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S. HRG. 110–758 

CIVIL RIGHTS DIVISION OVERSIGHT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JUNE 21, 2007 

Serial No. J–110–45 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 1 

prepared statement .......................................................................................... 148 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 2 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 173 

WITNESSES 

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

Falls Church, Virginia ......................................................................................... 37 

Driscoll, Robert N., Partner, Alston & Bird LLP, Washington, D.C. .................. 39 

Henderson, Wade J., President and Chief Executive Officer, Leadership Conference on Civil Rights, Washington, D.C. ......................................................... 32 

Kim, Wan J., Assistant Attorney General, Civil Rights Division, Department 

of Justice, Washington, D.C. ............................................................................... 3 

Landsberg, Brian K., Professor, McGeorge School of Law, University of the 

Pacific, Sacramento, California ........................................................................... 34 

Norton, Helen L., Visiting Assistant Professor, University of Maryland School 

of Law, Baltimore, Maryland .............................................................................. 35 

QUESTIONS AND ANSWERS 

Responses of Robert N. Driscoll to questions submitted by Senator Feinstein .. 59 

Responses of Wan J. Kim to questions submitted by Senators Leahy, Kennedy, Feinstein, Durbin, Cardin and Schumer .................................................. 61 

Responses of Brain K. Landsberg to questions submitted by Senators Leahy 

and Feinstein ........................................................................................................ 143 

Responses of Helen L. Norton to questions submitted by Senator Durbin ......... 146 

SUBMISSIONS FOR THE RECORD 

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

Falls Church, Virginia, statement ...................................................................... 149 

Driscoll, Robert N., Partner, Alston & Bird LLP, Washington, D.C., statement ...................................................................................................................... 169 

Henderson, Wade J., President and Chief Executive Officer, Leadership Conference on Civil Rights, Washington, D.C., statement and attachments ........ 176 

Kim, Wan J., Assistant Attorney General, Civil Rights Division, Department 

of Justice, Washington, D.C., statement ............................................................ 218 

Landsberg, Brian K., Professor, McGeorge School of Law, University of the 

Pacific, Sacramento, California, statement ........................................................ 252 

Moschella William, Department of Justice, Washington, D.C., statement ......... 260 

Norton, Helen L., Visiting Assistant Professor, University of Maryland School 

of Law, Baltimore, Maryland, statement ........................................................... 267 

Reigious Organizations, June 21, 2007, letter ...................................................... 272 

(1) 

CIVIL RIGHTS DIVISION OVERSIGHT 

THURSDAY, JUNE 21, 2007 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. 

The Committee met, pursuant to notice, at 2:03 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Benjamin L. Cardin, 

presiding. 

Present: Senators Cardin, Kennedy, Whitehouse, and Hatch. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. The Committee will come to order. 

First, let me thank Chairman Leahy and Senator Kennedy for 

asking me to chair this hearing today as the Judiciary Committee 

carries out its responsibility on oversight of the Civil Rights Division. 

It is fitting that we hold this hearing today as we approach the 

50th anniversary of the Civil Rights Act of 1957, which created the 

Civil Rights Division. This was the first civil rights legislation enacted in the United States since Reconstruction. 

This hearing is also part of the Committee’s ongoing investigation of the firing of U.S. Attorneys for improper reasons and the 

growing influence of politics in the Department of Justice. I am 

concerned as to what extent political appointees overrule the recommendations and advice of career prosecutors and staff at the 

Civil Rights Division when it comes to enforcing the laws and when 

it comes to the hiring, promotion, and firing of staff. 

I am gravely concerned that over the past 6 years the Bush administration has permitted, and even encouraged, political considerations and influence in deciding whether to enforce the law. This 

Committee will scrutinize the performance of the Division in enforcing anti-discrimination statutes enacted by Congress, including 

laws relating to voting rights, civil rights, housing, and employment. The Division has the unique resources, obligations, and mandate from Congress to file these types of cases to protect minority 

rights throughout the United States. In many cases only the Justice Department can file the type of complex and far-reaching cases 

that can challenge and ultimately remedy and destroy discriminatory practices and patterns, as we continue our long and unfinished 

journey toward achieving equal rights and equal justice under the 

law for all Americans. 

I am disturbed by today’s story in the Washington Post, which 

gives numerous examples of the improper role that politics is playVerDate Nov 24 2008 12:47 Mar 24, 2009 Jkt 047759 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47759.TXT SJUD1 PsN: CMORC
2 

ing in the Division. This Committee will want to hear from the Assistant Attorney General whether he thinks it is appropriate and 

consistent with the law and Justice Department regulations for a 

manager to ask his Justice Department staff whom they voted for 

in an election; whether this is an appropriate factor to consider 

when hiring, firing, and promoting staff; whether these types of incidents create a culture of intimidation at the Division; whether 

this culture may have contributed to a large number of resignations and retirements from the Division, followed by the hiring of 

a less experienced, less diverse, and more ideological group of lawyers; and whether these practices undermine the credibility of the 

lawyers at the Division and the overall reputation of the Department of Justice. 

I also welcome our distinguished panel of witnesses and would 

solicit their views on the record of the Civil Rights Division. For 

example, enforcement actions on behalf of racial minorities have 

declined, such as the filing of disparate impact cases under Title 

VII. The Division’s Appellate Section has dramatically reduced its 

interventions in major discrimination cases. The Department has 

hired a large number of new attorneys who have no background in 

civil rights litigation. The Department has filed a declining number 

of pattern and practices of employment discrimination cases. The 

Department has filed a declining number of vote dilution cases 

under Section 2 of the Voting Rights Act. The Department has filed 

a declining number of cases challenging abusive policy practices. 

This Committee has a responsibility to the American public to 

ensure that the Civil Rights Division aggressively carries out its 

very important mandate. 

Senator Hatch. 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH. Well, thank you, Mr. Chairman. I, too, look forward to this hearing. I hope it is a hearing about civil rights enforcement and not just another political meeting, because I think 

we have tremendous work that we do and have to do. And I want 

to make sure that we do the type of work that has to be done. 

I am particularly happy to welcome Mr. Kim here today. Wan 

Kim worked for us here on the Committee. He did a tremendous 

job, I think got along well with everybody on the Committee, and 

I am very proud that you are down there, especially in this Division, because I know that you take these matters very seriously. 

And I also welcome all of the other witnesses who are going to be 

here today. 

Thank you, Mr. Chairman. 

Senator CARDIN. Our first witness is the Honorable Wan Kim, 

who has been the Assistant Attorney General for the Civil Rights 

Division of the United States Department of Justice since November 9, 2005. Perhaps the most important thing about Mr. Kim’s 

background, as Senator Hatch has already pointed out, is that he 

is very familiar with the work of the Judiciary Committee, having 

served this Committee with great effectiveness, and we certainly do 

welcome you here today. 

3 

As is the practice of the Judiciary Committee, I would ask that 

you rise for the oath. 

Do you affirm that the testimony you are about to give before the 

Committee will be the truth, the whole truth, and nothing but the 

truth, so help you God? 

Mr. KIM. I do. 

Senator CARDIN. Thank you. You may proceed. 

STATEMENT OF WAN J. KIM, ASSISTANT ATTORNEY GENERAL, 

CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, 

WASHINGTON, D.C. 

Mr. KIM. Thank you. Mr. Chairman, and thank you, Senator 

Hatch, for attending this hearing. Senator Hatch, I think everyone 

knows, everyone who has ever worked for you know it is a great 

privilege and honor to work for you. And certainly my time in the 

Committee was also a great highlight of my career. 

It is a pleasure to appear before you to talk about the work of 

the Civil Rights Division, and I am pleased to report on some outstanding accomplishments that we have attained in the Division 

since I last appeared before this Committee 7 months ago. I am 

very proud of the professional attorneys and staff in the Division 

whose talents, dedication, and hard work have made these accomplishments possible. My prepared written statement details the accomplishments of each section of the Division, and, Mr. Chairman, 

I would ask that the entirety of my prepared statement be placed 

into the record. 

Senator CARDIN. Without objection, all of the statements from 

the witnesses today in their entirety will appear in the record. 

Mr. KIM. Thank you, Mr. Chairman. 

First, I am pleased to report that exactly 1 week ago, on June 

14, 2007, a Federal jury sitting in the Southern District of Mississippi returned guilty verdicts against former KKK member 

James Seale for his involvement in the abduction and murders of 

two young African-American men. Now, these crimes were committed 43 years ago, in 1964. Seale and other Klansmen abducted 

Henry Dee and Charles Moore, both 19 years old at the time, and 

drove the two young men into a secluded location where the Klansmen beat the victims and interrogated them at gun point. Seale 

and the other Klansmen then bound the two men with duct tape. 

The Klansmen then drove the victims to Parker’s Landing in Warren County, Mississippi, in a route that took them through the 

State of Louisiana. Once at Parker’s Landing, the Klansmen secured Dee to an engine block and threw him into the old Mississippi River, drowning him. The Klansmen next secured iron 

weights to Moore and also threw him into the river. 

Several months after the kidnapping and murders, divers recovered from the river the badly decomposed remains of the two young 

men. This case was indicted by the Civil Rights Division and by the 

U.S. Attorney’s Office earlier this year. I would like to express my 

thanks to the U.S. Attorney’s Office for the Southern District of 

Mississippi for its diligent efforts in working with the Civil Rights 

Division on this very difficult and very dated case. Our collaborative efforts helped to finally bring justice to the victims and their 

families. 

4 

While the Federal Government’s ability to bring civil rights era 

murders is limited by the provisions of then-existing Federal law, 

the Department is committed to vigorously prosecuting such cases. 

I would also like to commend the Committee for its consideration 

and support of S. 535, the Emmett Till Unsolved Civil Rights 

Crime Act, which, if funded, would facilitate the investigation of 

over 100 civil rights era murders identified by the FBI and the Department of Justice. 

Second, we continue to make great strides in our effort to combat 

human trafficking, increased by sixfold the number of human-trafficking cases filed in Federal court in the past 6 years. On June 

14, 2007, again, exactly 1 week ago, a Federal jury in Hartford, 

Connecticut, found Dennis Parish guilty for his role in the operation of a sex-trafficking ring. The defendant purchased two American citizens, including a 14-year-old girl, for $1,200 each and then 

forced them to engage in repeated acts of prostitution. This case illustrates all too clearly that human trafficking can occur at any 

place, at any time, and to any vulnerable victim, and it reinforces 

the need for the Justice Department to remain vigilant in enforcing 

the requirements of the Trafficking Victims Protection Act. 

Finally, we are vigorously enforcing the requirements of Title VII 

that prohibit employment discrimination. Our efforts in this regard 

are highlighted by our recent pattern or practice cases against the 

city of New York and the city of Chesapeake, Virginia. Last month, 

in conjunction with the U.S. Attorney’s Office, we filed a lawsuit 

against the largest fire department in the United States—the Fire 

Department of New York. This suit alleges that the city of New 

York’s use of written exams when selecting entry-level firefighters 

has an unlawful disparate impact against black and Hispanic applicants in violation of Title VII. We recently settled a similar lawsuit against Chesapeake, Virginia, regarding entry-level police officers. We are committed to bringing these types of difficult cases to 

guarantee the equal opportunity of all Americans to fill these important positions as firefighters and police officers. 

I look forward to working closely and cooperatively with this 

Committee to ensure the vigorous, evenhanded enforcement of the 

Federal civil rights laws. Thank you for your attention, and I appreciate the opportunity to respond to any questions that the Committee may have. 

Senator CARDIN. Well, Mr. Kim, again, thank you for being here 

and thank you for your service. 

I want to start off by talking about the concern that I have on 

the experienced career attorneys within the Civil Rights Division 

and the high turnover, the numbers that have experience, and the 

manner in which appointments are being made in your Division. 

Let me start off by stating the obvious, and that is, our civil service 

rules prohibit that no person employed in the executive branch of 

the Federal Government who has authority to take or recommend 

any personnel action with respect to any person who is employed 

in the competitive service shall make any inquiry concerning the 

race, political affiliation, or religious belief, et cetera, et cetera; and 

then the Department of Justice’s own regulations that prohibit discrimination based upon political affiliation. 

5 

I say that because of the article that appeared today in the 

Washington Post—and I assume, by the way, that you are acknowledging that you have read that article. 

Mr. KIM. I have, Senator. 

Senator CARDIN. It makes very serious statements about political 

considerations being used in appointments within the Department 

of Justice’s Civil Rights Division. 

There has also been testimony before our Committee. Bradley 

Schlozman, who appeared before our Committee, admitted under 

oath that he had bragged about hiring Republicans. And Monica 

Goodling, who is not in that Division but within the Attorney General’s office, testified under oath in the House Committee that she 

crossed the line in inquiring into political considerations for career 

selections, for people who are not political appointments. 

So let me start off by just getting your reaction to the testimonies 

before our Committee from these other witnesses and the article 

that appeared in the paper. And I must tell you that there have 

been other accounts from former attorneys about the political influence trying to be exercised on appointments. And then, lastly, if I 

might—and then I will get your response—there was a change in 

policy within the Attorney General’s office on the committee that 

interviews and makes the recommendations for appointments from 

career attorneys to political appointees, which also has a chilling 

effect, could have a chilling effect on career people who want to 

come to the Department of Justice in order to carry out their public 

commitments. 

I welcome your response. 

Mr. KIM. Mr. Chairman, thank you for that question. There is a 

series of questions that you asked in there, and I will try to address all of them. 

First of all, I want to correct the record. There has been a widespread publication that there have been droves of attorneys leaving 

the Civil Rights Division in the past 6 years. The statistics do not 

bear that contention out. The historical rate of attrition in the Civil 

Rights Division during the previous administration was approximately 12 to 13 percent a year. The historical attrition rate in the 

past 6 years is about 13.5, 14 percent. 

So our attrition figures are in line with and they are not markedly different from the historical attrition rate of attorneys in the 

Civil Rights Division. We have the great fortune of hiring extremely talented attorneys who have a lot of other options, and as 

much as I would like them to stay for a very long time, sometimes 

they do several years of public service and then they move on to 

other opportunities. And I regret their loss, but I certainly do not 

blame them for that. 

Second, you asked many very good questions about what my 

views are of career prosecutors and career attorneys in the Department of Justice, and I will tell you that my answer starts from my 

experience as a career prosecutor at the Department of Justice. I 

was hired from law school to a clerkship, and from the clerkship 

to the Honors Program of the Department of Justice in the Criminal Division. So I know very much what it is like to be a career 

attorney in the Department of Justice. I was subsequently hired to 

be an Assistant U.S. Attorney in the District of Columbia, and, 

6 

again, I know very much what it is like to be a career attorney and 

to work alongside very dedicated career attorneys. 

It is very important to me that when we make personnel decisions, we do so for the right reasons in accordance with all the 

rules of the road. And I can tell you, Senator Cardin, that I have 

done that and endeavored to do that every day that I have worked 

in the Department of Justice. 

Senator CARDIN. But you must be concerned about the testimony 

before this Committee by Mr. Schlozman as to political considerations that were used—at least he implied they were used. 

Mr. KIM. Well, Senator, I have reviewed his transcript. I did not 

see his testimony. And I understand that he denied violating the 

law that prohibited making personnel decisions based upon political affiliation. 

That being said, I will answer your question by saying I am concerned about some of the allegations that have come to light in the 

media. They are concerning. But I would also note that there is an 

ongoing and active investigation by both the Office of Professional 

Responsibility and the Office of the Inspector General, and that investigation I trust will get to the bottom of the matter. 

Senator CARDIN. And we appreciate that investigation taking 

place. We do not know how long that will take, and it is certainly 

an important investigation. But you have a responsibility as the 

Division head to make sure that those practices are not taking 

place today. 

Mr. KIM. Mr. Chairman, I assure you, as long as I am in the Department of Justice, I will abide, as closely as possible, to my full 

ability, by the rules of the road. I have descried for this Committee 

before what I look for when I make hiring decisions. I am more 

than happy to state that again on the record. But my hiring philosophy is based upon the talents of the people and the needs of the 

Division, and that is why I hire people. 

Senator CARDIN. Because of all the concerns that have been 

raised, would you be willing to send out a written affirmation of 

that within the Department so it is clear that political considerations or affiliations cannot be considered in the appointments? 

Mr. KIM. Within my Division, sir? 

Senator CARDIN. Yes. 

Mr. KIM. I certainly believe that that would be appropriate under 

the circumstances. But if I may followup, Senator, I do not make 

hiring decisions without consulting with section management. That 

is part of, I think, an effective way of hiring people that everyone 

really likes and is excited about. And so I will tell you that I think 

my section management understands what I am looking for, and I 

understand what they are looking for. And I think there is a meeting of the minds there. But I am happy to have those kinds of discussions with section management if there is any need to clarify 

the record as far as I am concerned. 

Senator CARDIN. Well, I think there is a need to clarify the 

record, and I appreciate what you are saying, and I hope that 

means that you are looking for the very best people without any 

litmus test as to their philosophy, but their commitment to enforce 

the laws and work aggressively to the mission of protecting the 

civil rights of the people of this country. 

7 

Mr. KIM. Senator, I look to hire the best people available to enforce the laws that Congress passed in the way that Congress intended those laws to be enforced. 

Senator CARDIN. Thank you. 

Senator Hatch. 

Senator HATCH. Well, first of all, every administration has tried 

to hire people that were willing to follow the goals and objectives 

of the administration. And every administration has different goals 

and objectives in the Civil Rights Division, all of whom have had 

good objectives, albeit one or the other of us might think there 

might be better objectives. I mean, that is just what you get when 

you get different administrations, and we certainly have put up for 

years with administrations that did not give any consideration to 

some of the things that, in particular, I think are important. So 

this is kind of a red herring. 

My experience with Justice is, yes, whatever administration, 

whether it is Republican or Democrat, they are going to try and 

find people who will share their beliefs and try and push the programs that they believe are correct. And we can criticize the programs, but I think it is crazy to criticize the fact that a Democrat 

administration might approach the Civil Rights Division a little bit 

differently from a Republican one. But I think both of them—my 

experience in both Republican and Democrat administrations has 

been that this Division has been run pretty well, and that whatever the particular goals are, they have been acceptable to the 

Committee. 

But I want to thank you for being here today. I apologize that 

I will not be able to stay very long. This is supposed to be an oversight hearing regarding the work of the Civil Rights Division, and 

I hope that the politics of the moment will not mean that most of 

the good work that you are doing and that your Division has done 

will be ignored. 

