What Obama has brought us

Hans A. von Spakovsky
March 9, 2010 4:00 A.M.
Radicalizing Civil Rights
The people behind the Civil Rights Division’s politicization.

In his State of the Union address, President Obama mentioned the protections enshrined in the Constitution and said, “No matter who you are or what you look like, if you abide by the law, you should be protected by it.” Obama followed this lofty rhetoric with a claim that his Justice Department “has a Civil Rights Division that is once again prosecuting civil-rights violations and employment discrimination.” As anyone familiar with the Division’s workings can tell you, this assertion is patently false. Obama’s Civil Rights Division will prosecute cases only depending on “what you look like.” If you are white and you are discriminated against in your job, at the polls, or in seeking equal access to federally funded institutions, the Division won’t lift a finger to make sure you’re “protected.”Over the last year, I have written many articles about the politicization and outright misconduct of the Civil Rights Division under the Obama administration. I have pointed out the Division’s politically motivated dismissal of a voter-intimidation case against the New Black Panther Party, its highly dubious objection to the state of Georgia’s verifying the citizenship of newly registered voters, and its almost comedic effort to prevent the small town of Kinston, N.C., from changing its partisan town-council elections to nonpartisan because it might hurt Democratic candidates. If you want to understand how the Civil Rights Division is being run in the Obama administration, imagine for just a moment what would happen if the most radical, ideologically left-wing advocacy organizations in Washington took control of it. Because that’s exactly what happened.So who are the players who are responsible for all of this? Assistant Attorney General Thomas Perez. Perez is a longtime Democratic activist and a former staffer to the late senator Ted Kennedy. When Perez was running for a seat on the Montgomery County Council in Maryland, he was asked what was the most important thing voters should know about him. His response: “I am a progressive Democrat and always was and always will be.” Once elected, the hyper-partisan Perez made no effort to hide his contempt for Republicans. He once gave a speech claiming that conservative Republicans do not care about the poor. An article in the Washington Post (April 3, 2005) characterized Perez as “about as liberal as Democrats get.”Perez also served as president of Casa de Maryland, an extreme advocacy organization that opposes the enforcement of our immigration laws. This group has encouraged illegal aliens not to speak with police officers or immigration agents; it has fought restrictions on illegal aliens’ receiving driver’s licenses; it has urged the Montgomery County Police Department not to enforce federal fugitive warrants; it has advocated giving illegal aliens in-state tuition; and it has actively promulgated “day labor” sites, where illegal aliens and disreputable employers openly skirt federal prohibitions on hiring undocumented individuals.It is stunning that someone affiliated with an outfit that displays such contempt for federal law would even be nominated, let alone confirmed, as the nation’s top civil-rights law-enforcement officer. But Perez has gone farther.As a councilman in Maryland in 2003, Perez sought to force local governments to accept matricula consular ID cards, which are issued by the Mexican and Guatemalan governments, as a valid form of identification. He insisted that individuals with such cards not have to show any U.S.-issued documents to prove their identities. This proposal was ludicrous. The matricala consular IDs are rife with fraud, a fact well known to Perez. No major bank in Mexico even accepts the cards to open an account and, by last count, 22 of Mexico’s 32 states and districts reject the cards as IDs. But Perez was happy to have an excuse to thumb his nose at federal immigration laws.It should come as no surprise that Perez was once a career lawyer in the Division, which is known for attracting the most hyper-partisan career staffers in the entire Justice Department. Now he has announced that he will ramp up enforcement of “disparate impact” lawsuits — playing the race card in employment cases and launching an effort to block banks from foreclosing on individuals who took out loans they knew they couldn’t afford. This is fitting: Perez was a political appointee in the Division during the Clinton administration, when it was hit with over $4.1 million in sanctions for filing frivolous and