The line moved by the administration of George W. Bush — on torture, on civil liberties, even on what constitutes competence for a presidential candidate — has had long-term and perhaps permanent effects on our political landscape. Case in point: that administration's takeover and dismantling of the finest civil rights law-enforcement organization in the country: the Civil Rights Division of the Department of Justice (DOJ). As documented in the 2008 inspector general's report reviewing (pdf) hiring policies at the division, Bush administration apparatchiks worked to systematically undermine the integrity of hiring and, in some cases, the work of the Civil Rights Division.
Using crude and ugly political litmus tests for hiring, the leaders at the division set about dismantling what had been the long-standing excellence and relatively nonpolitical work of federal civil rights enforcement. Among the key culprits was then-Deputy Assistant Attorney General Bradley Schlozman, who was aided by senior counsel to the attorney general, Monica Goodling, in rigidly controlling what kinds of lawyers would be hired by the division.
Correspondence between Scholzman and Goodling reads like e-mails between the new leaders of some obnoxious high school club. Schlozman wanted to hire only "real Americans" — not Democrats, or even attorneys who had actual experience in civil rights enforcement and litigation. Schlozman deemed (pdf) such candidates to be "Politburo members" or members of "psychopathic left-wing organizations designed to overthrow the government."
He also disfavored applicants from the nation's most highly regarded law schools. Instead, Schlozman wanted the Civil Rights Division to consider applicants with an "insurance" background and to consider more applicants from third-tier law schools. His accomplice, Goodling, also endorsed hiring only right-wing applicants, no matter how thin their résumés, so long as they were — in her words — "loyal Bushies." It was as though Glenn Beck and Sarah Palin were in charge of hiring at the nation's most powerful and important civil rights enforcement organization.
The Obama administration faced a daunting task in taking over the division. Morale among career attorneys was low. In fact, many career lawyers who had been with the division for decades — including many hired during Republican administrations — had left in disgust with the venal, political calculation that had taken hold of decision making in the division. The IG's report found that Schlozman had used "political and ideological affiliation in transferring and assigning cases to career attorneys" within the division. The core mission of the division — to protect the civil rights of racial and language minorities — had also been diminished in favor of a new focus on human trafficking and religious discrimination cases.
Now the Obama administration has come under attack for undoing the damage done to the division during the Bush administration. Fox News and other conservative outlets have focused attacks since last summer on Deputy Assistant Attorney General Julie Fernandes, a highly respected civil rights lawyer and former DOJ trial attorney, whom they've accused of racism. Their evidence? Reports of an internal meeting with staff at the Civil Rights Division, where Fernandes is reported to have stated that the department would be returning to focus to "traditional civil rights" work.
J. Christian Adams, a former Civil Rights Division attorney and Republican activist hired by Schlozman, testified (pdf) before the U.S. Civil Rights Commission that "everyone knows what that means … helping minorities." It is an astonishing reflection of how far peddlers of "reverse racism" have pushed the public discourse about civil rights, that this has been deemed evidence of racial bias. Yes, according to those on the far right, it is now racist for the Civil Rights Division to focus on the prosecution of traditional civil rights claims.
In fact, the division was created precisely to prosecute cases involving the deprivation of the civil rights of racial minorities. Fernandes' directive, if, in fact, it was given, is an eminently responsible and unremarkable position for the attorney general to take in determining how to deploy the division's limited but critically important resources. The Bush administration's approach to the division's hiring and work was an aberration — one that those on the hard right, through their attacks on Fernandes, are seeking to have adopted as the "new normal."
It is in this context that one has to regard the right-wing obsession with the "New Black Panther Party" case. This is the case that has become the cause célèbre of the right in their latest effort to brand the Obama administration as a reverse-racist regime. On Election Day in 2008, two black men calling themselves the New Black Panther Party (not affiliated with the Black Panther Party) stood outside a polling place in a majority black district in Philadelphia, wielding a billy club and yelling anti-white racist statements. Although no voters called the Department of Justice to complain, a white poll watcher for the Republican Party reported the incident, and it was recorded by a local Republican Party official, who contacted news stations.
It seems of little importance to conservatives that almost all of the actions taken by the DOJ — dropping criminal charges against the NBPP in favor of civil charges, and later settling the civil case — took place before Fernandes joined the department and during the period that Republicans were dragging their feet in confirming Thomas Perez as the new assistant attorney general for civil rights.
Inside the department, the case had become the priority of former Voting Section chief Christopher Coates, who has contended that the Civil Rights Division is resistant to pursuing claims vindicating the rights of white voters. Coates recently criticized the division's handling of the NBPP case in testimony before the Civil Rights Commission. It's worth noting that although Coates, who now works as a U.S. attorney in South Carolina, had a civil rights background before coming to work at the department (he had been an attorney with the American Civil Liberties Union), Schlozman, in recommending Coates for an immigration-judge position, had assured (pdf) superiors not to "be dissuaded by his ACLU work on voting rights matters from years ago. This is a very different man" and a "true member of the team."
It's more telling that the NBPP controversy doesn't even pass the "Thernstrom" test. Abigail Thernstrom, vice chair of the Civil Rights Commission, has long been an opponent of affirmative action and voting remedies that favor minority groups. But even she has broken rank with her conservative colleagues and argued that the brouhaha has nothing to do "with the Black Panthers; this has to do with [the right-wing's] fantasies about how they could use this issue to topple the [Obama] administration."
In the meantime, the mainstream media have begun to give the conservative claims about the NBPP case greater scrutiny, emboldening the right to continue their drumbeat against Fernandes, Perez and the Civil Rights Division for doing what every administration before that of George W. Bush has done: pursue the vigorous enforcement of our nation's civil rights laws to protect our most vulnerable citizens, making careful decisions about how best to deploy the department's resources.
But under the "new normal," there is no racism worth discussing except that of blacks against whites. No attention has been given to the cases raising voter intimidation against black and Latinos during the Bush years that the Civil Rights Division similarly chose not to pursue (pdf). It is anti-white racism that is our nation's problem.
We had best wake up to this far-right effort to shift the very meaning of civil rights. Sherrod-gate has taught us that we cannot allow ourselves to be "snookered" by media dumps that challenge the integrity and work of some of the most talented members of the Obama administration in an effort to find imaginary "reverse racists" and to usher in a "new normal" in civil rights.
Sherrilyn A. Ifill, who teaches at the University of Maryland, writes about the law for The Root.