Now, Mr. Kim, as you know, religious liberty has always been a 

high priority for me. It may not have been in some Democratic administrations, but it is for me. The right to freely exercise religion 

is the first individual right mentioned in the Constitution’s Bill of 

Rights. I am glad to see that defending that right against discrimination is also a priority for this Justice Department and the Civil 

Rights Division. 

I sponsored the Religious Freedom Restoration Act, along with 

Senator Kennedy, and also the Religious Land Use and Institutionalized Persons Act, which President Clinton signed into law. In 

fact, I was the deciding vote in the Civil Rights Act for Institutionalized Persons back when Birch Bayh was the chief sponsor of 

that and have had a long record of trying to resolve some of these 

problems. 

Now, my friends on this Committee, Senators Kennedy and 

Schumer, were cosponsors of that Religious Land Use and Institutionalized Persons Act, which protects the rights of prisoners to 

practice their religion, among other things. 

Now, last week, the New York Times ran an article which quoted 

one of the witnesses appearing later in this hearing, and it criticized the Civil Rights Division for defending religious liberty and 

8 

enforcing statutes like this one that we passed through both 

Houses of Congress. 

Now, I do not agree with belittling our first freedom, which is 

protected not only by the First Amendment to the Constitution but 

by the 1964 Civil Rights Act as well. We can have differences on, 

you know, what the emphasis should be, but, nevertheless, there 

is no reason to have differences on this. 

Now, Mr. Chairman, I have here a letter that was sent today to 

all members of this Committee by a diverse group of religious organizations. These include the Southern Baptist Convention, the 

Union of Orthodox Jewish Congregations, the Seventh Day Adventist Church, and both the American Jewish Congress and American 

Jewish Committee. They write, and I quote in their letter, ‘‘to state 

our appreciation and support for the increased attention that the 

Division has given over the past several years to the support and 

defense of religious liberty.’’ 

I would ask consent to put this letter in the record. 

Senator CARDIN. Without objection, it will be included in the 

record. 

Senator HATCH. Now, Mr. Kim, in February, the Attorney General announced the launch of the First Freedom Project, and I 

would like you to tell the Committee about it, including the protection of religious rights in the wake of the 9/11 terrorist attacks. 

Also, please answer your critics who say that you are defending religious rights at the expense of other priorities. 

Mr. KIM. Well, Senator, I think that what we are doing is trying 

to enforce the laws passed by this Congress as effectively as possible, given the priorities that have been defined by this administration. And one of the priorities that has been defined by this administration is the vigorous protection of religious liberties. Those 

are, as you mentioned, ones that began in the passage of the 1964 

Civil Rights Act. And I thought it was particularly important to do 

so given that when you and Senator Kennedy and other leaders in 

the Senate passed RLUIPA in 2000, which passed by unanimous 

votes of both Houses of this Congress, you developed a record 

which established massive evidence of discrimination in this area. 

And given those congressional findings, that law, which was 

passed unanimously in 2000, the Civil Rights Division believes that 

it is appropriate to make sure that our resources and efforts are 

commensurate with the need that Congress found, first in 1964 and 

again in 2000. We are very proud of the efforts that we have 

brought to bear on this issue. And I think the Times article, while 

I think the overarching tone of it was critical, noted within it that 

almost all of our enforcement actions have been successful, that we 

are not stretching the bounds of Federal law here. We are enforcing 

the law neutrally, evenhandedly, and, I submit, on a nondenominational, nonsectarian basis, exactly the way Congress intended us to 

do so. 

Senator HATCH. On the second part of that question, which was 

to answer your critics that you are defending religious rights at the 

expense of other priorities. 

Mr. KIM. Senator, again, if you look at my prepared testimony, 

which is somewhat detailed, we have been very aggressive in enforcing all the laws committed to our jurisdiction. 

9 

For example, we recently filed a lawsuit involving race discrimination claims in violation of Title VII against the largest fire department in the United States of America. 

We have filed six lawsuits alleging a pattern or practice of employment discrimination in the past 2 years. 

Now, just to give a frame of reference, that compares with three 

such lawsuits filed during the last 3 years of the previous administration. So during my time in the Civil Rights Division, which is 

just about 2 years, I have authorized and filed more 707 lawsuits 

than during the last 3 years of the previous administration. 

So I think that is a record that speaks of my philosophy, that is, 

to evenhandedly enforce the law wherever I find violations of that 

law. And it is a priority for us, and it will always remain a priority 

for us to police those laws that prevent discrimination based on 

race, national origin, ethnicity, color, sex, and all the other appropriate categories. 

Senator HATCH. That has been my experience with you, and that 

is my direction to you, too. 

Keep in mind I may be a little prejudiced in this area because 

my personal faith is the only church in the history of this country 

that had an extermination order against my faith, against the people of my faith. And it does not take much of an understanding to 

look at the current Presidential campaign. Even though the Constitution says that religion should not be a test, there should be no 

religious test, you cannot read an article about Mitt Romney without finding some fault with his personal faith—and, I might add, 

ridiculous fault and fault that does not make sense. But, nevertheless, almost every article has something about his faith, even 

though the man has an impeccably honorable reputation in every 

way, family and otherwise. 

Well, this year is the 150th anniversary of the infamous Supreme 

Court decision in Dred Scott, which I believe is the worst decision 

ever decided by the Supreme Court—now, that is saying something, really—that slaves were not citizens, among other things. 

Today we see spreading around the globe and even here in America 

a modern type of slavery in the form of human trafficking. You 

have mentioned in your earlier remarks how hard you have worked 

against human trafficking. 

In January, you and the Attorney General announced the creation of a new Human Trafficking Prosecution Unit located in the 

Criminal Section of the Civil Rights Division. My own home State 

of Utah has received a grant to establish a Human Trafficking 

Task Force under the direction of our U.S. Attorney Brett Tolman, 

who also has diligently served this Committee, as you and a number of your staff have. That will bring together Federal, State, and 

local law enforcement, prosecutors, and victims services organizations. 

Would you please define for the Committee the human trafficking the Department is targeting—you have to a degree—explain 

why it is being done through the Civil Rights Division, and update 

the Committee on the results of your efforts? 

Mr. KIM. Thank you, Senator. In a nutshell, over the past 6 

years, after Congress showed great leadership in passing the Trafficking Victims Protection Act of 2000, the Civil Rights Division 

10 

has worked diligently to enforce those protections which ultimately 

stem from the 13th Amendment of the Constitution, which prohibits slavery and indentured servitude. 

During the past 6 years, we have increased the rate of prosecutions by more than 600 percent, and that is a record of progress 

following, again, the lead of Congress in defining this as a heinous 

offense worthy of the most vigorous efforts at the Federal level. 

Broadly speaking, trafficking can be defined as the subjugation 

of another human being by force, fraud, or coercion. It typically occurs in two contexts: in sex trafficking and in labor trafficking. 

Both contexts are deplorable. 

In sex trafficking, the victim is typically forced to work in a 

brothel and service customers every night, sometimes dozens of 

customers, day after day for weeks and months, and sometimes 

even longer, Labor trafficking occurs in any context imaginable: 

working in labor fields, working in homes as domestic servants, 

working in sweatshops in garment factories. We have brought 

cases in all of those types of categories. 

This is a big problem internationally. It is also a big problem 

within the United States of America. The State Department estimates that approximately 15,000 people are trafficked within our 

borders every year. But as the case I talked about in my opening 

statement reveals, these are not just foreign victims. These are 

American citizens at times. And they are subjected to some of the 

worst form of victimization at a continuous level, day after day, 

week after week, sometimes year after year, imaginable. I think— 

Senator HATCH. It is a modern form of slavery, isn’t it? 

Mr. KIM. It is a modern form of slavery, Senator. Many Congressmen have said so. I believe you have said so. This is a despicable form of conduct, and we are very, very pleased to implement the will of Congress and to get some of the very, very serious 

penalties that Congress properly attached to these crimes. 

Senator HATCH. Well, thank you. Also, please respond to your 

critics who say that human-trafficking and slavery cases are taking 

precedence over what the critics say are the Division’s most traditional criminal cases. Now, some of the critics have said that you 

are pursuing human-trafficking and slavery cases at the expense of 

hate crimes and police abuse cases. So could you respond to those 

charges? 

Mr. KIM. Senator, I am very proud of my years as a prosecutor, 

and one of the things you learn as a prosecutor is you take the 

cases that you find and you take the violations where they occur. 

And I think Congress passed the TVPA for a good reason: they saw 

a big problem in America that we needed to tackle. And so I think, 

rightly, our prosecutions in that area have increased by 600 percent over the past 6 years. 

But we have not neglected our traditional responsibilities. In 

fact, if you look at the core of what the Criminal Section of the 

Civil Rights Division has done since its inception, it is prosecuting 

what is called 242 violations—violations committed under color of 

law, typically excessive force by law enforcement officials. 

With respect to that category of criminal conduct, convictions 

over the past 6 years have gone up by 50 percent. So with respect 

to all of the statutes committed to our jurisdiction, we have been 

11 

vigilant in enforcing the cases where we find them. And I have 

made a pledge many times before, and certainly before this Committee, that I will bring cases where I find the facts and the law 

to be appropriate. I will not shirk away from cases because I do not 

like the result. I believe that is for Congress to define. Congress defines the law. It is my duty to carry out that law. 

Senator HATCH. Do you feel that you have been political in any 

way in this position or that the people who serve with you are political in any way? 

Mr. KIM. Senator, I have done my level best to make sure that 

my conduct comports with the oath of office that I have taken, and 

that is to enforce the laws. And I believe that in many respects the 

service that I have had in the Civil Rights Division as a political 

appointee, the service I have had in the last 2 years as a Senateconfirmed Assistant Attorney General is a logical outgrowth of my 

7 years of service as a career prosecutor in the Department of Justice. At all times I have felt that it is my duty to enforce the law. 

I have never seen that differently. 

Senator HATCH. Well, I have been watching you down there, and 

I think you have done a really good job. Now, that does not mean 

that we cannot do better, and I would just encourage you to do the 

best job you can because it is inexcusable for any violations of civil 

rights of whatever kind in this country to not be prosecuted or at 

least not be worked against. 

Mr. KIM. Senator, I appreciate your support. Thank you. 

Senator HATCH. Well, thank you. 

Mr. Chairman, I took a little longer than I should have, perhaps. 

Senator CARDIN. Senator, it is fine. 

Mr. Kim, we take pride in Congress on strengthening our trafficking laws. It was done in bipartisan legislation strengthening 

the tools given to the Department of Justice and the State Department in order for the United States to be a leader on trafficking 

issues. So we are pleased that you are moving forward in those 

areas. 

My concern is that when I look at the areas that have been 

where the Department of Justice, the Civil Rights Division, has 

had tremendous impact in advancing civil liberties, you look at job 

discrimination cases because economic empowerment is critically 

important to our communities; you look at major discrimination 

cases where you can have impact well beyond the specific case that 

is brought, or abusive police practices, which is a signal to a community as to how the Federal Government will be there to stand 

up to governmental abuses at the local level; you look at all these 

areas, and the statistics seems to indicate that they are not priorities within your agency. 

Now, you look at the—take job discrimination cases for one moment. The number of cases that you have filed is about half of 

what was done in the previous administration. You have more attorneys and are filing less cases. That does not seem to instill a 

spirit that the Department of Justice believes that discrimination 

in employment is a priority. 

Mr. KIM. Senator, might I respond? 

Senator CARDIN. Certainly. 

12 

Mr. KIM. Senator, I have been the Assistant Attorney General 

since November of 2005. In that less-than-2-year period, I have authorized the filing of six pattern or practice of employee discrimination lawsuits. Again, if you look at the previous record of the previous administration, during their last 3 years, which is the trend 

line, I think, they filed 3 707 pattern or practice of employment discrimination lawsuits. 

So I have during my short tenure approved the filing of twice as 

many, and I think that that shows my commitment to bring cases 

where I find violations. 

Now, you do not always find violations everywhere you look, but 

we do make an effort to look broadly. That is my commitment. And 

my secondary commitment is that where we find violations, where 

we think the legal standard is satisfied by the facts that we develop in our case, you have my absolute commitment that I will authorize that case. And I have tried to bring that to bear by some 

of these cases. 

Senator CARDIN. I take it that you were not satisfied with the 

progress made with job discrimination cases before you came on 

board? 

Mr. KIM. Senator, I do not fault any of my predecessors. I think 

they did their jobs admirably, as well as they could. It was a priority for me because I wanted to make sure that I was implemented the Attorney General’s directive and my oath. 

Senator CARDIN. The record shows the Division has filed almost 

as many cases alleging discrimination against whites as they have 

against African-Americans or Latinos. Now, discrimination in any 

form is wrong, and we want the Department of Justice to speak out 

on behalf of every American in the form of discrimination. However, I think it is apparent that efforts to help racial minorities is 

where the Department of Justice must place its priorities. 

That concerns me. It appears—I mean, you are giving the impression—first of all, do you dispute those numbers? 

Mr. KIM. Senator, I do not know exactly where those numbers 

come from. I think that they may be a compilation of statistics over 

some period of time. 

I can tell you, I can rattle down the cases that I have authorized, 

and they are three on behalf of African-Americans and Hispanic 

Americans, one on behalf of women, one on behalf of whites, and 

one on behalf—with discrimination against Sikhs and Jewish 

Americans. That is not one that places special importance on the 

role of discrimination against whites. I mean, I think discrimination, as you do, Senator, against any group based upon their race 

is offensive and in violation of Title VII, and it is my duty to enforce those cases. But I do not think that I have placed disparate 

attention on cases involving any one racial minority. I do not think 

that is my job. 

Senator CARDIN. I appreciate that. I have been told by staff that 

those numbers came from your website, so that is where our source 

is. I am sure it is a good source. 

Mr. KIM. Senator, I think that is a good source. I will have to 

go back and check them all again. I can actually rattle off the case 

names of the seven cases I just cited to you. 

13 

Senator CARDIN. Well, let me move to some specific cases, because then perhaps we can—and these might have been initiated 

before you took on your current responsibilities, so maybe your 

views are different. But I certainly am concerned about trying to 

match up your statements in your statement for the record and 

your testimony here about aggressively fighting any forms of discrimination and the traditional role the Department of Justice and 

the Civil Rights Division to really be the leading enforcement agency to protect the rights of minorities in this country. 

The Solicitor General—this is the Burlington Northern case, 

where the Solicitor General joined with the employer in that case 

arguing that the anti-retaliation provisions confine actionable retaliation only to employer action and harm that concerns employment 

and the workplace, a rather narrow interpretation. The Solicitor 

General joined in that issue. It was ultimately rejected by the Supreme Court by, I think, an 8–1 decision. 

Again, it seems that the administration went out of its way to 

try to narrow the enforcement of our discrimination laws. 

Mr. KIM. Senator, with respect, I do not see it that way. The 

issue in that case was one where we joined on the side of the worker, but we argued for a different legal standard to apply. And the 

Supreme Court, admittedly, ruled on the side of the worker and 

adopted a different legal argument than the one we urge. 

But what we did in that case, the United States entirely—I 

mean, the Solicitor General obviously makes the determination on 

these cases, although my name appeared on that brief. We are trying to interpret to the best of our ability what Congress intended 

in these laws. And we know that statutory interpretation questions 

sometimes pose difficult analytical conundrums. I mean, sometimes 

we get it right. I think we get it right a lot more often than we 

get it wrong. And in that case, the Supreme Court went a different 

way with what it thought the statute meant. 

But I think you are citing one case as opposed to the litany of 

cases that we filed, especially on the issue of ADA compliance, on 

the issue of race-based classifications, and in those cases we have 

taken positions that we think, again, do not favor one group or the 

other, because that is not our goal. Our goal is to try to figure out 

what did Congress mean and how can we best enforce Congress’ 

will. And if you look at Johnson v. California, if you look at United 

States v. Georgia, if you look at the Title III ADA cases, including 

Specter v. Norwegian Cruise Lines, those were cases where we advocated a position that some might consider to be plaintiff-friendly. 

And, again, that may be the outcome. 

But my approach in figuring out what to do in those kinds of 

cases is figure out what is the right answer. I have a great deal 

of respect for this institution having served this institution for one 

of its, I would submit with bias, leading Senators. I know that the 

job of the executive branch, especially the job of the Department of 

Justice, is to effect the will of Congress and implement it in legislation and not substitute my judgment or anyone else’s judgment for 

that. 

Senator CARDIN. Mr. Kim, you have a strange way of starting 

that out by saying you are on the side of the employee on that 

14 

case? I mean, wasn’t that a narrow interpretation which the Supreme Court gave a much broader interpretation? 

Mr. KIM. The interpretation of law and how it applied is absolutely a little bit different. But in terms of what the judgment 

was— 

Senator CARDIN. More favorable to the employee. 

Mr. KIM. More favorable, yes. But the rule that we urged would 

have also benefited the employee in that case. So the question is 

which way do you line up on the side of—and then what analysis 

do you urge. 

Senator CARDIN. That is an interesting point. Again, I would say 

that when the Department of Justice enters a case, it is a signal 

beyond just that individual case. And I think the Burlington Northern case was a signal that the Department of Justice was looking 

for accommodations to employers more so than trying to help employees who had retaliatory actions. 

Mr. KIM. Senator, with respect, that was not my intent in that 

case. When I approach these cases of statutory interpretation, I 

apply all the legal tools that I have at my disposal, which I admit 

are limited, to try to get to the best answer based upon what I 

think Congress meant when it passed that statute. 

Senator CARDIN. I have some additional questions, but my time 

on this round has expired, so let me turn to Senator Hatch in case 

he has some additional questions. 

Senator HATCH. Let me just ask a couple questions. 

I think we are well served down there at Justice with you, and 

I think your time up here has stood you in good stead because I 

think you realize that there are two sides on all these issues, and 

it is important that we understand that both sides need to be 

looked at. But I would like to look at the Civil Rights Division’s efforts to protect the rights of the disabled. 

In 1979, nearly 30 years ago, I cosponsored the Civil Rights of 

Institutionalized Persons Act, which I mentioned earlier. I was the 

deciding vote on that. I took a lot of flack for it. It did not make 

any difference to me because I thought I was right and that was 

the way it should be. 

That bill did not pass until after we invoked cloture on the fourth 

attempt, which was pretty much not normal in the Senate. Hardly 

any votes went beyond one, two, or three. But it passed, and today 

the Civil Rights Division is charged with enforcing it, protecting 

the rights of persons in institutions, such as nursing homes, juvenile justice facilities, and mental health centers. 

Now, could you tell the Committee a little bit about your efforts 

there and whether or not you are having success? 

