the process that was followed was unusual. 

Mr. NADLER. In what way was it unusual? 

Mr. RICH. The August 25th memo recommending an objection—

typically, the case—it is very rare for those to be overruled above. 

It happens, but it is very rare. 

This time, it happened the next day, even though there were 30 

days remaining that they could still review the matter further. And 

furthermore, on the same day that the——

Mr. NADLER. In other words, there were 30 days in which they 

could have conferred with the attorneys and——

Mr. RICH. Right. 

Mr. NADLER [continuing]. Seen why they made it and so forth. 

Mr. RICH. And furthermore, on the day that it was pre-cleared, 

the State of Georgia had submitted more information to be looked 

at. The staff had brought that to the attention——

Mr. NADLER. And they didn’t have time—and they didn’t do that 

because they made the decision right away. 

Mr. RICH. Right. They didn’t wait to look at that, and the decision was made the next day. 

Mr. NADLER. And do you believe politics played a role in this decision? And if so, why? Why do you believe that? 

Mr. RICH. Well, I think it was political. Voter I.D. was an issue 

that this Administration was pushing very hard and had changed 

the policies and the way that the Voting Section had reviewed 

voter I.D. laws in the past. 

Mr. NADLER. Wait, wait. When you say that, just—in the 20 seconds remaining, how was the policy as to the way they reviewed 

it in the past changed? 

Mr. RICH. It goes to the substance. In the past, they had precleared a Georgia voter I.D. law because it had a backup provision 

that said if you come in and sign an affidavit swearing you are who 

you are, you can vote. 

Mr. NADLER. And now they didn’t——

Mr. RICH. And we pre-cleared that. 

Mr. NADLER. And now they didn’t require that. 

Mr. RICH. Now they didn’t require that. 

Mr. NADLER. My time has expired. 

The distinguished Ranking Member, Mr. Franks? 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, in the interest of time, I am just going to ask one 

question and then yield the balance—to two different witnesses 

and yield the balance of my time to the gentleman from Indiana. 

Mr. Taylor, I will start with you. It seems that the real discussion here centers around priorities of enforcement rather than the 

vigor of enforcement, because certainly the Division has been very 

vigorous given the statistics that we have seen here. They have 

been very active in their enforcement. 

Related to some of the priorities, one of those has been the increased priority on prosecuting human trafficking civil rights violations. 

216

Mr. Taylor, I don’t want to make any assumptions here. Why do 

you or why do you not believe that the prevention of human trafficking is a civil rights issue to which the considerable talents of 

the Division should be applied? 

Mr. TAYLOR. Well, if you read the article by Seth Rosenthal, the 

piece that he submitted as a former member of the Criminal Civil 

Rights Division, carefully, with due respect, Mr. Clegg’s conclusion 

is wrong. 

The traditional work of the section was diminished in the area 

of hate crimes and in the area of police misconduct. 

The subject is human trafficking is certainly an important subject, Mr. Franks, but it had been handled capably by prosecutors 

outside the Civil Rights Division. 

Mr. FRANKS. So you essentially think that this is probably not an 

area where considerable talents of the Division should be applied. 

Mr. TAYLOR. Well, I have no basis for thinking it was not being 

handled well by prosecutors. So yes, I am not saying that——

Mr. FRANKS. Thank you. Thank you, Mr. Taylor. 

Mr. TAYLOR [continuing]. This is not handled capably within the 

Division, but there was no reason to transfer it——

Mr. FRANKS. In the interest of time, Mr. Clegg, could I give you 

a shot at the same question? 

Mr. CLEGG. Well, let me just read to you from the report. 

‘‘[N]either the quantity nor quality of their work,’’ that is, the section’s work, ‘‘in traditional enforcement areas has suffered. . . .’’ 

‘‘The changed emphasis of the Criminal Section during the Bush 

years is not a negative development.’’

I mean, I am quoting from the report. And I think that the reason for the reallocation of enforcement authority from the Criminal 

Division to the Civil Rights Division is also explained in here. 