unwarranted discrimination claims — including “disparate impact” lawsuits. By the way, on the “nonpoliticized hiring” issue — Perez issued a memorandum on Dec. 3, 2009, making it clear that he would make the final decision on all proposed career hires. And he has surrounded himself with equally radical subordinates to run the ever-growing Division.Mark Kappelhoff. Kappelhoff was Perez’s principal deputy for most of the past year. Although the Department’s press flacks loved to describe Kappelhoff as a longtime apolitical career attorney, the reality is that he is extremely liberal and intensely political. Before coming to the Department of Justice in 1997, Kappelhoff worked for two years as legislative counsel for the ACLU. Prior to that, he served as a public defender in Montgomery County, Md., and spent several years as a legislative assistant to a Democratic congressman from Minnesota. Is it any wonder that this career attorney was initially tapped to take the No. 2 position in the Division — a job designed as a political position and always filled by a political appointee?Of course, the line between career attorney and political appointee in the Holder Civil Rights Division is virtually nonexistent. It is no coincidence that Kappelhoff gave almost $3,000 to Obama in the 2008 election cycle and has made nearly $5,000 in contributions to Democratic politicians over the last six years. In fact, it is rather stunning to review the Federal Election Commission website and note the tens of thousands of dollars contributed to Democratic candidates and the DNC by the supposedly apolitical career lawyers in the Civil Rights Division.Principal Deputy Assistant Attorney General Samuel Bagenstos. Replacing Kappelhoff is Samuel Bagenstos, a typical out-of-touch liberal from the academy, specifically Washington University in St. Louis. He clerked for Ninth Circuit judge Stephen Reinhardt after law school, and then did a one-year clerkship with Justice Ginsburg on the Supreme Court.Bagenstos has spent most of his career advocating far-left-wing causes from his comfortable ivory-tower perch. And he is not above making reckless attacks in pursuit of his political agenda. In 2004, representing the Democratic party in a lawsuit in Ohio filed under the relatively new Help America Vote Act, he savagely attacked the Bush Civil Rights Division (in which I worked) for arguing that there was no private right of action under that federal statute, calling it “shameful” and even deriding part of the Division’s brief as an “Alice in Wonderland” argument. When the Supreme Court agreed with the Division in 2008, he was strangely silent.Bagenstos recently appeared in federal court in New York, arguing against a motion to dismiss one of the Division’s lawsuits. The Division’s complaint was so badly written under Bagenstos’s supervision that the judge at one point compared the government’s pleading to that of a pro se litigant, which is as close as a federal judge can come to calling you incompetent. Deputy Assistant Attorney General Loretta King. King is, as I have stated before, one of the biggest political hacks in the Division (and that’s saying something). Anyone with even a fleeting familiarity with the New Black Panther Party fiasco from earlier this year knows that King was in the middle of one of the most egregious acts of crass partisanship and racial politics in the Division’s history. There is little doubt that King is guided almost exclusively by partisan politics. During my time working alongside her, she talked openly about resigning to run as a Democratic candidate in Maryland.I also have previously written about how a King-led team of attorneys was slapped with $587,000 in attorney-fee sanctions in Johnson v. Miller, a Clinton-era redistricting case in which the Division commanded the State of Georgia — in the words of the U.S. Supreme Court — to engage in “presumptively unconstitutional race-based districting.” Not only did King lose that case, but both the federal district court and the Supreme Court excoriated the Division’s handling of it. The federal district court characterized the Division’s conduct as “disturbing” and “an embarrassment,” and pointed out that the Department’s attorneys seemed to be taking their orders directly from the ACLU. The court expressed its surprise and profound disappointment “that the Department of Justice was so blind to this impropriety, especially in a role as sensitive as that of preserving the fundamental right to vote.” Deputy Assistant Attorney General Julie Fernandes. When it comes to sheer single-minded partisanship, however, no one is even in the same league as Julie Fernandes. Straight