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Civil Rights Focus Shift Roils Staff At Justice
Veterans Exit Division as Traditional Cases Decline
 
By Dan Eggen
 
Washington Post Staff Writer
 
Sunday, November 13, 2005
 
The Justice Department's Civil Rights Division, which has enforced the
nation's anti-discrimination laws for nearly half a century, is in the
midst of an upheaval that has driven away dozens of veteran lawyers and
has damaged morale for many of those who remain, according to former and
current career employees.
 
Nearly 20 percent of the division's lawyers left in fiscal 2005, in part
because of a buyout program that some lawyers believe was aimed at
pushing out those who did not share the administration's conservative
views on civil rights laws. Longtime litigators complain that political
appointees have cut them out of hiring and major policy decisions,
including approvals of controversial GOP redistricting plans in
Mississippi and Texas.
 
At the same time, prosecutions for the kinds of racial and gender
discrimination crimes traditionally handled by the division have
declined 40 percent over the past five years, according to department
statistics. Dozens of lawyers find themselves handling appeals of
deportation orders and other immigration matters instead of civil rights
cases.

The division has also come under criticism from the courts and some
Democrats for its decision in August to approve a Georgia program
requiring voters to present government-issued identification cards at
the polls. The program was halted by an appellate court panel and a
district court judge, who likened it to a poll tax from the Jim Crow
era.
 
"Most everyone in the Civil Rights Division realized that with the
change of administration, there would be some cutting back of some
cases," said Richard Ugelow, who left the division in 2004 and now
teaches law at American University. "But I don't think people
anticipated that it would go this far, that enforcement would be cut
back to the point that people felt like they were spinning their
wheels."
 
The Justice Department and its supporters strongly dispute the
complaints. Justice spokesman Eric Holland noted that the overall
attrition rate during the Bush administration, about 13 percent, is not
significantly higher than the 11 percent average during the last five
years under President Bill Clinton.
 
Holland also said that the division filed a record number of criminal
prosecutions in 2004. A quarter of those cases were related
to human-trafficking crimes, which were made easier to prosecute under
legislation passed at the end of the Clinton administration and which
account for a growing proportion of the division's caseload.
 
In addition, Holland defended the department's decision to approve the
Georgia voter law, saying that "career and political attorneys together
concluded" that the measure would have no negative effect on minorities.
 
"This administration has continued the robust and vigorous enforcement
of civil rights laws," Holland wrote in an e-mail statement, adding
later: "These accomplishments could not have been achieved without
teamwork between career attorneys and political appointees."
 
Attorney General Alberto R. Gonzales, the first Hispanic to hold the
job, named civil rights enforcement as one of his priorities after
taking office earlier this year and supports reauthorization of the
Voting Rights Act.
 
Although relations between the career and political ranks have been
strained throughout the Justice Department over the past five years, the
level of conflict has been particularly high in civil rights, according
to current and former staffers. The debate over civil rights flared in
the Senate in recent weeks after the nomination of Wan J. Kim, who was
confirmed on Nov. 4 as the assistant attorney general for the division
and is the third person to hold that job during the Bush administration.
Kim has been the civil rights deputy for the past two years.
 
There were no serious objections to Kim's nomination, but Democrats
including Sens. Richard J. Durbin (Ill.) and Edward M. Kennedy (Mass.)
said they were concerned about serious problems with morale and
enforcement within the division.
 
"Its enforcement of civil rights over the past five years has been
negligent," Kennedy said in a statement. "Mr. Kim has promised to look
closely at these issues and to increase the division's enforcement, and
I believed he should be given a chance to turn the division around."
 
Critics point to several key statistics in arguing that Gonzales and the
previous attorney general, John D. Ashcroft, have charted a dramatically
different course for civil rights enforcement than previous
administrations of both parties.
 
The Lawyers' Committee for Civil Rights Under Law, which includes a
number of former Justice lawyers, noted in a letter to the Senate
Judiciary Committee that the division has filed only a handful of cases
in recent years dealing with employment discrimination or discrimination
based on the statistical impact on women or minority groups.
 
The total number of criminal prosecutions is within the range of the
Clinton administration, but a growing percentage of those cases involve
prosecuting human smugglers, which have become a priority for the
division only in recent years. Other types of civil rights prosecutions
are down, from 83 in fiscal 2001 to 49 in 2005.
 
The Bush administration has filed only three lawsuits -- all of them
this year -- under the section of the Voting Rights Act that prohibits
discrimination against minority voters, and none of them involves
discrimination against blacks. The initial case was the Justice
Department's first reverse-discrimination lawsuit, accusing a
majority-black county in Mississippi of discriminating against white
voters.
 
The change in emphasis is perhaps most stark in the division's appellate
section, which has historically played a prominent role intervening in
key discrimination cases. The section filed only three
friend-of-the-court briefs last year -- compared with 22 in 1999 -- and
now spends nearly half its time defending deportation orders rather than
pursuing civil rights litigation. Last year, six of 10 briefs filed by
the section were related to immigration cases.
 
William R. Yeomans, a 24-year division veteran who took a buyout offer
earlier this year, wrote in an essay in Legal Affairs magazine that
"morale among career attorneys has plummeted, the division's
productivity has suffered and the pace of civil rights enforcement has
slowed."
 
In an interview, Yeomans said some of the problems stem from the way the
"front office" at Justice has treated career employees, many of whom
have been forced to move to other divisions or to handle cases
unconnected to civil rights. As an example of the strained relations,
Yeomans points to the recent retirement party held for a widely admired
37-year veteran: Not one political appointee showed up.
 
At the same time, Ashcroft implemented procedures throughout Justice
that limited the input of career lawyers in employment decisions,
resulting in the hiring of many young conservatives in civil rights and
elsewhere in the department, former and current lawyers have said.
 
"The more slots you open, the more you can populate them with people you
like," said Stephen B. Pershing, who left the division in May and is now
senior counsel at the Center for Constitutional Litigation, a Washington
law firm that handles civil rights cases. "It's pretty simple really."
 
To Roger Clegg, the situation is also perfectly understandable. A former
civil rights deputy in the Reagan administration who is now general
counsel at the Center for Equal Opportunity, Clegg said the civil rights
area tends to attract activist liberal lawyers who are philosophically
opposed to a more conservative approach.
 
"If the career people are not reflecting the policy priorities of the
political appointees, then there's a problem," Clegg said. "Elections
have consequences in a democracy."
 
Holland, the Justice spokesman, said critics are selectively citing
statistics. For example, he said, the department is on the winning side
of court rulings 90 percent of the time compared with 60 percent during
the Clinton years. Federal courts are "less likely to reject our legal
arguments than the ones filed in the previous administration," he said.
 
Ralph F. Boyd Jr., the civil rights chief from 2001 to 2003, agreed:
"It's not a prosecutor's job to bring lots of cases; it's a prosecutor's
job to bring the right cases. If it means fewer cases overall, then
that's what you do."
 
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