There was a new statute that was passed at the behest of the 

Division in the Clinton administration that is called the Trafficking 

Victims Protection Act that widened the law enforcement authority 

of the department generally. 

And I think it makes perfect sense to have all of those cases 

prosecuted within one Division rather than half in one Division and 

half in the other Division. 

But you know, even if reasonable people, can differ about that, 

this is hardly the stuff of scandal. Why should this Subcommittee 

try to micromanage the Civil Rights Division in that way? 

Mr. FRANKS. Thank you, Mr. Clegg. And——

Mr. TAYLOR. If I may——

Mr. FRANKS [continuing]. With that, I will yield the balance of 

my time——

Mr. TAYLOR. If I may say another word about——

Mr. FRANKS [continuing]. To the gentleman from Indiana. 

Mr. TAYLOR. If I may say another word, Mr——

Mr. FRANKS. In the interest of time, I will let him——

Mr. NADLER. The time is going to the gentleman——

Mr. FRANKS. From Indiana, please. 

Mr. PENCE. I appreciate the gentleman yielding. 

And let me say to the panel that I appreciate the testimony. I 

voted for the Voting Rights Act. I actually voted against the King 

amendment to preserve the bilingual elements of that legislation. 

217

I will vote for D.C. voting today. I am a little bit broader than 

some people think sometimes. 

But let me ask you very sincerely, the Ranking Member just said 

that this is really about priorities. 

And it seems to me that, Mr. Taylor, you were critical of, you 

know, a failure to pass immigration reform, a failure to be concerned about issues of abuse among potential illegal immigrants. 

Isn’t it precisely correct that currently DOJ—part of the complaint that is being leveled here is that the Department of Justice 

is beginning to focus on the language requirements of the Voting 

Rights Act to the broader community, including ensuring that 

American Hispanics have full access to the ballot box? 

And isn’t there an argument over—in fact, that is a shifting priority which does address some of the most immediate questions of 

our time. 

Mr. Henderson and Mr. Taylor? 

Mr. HENDERSON. Well, Mr. Pence, first, thank you so much for 

the question. 

Thank you, by the way, for your vote in the Judiciary Committee 

in support of the D.C. Voting Rights Act. That was tremendous, 

courageous. We appreciate it. 

Having said that, I want to take issue with your initial characterization that the only matter of concern is that of shifting priorities. 

I think as we look at the Civil Rights Division, there are three 

areas of concern. First, there has been an overall dropoff in the 

number of actual cases brought within the Division. 

Secondly, there have been shifting priorities, and we are not referring in that regard to an expansion of priorities with respect 

to——

Mr. NADLER. The gentleman’s time has expired. Excuse me. The 

gentleman’s time has expired, but the witness will be permitted to 

complete his answer. But please do so briefly. We will be able to 

get back to Mr. Pence, I think. 

Mr. HENDERSON. Thank you, sir. 

And then the third area of concern is one that I focused on, and 

that is the politicization of the appointment process and the treatment of longstanding career attorneys in ways that have either 

driven them out of the Division or diminished their ability to be effective in offering counsel. 

So those three areas, not really the one you highlighted. 

Mr. NADLER. The time of the gentleman has expired. I thank the 

gentleman. 

The distinguished Chairman of the Committee, Mr. Conyers? 

Mr. CONYERS. Thank you so much. 

Am I glad to see you witnesses here. I mean, it reminds me of 

the old days—hale and hearty. 

Let me allow Mr. Taylor to complete his thought. He had a point 

that he wanted to make and time had run out under one of the 

Members of the Committee. 

Did you want to continue that? 

Mr. TAYLOR. Thank you very much, Mr. Conyers. I will try to be 

brief. I do think that priorities are a major part of the issue. 

218

We have made great progress in this country under the civil 

rights laws and under Brown in desegregating schools, in beginning the opportunities in housing, and in employment. 

