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Thursday, March 06, 2014

More on the Civil Rights Division

Dahlia Lithwick basically gets it right: The "notion that the head of the Justice Department’s Civil Rights Division should have ever fought for civil rights has now become disqualifying."

But this is not anything new--Senate Republicans have been doing this to Democratic nominees to the Civil Rights Division for 20 years. As Bill Clinton's first nominee for the position, Lani Guinier famously faced strong Republican opposition based largely on her academic writings; Clinton withdrew the nomination when it became clear she could not be confirmed. And Bill Lan Lee served Clinton's entire second term without Senate confirmation--2+ years as acting head and one year as a recess appointee. Senate Republicans explicitly opposed Lee because he was and would be "activist" on civil rights. (And I would add that using that word to describe a lawyer and an executive-branch official reveals just how utterly meaningless it is).


Posted by Howard Wasserman on March 6, 2014 at 08:31 AM in Howard Wasserman, Law and Politics | Permalink


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Joe: This necessarily means that some people are undeserving of representation, because representing them is such a "wrong" that it disqualifies counsel from holding high public office in the future. (Or at least they're undeserving of *good* representation from the people otherwise qualified to hold high public office.) And perhaps that is the argument people want to make. But if so, 1) own it and 2) don't, as Sen. Casey did, BS us with paeans to the Sixth Amendment, then vote in a way contrary to what that stands for.

Posted by: Howard Wasserman | Mar 7, 2014 8:29:42 AM

Prof. Wasserman, it is not denied that defending someone to prevent an exection that was the product of an undue process is an important civil right. But, it is not, full stop, that a "civil right" was the grounds for the opposition. It was the party he defended that is the primary reason. We need to focus on the specific wrong here.

The same thing holds as I noted separately with bringing up John Roberts defending a heinous murderer. It is the controversial nature of the specific murderer which is getting this specific type of opposition. Again, I'm not minimizing it as such. I'm just trying to get what specifically is the problem.

I appreciate your consistency as to the ideological opposition aspect someone else brought up too. I think there is a reasonable debate over the issue.

Posted by: Joe | Mar 7, 2014 8:06:44 AM

Lithwick went over board. This an unusual case where even the Democrat, African-American district attorney opposed the nomination. No need for the Henny Penny act.

Posted by: anon | Mar 6, 2014 9:19:44 PM

Joe: Even if it is just one case, it is one case in which the nominee was helping someone exercise a pretty important civil right.

Paul: If it was the nominee for an executive position, yes, I would consider it problematic. A Republican administration can define how it wants to enforce the civil rights laws and appoint the people who share and will carry out those views. If it was a judicial nominee, I would be more comfortable with that criticism.

Posted by: Howard Wasserman | Mar 6, 2014 6:44:12 PM

The opposition seems tied to a specific case not "civil rights" generally. Some of the opposition might be on other grounds too, but if it wasn't for this specific case, would the Democrats in question have voted him down? Also, is it only "now" (like she says) a problem?

Opposition on "academic writings" seems to be a rather typical case of senators opposing a nominee for ideological reasons. Is that a problem for you in general? Democrats opposed many nominees on such grounds.

Posted by: Joe | Mar 6, 2014 6:30:15 PM


Would you consider it "problematic" if a commitment to the vision of civil rights as reflected by the typical Republican nominee was viewed as deemed disqualifying from civil rights jobs by journalists like Lithwick or activists like Guinier or Lee?

Posted by: PaulB | Mar 6, 2014 3:06:50 PM

I don't like the word destroy. I think Republicans are committed to a different vision of civil rights, both substantively and procedurally. We can agree or disagree on the merits of that (that's Dahlia's point in discussing the Bush C/R/D's focus on religious liberty to the exclusion of much else). But it is problematic when commitment to one vision--that reflected by the typical Democratic nominee--is deemed disqualifying from the job.

Posted by: Howard Wasserman | Mar 6, 2014 11:21:17 AM

"But this is not anything new--Senate Republicans have been doing this to Democratic nominees to the Civil Rights Division for 20 years. "

Longer than that - weren't Clarence Thomas' appointments at the Dept of Education and the EEOC really to destroy civil rights? If he had taken them seriously, in an honest sense, and worked *for* civil rights, would he have ever been nominated as a judge?

Posted by: Barry | Mar 6, 2014 8:37:00 AM

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