Mr. KIM. Yes, Senator. We take very seriously the requirements 

of both the Americans with Disabilities Act and the Civil Rights of 

Institutionalized Persons Act— 

Senator HATCH. Well, I was a prime cosponsor on the Americans 

with Disabilities Act, too, and the act of 1990. And so I would like 

you to tell the Committee about programs such as the New Freedom Initiative, Project Civic Access, and the ADA Mediation Program, as well as the results that the Department is achieving for 

the disabled in different kinds of settings, such as hospitals or public transportation. 

15 

Mr. KIM. Well, I appreciate that question, Senator, and certainly 

you have shown great leadership in this arena. The whole point of 

the ADA and then the President’s New Freedom Initiative is to try 

to make all Americans participate fully in all areas of American 

life, and that is ultimately an issue of empowerment and it is ultimately an issue of treating people with dignity and recognizing 

that, as the President has said, no unworthy person was ever born. 

We have tried to implement those laws and that policy directive 

by vigorously going out and working with communities across the 

country in the context of the ADA to make sure that community 

services are accessible to all individuals, including those individuals with disabilities. 

In that very, very Herculean effort during the past 6 years, we 

have reached agreements with more than 150 communities since 

this program began, and 80 percent of those agreements were 

reached during the past 6 years. And in the past 6 years, we have 

made through these agreements lives directly better for more than 

3 million people, Americans with disabilities across the country. 

That is not a record that is achieved overnight. It is not a record 

that is achieved without a lot of hard work and commitment and 

attention. And it is not a record that we could have attained without having Congress pass a law that allowed us to go out there and 

implement that type of direction to the localities across the country 

where people with disabilities reside. 

In the context of institutional facilities, ensuring constitutional 

conditions, we have obviously implemented Congress’ will in that 

direction by noting that when someone is committed to the custody 

of the State, the State now has an obligation to that person to treat 

them in a certain way, to make sure that they are being treated 

within constitutional conditions. We have implemented that in jurisdictions across the country, from jurisdictions including St. Elizabeth’s Hospital in D.C. to agreements in Maryland, to agreements 

in Texas, to agreements basically all across the country. 

One area of particular focus for us in the past 6 years has been 

in juvenile justice facilities. When choosing among the myriad of facilities and institutions that are run by State and local actors that 

are governed by CRIPA, we thought to focus our resources primarily upon the most vulnerable members—the youngest in our 

midst, the Nation’s youth, the Nation’s future, those who are confined to institutions, making sure that when they are confined to 

those institutions, that is not a backward step in their lives, that 

that is at least a neutral step, if not a forward step, and in doing 

that making sure that they are treated with the kind of dignity, 

care, and respect that they are entitled to under the Constitution. 

Senator HATCH. Well, I have a lot of other questions, but let me 

just end with one last question, because all Americans are mindful 

of our soldiers and our veterans, especially at a time of war. The 

Civil Rights Division, as I understand it, is actively defending the 

rights of veterans and service members to vote and when they return to civilian employment. If you could, tell the Committee about 

your efforts to enforce such laws as the Uniformed Service Employment and Reemployment Rights Act and the Uniformed and Overseas Citizen Absentee Voting Act. If you could, I would like to 

know where you are on those. 

16 

Mr. KIM. Thank you, Senator. We have been fortunate to be entrusted with the responsibility to help protect some of the civil 

rights of our service members. Having formerly served in the 

United States Army Reserve, I have a firsthand appreciation for 

the rigors of service and a great and profound admiration for those 

of us Americans who serve, especially at a time of war. 

These are laws passed by the Congress to make sure that when 

a soldier is called to duty and, not in America, to vote on election 

day, that their vote is still counted, that they still have a way to 

help pick the people who govern us. And so in the past few years, 

we have been vigilant in enforcing the provisions of UOCAVA, 

working cooperatively with States at times and filing litigation at 

times, to make sure that they have a system in place for their elections that allowed that overseas service member to vote in the elections and to help pick who gets elected to represent them. 

With respect to USERA, the Uniformed Service Employment and 

Reemployment Rights Act, that was a statute for which jurisdiction 

was recently transferred to the Civil Rights Division, and that is 

one that we have embraced. It affects the employment rights of 

people who serve, making sure that they are not discriminated 

against for serving their country, and making sure that when they 

come back after serving in a field of battle or serving abroad or 

serving somewhere else, that they have their job guaranteed back 

to them. We have been aggressive in investigating those claims 

along with our partners at the Department of Labor, and we have 

been aggressive in litigating those matters where we cannot successfully resolve those claims. That is work that is important to us, 

and it is work that we intend to continue. 

Senator HATCH. Well, thank you, Mr. Kim. 

Thank you, Mr. Chairman. I will submit the rest of my questions. I just want to tell you that I appreciate the service you are 

giving and those who work with you. There is always more to do, 

and we just encourage you to do the very best you can across the 

board in this very, very important Division down there at Justice. 

Mr. KIM. Thank you very much, Senator. 

Senator HATCH. Thank you. 

Senator CARDIN. Mr. Kim, I am glad Senator Hatch raised the 

issue of voting because I want to go into a little bit of voting. But 

let me just complete the question in regards to the Burlington 

Northern, because we are trying to look forward as to what type 

of activities we can expect from the Civil Rights Division. 

In retrospect, do you believe, now looking at the Supreme Court 

decisions, that your Department will be more cautious about those 

types of positions that you take in employment cases? 

Mr. KIM. Senator, with respect, we do not wade into these waters 

without being cautious. I mean, we took a very hard look at that 

case. The Solicitor General is a very smart man. I think I am fairly 

adept on certain legal issues—not as smart as he is—and we put 

together our best reading of the statute, and that is what we write 

on paper. And it is completely transparent what our argument is 

and why it is that way. 

If your question is do we respect the opinion of the Supreme 

Court, absolutely. We respect the opinion of the Supreme Court, 

and that is the way we will interpret the statute. 

17 

Senator CARDIN. Of course, we want you to be aggressive also. 

Could you explain why you did not enter the Ledbetter case? The 

Ledbetter case was where the civil rights community was forced to 

advocate on behalf of the EEOC position regarding the statute of 

limitations in Title VII, a disparate pay case, because the Department of Justice refused to support the EEOC’s position. This was 

DOJ basically supporting the 180-day statute of limitations, why 

you did not support the agency’s recommendations. 

Mr. KIM. Senator, the internal advice that I gave is not something that I can discuss in a public forum, but I am not sure that 

your characterization I can comment upon one way or the other. 

I will say this: The position advanced by the United States in 

that case was the one adopted by the Supreme Court. 

Senator CARDIN. Yes. Well, perhaps you will get back to us on 

that. I am still—it seems like the Department of Justice, which 

should be available to pursue cases that are of significance, and the 

statute of limitations clearly is—this is one of significance, should 

be working with our civil rights community and particularly if we 

have an opportunity to make some advancement here. It appears 

that the Department of Justice was closing doors rather than opening doors. 

Mr. KIM. Senator, again, if I could, my goal and I believe our goal 

when we try to interpret a law and offer an amicus brief or a brief 

in support of a certain proposition, according to statutory construction principles that I follow, starts from the law itself, not to what 

result might interest this group or that group. And then we make 

our best determination using legal analysis and reasoning and 

precedent as to what the proper interpretation is. And in that case, 

the Solicitor General advanced the interpretation that ultimately 

the Supreme Court agreed to. 

Senator CARDIN. We want you to make your best judgments. We 

want you to follow the law. We want you to follow the congressional authority that you have and the tools that you have. But we 

also want you to work with the advocacy community so that we can 

advance civil rights in this country. 

Employment discrimination cases are difficult cases, and it 

seems to me that in this case—this was a case that was heavily 

watched, and, again, it looks like the Department of Justice was 

more interested in taking an easy pass and not working for an advancement in this area than trying to figure out ways that they 

could advance protection that is offered in employment cases. 

Senator HATCH. Mr. Chairman, if I could just— 

Senator CARDIN. Certainly, Senator. 

Senator HATCH. It seems to me their job is to enforce the statutes that we enact up here. They cannot just sociologically decide 

to ignore the statutes just because some of us up here may not like 

the result. And it is apparent that the Supreme Court took the 

same position, and one of the times when they literally observed 

what we did up here. 

Now, if we do not like the statute, we ought to change it, and 

that would be my answer here, because, you know, I would not 

want you to substitute your own personal predilections for what we 

pass up here. If you did that, I would be pretty darn mad. 

Mr. KIM. I do not think I could, Senator. 

18 

Senator HATCH. Even though that may be an unjust result. 

Senator CARDIN. Let me take back my time just to say that Mr. 

Kim already pointed out that his attorneys are pretty effective. 

Perhaps if they were on the side of the EEOC, maybe the Supreme 

Court would have ruled a different way. I do not know. But it 

would be nice to know that we are all on the same wavelength. If 

you believe the laws need to be changed, you should be coming 

here suggesting changes in the law. If you think the laws are adequate, fine. But in a way, you did not take a position on that, and 

it was an important issue for the civil rights community. I would 

just like to know your position on it. And if you think it is fair and 

the civil rights community is wrong, then speak out about it. But 

to not take a position, as you did in not joining the agency, to me 

was not as open as you should have been. 

I want to get some voting rights cases, and I know Senator 

Whitehouse is here, so let me just take a minute or two more, and 

then I will come back on the next round. 

You know my concern about what happened in Maryland. You 

and I had a conversation about it as to, in my view, deliberate actions taken to try to marginalize minority voters. It was not isolated. There also were cases in Virginia where callers tried to intimidate or confuse Democratic voters in a pretty contested Senate 

race. And the Arizona Republic reported that in Tucson three vigilantes—one carrying a camcorder, one holding a clipboard, and one 

a holstered gun—stopped Hispanic voters and questioned them outside a Tucson polling place. 

I could go on and give you more and more examples, and I know 

you and I have talked about whether the Federal laws are strong 

enough or not, and we have a bill pending that I hope will be 

passed that will clarify this. But voting representation, being able 

to vote, is such a fundamental issue, with the 50th anniversary of 

the creation of your Department, the passage of the Voting Rights 

Act, and still today there are candidates and parties that think it 

is fair game to try to marginalize minority voters. 

If you think it is not a problem, say it is not a problem. If you 

think it is a problem, then do something about it. If you think it 

is a problem and you do not have the tools to deal with it, tell us 

what tools you need. But I think just to sit back and be a passive 

observer is not an option that the Civil Rights Division should be 

taking. 

We had a hearing here, and I have not seen the administration 

come in with a statement in support of our legislation. I have not 

seen any position on this. And I just think this is a pretty fundamental issue. 

We have had conversations about it, and I guess I expected to 

hear something about whether you believe the circumstances are 

just fine, whether you have the tools to do something about it, or 

whether you think you need additional tools from Congress in order 

to pursue these issues. 

Mr. KIM. Senator, we have spoken on the issue. I have appreciated those conversations, and I think we have had what I hope 

was a productive dialog as to what the laws are that the Department of Justice, and particularly the Civil Rights Division, as far 

as I am concerned, enforces. 

19 

I know you have been a leader in trying to supplement the Federal laws that are currently on the books to address some of the 

instances that you just recounted. All I can tell you at this point, 

Senator, because I am a voice of the administration, is that I am 

aware that views are being put together. I am not in a position to 

articulate those views because they have not been cleared, but I do 

believe the administration is prepared to make a statement with 

respect to the legislation that you have supported and that is pending within this body. 

Senator CARDIN. Well, I appreciate that it has to be cleared before you can tell us specifically, but can you at least share with us 

whether you believe that there are concerns out there about what 

is happening with voters? 

Mr. KIM. Senator, I as a personal matter do not like dirty tricks. 

I think that everyone who is registered to vote and is qualified to 

vote should vote on election day, and I think that we should make 

that process as painless as possible. 

And so, in general, my predilection and I think the Department’s 

predilection is to try to make it easier for people to vote and to 

vote, you know, their mind and to vote exactly the way they intend 

the election to be voted. 

That is my general statement, and I hope that satisfies you because the more specific views letter I hope will be coming. 

Senator CARDIN. Well, let me try one more question. When can 

we expect the administration’s view on this? 

Mr. KIM. Senator, I am looking behind me to people who are actually more knowledgeable. I know— 

Senator CARDIN. They did not say anything. They left you on 

your own. 

[Laughter.] 

Mr. KIM. That happens sometimes. I do not know exactly why. 

The short answer, Senator, is I believe it is in the process. It is 

hard for me to predict these things because sometimes I think it 

is going to happen in a couple days and it does not, and then people get mad at me. The truth of the matter is I know that it is past 

the point of discussion and actually to the point of writing and to 

the point of circulation, and that is as— 

Senator CARDIN. Well, I hope we receive it shortly, unless I do 

not like what I receive, then take your time. 

Mr. KIM. Well, Senator, I think you know my phone number, so 

I may be back in your office. 

Senator CARDIN. Senator Hatch. 

Senator HATCH. Let me just make this one comment. You know, 

we up here have got to be very careful, too. We should not be trying to make the case of politics—we cannot say—or should I say 

that politics should not be involved in hiring Justice Department 

employees, and then assert that politics should be involved in what 

those lawyers do by picking sides. It seems to me that you have 

a tough enough job without us second-guessing everything you do. 

And I know that you are trying to do the best job you can. And to 

me that is very, very important. 

Just one last question and then I probably have to go. When we 

think of law enforcement and the prosecution of crime, we most 

often think of current events, but crimes remain unsolved for even 

20 

decades ago during the fight for civil rights. I am a cosponsor of 

the Emmett Till legislation, and I am very proud to cosponsor that. 

In February, you and the Attorney General announced a new initiative to investigate these crimes. Now, tell the Committee about 

how this initiative will work and how you will partner with nongovernmental organizations. And I understand that just last week 

a Federal jury in a case brought by the Division—well, you mentioned it—convicted James Ford Seale of crimes committed against 

two African-American men in 1964. You have told us about that 

case and how important that case is, and I commend the Department and all who worked on that case for being able to bring about 

the result that we all knew should have been brought about a long 

time ago. 

Now, some of your critics, however, including on the panel that 

will follow you in this hearing today, say that the Civil Rights Division is actually undermining enforcement of the Nation’s civil 

rights laws. Now, that is a dramatic claim that the Division is 

quite literally doing the opposite of what it is supposed to do. 

Now, these critics say the changes in priorities, policy, or personnel have stopped the Civil Rights Division from engaging in aggressive civil rights enforcement. Now, these critics seem to say 

that unless you follow their priorities and bring their preferred 

cases or apply their policies, you simply do not believe in civil 

rights and you are simply not enforcing the civil rights laws of this 

country. 

Now, I am sure you have heard these criticisms before. I think 

they are very unfair. But I do want to give you an opportunity to 

respond to them. 

Mr. KIM. Senator, I did not come to the Civil Rights Division 

without any background or any experience or any work at the Department of Justice. Quite to the contrary, I have been a prosecutor 

for basically my entire career. I clerked for a year, I spent 2 years 

in private practice, and the rest of my time I have been a Federal 

prosecutor or in the Department of Justice. 

I have viewed my job at the Department of Justice, be it in a career rank or a political rank, the same way, and that is to go out 

there and try to find as many violations that you can prove of Federal law that are committed in your jurisdiction as possible. That 

is why I think we have been doing a good job, in my view, on bringing pattern or practice of employment discrimination lawsuits. 

That is why last year in the Voting Section we filed 18 lawsuits, 

which is more than twice the average number filed in the previous 

20 years on an annual basis. That is why I think we have been aggressive in going after a murder that was committed 43 years ago. 

When we find facts to support Federal violations, we bring those 

kinds of cases. 

My commitment and the oath I take and the obligation I think 

that those of us at DOJ have is to go out there and enforce the 

laws as vigorously as possible and make sure when you are doing 

that, you are following the will of Congress as enunciated in those 

laws—not what you think, not what other people may tell you to 

think, but what the statute says. 

I do not believe I have many other alternatives than that, and 

that, quite frankly, is not my view on what else I should be doing. 

21 

That to me is my charter and my goal. I have tried to the best of 

my ability to execute that during the 11 years I have been at the 

Department of Justice. And so long as I serve at the Department 

of Justice, you have my commitment that I will do my level best 

to enforce the laws that you give us to enforce. 

Senator HATCH. Well, thank you. 

Thank you, Mr. Chairman. You have been very kind. 

Senator CARDIN. Thank you. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Mr. Chairman. 

Good afternoon. 

Mr. KIM. Good afternoon, Senator. 

Senator WHITEHOUSE. I am sorry if I am going over previously 

plowed ground. 

Mr. KIM. Not at all. 

Senator WHITEHOUSE. I came in after some of the statements, 

but there have been astonishingly frequent reports coming out in 

the media and in various other fora recently that the internal administration of your Division has been driven by politics, that hiring has been driven by politics, that performance evaluations have 

been driven by politics, that assignments within the Division have 

been driven by politics. And by ‘‘politics,’’ I do not mean office politics. I mean partisan Republican-versus-Democrat politics. 

There have been instances of people voting with their feet to get 

out of the Department after long and presumably very honorable 

careers. There have been members of the Division speaking out, either anonymously or by name, to express their concern and in some 

cases I would say even horror and dismay at what has become of 

the Division. Mr. Schlozman admitted here that he bragged about 

allowing Republican—that he, in effect, got more Republicans in. 

Monica Goodling admitted that in her hiring practices she crossed 

the line. The Honors Program was turned over to partisan political 

officials for hiring for the first time in its history. I guess that has 

been corrected, thank God. 

There is a new preeminence, or prominence, I should say, of Regent Law School. Over and over again you see symbols that would 

suggest that internally the management is in a state of—let’s put 

it this way, was in a state of considerable partisanship and is presumably now in a state of considerable disarray as it tries to recover. 

My question to you is: What are you doing right now to remedy 

this very difficult situation with respect to evaluating whether 

these charges are true internally with respect to repairing the damage and the morale within your section, with respect to clarifying 

what policies are and making sure that they are being followed and 

that it is being done neutrally, and with respect to reassuring people that they will be judged on the merits, not by whether they are 

Republicans or voted for George Bush or are members of the Federalist Society or went to the right law school? 

Mr. KIM. Senator, I appreciate that question because I have 

heard of these allegations, and they have been charged, and I am 

concerned about the public perception that I do not believe exists 

in the Civil Rights Division so long as I have been the Assistant 

Attorney General. 

22 

We just had a retreat, the first retreat for the Civil Rights Division management, leadership management, that we have had in 7 

years, and we spent 2 days, and we talked about a lot of management issues, and we got a chance to actually sit in a room, heard 

a great address by Chief Judge—I am not sure he is Chief Judge 

anymore, but J. Harvie Wilkinson on the Fourth Circuit, who 

talked about his time in the Division in the 1980’s. And that is a 

long, roundabout way of telling you that I care very much about 

the Division, I care very much about the morale of the people in 

the Division, I care very much that people in the Division believe 

that they will be evaluated fairly, for the right reasons, and sometimes that means—most times that means they will be evaluated 

for doing a great job, and sometimes that means that they could 

do a better job and they need to improve. 