But the Civil Rights Division, which has a role—not the only role 

in that—has really put them on the back burner. And when you 

say—I will give you one example, by the way. It is not in this report. The Civil Rights Division Education Section, which we will report on later, under the prior Administration was siding with 

school districts which wanted to continue desegregation after their 

court obligations expired by having voluntary desegregation plans. 

And the section filed a number of—the Division filed a number of 

amicus briefs in the lower courts. Now, the Justice Department has 

turned around completely, said that a school district can’t desegregate its schools or balance them even if it wants to. And in the 

Supreme Court, they took a completely opposite position without 

stating any real legal basis or educational reason for doing so. That 

is the kind of thing that is happening these days. 

Mr. CONYERS. Thank you. 

Let me ask Mr. Clegg—welcome again to the Committee. Are you 

still opposed to the extension of the Voter Rights Act? 

Mr. CLEGG. Well, yes. I was outvoted, though, on that, as you 

know. But I do think that it was a mistake to reauthorize section 

5 and section 203—not the entire act, but those two provisions. 

Mr. CONYERS. I see. Okay. 

Let me ask Wade Henderson, what about the types and numbers 

of cases the Civil Rights Division has been bringing? Do you have 

some concerns about that? 

Mr. HENDERSON. Absolutely, Mr. Chairman. I think there are 

two areas that confirm our belief that there has been a dropoff in 

the quantity of cases they have brought to the detriment of effective civil rights enforcement. 

For example, in the area of employment, since January 2001, the 

Administration has filed just 35 title VII cases, or an average of approximately six cases per year. 

Now, this number includes five cases in which DOJ intervened 

in ongoing litigation, and two cases that were initiated by the U.S. 

Attorney’s Office in the Southern District of New York using their 

own resources. 

By contrast, the Clinton administration filed 34 cases in its first 

2 years in office. And by the end of its term, the Administration—

that is, the Clinton administration, had filed 92 complaints of employment discrimination, for an average of 11 per year. 

I think if you look at what has happened in the Housing and 

Civil Enforcement Sections, you will see essentially the same thing, 

53 cases in 2001 down to 31 cases in 2006. 

And the number of race cases that have been brought in this 

area has fallen by 60 percent. What we are looking at is really not 

just a shifting emphasis of priorities. What we are looking at is a 

backing away from the statutory obligation of the Division to effectively enforce——

Mr. CONYERS. Thank you. 

Mr. HENDERSON [continuing]. Existing civil rights laws. 

Mr. CONYERS. Attorney Clegg, let me ask you my last question. 

I was wondering why you didn’t appreciate Attorney Taylor, ProVerDate 0ct 09 2002 14:15 Sep 27, 2007 Jkt 000000 PO 00000 Frm 00222 Fmt 6633 Sfmt 6601 H:\WORK\CONST\032207\34177.000 HJUD1 PsN: 34177
219

fessor Taylor, pointing out that the nature of the appointments of 

the members of the judiciary have been extremely conservative 

lately. 

And you felt that that was an inappropriate comment before the 

Subcommittee of the Judiciary Committee. 

Mr. CLEGG. That is not what he said. Had he complained about 

their being ‘‘conservative’’ appointees, I wouldn’t have had any 

problem. What he said was that these were judges ‘‘hostile’’ to——

Mr. NADLER. The time of the gentleman has——

Mr. CLEGG [continuing]. The enforcement of civil rights laws. 

Mr. NADLER. The time of the gentleman has expired. The witness 

can complete his answer. 

Mr. CONYERS. Yes. Wasn’t that valid criticism? I mean, it could 

be agreed with or disagreed with, but when witnesses begin to 

challenge other witnesses’ statements, we could have a full hearing—as a matter of fact, I recommend it to Chairman Nadler—on 

this conservatizing situation to straighten it out. 

But I don’t think that he has any more right to criticize you on 

your views than you have to criticize him on his. 

Mr. CLEGG. I think we both have the right to criticize each other, 

and that is what I am doing. 