out of law school, Julie worked for the ACLU on race and poverty issues, and her liberal activism has grown stronger ever since. In the Clinton administration, she served as a political appointee in the Civil Rights Division, where she focused on legal and policy issues relating to voting rights, police misconduct, and racial profiling (and engaged in outrageous harassment of police officers and legally baseless attacks on law enforcement in general). After leaving the Civil Rights Division, she went to work for Clinton at the White House Domestic Policy Council, where she wreaked havoc on our nation’s immigration, race-relations, and civil-rights policies. When the Clinton administration mercifully came to an end, Fernandez joined the Leadership Conference on Civil Rights as a senior policy analyst and special counsel.Now she has returned to the Justice Department. She sees her mission as protecting Democrats and their constituents. Just days after she gave a speech at the American Constitution Society stressing the importance of not treating the Civil Rights Division “like a buffet line at the cafeteria, cherry-picking which laws to enforce,” Fernandes convened the entire Voting Section career staff and explicitly told them that this administration would not be enforcing Section 8 of the National Voter Registration Act under her watch. (This is the provision that directs states and municipalities to regularly purge their voting rolls of individuals who are deceased or no longer living in a jurisdiction, a policy the Left has always despised.) The hypocrisy is palpable, but it’s hardly surprising coming from a demagogue such as Fernandes, who has spent so much time seeking to undermine anti-fraud measures in state and federal elections.It’s supremely ironic that Fernandes testified to the House Judiciary Committee several years ago about the alleged politicization of the Bush Civil Rights Division. She has brazenly politicized the Division to a far greater degree, in just the first year of the Obama administration, than the Bush administration was even accused of doing. It was Fernandes who stripped the former chief of the Voting Section, Christopher Coates, the career lawyer who recommended the lawsuit against the New Black Panther Party, of all almost all of his managerial responsibilities. From the moment she arrived, she zealously micromanaged every detail of the Voting Section and sought to undermine Coates at every turn. Her agenda was to push Coates out and replace him with an ideologically reliable apparatchik, and she finally succeeded when Coates was reassigned 450 miles away, to South Carolina. You can also be sure that Fernandes will be working closely with her friends at militant civil-rights organizations to pack the Division more than ever with liberal ideologues in the career ranks. Sources say that during the Bush administration, Fernandes’s husband, Avner Shapiro, who was a line attorney in the Voting Section, kept her well informed on who was being hired and on the status of open investigations — despite the confidential and privileged nature of such information, particularly case files. Sources say that during the Bush administration they saw her walking out of Shapiro’s office with Division files. Senior Counsel Les Jin. Jin’s primary claim to shame is his four-year tenure as staff director of the U.S. Commission on Civil Rights (USCCR), where he helped the lawless chairwoman, Mary Frances Berry, carry out her radical, racially militant agenda. (He also was the executive director of the National Asian Pacific American Bar Association, which opposed Justice Alito’s confirmation because NAPABA supports race-based affirmative action.) Jin’s service was marked not only by constant political shenanigans, but also by financial irregularities. John J. Miller and Ramesh Ponnuru wrote an NRO column back in 2001, urging President Bush to fire Jin. They noted:
The case for replacing Jin goes beyond his being a holdover. He’s a shameless hack for Berry. He is afraid to challenge her, even when she behaves lawlessly, as in the current dispute over the commission’s makeup. He also refuses to work with the commission’s GOP-appointed members. He doesn’t let them participate in selecting witnesses to appear at commission hearings, he won’t take their names off press releases when they disagree with their content, and he was instrumental in the suppression of the dissent written by commissioners Abigail Thernstrom and Russell Redenbaugh in response to the commission’s scandalously bad report on the presidential election in Florida. There are also questions about his handling of the commission’s budget.