That type of transparency based on merit and qualifications is 

important for me to know that people believe that. And— 

Senator WHITEHOUSE. You can continue with your answer, but 

let me interrupt you just to ask: Do you accept that, because you 

are the Civil Rights Division of the United States Department of 

Justice, in terms of the way in which you administer your internal 

personnel matters, you should set a very high standard and a very 

high example for getting it right and now allowing inappropriate 

considerations? If you can do it, that kind of sends a signal to the 

rest of the country of kick down the doors, let’s do this anywhere? 

Mr. KIM. Senator, I mean, I will take it even more broadly that 

that. I know you served with distinction as a U.S. Attorney. I believe that same standard should apply throughout the Department 

of Justice. I think that we should be the standard bearers in how 

lawful, fair, governance should apply within the ranks of any Division. And I think that I have been pretty transparent to my section 

chiefs and to the Division’s leadership and certainly to my staff as 

to what I expect. And I think I have set a tone that I hope is respected in that sense that people need to be judged for what they 

do and how they do it. And talent and competence and ability and 

desire to me matter. Other things do not matter. 

Obviously, I want attorneys who are smart, but you find smart 

attorneys in a lot of law schools. I went to a pretty good law school. 

I do not think my law school is the only law school that produces 

good attorneys. And I have found terrific lawyers in law schools 

across the country, and I do not think we should have an unduly 

narrow focus. But I will also tell you, Senator, that we hire a lot 

of people from Harvard and Yale. That just happens to be two awfully good law schools where we get a lot of applicants. We probably do not hire enough people, in my view, from the University 

of Chicago, but maybe we could rectify that in the next few years. 

But in my judgment, the best assurance that I can give you that 

I follow the rules of the road and I turn square corners in my personnel management practices is not only the fact that I was a prosecutor, a Federal prosecutor in the career ranks for 7 years, but because I will also tell you that the first thing I ask with respect to 

any personnel decision is: What does the section chief think? And 

my deputies know not to even bring an issue to me—unless they 

want me to decide the issue—unless they have the concurrence of 

that career section chief, who has an average of 17 years of experiVerDate Nov 24 2008 12:47 Mar 24, 2009 Jkt 047759 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47759.TXT SJUD1 PsN: CMORC
23 

ence within the Civil Rights Division, if you look across the ranks 

of my Division. 

That I think provides you with some assurance that I am making 

decisions and trying to make decisions for all the right reasons, 

and I hope that message filters down. And I think that— 

Senator WHITEHOUSE. And specifically in response to these recent allegations, other than the retreat, have you taken any other 

steps? 

Mr. KIM. Well, Senator, two things that I did immediately upon 

my confirmation as Assistant Attorney General: one, I established 

an Office of Internal Ombudsman, who is staffed with a career, to 

field complaints from the field. Now, I encourage people to use the 

chain of command. We have a lot of attorneys in the Division, and 

they cannot constantly be bucking their chain of command to talk 

directly with me. So I encourage people to use the chain of command. And, also, instead of subverting that chain of command, I 

have asked them to talk to the Ombudsman first before they contact me, because some career leadership felt rightly that if people 

still felt they needed to come to me all the time, then their role 

would be marginalized. And that Ombudsman I think has been 

helpful in resolving a lot of issues. 

I try very hard to make sure that I get out to the sections every 

once in a while. Now, that varies greatly depending on the time of 

the year, but I do try to make myself available on a personal level. 

And one of the most significant things that I think I have done 

since I have become head of the Civil Rights Division is to establish 

the Professional Development Office, which was instrumental in 

creating the leadership retreat, but also instrumental in creating 

for the first time ever a formal training program for attorneys who 

are hired to work in the Civil Rights Division. We are a Division 

with now 350 attorneys, 700 employees. We have never heretofore 

had a way of welcoming them into the Division, telling them what 

the rules of the road were, showing them the statutes. Now we do. 

And we have had week-long training sessions now three, four, five 

times. I believe it has been a great success. 

Senator WHITEHOUSE. Given all those wonderful things that you 

have said, with respect to the allegations that have been made so 

frequently from so many different sources very consistently about 

what has happened in terms of the internal personnel administration of the Civil Rights Division, would you wish me to conclude 

that that happened before you got there, or that the people who are 

making these allegations are mistaken? There seems to be a bit of 

a disconnect between the very, you know, principled discussion that 

you are giving me now about how that Division is managed from 

what an awful lot of people are willing to say, both on and off the 

record, about the problem. 

Are you telling me that there really is not a problem? Are you 

telling me you have got your hands around it and you have corrected it? Where do we stand on this? Was there never a problem? 

Mr. KIM. Senator, there is an Office of Inspector General investigation as to whether there was a problem, and I expect to cooperate— 

Senator WHITEHOUSE. Well, you are in charge of the Division. 

You ought to know if there was a problem. 

24 

Mr. KIM. Senator, what I can give you an assurance is to all the 

things I testified, that is the model that I have set and the standards that I have demanded ever since I have been in the Division 

as Assistant Attorney General. I have endeavored to do the right 

thing all the time, and that if people are concerned about what I 

have done, I hope they contact me and talk to me about it. 

I think that I have set a tone. I hope that that has filtered down. 

I think that I have made principled decisions in cases, in hiring decisions, in the course of the work that I do. And at the end of the 

day, other people will have to judge whether that is true or not or 

whether I did a good job or a bad job. But I have done my level 

best to do the best job I can. 

Senator WHITEHOUSE. Well, simply put, was there or is there a 

problem? 

Mr. KIM. Senator, I don’t believe there is a problem, and I don’t 

think there is a problem ever since I have been the head of the Division and been assigned with the responsibility of stewarding the 

Division and its personnel practices. 

If there was a problem— 

Senator WHITEHOUSE. Do you have an explanation for this cascade of concern and op-ed pieces and news stories and really very 

challenging things being said about the integrity of this Division 

that you manage? 

Mr. KIM. Well, Senator, I find it unfortunate because, first and 

foremost, I supervise a great team of folks and they are doing hard 

work, and I do not like to have their work reflected in a negative 

way. And, obviously, if it is the fault of some people in the political 

ranks, then we bear accountability for that. 

There is an investigation, and I expect it to be a thorough, full, 

and fair investigation, and I think we should all wait—there have 

been a lot of allegations. Many of them have been anonymous. I 

think we should wait to see what the results of that investigation 

are before drawing judgments. But all I can do, Senator, is my 

level best to tell you that I do not agree with a lot of what people 

have been doing or have been said to do. And I try to turn square 

corners in the way that I manage the division. 

Senator WHITEHOUSE. I have got you. 

Mr. Chairman, may I ask one last question? 

Senator CARDIN. You may proceed. 

Senator WHITEHOUSE. There has been some information that 

United States Attorney Griffin, before he was appointed United 

States Attorney and had a political role, was engaged in voter suppression tactics. There is an e-mail that uses the word ‘‘caging.’’ I 

assume you are familiar with what ‘‘caging’’ is as a voter suppression strategy. 

Mr. KIM. I am. 

Senator WHITEHOUSE. OK. And there were sort of inexplicable 

lists of, you know, low-income minority voters that would appear 

to have been part of a caging strategy. My question to you is a very 

simple one. We know that information about this came to the attention of political officials within the Department of Justice in the 

course of Mr. Griffin’s screening to become a United States Attorney. Was anything related to his participation in the caging effort 

25 

or the existence of the underlying caging effort ever forwarded to 

your Division for evaluation or investigation or review? 

Mr. KIM. Senator, I am not aware of anything that predates the 

letter that I understand that you sent to the Department of Justice 

earlier this week. Quite frankly, I don’t believe I have ever met 

Tim Griffin, and I had not even heard about him until he became 

the U.S. Attorney for the Eastern District of Arkansas. 

Senator WHITEHOUSE. So as far as you know, when this came to 

the attention of senior officials within the Department of Justice, 

it was never brought to the Civil Rights Division’s attention by 

them? 

Mr. KIM. Senator, I am not aware of it, but I would like to double-check and make sure. There are a lot of things that I am not 

aware of that happen in the ordinary course of events. I would like 

to have the opportunity to double-check that and get back to you. 

But as I sit here right now, I have no recollection of that. 

Senator WHITEHOUSE. Thank you. 

Mr. Chairman, thank you. I appreciate the time of Senator Kennedy and Senator Hatch. 

Senator CARDIN. Mr. Kim, I would just follow up briefly on Senator Whitehouse’s point. I urge you not to wait, as I said a little 

bit earlier, on the report from the Inspector General. I think that 

you need to take action now. You have already indicated that you 

are. Some of these allegations occurred when you were Deputy. So 

I think these are serious concerns, and I think the way that Senator Whitehouse worded it is accurate. If it did not occur, then we 

need to correct the record. If it did occur, then we have to make 

sure that it will not happen again. And I think these are important 

issues that you are now in charge and you need to make sure that 

you follow up on what you have been saying here so that there is 

the clear directive to everyone in the Department about how you 

are operating that agency. 

I want to give you one more example, if I might, which is the 

clearance of the Georgia law requiring voter identification. Now, I 

give you this example because here is an example where the 

preclearance was opposed by the career attorneys and overruled by 

the political appointments. And, of course, ultimately it was struck 

down by the courts. And to me it is kind of obvious that this is 

something that you ought to be very, very cautious about, voter ID 

and the impact it has on minority voting in the State of Georgia. 

So that is why I think you see the press reports that there appears to be a political motivation overriding career workers who 

have been in the vineyard a long time trying to ensure full participation by minority voters, and that went forward. It was reversed 

by the courts. But why did it ever happen? You are indicating that 

you do not do things unless you have had full consultation with 

your staff and your career people. Here is one where evidently the 

political appointees overruled it and were wrong. 

Mr. KIM. Well, Senator, I want to make sure you understand my 

previous statement, or make sure that I said it correctly. 

With respect to personnel actions, that is what I was referring 

to in the context of I want a consensus. 

Senator CARDIN. I thought you meant all important actions. So 

you do not—if you have an important decision— 

26 

Mr. KIM. Let me get to the—let me get to the second part of it, 

which is all litigation decisions, all other things that happen in the 

Division, I have a full and candid discussion about those legal 

issues with everyone involved, and certainly the recommendation of 

the section is extremely important to me, and we have full and fair 

and candid discussions, I think, about those. 

I do not agree on every single one of those. I would say that I 

agree on the vast majority of those. 

Now, I am happy to comment upon the Georgia matter as I understand it, but that was a decision that was issued before I became the Assistant Attorney General and in which I had no involvement. 

Senator CARDIN. I believe that there were two such preclearances 

in 2005 and 2006, I have been told by staff. 

Mr. KIM. That is correct. The Georgia identification matter was 

first submitted and decided sometime in the summer of 2005. And 

then it was amended and precleared again, the amendments were 

precleared in, I believe, early 2006—I want to say February or 

March. The amendments that were precleared were ones that, for 

example, made the ID free, increased the number of places across 

the State where one could get the ID, and I think commissioned an 

education program to educate people about— 

Senator CARDIN. And the career individuals at the Civil Rights 

Division recommended against that? 

Mr. KIM. Senator, we do not comment upon internal deliberations, but I will say that with respect to the preclearance letter in 

the first submission and the second submission, they were signed 

by the person who had authority to issue the preclearance, which 

was the career section chief. 

Senator CARDIN. Well, all I can tell you, it has been widely reported that the career attorneys opposed it, and that adds to the 

types of articles that have appeared in the paper and the confidence in the Department of Justice. 

Senator Hatch. 

Senator HATCH. I would be happy to defer to Senator Kennedy. 

Senator CARDIN. Senator Kennedy. 

Senator KENNEDY. Thank you very much, Mr. Chairman, and I 

apologize for missing the earlier discussion. I thank Mr. Kim for 

being here today, and he represents, I believe, one of really the 

most important agencies of Government, and that is the Civil 

Rights Division. The great challenge of our society is to be a fair 

country and knock down the walls of discrimination, and it has 

been a hard and painful road that this Nation has followed and is 

continuing to follow. And there is still strong evidence of prejudice 

and discrimination and bigotry that is out there. 

So the Civil Rights Division, not that it in and of itself is going 

to solve these issues or questions, but it has to be the kind of agency that has the kind of respect, I think, for people in this country 

that understands that we are a Nation unfulfilled until we are 

really going to deal with these issues and questions in a timely way 

and be a fair and a more just Nation. So it is an enormous responsibility that you have. 

I was just—and I am going to come to my question—disappointed, as Senator Cardin pointed out. The issue was so clear 

27 

on the Georgia case because of the close association with requirements of needy people, underserved people to pay for their ability 

to be able to have the identity card to be able to vote. If that did 

not ring in as a return to the poll tax, it is difficult for me to understand it as one who was very much involved in the whole debate 

on the issues of poll tax. 

The Texas redistricting was the same kind of issue, and the career officers were all supported by the Supreme Court decision. So 

the point that the Chairman makes is powerful. 

This hearing was called, and it is extraordinary because we have 

a front-page story. Perhaps others have gone through this, but the 

front-page story from the Justice Department, I am sure you are 

familiar with it. 

Mr. KIM. I have read it. 

Senator KENNEDY. I apologize if others have gone into some detail on it, but I think all Americans had to be appalled. Read the 

article about this Civil Rights Division, the most, I think, important Division in the Justice Department. And it paints a picture of 

Division run amok because of partisan politics. And according to 

the article, Bradley Schlozman, former high-ranking official, imposed a partisan litmus test on the career Division attorneys, 

transferring the three female attorneys—their name are listed in 

the first column here—transferring the three female attorneys with 

stellar records apparently because they were perceived as Democrats, and Mr. Schlozman reportedly said he was transferring them 

to ‘‘make room for some good Americans.’’ ‘‘Good Americans.’’ 

In the Appellate Division, one of the Division’s most high-profile 

litigating section, he also went after Republicans who thought they 

were not ‘‘loyal Bushies,’’ questioned whether he could trust one career lawyer who voted for Senator McCain in a Republican primary. 

I have asked you many times about your own involuntary transfer of Robert Berman, the deputy chief who advised against the approving of the discriminatory Georgia voter ID law. But your explanations have come back—I do not find them very satisfactory. I will 

ask that they be made a part of the record, Mr. Chairman. 

Senator CARDIN. Without objection. 

Senator KENNEDY. The issues we have been discussing today are 

the equivalent of a five-alarm fire, and I want to know—I know you 

have perhaps responded, but I want to hear it—about what you are 

going to do to stop it. It is not acceptable to deny the obvious problem. It is not acceptable to say the problem began on someone 

else’s watch. You head the Division. You show the American people 

that you will be part of the solution and not the problem. Confidence in the Division will require that you are going to do things 

differently. 

Now, what are you going to do? 

Mr. KIM. Well, Senator, I do hope I have done things differently, 

and I hope I have done things the way I think they should be done, 

which in my view is the right way, from day one after this Committee confirmed me and after I was sworn in to take office in November of 2005. 

I have always valued the input of career section management in 

the personnel decisions that I have made. And I will say that as 

28 

a career attorney for many years before I became a political appointee, I tried hard to respect them, to make sure that the personnel practices that I employed were consistent with the ones that 

I wish were employed when I was a career attorney and ones that 

I felt— 

Senator KENNEDY. Well, is this going on? 

Mr. KIM. Senator, I— 

Senator KENNEDY. I mean, when you read the paper today, did 

you say, ‘‘It is all news to me’’ ? 

Mr. KIM. Senator, I was shocked by some of the allegations in 

the paper. 

Senator KENNEDY. What is the first thing you did? This is on 

your watch. What is the first thing? You read that. It is your 

watch, your Division. You are coming up here this afternoon. What 

is the first thing you do? 

Mr. KIM. Senator, to be fair, I learned about the allegations or 

some of the allegations last night when it was communicated by 

the Office of Public Affairs. So it was not the first time— 

Senator KENNEDY. Fine. OK. So then what do you do? 

Mr. KIM. What I did was prepare to come to the hearing today— 

Senator KENNEDY. Well, how do you—I mean, who did you talk 

to over there? How did you find out whether these things are true 

or were not true? 

Mr. KIM. Well, Senator— 

Senator KENNEDY. What did you—what was your own sense of 

outrage about this? This is the Department to preserve and protect 

the civil rights of American citizens. What is your reaction? You 

saw this or heard about it last night. What are the things—rather 

than just prepare for the hearing, what did you do? 

Mr. KIM. Senator, some of the things have been done already, to 

be fair. With respect, not referring to individual people in a public 

forum, some of the management decisions of a personnel matter 

that Mr. Schlozman is alleged to have made, I have made differently. Some people who were removed from the section are back 

in the section based upon decisions that I have made starting from 

more than a year ago. 

Senator KENNEDY. Well, when you read that Mr. Schlozman— 

and I know that time is moving on, Mr. Chairman. Schlozman reportedly said he was transferring them to ‘‘make room for some 

good Americans.’’ What did that say to you? 

Mr. KIM. Senator, at a very minimum, those were intemperate 

and inopportune remarks. I mean, I think it is fair to say that they 

caused me some concern, and I think it is also fair to say that there 

is an OIG and an OPR investigation into that hiring practice and 

those hiring practices. 

Senator KENNEDY. Well, you know, the list goes on—‘‘loyal 

Bushies.’’ I want to get into one other area. I understand you have 

promised personally to investigate this and report back in 30 days. 

I hope the report provides the specific information on how you are 

going to ensure that the partisan game playing, both in personnel 

and case decisions, ends. I hope that will be included. 

Mr. KIM. Senator, I don’t mean to quarrel with you. I am not 

sure that I have made an assurance to investigate, and I do not 

29 

know that it would be appropriate for me to do so given that OIG 

and OPR are currently investigating some of these subject matters. 

What I have pledged to do is to communicate clearly, at the request of the Chairman, my standards, which I hope are clear, to 

the leadership of the Civil Rights Division as to what I am looking 

for and what I expect when personnel decisions are made. 

Senator KENNEDY. Well, I would think, as the head of a Division—this happened on your watch on this thing—that you would 

want to get to the bottom of it yourself, just in terms of your own 

basic and fundamental integrity as being the head of the Division— 

Mr. KIM. Senator, if I might— 

Senator KENNEDY.—and to be able to deal with these kinds of 

issues. 

Mr. KIM. Senator, if I may respond. 