Mr. CONYERS. Well, that is not why——

Mr. CLEGG. I am saying that it is——

Mr. CONYERS. But that is not why the hearing is being held. We 

are here for a different subject. 

Mr. CLEGG. I don’t agree. 

Mr. NADLER. The time of the gentleman has expired. 

Mr. Pence? 

Mr. PENCE. Thank you, Chairman. 

I would just like to return to this question of priorities. I appreciate Mr. Henderson’s response to that. And as we have a vote on, 

I will leave the majority of my time for reaction here. 

I just continue to—I should have checked this box, too. You 

know, I get beat up by a lot of people because I suggested comprehensive immigration reform in the last Congress. 

You know, I mean, I am a head first without a helmet guy. You 

know, but I think it is the right thing to do. 

So using those bona fides, let me say again, Mr. Taylor or Mr. 

Rich, is it possible here that what we are seeing in evidence I actually just that elections have consequences, that different Administrations do bring a different intensity level, a different level of priorities? 

Or is it, in fact, your contention that the law is being disregarded 

here? 

It does seem to me that this Administration has placed greater 

emphasis on ensuring that classes of persons apart from traditional 

targets of civil rights enforcement law have had their rights protected under the Voting Rights Act, especially, and that may have 

diverted resources that previously were focusing on more traditional areas of civil rights. 

But is there at least—would either one of you allow that this is 

a natural outgrowth of the changing of the guard the American 

people made in the year 2000? 

220

Or is it your firm belief that this represents ignoring the law and 

stepping aside from constitutional duty? 

Mr. TAYLOR. Mr. Pence, I think—I will turn it over to Joe in a 

minute. I think voting rights are central in this country. And I 

don’t think they have been—I think part of the story is they have 

not been adequately protected. 

And when I look at what has happened at the Justice Department and look at the unfolding story about prosecutors, U.S. attorneys and vote fraud, I see a dilution of the right to vote. I 

think——

Mr. PENCE. But would you grant the point—forgive me for interrupting, but would you grant the point that this Department of 

Justice has placed greater emphasis and resources on ensuring 

that Hispanic Americans have access to bilingual ballots and——

Mr. TAYLOR. I was going to say that I think that it is important 

for the department to keep up to date with problems as they unfold, with hate crimes, with ill treatment of Muslims. 

I think they do have to—and I think they—I didn’t hear an answer to the question about what additional resources would be requested for the department to do some of that work, and I wish 

they would request some additional resources. 

I think housing is another important area. I think employment 

is another area. I think high-impact cases, which the department 

is not bringing these days, is important, not just individual complaints, but to stop practices which affect a great many people. 

So I think there—we could have a good discussion about this, I 

think. 

The other thing I will just say briefly is Mr. Clegg has called me 

a lot worse things than he called me here today, so maybe I am 

improving in his estimation. 

But I would just say to the Committee, look at the two reports 

by highly regarded attorneys on the nominations to the court and 

see if you disagree with them. 

Mr. PENCE. If I could reclaim my time, Mr. Chairman. 

Mr. Clegg, could you respond to that? Is my characterization of 

this fair from your perspective, in the minute and 10 seconds we 

have left? 

Mr. CLEGG. No, I think it is very fair. And as I say in my statement, I think a lot of this is driven by simply a difference in enforcement priorities, which, you know, is perfectly legitimate. 

Times change. Congress passes new laws. New problems arise. 

And there are legitimate differences in the way that different Government lawyers interpret the law, just as there are legitimate differences in the way that judges interpret the law. 

And we ought to be able to have those differences without characterizing one another as ‘‘hostile to the enforcement of [civil 

rights] laws.’’ That is not what this is about. 

Mr. PENCE. Mr. Henderson, the balance of the time. 

Mr. HENDERSON. Mr. Pence, in the time you have left, let me just 

say the Division was started under the Administration of Dwight 

Eisenhower. 

But every successive Administration after that, both Democratic 

and Republican, saw the need for steady progress on civil rights enforcement. 