In fact, during Jin’s reign of terror at the USCCR, the Commission neglected to pay its $75,000 rent, refused to provide several employees a substantial part of the judgment ($188,000) that they had won against the agency in a federal discrimination claim, underfunded its employee benefit packages, and caused the agency’s financial ledger to disappear. As Gerald Reynolds, the subsequent chairman of the USCCR, later explained to a congressional subcommittee, “if a private company didn’t have a ledger, then somebody goes to jail.” Jin has already developed a special “outreach” list of civil-rights organizations that he is sending career job openings to — no doubt to ensure that only those with the “proper” civil-rights views apply for work. Jin’s very presence in the Civil Rights Division front office emphatically demonstrates that this administration has politicized civil rights to an unprecedented degree and is committed to a reckless path of law enforcement.Matt Nosanchuck. Another counsel serving Perez is Matt Nosanchuck, a gay activist who helped spearhead President Obama’s outreach to the homosexual and transgender community and a veteran of an organization called the “Third Way,” which advocates support for various gay and lesbian causes. He was co-counsel in the NAACP’s lawsuit against gun manufacturers and has said that there is no constitutional right to own a gun. He is joined by Jocelyn Samuels, a former Ted Kennedy staffer who came to the Division after serving as a vice president at the National Women’s Law Center, a “progressive” advocacy group that espouses one of the most radical feminist agendas and seems to be at the forefront of every liberal cause. Karen Stevens. A fourth counsel, Karen Stevens, is technically a “career” lawyer on detail to the front office. She was cited in the inspector general’s report complaining about supposedly improper “politicization” during the Bush administration. Of course, the IG report not only failed to identify her by name, it also neglected to mention that she had been a political appointee in the Civil Rights Division during the Clinton administration; she burrowed into the career ranks just before the Clintonistas left office. She is, as you can imagine, one of the most partisan “career” lawyers in the Division. I literally laughed out loud when it was announced internally at the Division in September that Stevens would be one of two lawyers co-chairing a new hiring committee to ensure that only “merit” was considered in the career hiring process. She is so trusted by the Democratic leadership in this administration that she was moved to the front office of the Division on the first day Obama came into office — to occupy what is normally a political slot. The Democratic National Committee must be almost giddy when it looks over the Civil Rights Division masthead.Chief of Staff Leon Rodriguez. Rodriguez is a former county attorney for Montgomery County, Md., and a crony of Perez from the latter’s stint on the county council. Rodriguez has been a significant contributor to both Barack Obama and John Kerry in their respective presidential runs, and has been described as solidly and reliably liberal. Rodriguez recently found himself in a big spat with a councilwoman in Montgomery County after he undertook a purportedly illegal search of the computer of one of the councilwoman’s staff members.Associate Attorney General Thomas Perrelli. Normally, one would expect the leadership higher up in Justice Department to act as a check on any shortcomings in the leadership of the Civil Rights Division. But Perrelli, to whom Perez reports, was deeply involved in the dismissal of the New Black Panther Party voter-intimidation case and may have been taking his orders from the White House. One of his deputies is Sam Hirsch, one of the Democratic party’s main redistricting lawyers and litigators. From this perch, Hirsch can make sure that all political redistricting after the 2010 Census goes the way the party wants it to go. Another deputy in the associate attorney general’s office shows just how far the Democratic party will go to reward ideologically correct (but legally incorrect) lawyering. Marisa Chun is a political appointee who started off as a career lawyer in the Civil Rights Division before leaving for private law practice in San Francisco. She was the lead career lawyer during the Clinton administration who filed a lawsuit against the City of Torrance, Calif., claiming that the police-officer and firefighter examinations were discriminatory because they had a “disparate impact” (sound familiar?). The case was thrown out after a federal court determined that the Division “had an insufficient factual basis” for the lawsuit and “continued to pursue the claim . . . long after it became apparent that the case lacked merit.” American taxpayers had to pay the city $1.7 million. Now Ms. Chun finds herself in an office that supervises her former colleagues and the disparate-impact crusade that Perez is launching. It is almost surreal. Don’t get me wrong: The new administration is free to select whomever it wants for political posts at the Justice Department — even lawyers who were involved in lawsuits that resulted in sanctions against the Department. But we all remember the Left’s relentless attacks upon the Bush Civil Rights Division for installing conservatives in leadership positions. We were subjected to endless blather about the Bush team’s arrogance for refusing to approve a handful of cases recommended by career staff, its chutzpah in allowing political appointees to manage certain litigation, and its sheer temerity for stripping some career section chiefs of their authority to exercise unfettered discretion in establishing the enforcement and policy agendas of the Division. The soaring rhetoric turned out to be just that, rhetoric.The overwhelming majority of the individuals who populate the Civil Rights Division have always felt that because they are pursuing a virtuous mission, they are infallible and somehow have license to contravene the law, skirt ethical lines, and participate in acts of deception. Until recently, these leftists were able to act with impunity, and even today, the mainstream media continues to turn a blind eye until the Division’s misconduct becomes so glaring (think New Black Panther Party) that it simply can no longer be realistically ignored. Hopefully, however, those days are beginning to end. Abuses need to be exposed and individuals need to be called to account. And we will all be the better for it.— Hans A. von Spakovsky is a former commissioner on the Federal Election Commission and a former counsel to the assistant attorney general for civil rights at the Justice Department.