Senator KENNEDY. Yes. 

Mr. KIM. I believe that most of the allegations that were reported 

in the paper today did not happen when I was Assistant Attorney 

General. 

Senator KENNEDY. I am talking about now. In any event, how 

these are dealing and how you are assuring that they are not going 

on now. 

Mr. KIM. Senator, I have tried my level best to— 

Senator KENNEDY. Let me move on to another area, and then I 

am—on the record of the Division with regard to voting rights, 

there has been only one case alleging racial discrimination in voting on behalf of African-Americans in this administration. One 

case. One case. One case. 

You filed the same number of cases alleging discrimination 

against whites. Why is it? What can you tell us, this Committee— 

Mr. KIM. Senator, I— 

Senator KENNEDY.—if there is one case in terms of AfricanAmerican voting, in terms of this country? Is that—what are we 

supposed to conclude from that? 

Mr. KIM. Senator, I don’t believe that is an accurate factual 

statement. 

Senator KENNEDY. Well, what is the number then? 

Mr. KIM. I have approved one case involving vote dilution on behalf of African-American— 

Senator KENNEDY. What do you think? Do you think it is more 

than 15 or less than 5? 

Mr. KIM. With respect to race— 

Senator KENNEDY. The number of cases, voting rights cases. 

Mr. KIM. Race cases in general. 

Senator KENNEDY. Voting rights cases with regards to AfricanAmericans. 

Mr. KIM. Under the Voting Rights Act? 

Senator KENNEDY. Yes. 

Mr. KIM. I believe it is between 5 and 15. 

Senator KENNEDY. You believe it is between 5 and 15. So if it is 

between 5 and 15—that is what your testimony is? 

Mr. KIM. That is what I believe, Senator. I mean, I could provide 

an accurate— 

Senator KENNEDY. Yes, would you provide the— 

Mr. KIM. Of course. Of course. 

30 

Senator KENNEDY. Because I think you will find out that it is 

considerably less. I think you will find out that with regards to the 

record of the Civil Rights Division on these kinds of cases, there 

has been a dramatic fall-off in very recent times on this kind of 

thing, and I would like to know why. And if you can be able to help 

us understand if there has been that drop-off, what the reasons are 

for it, whether it is because we have been making progress or because of the fact that the Department has not chosen to go ahead, 

I would appreciate it. 

Mr. KIM. Senator, my commitment to enforcing all the laws neutrally to the best of my ability is one that I have made before the 

Committee and one that I reiterate today. I have tried very hard 

to make sure that we are enforcing all the statutes across our jurisdiction with respect to all Americans. And the one lawsuit that you 

may be referring to, a vote dilution lawsuit under Section 2 of the 

Voting Rights Act, was authorized by me against the city of Euclid 

shortly after I became Assistant Attorney General. I have also authorized Section 2 lawsuits on behalf of Hispanic Americans. I have 

authorized voting rights lawsuits on behalf of many different minority groups, including for the first time ever Koreans. And my 

job, I think, is to try to fairly enforce the laws on behalf of everyone, and I can categorically assure you, Senator, that I have no interest in not enforcing laws as opposed to any group of people. And 

to the extent that I find violations—and we have been working 

hard to find violations, and we have been working hard to solicit 

allegations—that is something that I think is part and parcel of our 

mission. 

Senator KENNEDY. Finally, just on the time that you were—as I 

understand, you were in the Division the whole time that this allegedly evidently was going on. You were the Deputy Assistant AG 

for 3 years before becoming the AAG, and you were totally unaware that this was going on? 

Mr. KIM. Senator, the type of specific allegations that are being 

raised are newfound, in my mind. I was a Deputy Assistant Attorney General along with two other Deputy Assistant Attorney Generals, a Principal Deputy Assistant Attorney General, and the Assistant Attorney General. In many respects, the DAGs moved on 

parallel tracks. I supervised my sections, and the other Deputies 

supervised their sections. 

The type of specific allegations that are being alleged are ones 

that I was not aware of when I was Deputy Attorney General. To 

be fair, these are allegations—I know that Mr. Schlozman has come 

before this Committee and denied doing anything in violation of 

law, and there is an investigation that is pending that I expect to 

be thorough, and I expect to cooperate fully with that investigation, 

and I think all of us would benefit from waiting and seeing how 

those allegations shake out and trying to get to the bottom of this. 

Senator KENNEDY. Thank you very much, Mr. Chairman. 

Senator CARDIN. Thank you, Senator. 

Senator Hatch. 

Senator HATCH. I think you have more than adequately explained that you are doing the job down there, albeit that there 

may have been some cases to protect whites from voter discrimination. I mean, I guess they are entitled to protection, too, although 

31 

I am not sure, listening to some of my colleagues. But I hope that 

nobody, whether it is disabled people, veterans, whoever it may be, 

religious people, will have their rights trampled on. 

I think you have more than adequately explained that you are 

making sure or doing your dead level best to make sure that all 

rights are protected and that you abide by the statutes even though 

sometimes we up here disagree with our own statutes. One side or 

the other disagrees from time to time. Your job is not to just do 

what you might want to do. Your job is to enforce those statutes, 

and I think you have more than adequately explained that here 

today, and personally, I am very proud of you. You served this 

Committee well when you were up here, and I happen to know that 

perhaps better than anybody else on the Committee. But a lot of 

others on this Committee have admitted that, too. And I just have 

to say that it is a tough job you have, but keep doing it to the best 

of your ability. And we expect discrimination to be fought against— 

it is just that simple, no matter who it affects—in accordance with 

the statutes that we have enacted up here. And you have made 

that commitment, and I personally appreciate it and personally 

back you. 

So thank you for being here, and that is all I need to say. 

Mr. KIM. Thank you, Senator. 

Senator CARDIN. Mr. Kim, I would ask that you make available 

to the Committee the communication that we have talked about to 

staff as to the practices within your Civil Rights Division. 

And, second, there seems to be some disagreement on the turnover, experience of staff, demographics, et cetera, so if you could 

make available to us the length of service within the Civil Rights 

Division of your employees and their background within civil 

rights, I think that would be helpful so that we can just get a level 

playing field. The information we had showed that your staff has 

less experience and more turnover than historical numbers, and I 

think it would be helpful to get the facts on that from you so that 

we can be able to look at the records rather than each of us subjectively claiming what the circumstances are. 

Mr. KIM. Mr. Chairman, with respect to the first request, I have 

no problem committed to do that. 

With respect to the second request, consistent with personnel privacy protections, I will endeavor to make sure that you get the information you have requested. 

Senator CARDIN. Thank you. Also, the other point that I think I 

mentioned earlier—and Senator Kennedy mentioned it—you are 

the agency that we look upon for opportunity for all Americans. 

There have been press accounts as to the lack of diversity within 

the Civil Rights Division, and if you could—I am not suggesting 

you do this by individual, but if you could give us the diversity 

numbers within the Department, I think that would be very helpful 

for us, too. 

Mr. KIM. I will be happy to provide that, Senator. 

Senator CARDIN. Thank you. 

Is there anything further for Mr. Kim? If not, again, I thank you 

very much for your attendance here today. 

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

32 

[The prepared statement of Mr. Kim appears as a submission for 

the record.] 

Senator CARDIN. Our next panel will consist of Wade Henderson, 

who is the President and CEO of the Leadership Conference on 

Civil Rights; Brian Landsberg, who is a professor at McGeorge 

School of Law, University of the Pacific in Sacramento, California; 

Helen Norton, Visiting Assistant Professor, School of Law, University of Maryland, Baltimore, Maryland—my alma mater. It is nice 

to have somebody here from the University of Maryland School of 

Law. And Roger Clegg, President and General Counsel, Center for 

Equal Opportunity, Falls Church, Virginia; and Robert Driscoll, 

Partner, Alston & Bird, Washington, D.C. 

I should have asked you before you sat down. If you would please 

rise for the—as a tradition of our chairman, we swear in our witnesses. Do you affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing 

but the truth, so help you God? 

Mr. HENDERSON. I do. 

Mr. LANDSBERG. I do. 

Ms. NORTON. I do. 

Mr. CLEGG. I do. 

Mr. DRISCOLL. I do. 

Senator CARDIN. Thank you. Please be seated and, again, welcome to the Committee. We very much appreciate your presence 

here. Your full statements, as I have indicated earlier, will be made 

part of the record of our Committee. You may proceed as you see 

fit. We will start with Mr. Henderson. 

STATEMENT OF WADE J. HENDERSON, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, LEADERSHIP CONFERENCE ON CIVIL 

RIGHTS, WASHINGTON, D.C. 

Mr. HENDERSON. Thank you, Mr. Chairman, and good afternoon. 

My name is Wade Henderson. I am the President of the Leadership 

Conference on Civil Rights. The Leadership Conference is the Nation’s leading civil and human rights coalition, with 200 national 

organizations working to build an America as good as its ideals. It 

is a privilege to represent the civil rights community in addressing 

the Committee today. 

Now, today’s article in the Washington Post, which has been alluded to by several Senators today, about politically motivated hiring and firing of career civil servants in the Civil Rights Division 

at the Department of Justice is just the latest in a string of news 

reports that have revealed that the Division has abandoned its long 

tradition of fair and vigorous enforcement of our Nation’s civil 

rights laws. Partisanship, it seems, has been driving both substantive and personnel decisionmaking. In its 50-year history, 

never before has the Civil Rights Division faced such a challenge. 

In those 50 years, through both Republican and Democratic administrations, the integrity of the Division has never been questioned 

to this degree. Not even close. Members of the committee, we must 

turn this ship. We expect a Civil Rights Division that enforces the 

Nation’s civil rights laws, without fear or favor. We must demand 

accountability and a return to vigorous enforcement. 

33 

Now, over the last 6 years, we have seen career Civil Rights Division employees, section chiefs, deputy chiefs, and line lawyers 

forced out of jobs to make room for what one political appointee 

within the Division described as ‘‘good Americans.’’ You heard Senator Kennedy allude to it in his remarks today. We have seen retaliation against career civil servants for disagreeing with their political bosses. We have seen whole categories of cases not being 

brought and the bar made unreachable high for bringing suits in 

other cases. We have seen some outright overruling of career prosecutors for political reasons and also many cases being ‘‘slow 

walked,’’ to death. 

In the Housing Section alone, the total number of cases files has 

fallen 42 percent since 2001, while the number of cases involving 

allegations of race discrimination has gone down by 60 percent. 

The Voting Section did not file any cases on behalf of AfricanAmerican voters during a 5-year period between 2001 and 2006. 

And no cases have been brought on behalf of Native American voters for the entire administration. 

Furthermore, the Department has gone out of its way to take 

legal positions to roll back civil rights. For example, last year the 

Department filed amicus curiae briefs in support of the dismantling 

of voluntary school integration programs in Seattle, Washington, 

and Louisville, Kentucky. These cases, which challenge one of the 

few ways left for local school districts to battle de facto segregation 

in public schools, are currently pending before the U.S. Supreme 

Court. 

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 career staff that are in many ways most disturbing. For 

it is the staff that builds trust with communities, develops the 

cases, and negotiates effective remedies. Career staff has always 

been the soul of the Division, and it is now under attack. 

The blueprint for this attack appeared in an article in National 

Review in 2002. The article—entitled, and I quote, ‘‘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. The article proposed, again, and I quote, 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. This is a radical change in policy. It seems that those running 

the Division got the message. To date, four career section chiefs 

and two deputy chiefs have been forced out of their jobs. 

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 Civil Rights Act and the creation of 

the Civil Rights Division were the first steps in responding to a 

growing need. 

34 

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 1960s and 1970’s, it was the Civil Rights Division that played 

a significant role in desegregating schools in the old South. In the 

1970s and 1980s, it was the Civil Rights 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 this Committee, we must continue to work to understand the extent of the damage that has been done to the Civil 

Rights Division and hopefully develop 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 very much. 

[The prepared statement of Mr. Henderson appears as a submission for the record.] 

Senator CARDIN. Thank you, Mr. Henderson. 

Professor Landsberg. 

STATEMENT OF BRIAN K. LANDSBERG, PROFESSOR, 

MCGEORGE SCHOOL OF LAW, UNIVERSITY OF THE PACIFIC, 

SACRAMENTO, CALIFORNIA 

Mr. LANDSBERG. Thank you, Chairman Cardin and Senator 

Hatch. Thank you for inviting me to testify. My understanding is 

that I am to provide a historical perspective on the Civil Rights Division of the Department of Justice, and I have provided the Committee with a statement. 

I worked at the Civil Rights Division for over 20 years beginning 

in 1964 under six administrations, and my scholarship includes 

two books about the work of the Division. I am proud of the contribution that the Division has made to equal rights under the law 

that Mr. Henderson just summarized for us. 

Any historical perspective must mention the important role of 

the Department of Justice in enforcing equal rights during Reconstruction as well as the country’s abandonment of Reconstruction 

resulting in reinstatement of a racial caste system in which law 

and customs supported white subordination of blacks. Some supporters of equality under the law fear that the second Reconstruction—the civil rights advances since 1954—will meet the same fate 

as the first. 

The Civil Rights Division began in 1957 with a narrow mandate, 

which has grown substantially over the years. Congress, however, 

has consistently seen the Division as an enforcer of the public interest in eradicating discrimination based on race and other invidious classifications. Unfortunately, the widespread laws and customs enforcing race discrimination from the late 1870s to the 1960s 

have left a continuing legacy, and combating continuing race discrimination stands at the core of the Division’s responsibilities 

today as it did in 1957. 

The Division developed proactive enforcement techniques starting late in the Eisenhower administration and refined under Presidents Kennedy and Johnson. Its lawyers went out into the field to 

35 

uncover unlawful discrimination. Their recommendations received 

rigorous review by and discussion with the Division leadership. The 

Division traditionally gave high priority to combating discrimination against African-Americans because the racial caste system was 

viewed as destructive of American ideals and as undermining our 

society and economy. 

The Division, like most Federal agencies, is composed of career 

personnel and political appointees. Its success depends upon the 

ability of the two groups to work together. 

When the Presidency changes hands, there is inevitably a period 

of adjustment. Ironically, the incoming political appointees view 

the career attorneys as holdovers from the prior administration, 

even though long-term attorneys may have worked through several 

administrations under Presidents from both parties. Most career 

attorneys, however, have normally been hired through the Attorney 

General’s Honors Program, instituted during the Eisenhower administration to ensure that lawyers were hired based on merit 

rather than on ideology, political affiliation, or other throwbacks to 

the spoils system. They are dedicated to law enforcement. They understand that priorities may change from one administration to the 

next. They have been trained to turn square corners, as Mr. Kim 

mentioned earlier, in their work to honestly evaluate the law and 

the facts. Both civil servants and political appointees need to have 

the courage to say no to political pressures. The Division works 

best when it operates in an atmosphere of mutual respect between 

career staff and political appointees. Proper interaction between 

them ensures that neither group will carry out an improper agenda. This will enhance the Division’s credibility with the courts and 

the public. 

In closing, let me emphasize the importance of careful 

prioritizing of the Division’s responsibilities. While the many new 

responsibilities that Congress has assigned to the Division over the 

years deserve attention, the core responsibilities Congress has assigned relate to discrimination based on race, national origin, sex, 

and disability in voting, schools, housing, public accommodations 

and facilities, federally assisted programs, and employment. In my 

view, racial discrimination is a core disease in this country, and the 

future of civil rights enforcement requires that combating race discrimination remain as a central priority. 

Thank you. 

[The prepared statement of Mr. Landsberg appears as a submission for the record.] 

Senator CARDIN. Thank you very much, Professor Landsberg. 

Professor Norton. 

STATEMENT OF HELEN L. NORTON, VISITING ASSISTANT PROFESSOR, UNIVERSITY OF MARYLAND SCHOOL OF LAW, BALTIMORE, MARYLAND 

Ms. NORTON. Good afternoon, Mr. Chairman, Senator Hatch. My 

name is Helen Norton, and I am a visiting professor at the University of Maryland School of Law. As a political appointee in the Civil 

Rights Division from 1998 until January of 2001, my duties included service at the Deputy Assistant Attorney General charged 

with supervising the Employment Litigation Section. So my testiVerDate Nov 24 2008 12:47 Mar 24, 2009 Jkt 047759 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47759.TXT SJUD1 PsN: CMORC
36 

mony today will focus on the Civil Rights Division’s Title VII enforcement efforts. 

As you know, Congress empowered the Department of Justice 

with the power to enforce Title VII with respect to State and local 

government employers, and this authority is critically important, 

as State and local governments employ more than 18 million workers in a wide variety of jobs, from police officers, to teachers, firefighters, health care providers, and more. Some of these jobs offer 

entry-level gateways to employment and economic security, while 

others stand at the top levels of State and local leadership. 

But despite the importance of this mission, the Division’s Title 

VII enforcement efforts have plunged since January 20, 2001. 

I would like to make just two points today. 

First, the Division’s measurable Title VII activity has declined 

substantially and across the board. We have seen a significant drop 

in activity of all types: fewer successful resolutions, fewer cases 

filed alleging systemic discrimination, fewer cases filed alleging individual discrimination. 

For example, one especially valuable enforcement measure examines the number of successful resolutions secured through judgments, consent decrees, and out-of-court settlements. These resolutions further Title VII’s objectives by providing compensation to 

discrimination victims and securing changes to employers’ discriminatory practices. But since January 20, 2001, the Division has resolved only 46 Title VII cases, including only eight pattern and 

practice cases. In contrast, the Division during the Clinton administration resolved approximately 85 Title VII complaints, including 

more than 20 pattern and practice cases. 

Another helpful enforcement measure tracks the number of complaints filed under Title VII. So long as illegal job discrimination 

remains a problem, we should expect to see continued case filings. 

Here, too, the Division’s efforts fall short. The Division has filed a 

total of only 39 Title VII complaints since January 20, 2001. At this 

pace, the Division can be expected to file approximately 49 cases 

over two full terms, and this is just over half of the nearly 90 Title 

VII complaints filed during the Clinton years. 

Second, the Division’s record reveals a retreat from its historic 

leadership in the fight against race and national origin discrimination as its Title VII docket, which is now significantly reduced, devotes an even smaller proportion of its resources to job discrimination experienced by African-Americans and Latinos. 

For example, the Division under this administration has brought 

significantly fewer pattern and practice cases, challenging systemic 

discrimination that has the capacity to affect large numbers of 

workers. But of this already shrinking docket, the number of cases 

challenging systemic discrimination experienced by African-Americans, Latinos, and women has plummeted to less than a third of 

what it was previously. 