221

What we saw with the Bush administration was a precipitous 

dropoff in the number of cases being brought in a variety of different areas, and not just shifting priorities, but an effort to diminish its primary responsibility to ensure the effective civil rights enforcement for all Americans. 

Mr. CLEGG. But as you point out, yes, the number of cases have 

gone down in some areas but they have gone up in others. 

Mr. NADLER. The time of the gentleman has expired. All time 

has expired. 

Oh, Mr. Scott again. Mr. Scott, I am sorry. [Laughter.] 

I keep not looking at the front row. 

Mr. SCOTT. What did that lawyer say, ‘‘I am not a potted plant’’? 

Mr. Rich, you were at the Division 37 years. Can you make a 

comment on the attorney-client privilege question that was brought 

up in the first panel? 

Mr. RICH. That has always been a very vexing issue, what the 

attorney-client privilege means for a Government attorney. 

I agree with Mr. Kim’s portrayal that we represent the United 

States, the people of the United States. The question is how does 

that affect that attorney-client privilege. 

I think that there is a sense of career attorneys that internal deliberations, internal memos, are something that are privileged to 

protect the ability to give your frank opinions. 

Mr. SCOTT. Have the recommendations been rejected in previous 

Administrations—or has the level of rejection increased in this Administration, rejecting the opinions of the career attorneys on section 5 cases? 

Mr. RICH. Oh, most definitely. I think that the high profile cases 

show that more than anything. 

A couple other things I wanted to add about the Georgia Voter 

I.D. matter that were extraordinary is that each of the attorneys 

who worked on that case that recommended an objection are no 

longer in the section, including the deputy chief, who was removed. 

And after that particular matter is when the Justice Department 

changed the longstanding policy of asking civil rights analysts and 

attorneys to give their recommendations on whether to object. 

That has now changed. Mr. Kim was not clear on that. What has 

changed is that the section chief still gives a recommendation, but 

the civil rights analysts who always had given recommendations to 

the section chief no longer give those recommendations to the section chief. 

Mr. SCOTT. Is the section chief a political appointee or a career 

appointee? 

Mr. RICH. He is a career appointee. He replaced me. 

Mr. SCOTT. Okay. Mr. Kim also went to great lengths to show 

that the courts had validated certain decisions. Isn’t it true that 

you can have a section 5 violation without having a section 2 violation? 

Mr. RICH. That is correct. 

Mr. SCOTT. And the section 5 decision is not reviewable. If you 

are in court, it is on a section 2 violation. 

Mr. RICH. The only time a section 5 matter would be reviewable—if there was an objection, the jurisdiction has the ability to 

222

go to the U.S. District Court here in D.C. and raise it before that 

court. It is not an appeal. 

Mr. SCOTT. Now, that is if it has been rejected—if it has not 

been—if it has been pre-cleared, there is no jurisdiction for appellate review. 

Mr. RICH. There is no jurisdiction, and that happened certainly 

in the Mississippi case. 

Mr. NADLER. Well, I thank the gentleman, and I thank the gentlemen in particular for coming in under his time limit in spite of 

my blindness in failing to see him for a second time, for which I 

apologize. 

First of all, the Chair thanks all the witnesses and the Members 

of the panel. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as you can, so that their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that, this hearing is adjourned. 

[Whereupon, at 11:48 a.m., the Subcommittee was adjourned.] 

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4-36.eps
274


4-37.eps
275


4-38.eps
276


4-39.eps
277


4-40.eps
278


4-41.eps
279


4-42.eps
280


4-43.eps
281


4-44.eps
282


4-45.eps
283


4-46.eps
284


4-47.eps
285


4-48.eps
286


4-49.eps
287


4-50.eps
288


4-51.eps
289


4-52.eps
290


4-53.eps
291


4-54.eps
292


4-55.eps
293


4-56.eps
294


4-57.eps
295


4-58.eps
296


4-59.eps
297


4-60.eps
298


4-61.eps
299


4-62.eps
300

——————

Attachments on file with the Committee on the Judiciary.

Æ


4-63.eps