Yeomans Work

The Affirmative Action Distraction

August 9, 2017

The New York Times broke the story last week that the political leadership of the Trump Civil Rights Division of the Department of Justice had sent a memo to attorneys in the Division, soliciting resumes from any who might be interested in working on a special assignment to challenge affirmative action in higher education.

Reports were mixed regarding whether the solicitation was to work on a single complaint filed by Asian Americans or whether, as seems likely, the assignment would evolve into a broader attack on affirmative action programs. For many, the initiative seemed puzzling, since the Supreme Court had only a year before held that race could be considered in university admissions. For others, the initiative seemed the perfect complement to Trump’s continuing efforts to stimulate the sizeable portion of his base animated by white resentment of minorities. It was particularly troubling that the memo asked for resumes, an indication that selection would be based on factors such as ideology or partisan affiliation that should be irrelevant to performance at the Justice Department.

The coming assault on affirmative action will stir up divisions that the Supreme Court has wrestled with at length and subdued. Abigail Fisher’s challenge to the University of Texas admissions program failed last term by a 4-3 vote. Justice Kagan was recused, presumably because of her involvement with the case as Solicitor General, and Justice Scalia had died before the decision was handed down. Add Justice Kagan to the supporters of affirmative action and Justice Gorsuch to its opponents and the Court retains a 5-4 majority in support of the Fisher decision. Absent the appointment of another Trump justice, the Justice Department is not going to be able to change the law.

The Civil Rights Division’s action portends a far more imminent danger – the politicization of the Department of Justice. The career attorneys at the Department, including those in the Civil Rights Division, are overwhelmingly professionals of extraordinary integrity, who are committed to public service and the rule of law. In other words, they represent the antithesis of the values Trump brought to the Oval Office. As such, they – like the career bureaucracies in other federal agencies – stand as a powerful bulwark against Trump’s undisciplined assault on the constitution and our democratic institutions.

The Civil Rights Division is the canary in Trump’s resuscitated coal mine. It is charged with enforcing civil rights laws. It is divided into a number of sections that cover such areas as employment discrimination, housing discrimination, education, voting, disability rights, police violation of rights, and hate crimes. Each section is staffed by career attorneys charged with developing enforcement actions. The process works best from the bottom up. Career attorneys investigate and recommend action through a series of career managers and finally to political leaders. This process entails careful consideration of the facts and the law and often involves significant back and forth between career and political appointees.

Conservative Republicans complain falsely that the Civil Rights Division is a nest of radical leftists, driven by ideology. In reality, attorneys in the Civil Rights Division are committed to enforcing the civil rights laws, as passed by congress and interpreted by courts. The sad truth is that the Republican Party has long since abandoned the bipartisan consensus that produced the iconic civil rights statutes of the 1960’s. Indeed, opposition to enforcement of many of these provisions has become central to the modern Republican agenda. That opposition has increased with the election of Trump and his appointment of Attorney General Sessions, both of whom cater regularly to supporters who blame their ills on others, too often defined by race, immigration status, religion, and sexual orientation.

Trump and Attorney General Sessions have three choices. They can live with existing structures and personnel, which is not likely. Or they can create a shadow government to circumvent the career attorneys. Or they can force currently serving attorneys to leave and replace them with new hires who share the Trump/Sessions partisan and ideological views. The second option is already in play and the third likely is not far behind.

We’ve been down this road before. The Reagan administration, intent on attacking race-conscious remedies, circumvented career attorneys by bypassing the sections and conducting litigation out of the office of the Assistant Attorney General. Political appointees, assisted by career attorneys hired for their conservative views, challenged employment discrimination remedies that included goals and timetables for hiring minority applicants. For the most part, the Reagan administration relied on circumvention, rather than outright attacks on career attorneys. It relied on creation of shadow litigation operations for specific, limited purposes. It also directed career attorneys to make and refrain from making particular arguments in court and dictated bottom-line positions in some court filings. Generally, however, it refrained both from pressuring career attorneys to leave and from revising the hiring process.

The George W. Bush administration, however, felt no such restraint. Having learned that the policy changes dictated from the top by the Reagan administration could change too easily in a new administration, the Bush leadership of the Civil Rights Division decided to reshape the career attorney corps in its own right-wing image. It launched unlawful attacks on career attorneys because of their perceived ideology. As exposed both by Congress and the Justice Department’s Inspector General, Bush officials transferred disfavored attorneys and deprived them of meaningful work, often in the hope of driving them out of the Division. Simultaneously, they revamped the hiring system by placing it entirely in the hands of political appointees, who proceeded to hire new attorneys on the basis of right wing ideology and partisan affiliation.

The Obama administration reversed this corruption of the hiring process. It returned responsibility to career attorneys, who make recommendations, which are nearly always accepted, to the political appointees. This process had produced an outstanding group of career attorneys for decades before it was politicized by the George W. Bush administration.

The Civil Rights Division’s affirmative action initiative bears careful watching and opposition on the merits, but it also sounds an ominous alarm that efforts to politicize the bureaucracy are coming. That alarm grew louder with two filings in recent days – one in the Second Circuit arguing that discrimination based on sexual orientation is not sex discrimination (contrary to the position taken by the EEOC) and one in the Supreme Court supporting the legality of a voter purge in Ohio. Neither was signed by any career attorneys from the Civil Rights Division.

A non-partisan bureaucracy is essential to the rule of law and the survival of our democratic institutions. As we have already seen in the Trump administration, the bureaucracy is Trump’s enemy because it insists on regular process, reliance on facts, and compliance with the law. It will be essential to expose and resist efforts to circumvent and politicize this essential guardian of mature and lawful governance.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.