Turning to its Title VII docket on behalf of individual victims, 

the Division has filed only 28 individual complaints of discrimination since January 20, 2001. At this pace, the Division will file approximately 35 such cases over two full terms. Again, this is just 

half of the nearly 70 individual claims filed during the previous administration. 

37 

And while the current administration has brought significantly 

fewer individual claims of all types, this is especially true of claims 

on behalf of African-Americans, religious minorities, and Latinos. 

And, in fact, during this administration, the Division has yet to file 

an individual Title VII claim on behalf of a Latino. 

Now, this downturn in Title VII enforcement activity is all the 

more troubling given the greater resources now available to the 

Employment Litigation Section. On average, 35 to 36 attorneys 

have been assigned to that section during the Bush Administration, 

compared to only 30 to 31 during the previous administration. 

One last note, Senator Cardin. You expressed concern about the 

Department’s position in the Ledbetter and Burlington Northern 

cases, and I share that concern, and here is why. In both of those 

cases, the Department did file amicus briefs in the Supreme Court, 

but in both of those cases the Department took pains to repudiate 

the EEOC’s longstanding interpretations of Title VII that actually 

interpreted the statute in a way that furthered its objectives of providing compensation to discrimination victims and deterring future 

discrimination. In both of those briefs, the Department of Justice 

argued that the EEOC’s position was not entitled to deference and 

instead argued for a considerably more cramped understanding of 

Title VII. In Burlington Northern, as you pointed out, eight Justices of the Supreme Court rejected the Department’s position. In 

Ledbetter, by a 5–4 decision, the majority shared the Department’s 

position over a spirited dissent by Justice Ginsburg, and Members 

of Congress have already introduced legislation to try to change the 

effects of that ruling. But the troubling thing to me is that in both 

cases, despite the fact that the agency got charged by Congress 

with lead enforcement over Title VII, the EEOC had a longstanding 

position that it had argued successfully in a range of lower courts 

that that position was abandoned by this Department. 

Taken together, these developments represented a disturbing retreat from the Department’s historic commitment to vigorous enforcement of Title VII. I appreciate your attention to these issues 

and the opportunity to testify today, and I look forward to any 

questions that you may have. 

[The prepared statement of Ms. Norton appears as a submission 

for the record.] 

Senator CARDIN. Thank you, Professor Norton. 

Mr. Clegg. 

STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL 

COUNSEL, CENTER FOR EQUAL OPPORTUNITY, FALLS 

CHURCH, VIRGINIA 

Mr. CLEGG. I have a real sense of deja-vu in listening to the testimony today. I was also a political deputy in the Civil Rights Division for 4 years, from 1987 to 1991, and what we are hearing are 

basically the same three kinds of criticism of the Division I used 

to hear. Some members of the Committee say the Division is not 

bringing enough of the kinds of cases they would like. Some members are saying that the Division is bringing too many of the cases 

that they don’t like. And some members are saying that in the hiring process, and in other ways that the political appointees deal 

with career lawyers, the Department has become politicized. 

38 

It is entirely appropriate, since Congress appropriates money for 

the Division and wants it to enforce the laws that it has passed, 

for it to keep an eye on what kind of a job the Division is doing, 

so long 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 Division in the way it is interpreting the law or don’t like the enforcement priorities that it 

has set, they can certainly argue with the Division leadership 

about it. But, of course, ultimately the call is the executive 

branch’s. 

There will be legitimate differences of opinion among members of 

the Committee, between members and the administration, and between political and career lawyers in the Division about how to interpret the civil rights laws. Judges don’t interpret laws the same 

way, and neither do Government lawyers. And, of course, outside 

groups like mine will sometimes be critical of the Division. I criticized the Division the Clinton administration, and I have criticized 

it during the Bush administration. Many of you think the Division 

has been too conservative. I think it has not been conservative 

enough. 

There will also be differences of opinion, again, among members 

of the Committee, and between members of the Committee and the 

administration, and between the political appointees 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 action discrimination had to do, I suspect, 

not only with a difference of opinion in how it read the law, but 

also with a belief—which I believe is misguided, but was their sincere belief—that fighting such discrimination is 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, for 

instance, a fire department’s alleged overemphasis on one kind of 

physical conditioning or another. 

In addition, even without differences in law enforcement philosophy, the Division’s priorities will change over time. Congress 

passes new laws. Lawbreaking will become more common in some 

areas and less common in others. 

As Mr. Kim explained, for instance, this 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 the people that are going to be affected by their requirements. There are a variety of other statutes 

that you all have only recently passed. 

Now, some of you all have criticized the Division for concentrating proportionately fewer resources than in years past on bringing cases that allege discrimination against African-Americans. But 

even accepting arguendo that there has been such a decline—and 

I think Mr. Kim would suggest that there has not—you have to 

bear in mind that the Division has a lot more laws now to enforce 

than it did 40 years ago; and, I will say, that discrimination 

against African-Americans is less pervasive now in 2007 than it 

was in 1967. 

39 

Just to give one example, we would hardly expect a southern city 

to discriminate to the same degree in its municipal hiring today— 

when African-Americans, because of the success of the Voting 

Rights Act, have more political power and may even constitute a 

majority of the city council and other municipal offices, including 

mayor—as when the city government was lily white and black people were not allowed to vote. 

Now, I am not saying that anti black discrimination has vanished; it hasn’t, and there will always be bigots, of all colors, in a 

free society. But anybody who thinks that anti black discrimination 

is the same problem in 2007 that it was in 1967 is delusional. 

I think I am going to stop with that. Again, I think it is important to bear in mind that there are legitimate differences in opinion 

between political appointees (who, in a Republican administration, 

tend to be conservative) and career lawyers in the Civil Rights Division (who naturally tend to be left of center). And there is nothing sinister or scandalous about those differences in enforcement 

philosophy. 

Thank you. 

[The prepared statement of Mr. Clegg appears as a submission 

for the record.] 

Senator CARDIN. Thank you, Mr. Clegg. 

Mr. Driscoll. 

STATEMENT OF ROBERT N. DRISCOLL, PARTNER, ALSTON & 

BIRD LLP, WASHINGTON, D.C. 

Mr. DRISCOLL. Thank you, Mr. Chairman and Senator Hatch, for 

inviting me to testify. My name is Bob Driscoll, and I, too, was a 

political deputy in the Civil Rights Division from 2001 to 2003, 

when John Ashcroft was the Attorney General during that time period. 

When I was preparing my testimony, I had to guess as to what 

questions were going to come up for Mr. Kim, and I guessed correctly, if you read my written submission, so I wanted to address 

three issues that I think are on the mind of the Committee. The 

first is the relationship between the career and the political appointees. 

The stories I have read and even heard today from the panel and 

the Committee seem to focus on allegations that Civil Rights Division employees were either overruled or interfered with by political 

appointees when the Division took a particular position in litigation or with the Section 5 preclearance under the Voting Rights 

Act. While I am familiar with my own experience in the Division— 

and I wasn’t at the Division for some of the events that have been 

questioned—I do think these stories and questions misperceive this 

relationship and how it should properly function. 

As with every Division of Justice, the career staff carries out the 

day-to-day operations of the Division, and they are certainly the 

most experienced people in the Division in certain areas, and they 

make recommendations to political appointees to open cases. And 

there is no question that the career staff is where the institutional 

knowledge typically resides in the Division. However, it is the Assistant Attorney General for Civil Rights and the leadership of the 

Department that are ultimately responsible for the actions of the 

40 

Division, and various AAGs who have appeared before this Committee over the years have been questioned extremely sharply by 

members of the Committee about the actions they have taken. And 

so it is a tremendous responsibility for those appointees to sit before the Committee and explain the Division’s position. 

Because of that responsibility, the AAG and his or her political 

staff must independently review all the recommendations that 

come before them. And as anyone knows who has done an independent review, sometimes there will be a disagreement, and there 

is nothing inherently wrong with this. I agree with Roger completely. 

Indeed, I think the Committee wouldn’t react well if Assistant 

Attorney General Kim came before you and testified that every decision he made that was controversial, he had simply rubberstamped the recommendation given to him by the career staff, who 

is very experienced, and that he had nothing to say about it and 

that, therefore, he wasn’t responsible. And I think the Committee 

would be appropriately angry with Assistant Attorney General Kim 

if he took that position. 

Similarly, when the Division makes a mistake—and I will recall 

now the case in Torrance, California, that received a lot of attention from this Committee in the past administration when the Division was sanctioned almost $2 million for overreaching in an employment discrimination case against State jurisdiction—it would 

be no excuse for the AAG to say, ‘‘I was merely following the recommendations of the career staff.’’ The AAG has to convince himor herself that the facts and the law are on their side. So that, 

therefore, it seems to me the important question that the Committee should be focusing on in a given area is not whether any 

particular decision was made with the political and career staff in 

agreement, but whether that decision was in the end correct. And 

from what I have seen, the courts have largely agreed with the positions taken by AAG Kim and his predecessors. And members of 

the Committee might disagree with those decision. They might 

agree with the court decisions. But there is little indication that 

the Division has been sailing beyond the markers in terms of legal 

theories it has been pursuing or positions that it has been taking 

in court. And that to me is a much more important question than 

whether or not there has been disagreements between the political 

staff and the career staff. 

I would also like to address briefly setting of priorities and, in 

particular, the criticism I have read in the New York Times of the 

Division’s emphasis on human-trafficking and religious discrimination cases as a shift away from traditional civil rights enforcement. 

I think these criticisms are generally unfounded and take an unnecessarily cramped view of what the Civil Rights Division should 

be doing. 

As an initial matter, as Senator Hatch noted, new statutes get 

passed all the time, and these statutes provided new weapons to 

combat both religious discrimination and human trafficking. So it 

is natural that enforcement in those areas went up when the Bush 

administration came into power. More importantly, both President 

Bush and General Ashcroft, under whom I worked, made clear that 

combating religious discrimination was a priorities, and that is perVerDate Nov 24 2008 12:47 Mar 24, 2009 Jkt 047759 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47759.TXT SJUD1 PsN: CMORC
41 

fectly appropriate for them to do. Some may disagree with it, but 

it was perfectly appropriate for the political leadership to direct the 

Division to emphasize those cases. 

So when I served in the Division, we made it a priority. We created the position of Special Counsel for Religious Discrimination. 

Eric Treene was hired. He has done a great job in that role. And 

the success rate of these cases is very high because, unfortunately, 

there is no shortage of governmental entities out there that don’t 

understand the proper role religion can play in the public square. 

And I think most Americans are pleased to see this enforcement, 

and there is nothing wrong with the emphasis on these cases. 

As to the question of whether this de-emphasizes traditional civil 

rights areas, I think this is unlikely for several reasons. 

First, those cases are not prosecuted out of the Voting or Employment Section generally, and so if the Committee has questions 

about that, they can ask them, but it wouldn’t be a diversion of resources. And, second, I think the notion that traditional discrimination suffers if non-traditional, to call it that, discrimination is enforced would cause us to cut back on disability cases, language-minority cases, police misconduct cases, clinic access cases, prison 

cases, juvenile facility cases, gender discrimination cases, and religious discrimination cases—I do not think anyone wants that. So 

I would like to just counter this notion that by enforcing religious 

discrimination cases vigorously there is necessarily a cutback in 

other areas. 

Thank you very much. 

[The prepared statement of Mr. Driscoll appears as a submission 

for the record.] 

Senator CARDIN. Mr. Driscoll, thank you for your testimony, and 

I thank all of our witnesses. 

Mr. Henderson, let me start, if I might, with your observations. 

You have an incredible record over an extended period of time 

working in the civil rights community and leadership in that area. 

You have had a chance to observe what is called ‘‘changing priorities after national elections,’’ particularly when it is an administration of a different party. So we have seen over the 50-year history of the Department of Justice Civil Rights Division many 

changes of administrations and priorities within an administration. 

I want to get your assessment, because we have heard a lot of 

accusations that have been made, about the effectiveness of this 

administration’s Civil Rights Division as far as pursuing aggressively the rights, the important rights of minorities. I just want to 

get your assessment to whether this is just changes of priorities in 

different types of cases or whether we are looking at a different 

commitment to enforcing civil rights. 

Mr. HENDERSON. Thank you, Mr. Chairman. I think it is an important question, and let me respond this way: Discrimination in 

violation of the law is abhorrent in any form. It is inconsistent with 

our notions of a fair and just society. It is inconsistent with what 

I think we all accept to be the meaning of ‘‘equal opportunity’’ in 

the 21st century. 

The issue is not whether the Civil Rights Division is enforcing 

statutes that protect religious liberty or seek to protect the rights 

42 

of institutionalized persons or address the problems of victims of 

sexual trafficking. 

Certainly each of these areas of the law or problems of decision 

require attention, and would not criticize the Department or Division for spending resources to address some of those issues. The 

question, however, is whether the Division is backing away from or 

perhaps even abandoning its primary responsibility to address 

problems that have proven to be among the most difficult and intractable in resolving in our society. Certainly issues of race, problems of national origin discrimination, certainly have been among 

the most difficult. 

What we have seen within the Department is radically different 

today than we have seen over the past 50 years. Now, admittedly, 

we have had differences with administrations, both Democratic and 

Republican, in the handling of selected individual cases with which 

we might disagree. But as a general matter, there has been no criticism wholesale of either Democratic or Republican administrations 

of the Department of Justice’s Civil Rights Division in the life span 

of this Division for the past 50 years, with the recent exception of 

some of the actions that have been taken and that are the subject 

of discussion today. 

The example that I would use, which I think graphically demonstrates the difference in character between the kinds of experiences we have seen under this administration currently with what 

we have seen in the past, is the case that Senator Kennedy and 

others highlighted during the previous round. Let’s take the Georgia voter ID statute. 

Here we have a situation where career line attorneys, in evaluating the impact of a proposed statute requiring voter ID of prospective voters, challenged that statute under the assumption that 

it would harm persons protected under the Constitution who 

should be given the right to vote. 

That career judgment was overturned, in large measure driven 

by one individual—Hans von Spakovsky, who happened to be counsel to the Assistant AG for Civil Rights—and perhaps others who 

are political appointees within the Division urging the Department 

to override the voices of its career attorneys and to side with the 

State in adopting a statute which many believed would be harmful. 

Fortunately, the courts challenged that statute and sided with 

those who criticized the implementation of the statute in the final 

analysis. 

That example, it seems to me, is a graphic illustration of the nature of the politicization of the Department and the kind of thinking that we are challenging today. So the question is not whether 

the Division chooses to enforce statutes that fall within its purview 

or under its jurisdiction. The question is whether the administration and the Division is using that approach, that is to say, its desire to enforce statutes more broadly, as a subterfuge for shifting 

policy away from the enforcement of statutes that affect issues of 

race, issues of national origin discrimination, among the most difficult and intractable problems in modern society. 

Senator CARDIN. Well, I thank you for that answer. I think the 

Georgia case is very illustrative. It is to me a kind of—I don’t understand how the—it is clear to me it was political ill judgment by 

43 

individuals outside of the mainstream of the historic role that the 

Department of Justice Civil Rights Division has played because of 

the consistency of dealing with voter participation. So I think it is 

an example that is extremely troublesome, and Mr. Kim answered 

a lot of questions but didn’t quite answer that one as to—because 

that happened under his watch, even though he said it didn’t, because of the modification in 2006. 

I am going to have additional questions, but let me yield to Senator Hatch. 

Senator HATCH. Well, thank you, Mr. Chairman. This has been 

a really interesting hearing to me, as all of these civil rights hearings are. I mean, there are just different points of view, and they 

are important, by everybody. 

Mr. Henderson, let me just mention one thing to you, and then 

I would like to turn to Mr. Clegg and Mr. Driscoll. You stated in 

your submitted testimony that between 2001 and 2006, ‘‘the only 

racial discrimination case brought by the Division under Section 2 

of the Voting Rights Act was on behalf of white voters in Noxubee, 

Mississippi.’’ Yet the Voting Section reports ten actions brought, at 

least in part, under Section 2 between 2001 and 2006. Now, only 

one of them was on behalf of white voters. Two were brought on 

behalf of African-American voters. That was in U.S. v. City of Euclid and U.S. v. Crockett County. Two were brought on behalf of, 

like I say, African-American voters. Seven more of them were 

brought on behalf of Hispanic Americans, including one that was 

also on behalf of Asian Americans. I will not list all those cases. 

The statistics you cite starkly under count the actions brought by 

the Voting Rights Section, it seems to me, unless there may be 

some explanation I do not understand at this point. 

Mr. HENDERSON. Thank you, Senator Hatch. Let me respond in 

the following way: I think Mr. Kim, before he left, at the conclusion 

of his statement was asked a question about how many cases had 

been filed under his tenure in this area. I think he cited perhaps 

between 5 and 15. Our review of the record of the Department of 

Justice, provided in large measure by its own materials, would suggest that only one case had been filed by— 

Senator HATCH. You can see I have listed 10 here that they list. 

Mr. HENDERSON. Right. Well, many of them are, in fact, holdover 

cases themselves that had been filed, but let me give you an example of what I am talking about. 

When one thinks back on the 2004 Federal election, the State of 

Ohio often comes to mind as a graphic example of some of the problems on the ground in addressing issues of deceptive practices in 

which individuals, for example, issued fliers to communities, most 

often African-American communities, suggesting that the election 

day was some day other than the day it actually occurred, or instances in which eligible voters who happened to be Latino or 

themselves naturalized citizens were frightened with fliers that 

suggested that the Immigration and Customs Enforcement Agency 

might be lurking at the time of enforcement. 

There were many examples of extended lines that required voters 

to wait hours, sometimes in the rain, before they could cast their 

ballots, and those lines, in fact, were created by discretionary decisions, but we had to allocate resources. 

44 

There were numerous instances of irregularities that I think 

shocked the conscience of most average Americans in thinking 

about how our system of democracy works and benefits the country 

as a whole. And yet to know that there have not been adequate investigations and/or charges brought either as a result of what occurred in Ohio or in some of the other jurisdictions where such documentation has occurred, it does seem to me is quite troubling. 

While I think there may be some dispute as between ourselves 

and the Department on how they interpret cases to be filed, I think 

there can be no dispute that the Department failed to adequately 

address problems that were within their purview and available to 

be addressed by existing statutory authority. And so my sense is 

it misses the larger point, Senator Hatch. If we dwell on whether 

or not there have been one or two cases filed here or there, the 

question is whether in the broad sweep of the Department’s responsibility, it is quite clear that the Department has stepped back 

from its ongoing responsibility to enforce the laws as they apply to 

all Americans. 

Senator HATCH. Well, the reason I bring it up is because the Voting Section home page lists 12 cases. A couple of them were filed 

during the Clinton years, and there may have been others that 

were filed, but if you go by the years, they were filed during the 

Clinton years. All I can say is that, you know, there appear to be 

some differences here in the count. 

Let me ask Mr. Clegg and Mr. Driscoll, I found Professor Norton’s comments, her statistical comments, quite interesting and intriguing. Would either of you care to comment on Professor Norton’s statistical standard that numbers should necessarily stay the 

same between administrations? 

Mr. CLEGG. Well, I will, again, make the general statement that 

I made before. I think that Mr. Driscoll actually talks about the 

specific problems that can come up with this kind of bean-counting 

in his testimony, so I am going to defer to him. But I would say 

that, as a general matter, we would not expect the number of cases 

to be the same in every area of the law over time. Again— 

Senator HATCH. The exact same type of statutes. 

Mr. CLEGG. Right, because you all are constantly passing more 

statutes. The Division has limited resources. If it is devoting more 

resources to one area, then proportionately it is going to be devoting less to other areas, and there is nothing sinister about that. 

You started out in the 1960s, and people who were disabled were 

not protected from discrimination. People— 

Senator HATCH. Well, let me ask you, there is a huge regular 

branch of civil servants who are there regardless of which administration. Can you imagine a case where, if they felt strongly a case 

should be brought as a group, that it would not be brought or it 

would not be given heavy consideration? 

Mr. CLEGG. No, I can’t, and that is a very good point, Senator 

Hatch. What is it that is being— 

Senator HATCH. And they weigh in. They weigh in on these, don’t 

they? 

Mr. CLEGG. Of course. 

Senator HATCH. I mean, they don’t just sit there like puppets. 

45 

Mr. CLEGG. And, you know, what would be the reason that any 

administration would say that we are not going to bring discrimination cases when there has been discrimination against AfricanAmericans? What possible motive could they have for that? I mean, 

even putting aside the fact that it would be immoral and wrong for 

them to do so, it would be politically crazy to do that. I can tell you 

that from when I was in the Civil Rights Division, and I think it 

was clear that this administration wants to—I mean, Republican 

administrations—of all administrations—bend over backwards to 

make clear that—they are committed to enforcing the civil rights 

laws and making clear that, they are not racist, that they are not 

bigoted, that they are ensuring that everybody is protected from 

discrimination. What would be the purpose for them to—is there 

some constituency that people think— 

Senator HATCH. Well, they would get killed if they did not bring 

cases that clearly should be brought. 

Mr. CLEGG. It is absurd. I think what— 

Senator HATCH. What some of these articles are saying, you don’t 

know whether they are right or wrong. I do not know if they are 

right or wrong. All I can say is I thought Mr. Kim explained himself quite well in his testimony. 

You know, let’s be honest about it. There are axes to grind on 

both sides, sometimes, in these areas of the law. 

Mr. CLEGG. Absolutely. 

Senator HATCH. Political axes to grind, and especially in the 

media, which does not necessary make the media right and the 

Civil Rights Division wrong. 

Mr. CLEGG. Well, and the picture that is being painted of these 

white-lab-coat, professional career lawyers who have no political 

axe to grind at all, on the one hand, and the political appointees 

being these crazed political operatives who are nothing but political 

hacks and who care about nothing but winning elections, on the 

other hand, is ridiculous. 

Senator HATCH. I think it is, too. 

Mr. CLEGG. The career people have their political agendas. They 

are often as extreme ideologically, more extreme ideologically, than 

the political people. And the political people, in my experience, in 

the main are better lawyers—maybe just because they tend to be 

more senior, but they are better lawyers—than the career lawyers 

are. 

Senator HATCH. Well, you served in the Justice Department, including the Civil Rights Division, under both President Reagan and 

Bush I. 

Mr. CLEGG. That is correct. 

Senator HATCH. I served here on the Judiciary Committee during 

that entire time, and I remember that some of the same accusations and charges were made against the Civil Rights Division at 

those times that we are hearing today. 

Now, in your testimony, you just got through drawing a useful 

distinction between political appointees and career staff at the Justice Department. Now, listening to the critics, many people might 

assume that if there is a dispute or disagreement between them, 

that is between the career people and the political appointees, the 

career staff, they are always supposed to win. 

46 

Mr. CLEGG. Right. 

Senator HATCH. Now, of course, that is not the case at all, is it? 

In his testimony here today, Mr. Henderson says that while 

changes in priorities within the Civil Rights Division come with 

changes in the administration, today these changes are literally 

challenging what he calls the ‘‘core functions of the Division.’’ Do 

you agree with that? 

Mr. CLEGG. No, I don’t. 

Senator HATCH. Or disagree with it. 

Mr. CLEGG. I disagree with that. I think that these are legitimate 

differences in legal philosophy and in enforcement philosophy. And, 

again, I don’t think that can assume that just because there is a 

dispute, that therefore it is the career people—or, excuse me, that 

it is the political people who are acting in an unprofessional way. 

Senator Kennedy, you know, professed to be astounded that there 

coincidentally was this front-page story in the Washington Post 

today on the very same day as these hearings were going to be. I 

don’t think that was a coincidence. I think that it is very unprofessional for career people to leak information to the media for 

their own ends. But I think that that happens, and I think that 

it happened when I was in the Division, and it is happening now 

as well. 

Senator HATCH. Well, I would also like a response to Mr. Henderson’s claim that the Civil Rights Division’s record on every 

score, that is, in every way, on every issue, in every area, is undermining effective enforcement of our Nation’s civil rights laws. Do 

you agree with that? That is a dramatic charge. Do you agree or 

disagree with that? 

Mr. CLEGG. No, I don’t. I— 

Senator HATCH. You don’t agree or you disagree? 

Mr. CLEGG. I do not agree with the charge that the civil rights 

laws are being dramatically undermined by this administration. 

Senator HATCH. OK. Well, you know, one of the things that I am 

concerned about is—I mentioned in my questions—and I asked him 

specifically because I wanted to see just what Mr. Kim would say 

about all these new areas of the law that we have enacted up here 

that are in addition to what they were back when you were there, 

Professor Landsberg, or at least statutorily different, because they 

weren’t enacted then. 

Mr. CLEGG. There are also demographic changes that take place, 

Senator Hatch. For instance, the fact that there are so many more 

immigrants now, so many more people who do not speak English 

well, means that more time has to be spent enforcing Section 203 

of the Voting Rights Act. 

Now, personally I don’t like Section 203 of the Voting Rights Act. 

I think it is unconstitutional. I think it is bad policy. But you all 

have passed it, in your wisdom, and the Justice Department has 

to enforce it. And if the Division— 

Senator HATCH. You enforced it when you were there? 

Mr. CLEGG. We did. And when the Division because of these demographic changes is required to spend more, to devote more of its 

resources to enforcing those kinds of laws, it necessarily means 

that it is going to have fewer resources to devote to enforcing other 

kinds of laws. 

47 

Senator HATCH. Do you mind if I ask one more? 

Senator CARDIN. Please continue. 

Senator HATCH. I will be glad to yield back. 

Senator CARDIN. Go ahead. 

Senator HATCH. OK. I really appreciate the way Senator Cardin 

has allowed me to ask whatever I want to ask, and, of course, I 

would do the same for him if I were in his shoes. You have really 

been very decent and fair, as I think you always are. 

Mr. CLEGG. If I could just make one other point. 

Senator CARDIN. Please don’t let the Chairman know that. 

Senator HATCH. He said, ‘‘Don’t let the Chairman know that.’’ 

[Laughter.] 

Senator HATCH. No, no. I expect Senator Leahy to be fair, too, 

yes. 

Mr. CLEGG. Mr. Henderson gave as an example of how this administration has turned its back on its historic role as enforcing 

the civil rights laws the briefs it filed in the Seattle and Louisville 

cases, which are currently pending before the Supreme Court. And 

Mr. Henderson said that in those cases the Division or the administration opposed voluntary desegregation efforts. I think that that 

is a very unfair way and misleading way to characterize the briefs 

that were filed by the administration in those cases. 

What the school boards in those cases were doing was assigning 

children to schools on the basis of race. I thought that it was the 

principle of Brown that you couldn’t do that. I thought that Brown 

made clear that you were not supposed to assign school children to 

schools on the basis of race. 

Now, you can call what Seattle and Louisville were doing ‘‘voluntary,’’ and I suppose it was voluntary in a sense that no court 

was forcing the school districts to do so. But, of course, if that is 

the way you are using the term ‘‘voluntary,’’ the segregation under 

Jim Crow was voluntary, too. The school children were not asking, 

were not volunteering, to be discriminated against in the Jim Crow 

era, and they weren’t volunteering to be discriminated against in 

Seattle or Louisville either. 

These were not cases about desegregation. These were cases 

about racial balancing, politically correct racial balancing, and telling children that they could go to this school and they couldn’t go 

to that school because of their skin color. 

Now, reasonable people can differ about whether that is a good 

policy or a bad policy. I think it is pretty clearly a bad policy. But 

to say that it is somehow beyond the pale for the administration 

to file a brief saying that that kind of discrimination is wrong is, 

I think, at best a gross exaggeration. 

Senator HATCH. Well, thank you. 

Mr. Driscoll, in your testimony you commented on the issue I 

raised earlier at Assistant Attorney General Kim, that is, the priority in the present Civil Rights Division to fight religious discrimination. Now, you served in the Civil Rights Division as this was 

developing, and I would like you to comment on its importance and 

how it fits into the overall mission of the Civil Rights Division. And 

do you agree with the New York Times last week that protecting 

Americans from religious discrimination is a distraction from what 

the Civil Rights Division is supposed to be doing? 

48 

Mr. DRISCOLL. Thank you for the question. I love to talk about 

the Department’s initiatives in this regard when I was there because it is something I was proud to be associated with. And I 

think protecting religious liberties fits in very well with the historic 

role of the Division, and I think it is at a different point on the 

curve, so to speak, than some of the other types of discrimination 

the Division combats. What I mean by that is when the Division 

started attacking racial discrimination 50 years ago, racial discrimination was very overt, you know, by law in many jurisdictions, and people made decisions not to hire African-Americans or 

not to let children go to school together explicitly on that basis. 

And over time, discrimination became more subtle and it becomes 

harder to smoke out, and you end up in the very complicated place 

we are today where most race discrimination cases brought by the 

Department, or the major ones that are talked about today, are 

about whether or not a test has a particular disparate impact on 

a group or that cognitive testing is fair to not fair to a particular 

group. 

The religion cases are back where the race cases were in 1957. 

You have many jurisdictions that say anyone can rent this hall 

after school is out, anyone can rent the school hall, except if you 

are religious. And that is what the rule says on its face. No one 

is hiding anything. No one says there really is no other reason we 

are doing this. They will tell you straight to your face: No, you 

can’t use this hall. You want to hold a Christian service in here. 

And to me, that is exciting. To prosecute those cases, I felt like 

some of the long-time members of the Division must have felt in 

the 1960s and 1970s on some of the race cases, that you had, you 

know, people explicitly saying, no, you can’t wear that particular 

type of headgear to your job because we don’t like it and we think 

it is inconsistent with how we want you to look. And to be able to 

confront discrimination that is that egregious was, in my mind, 

something to be proud of and to watch Eric Treene, who has been 

hired by the Department into a career position, manage that operation has made me extremely proud. 

I had the privilege of getting to argue one of those cases in Louisiana, and it was simply stunning to see the position of the school 

board in question. 

So to me, I think the religious discrimination efforts of the Department are to be commended. I think that Congress saw a need, 

acted unanimously, if I recall correctly, on RLUIPA to correct it. 

And so I think that the zoning cases the Department has brought 

are fantastic and needed. There were many places in the country 

where a non-majority religion would try to build a temple or a 

house of worship, and the locals would use the zoning ordinances 

to say, Oh, boy, that temple is going to be too high, that steeple 

might be too high. It is not really that there are Mormons moving 

to town that scares us. It is that we do not want 36-foot church 

steeples. And now with that statute the Department has the ability 

to remedy that injustice. 

And so to me it is exciting, it is needed, and it is something the 

Department is justly proud of, and I was proud to be a part of. 

And if I could address, Senator Hatch, one of your questions to 

Mr. Clegg, I think another reason cases fluctuate between adminisVerDate Nov 24 2008 12:47 Mar 24, 2009 Jkt 047759 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47759.TXT SJUD1 PsN: CMORC
49 

trations—a legitimate reason they can—has to do with the standards different administrations apply in bringing a case. One of the 

things Assistant Attorney General Boyd and I did before we came 

to the Department in 2001 was we read transcripts of oversight 

hearings from this Committee and the House Judiciary Committee 

and the Civil Rights Division conduct during the Clinton administration. And I felt bad for my predecessors in that they got raked 

over the coals pretty good by some of you for cases in which it was 

alleged the Department filed cases without sufficient basis or tried 

to get a remedy from a jurisdiction without a sufficient factual 

basis or legal basis. And so we had a pretty high standard to say, 

if we are going to go to court, we are going to win; and if we are 

going to settle a case, we are not going to settle it for what we 

wouldn’t have won in court. And there had been a history, when 

we arrived at the Division, of, I think, $4 to $5 million in sanctions, 

litigation sanctions against the Division for positions taken in court 

for overreaching. And so while it is great to be aggressive and everyone wants to aggressively enforce the Nation’s civil rights laws, 

if being aggressive means paying out $2 million to your opponent 

because you filed a case without legal merit, then maybe being aggressive isn’t a good thing. 

And so we tried very hard to make sure that if we filed a case, 

we were going to win; and that if we settled the case, we recovered 

only what we could have gotten if we had won in court. 

Senator HATCH. Well, I appreciate your comments. 

Mr. Chairman, you know, under the Clinton administration, the 

Division was sanctioned over 1.7 million bucks for overreaching on 

an employment case. Now, you know, I wonder if that case would 

be reported favorably or unfavorably. 

Let me just finish with this, because it is a matter of great concern to me. I was in law school when John F. Kennedy ran for 

President, and I saw the prejudice—and at the University of Pittsburgh. Pittsburgh was 60 percent Catholic. And I saw— 

Senator CARDIN. That is my alma mater, also. 

Senator HATCH. Pardon? 

Senator CARDIN. University of Pittsburgh is where I went to 

school. 

Senator HATCH. Sure, and we are both— 

Senator CARDIN. I am not Catholic, though. 

[Laughter.] 

Senator HATCH. We are both great people, I have to say. 

Senator HATCH. You are catholic if you use the broad meaning 

of the term. 

But let me just say this: that there was a lot of prejudice at that 

time, and I think we broke through that. Then I look at—now, I 

do not mean to dwell on it except that it comes personally home 

to me as well. I don’t like discrimination. You know that, Wade, 

Mr. Henderson. I have done an awful lot to try and support you 

over the years, and I am going to continue to do so. I was the prime 

sponsor of the Civil Rights for Institutionalized Persons. I am one 

of the prime sponsors of the Emmett Till case, and you can go right 

on down the line. We have not always agreed, but I think we both 

come from a tradition of wanting to do what is right in these areas. 

50 

But I look at Mitt Romney running now, and all of these papers 

that are criticizing this administration are running scurrilous comments about his personal religious beliefs, even though all of them 

admit he lives a very morally upright life, has a wonderful family, 

has been an exceptionally great business person, made the Winter 

Olympics the greatest Winter Olympics in the history of the business, and yet you cannot read an article without some coming close 

to libel about his personal religious beliefs. And I think most people 

who know of his religious beliefs will have to admit they are pretty 

good people, the vast majority of them who live their religion, just 

like others are good people, just like our Catholic friends, our Baptist—you name them. And yet we have that going on in our society, 

and it is pure and total bigotry. 

So I could empathize with any one of you who feels deeply about 

these issues, and I want to help you. On the other hand, there are 

differences in statistics. There are differences in cases. There are 

differences in administrations. But the major staff stays there regardless, and they are not pushovers. And I have lived through 

those, and I have to say thank goodness they are not. But the point 

is that nobody can walk into the Civil Rights Division and just 

make it whatever they want it to be. You can have different points 

of view. You can have different approaches, legitimately, which I 

think they are in this case. 

I haven’t given you a very good chance to respond to some of 

these things, and I will certainly do that. But I just want you to 

know that we take this seriously, but I get a little tired of the really rotten media coverage in some of these areas. It is good to point 

out defects. It is good to point out things that aren’t quite right. 

But to slant them all in one way it just seems to me is just plain 

wrong. Unfortunately, I find that in a lot of these instances they 

have slanted them in the wrong way because they believe one way 

and others believe the other. 

Now, I only cite the Mormon instance because I have just seen 

it in everything ever since Mitt Romney—and I ran for President 

in 1999 for a short period. I wanted to get across some ideas, didn’t 

really think I had much of a chance, and that proved to be true. 

But I was sick and tired of some of the prejudices that were out 

there, and I was going to do what I can about it and have ever 

since. 

But all I can say is that each of you I honor because you have 

taken time to come and be with us. Each of you has your respective 

points of view, but let’s understand that I just do not believe that 

these political appointees are bad people, and I just do not believe 

that they can overwhelm the thousands of workers at the Justice 

Department who may or may not agree with them. 

Yes, Wade, if you would like to— 

Senator CARDIN. I am going to allow Mr. Henderson a brief reply 

now. Senator Hatch has very deep views on this, and we have been 

very understanding on the time. We are now up to about 26 or 27 

minutes on the 5-minute round, and that is quite all right because 

I think you have made an important point, and I think in this 

hearing we can afford the latitude of a little bit of discretion considering the time that we had available. 

51 

So I will let Mr. Henderson respond, and then the Chair will 

have some questions. 

Mr. HENDERSON. Thank you, Mr. Chairman. I appreciate it. And, 

Senator Hatch, thank you for the courtesy of providing a response. 

Let me say at the outset that I think we are in complete agreement about the treatment of Governor Romney and the question of 

his religion in the public debate about his qualifications for the 

Presidency. I think we should set that aside. I think that should 

not be the subject of conjecture in the way that you have characterized it here, and we would agree. 

In addition to my work at the Leadership Conference, Senator, 

I serve as the Joseph Rauh Professor of Public Interest Law at the 

University of the District of Columbia. I mention it because I know 

that you knew Joseph Rauh, who was an extraordinary lawyer and 

advocate on behalf of civil and human rights, the long-time pro 

bono counsel to the Leadership Conference on Civil Rights. 

I also know that your personal record as well as that of Chairman Cardin is beyond question with regard to your commitment to 

civil and human rights. 

Senator HATCH. Thank you. 

Mr. HENDERSON. And I think the record that you both bring to 

the table makes a larger point, which is to say that the protection 

of civil rights is not a partisan issue, it is a national issue. 

Now, I am reminded that on this, the 50th anniversary of the 

Little Rock nine school case, the effort to integrate the high schools 

in Little Rock, the response of President Eisenhower and the response of Congress in passing the Civil Rights Act of 1957, which, 

of course, established the Civil Rights Division, was born out of a 

recognition that more was needed to protect the constitutional 

rights of all Americans. The history of the Civil Rights Division 

under Republican leadership and under Democratic leadership in 

pursuing a goal of integrating schools in the Old South made a tremendous impact in helping to transform America and having it become the ‘‘more perfect union’’ it is today. It is, of course, not perfect but it is a more perfect union than it was 50 years ago. 

Senator HATCH. I agree. 

Mr. HENDERSON. The truth is it gave me great distress to see the 

Justice Department move from the courageous positions it took 

under Eisenhower’s Attorney General, Herbert Brownell, in helping 

to integrate schools into an amicus brief filed in the Louisville and 

Seattle desegregation cases that sought to limit what may well be 

the only last best effort to ensure integrated public education on a 

voluntary basis in school systems struggling to overcome the difficulty and inequality that is inherent in America’s education system. 

We know that the struggle for civil and human rights has not at 

the end of the day been entirely as successful as many of us, yourself included, would have liked. The truth is our school systems 

today are as unequal, providing as limited an opportunity in many 

respects as they did many years ago, and it is only because of Federal efforts of the kind that we are talking about here, plus the involvement of local parents and, obviously, school boards in trying 

to change the system which we have today. 

52 

I do not take a back seat to anyone in respect for the protection 

of civil rights, and I certainly recognize that the Department does 

have statutory responsibilities that have been broadened over the 

past 50 years. But to suggest that changes in administration result 

in the kinds of fall-off in the enforcement of existing civil rights 

laws that make such a difference in the lives of ordinary Americans 

is, in my judgment, to damn the political process beyond what it 

deserves. What we are looking at here is a manipulation of discretion and statutory responsibility in a way that represents a substantial step back from what most Americans believe is the responsibility of our Government to all of its citizens. And to those who 

are on the wrong side, if you will, of the rights question—that is 

to say, to those who are struggling to make the meaning of American citizenship reach, you know, the fulfillment of what the Constitution promises to all, to not have the Justice Department on our 

side as we struggle for these issues, in my judgment, is inconsistent with the efforts of the great men and women, both Republican and Democrat, who helped to bring this Division into existence. 

So I think it is certainly a perfect opportunity on this, the 50th 

anniversary of the Division and its foundation, that Congress examine the core questions of whether the Division is living up to the 

charge that Congress gave it when it was created 50 years ago. 

And I think the testimony that we have submitted today is fully 

consistent with the view of sponsors of the Civil Rights Division 

that went beyond the kind of political considerations which we are 

talking about this afternoon. 

Senator CARDIN. I thank the panel for their patience. There are 

a couple questions that I do want to ask, though, to try to make 

sure the record is complete. 

Mr. Clegg, I found very disappointing your explanation of the 

Washington Post article, sort of glossing over the content, and 

maybe suggesting that it is the political appointees who protect the 

nonpartisan operations of the Department of Justice and it is the 

career attorneys that you have to watch out are the partisan activists. I think that is an affront to the employees at the Department 

of Justice, the career employees who have, I think, withstood an 

awful lot in carrying out their work. So let me turn to one of those 

career employees in the Department of Justice, Professor 

Landsberg, if I might. He is not wearing a white jacket, but I do 

believe he raised—you raised a point that to me applies to both career line attorneys at the Department of Justice Civil Rights Division as well as the political appointees, and that is, they have to 

say no to political pressure. 

We are holding a series of hearings in the Judiciary Committee 

on the problems of the hiring and firing of U.S. Attorneys and the 

political influence that has been used in the firing of U.S. Attorneys. I must tell you, I am concerned as to whether similar practices are taking place within the Civil Rights Division as far as trying to hire individuals that have certain leanings rather than looking for career people. 

So I just really want to get your take on the importance of not 

just the career attorneys, but the political appointees standing up 

53 

to political pressure in order to carry out what is important tradition of the Civil Rights Division. 

Mr. LANDSBERG. I think the public expects and deserves fair enforcement of the law. If the public believes that enforcement of the 

law is dictated by political pressures, they are not going to have 

confidence in the law; they are not going to have confidence in the 

Department of Justice. A lawyer depends upon his or her reputation, his credibility, and I think that whenever the Department engages in the kinds of activities that you have described, that then 

the credibility of the Department suffers. 

We have seen examples of that over time, and I think a lot of 

these examples are due to the failure of the two groups to talk to 

one another on some occasions. A very good example was at the beginning of the Reagan administration, the filing of a brief in the 

Bob Jones case, which was basically saying that it was all right for 

tax-exempt educational institutions to discriminate based on race. 

I think if the political appointees had listened, engaged in dialog 

with the career people, they could have avoided a very bad mistake. 

I think, on the other hand, that in my career I have seen a number of instances of great courage being demonstrated. I mentioned 

a couple of those in my written testimony. At the beginning of the 

Reagan administration also, I was in Solicitor General Lee’s office 

when we were arguing about the position in a case, and the Education Department wanted to reverse the position of the prior administration in a case. And they weren’t getting anywhere with the 

Solicitor General. Finally, one of the Education Department lawyers said, ‘‘But we won the election.’’ And Solicitor General said, 

‘‘Well, that has nothing to do with what position we ought to take 

in this case. The question is the law.’’ And I think that that is what 

we want to see from our law enforcement officials. 

Senator CARDIN. The reports in the Washington Post would tell 

us to the contrary. The action taken against Angela Miller and 

Sarah Harrington and other—allegedly. I mean, we will wait to see 

what the facts show, but what these reports are indicating is that 

there were political considerations on taking cases away from 

them, encouraging them to basically leave because they voted for 

the wrong person in the last election. 

That is certainly troublesome to me, and we started the hearing 

a little over 3 hours ago, and Mr. Kim has denied any of this, and 

I feel a little bit better knowing he is going to take some action to 

make it clear to his Department that that will not be tolerated. I 

will wait to see the exact language of what he issues. But I must 

tell you, these articles just do not come out of thin air. 

Mr. LANDSBERG. Mr. Chairman, I have to tell you that in my 20- 

some-odd years at the Division, I made lots of recommendations to 

lots of Assistant Attorneys General that they rejected. I wasn’t 

happy they rejected them. But never did I lose a job because I disagreed with an Assistant Attorney General. I had many very vehement discussions with Assistant Attorney General William Bradford Reynolds, who was the last one I worked for. We disagreed 

quite a bit. Never was there a suggestion that I would lose my job, 

that I would be removed as the head of the Appellate Section because I disagreed with him. 

54 

So I think that there is a difference. I think that it is a healthy 

thing. I agree the political appointee should not just rubber stamp 

what the career people have to say. Obviously they have their own 

responsibility. But they do have a—there is a process that I think 

is essential to follow, and the process includes respectful consideration of what the career people have to say. If you disagree with 

what they have to say, then let’s have a discussion of it. Let’s hash 

it out. Let’s see if we can reach some agreement. If we can’t reach 

some agreement at the end of the day, obviously the boss has the 

final word. But the final word is not, ‘‘I am going to fire you because I disagreed with you.’’ 

Senator CARDIN. I think that is what troubles a lot of us about 

what is happening in this administration. We understand that the 

administration has the right to have its priorities pursued, and we 

understand there are different priorities, even within the Office of 

Civil Rights, and that is the prerogative of the administration. It 

is also the prerogative of the administration to make the final judgments. But the political interference here appears to have gone beyond what has been the historical record of the Civil Rights Division, but also what is permitted by law. 

Mr. Clegg, I just want to make sure I get on the record, and Mr. 

Driscoll, whether you believe that the two provisions that are—one 

a regulation of the Department of Justice making it wrong to discriminate on political affiliation, and the other civil rights rules 

that it would be a prohibited practice to discriminate based upon 

political affiliation. Do you agree with those provisions that are in 

regulation and law? 

Mr. CLEGG. Yes, I do, and, of course, it is sort of beside the point 

whether I agree with them are not. They are the law, and they 

have to be followed. 

Senator CARDIN. Well, I know, but we could change them. We 

have the ability to change the civil service laws. It is in the United 

States Code. We could change it. 

Mr. CLEGG. I think that that is fine. You know, my only caveat, 

as I said in my written testimony, is that I think it is appropriate 

in deciding who gets hired to try to hire the person who is the best 

person for the job. And that can include the fact that that person 

shares a commitment to the enforcement agenda that the administration has. The example that I gave— 

Senator CARDIN. So would it be appropriate to suggest that the 

appointments come from the political party’s attorney list that have 

been involved in election laws for that political party? 

Mr. CLEGG. No. I think that— 

Senator CARDIN. Well, perhaps if your priority in your administration is to make sure that the election laws are fairly applied, 

wouldn’t you go to your political party then and get their best lawyers? 

Mr. CLEGG. No, because I don’t think that that is a very good 

proxy for getting enough lawyers. 

Senator CARDIN. But I am not sure I understand how you get the 

right people. 

Mr. CLEGG. Well, let me give you an example. You know, suppose 

that Bobby Kennedy, when he was the Attorney General, was hirVerDate Nov 24 2008 12:47 Mar 24, 2009 Jkt 047759 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47759.TXT SJUD1 PsN: CMORC
55 

ing people to work in the Civil Rights Division, and he had two applicants, both of whom had great credentials, and— 

Senator CARDIN. We are talking about for a career position, not 

a political appointment. 

Mr. CLEGG. A career position. 

Senator CARDIN. And the Attorney General is doing the interviewing himself. 

Mr. CLEGG. Right. Or, you know, make it Burke Marshall, if you 

want. 

Senator CARDIN. Well, no, I raise that because prior to Attorney 

General Ashcroft, these appointments were vetted through career 

individuals, these appointments. It is only under Attorney General 

Ashcroft and this administration that that was taken over by political appointees. 

Mr. CLEGG. Now, I read that, too, but I have to tell you, Senator, 

that when I was a political deputy in the Civil Rights Division, I 

was involved in deciding who got hired as a line attorney— 

Senator CARDIN. You did the interviewing process and you were 

the principal person? 

Mr. CLEGG. Sometimes—no, I wasn’t the principal person, but I 

was— 

Senator CARDIN. Who was the principal person? 

Mr. CLEGG. Well, I think the final decision was the head of the 

Division. 

Senator CARDIN. But who vetted—who went through the applications? Who was the one who did the preliminary work? 

Mr. CLEGG. I don’t even remember. I think it was probably the 

section chief. But my point is—let me finish my example, if I could. 

If Kennedy was trying to decide which of two applicants to hire and 

both applicants had superb qualifications, but one of them had a 

real visceral commitment, a passionate commitment to dismantling 

Jim Crow, and, really had the fire in the belly to get down there 

and enforce the laws and thought that Brown v. Board of Education was rightly decided and that the civil rights laws needed to 

be enforced, and the other one didn’t and thought that Brown was 

wrongly decided and was really lukewarm, I think it would be perfectly appropriate for the administration to say, well, this guy, the 

first guy, is better for the job. 

Senator CARDIN. We are not going to see eye to eye on this because I want the process within the Department of Justice to look 

at the qualifications of the individuals, not just what they say and 

what they are committed to, but take a look at their record. I want 

experienced individuals that know what the civil rights laws are 

about, know how to enforce those civil rights laws, have experience 

and are going to be competitive against the forces they have to 

come against. 

Mr. CLEGG. I do, too. 

Senator CARDIN. That is who I want there. 

Mr. CLEGG. I do, too. 

Senator CARDIN. So I am not interested in interviewing people 

and giving them a litmus test on a particular issue. I want to get 

the best career people. And what worries me is that I think your 

thoughts are what is currently being used by the Department of 

Justice, that is, to look beyond the qualifications of the attorneys 

56 

that apply for these positions, but to start looking at certain litmus 

tests that are very much related to party affiliation. And that 

should have no place in the Civil Rights Division, should have no 

place in hiring attorneys that are career attorneys. 

We are not going to agree on the process for hiring attorneys, but 

I did want to get your view on the current law, and I did not get 

Mr. Driscoll’s. Just for the record—you can answer yes or no—do 

you support the current prohibitions against discrimination based 

upon party affiliation? 

Mr. DRISCOLL. I do. I think they are appropriate. 

Senator CARDIN. Thank you. I would just like to get your reaction to the reports in the Washington Post today. Is that just business as usual? Or do you see that as just partisan snips by the individuals involved? Or do you think it is serious issues? 

Mr. CLEGG. I think it is a newspaper article. I don’t know how 

much of it is true. 

Senator CARDIN. I take it when you were— 

Mr. CLEGG. I think there are some parts of it—if some parts of 

it are true, they are disturbing. 

Senator CARDIN. I have had many positions I have held in public 

life, including responsible positions on the Ethics Committee having to investigate actions. And I must tell you, I treat articles in 

the paper with the respect they should receive; that is—no, because 

it affects public opinion, it affects what the public out there is seeing. And if there is something out there that is wrong, I want to 

correct it. 

So what is in this paper concerns me greatly, and if it is false, 

let us get the facts out to show it. But to say it is just an article, 

I think that is what Mr. Putin says: These are just articles, so, 

therefore, we will control the press. 

Mr. CLEGG. My point is— 

Senator CARDIN. Mr. Driscoll, how do you feel about the articles 

that are in the paper? How about this? I am going to give you a 

chance for record. 

Mr. CLEGG. I didn’t say it was ‘‘just an article.’’ I said ‘‘it is a 

newspaper article.’’ 

Mr. DRISCOLL. I guess I am waiting to see—I know it is under 

review, it is under investigation. I certainly think that it is an interesting timing that the article came out the day Mr. Kim was 

going to testify concerning events that happened multiple years 

ago. But I think it raises serious allegations that deserve to be investigated. But I know the Department has strong protections and 

it is an employee personnel matter that the Department can handle. 

Senator CARDIN. The Department can handle. OK. Thank you for 

your responses. 

Professor Norton, I want to give you a chance. Mr. Clegg has several times referred to your testimony as far as the numbers. During his direct testimony, he compared the circumstances in the 

1960s to today and said that clearly the challenges are different 

today than they were in the 1960s. 

Now, your testimony, I thought, dealt with the comparison between the Clinton administration and the Bush II administration. 

And I haven’t noticed a dramatic change in the landscape in the 

57 

last—well, maybe I have noticed a change in the landscape, but it 

is not necessarily all positive in the last 61⁄2 years. So I want to 

give you a chance to talk a little bit more about the type of cases, 

the number of cases, the quality of cases that you referred to in 

your direct testimony that has been now referred to several times, 

I think by both Mr. Driscoll and Mr. Clegg. 

Ms. NORTON. Thank you, Mr. Chairman. There are at least two 

points on which I agree with Mr. Clegg, but perhaps very little 

else. 

First, I agree that we should not expect the numbers to remain 

in complete and perfect lockstep from administration to administration, but what we are seeing between the previous administration and this one is not a minor change in numbers, but a dramatic 

change. We are talking about basically half of the Title VII enforcement activity that we saw during the Clinton years. That is not a 

minor variation. That is a dramatic change. 

Second, I also agree with him that race discrimination is not the 

problem in 2007 that it was in 1967. However, I find it hard to believe that race discrimination is only half the problem in 2007 than 

it was in 1997. And, again, that is what the enforcement numbers 

would lead one to believe because we are seeing half the enforcement activity with respect to Title VII than we saw during the previous administration. 

Folks talk about the fact that priorities change from administration to administration. That is true. It is true that the Civil Rights 

Division has many important and competing responsibilities. However, given the genesis of both Title VII and the Civil Rights Division itself in the civil rights movement on behalf of African-Americans, I find it hard to believe that fighting job discrimination 

against African-Americans and Latinos could ever fail to be a priority. 

But even if you disagree with me about that and you think that 

there should be other priorities or there are other types of discrimination that should command more attention today, let me know 

that the enforcement activity has dropped across the board so that 

workers of all protected classes are suffering. There are two exceptions. The two areas in which the Employment Litigation Section 

enforcement activity has increased are these: No. 1, there has been 

a rise in the number of pattern and practice cases alleging religious 

discrimination; and, No. 2, there has been a rise in the number of 

pattern and practice cases alleging discrimination against white 

men. 

Every other measure has declined, and declined steeply. If all we 

were talking about were those two changes, if those were the only 

two changes and everything else had remained the same, I 

wouldn’t be here today, or at least I would have very little to say. 

But the problem is that everything else, every other measure has 

dropped—measures for African-Americans, for Latinos, for women, 

for victims of retaliation, and for individual victims of religious discrimination. I will note that those numbers have dropped substantially. During the Clinton administration, at least 11 claims were 

brought on behalf of individual victims of religious discrimination. 

We have seen only two during the current administration. 

58 

Senator CARDIN. So it is numbers. Are there examples of opportunities that the Department of Justice Civil Rights Division has 

not been aggressive that could have made a major difference? We 

know of a couple cases that you mentioned where they did get involved, and I appreciate your clarification of the record on those 

two cases that I referred to with Mr. Kim. But the numbers tell 

us one thing. Are there stories that we know where we would have 

hoped that the Department would have been more conscientious 

and they did not move forward? 

Ms. NORTON. Well, I guess I could offer a couple of things for 

your consideration. Each year the EEOC refers several hundred 

cases to the Department of Justice for possible litigation. These are 

cases in which individual employees of State and local governments 

have charged discrimination, that the EEOC has investigated those 

claims and concluded that there is reasonable cause to believe that 

discrimination has occurred, and has referred the matter to the Department of Justice for possible litigation. Several hundred a year. 

They vary from 200 to 500 a year. Yet over the last 61⁄2 years— 

so that is thousands of cases; I would say over 3,000 cases over 

those year, 3,000 referrals—we have seen 28 individual claims 

brought. It seems to me there is a whole pool of possible cases that 

are not being tapped into right now. 

Senator CARDIN. And I believe I am correct that the number of 

attorneys has actually increased, so they actually have more attorneys to— 

Ms. NORTON. Yes, approximately 20 percent more attorneys have 

been assigned to the Employment Litigation Section during the 

Bush administration compared to the previous administration, 

which is very troubling. Basically what we are seeing is the current 

administration doing considerably less despite considerably greater 

resources. 

Senator CARDIN. Well, let me thank the panel for their patience. 

I know it has been a long hearing. These are issues that are important for our Committee to review. 

The hearing record will remain open for 1 week for additional 

written submissions. The Committee will stand in recess. Thank 

you all very much. 

[Whereupon, at 5:06 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follows.] 

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