Civil rights law enforcement: a time for healing.

• Author: Bolick, Clint

1. INTRODUCTION

   Bill Clinton will not be remembered in history as a President who followed any particular philosophical star. Generally, he is considered a moderate or pragmatist. But in one major area of public policy, Clinton tenaciously and consistently pursued a hard-core left-wing agenda: civil rights. Americans will pay the costs of that agenda for years to come, in terms of racial division, weakened civil rights law enforcement, and most tragic of all, missed opportunities.

   No one could have predicted such a sad debacle. Nothing in Clinton's background suggested a particular passion for civil rights issues. During the campaign and following his election, he chastised left-wing elements of his party for racial divisiveness. He accorded a low priority to filling key civil rights posts.

   But at some point, Clinton apparently calculated that he could purchase quietude from the party's often-restive left wing cheaply and effectively by turning over to it the entire federal civil rights law enforcement arsenal and tenaciously promoting racial preferences. In a sense, the gambit worked--Jesse Jackson, Kweisi Mfume, and other establishment civil rights leaders became the Clinton Administration's faithful cheerleaders, and Clinton was never seriously challenged from the left, despite abandoning much of its goals in other areas of public policy.

   But the real-world costs of Clinton's deal with the left have been tremendous. By pursuing race-based civil rights policies, the federal government under Clinton continued to categorize and divide Americans along racial lines in areas touching the lives of everyone, from voting to education to employment to government contracts to housing. At the same time, the Clinton Administration failed to tap into and encourage a burgeoning consensus that racial preferences are wrong, but that true "affirmative action" is necessary to help the most disadvantaged members of our society, who are disproportionately minority. It was one of the few times that Clinton willfully rebuked, rather than adhered himself to, a strong popular consensus on a major policy issue.

   Moreover, by turning over the federal law enforcement apparatus to a bunch of ideologues, Clinton inflicted serious damage on its effectiveness and credibility. Clinton's Justice Department and Equal Employment Opportunity Commission often resembled a Court TV version of the Keystone Cops. Not only did the agencies lose a remarkable number of cases, but they were repeatedly rebuked and sanctioned by federal courts. The agencies also pursued illegal remedies, coercion, and intimidation, weakening the rule of law that is so critical for effective and enduring protection of civil rights.

   The imperative for the next Administration is simple yet urgent: to effectuate a long-overdue healing process. Not only must it bridge the racial divide among Americans, but it must also repair the damage inflicted on civil rights law enforcement during the Clinton Administration.

2. ADVICE FOR THE NEW PRESIDENT

   Obviously, civil rights policies will be dictated to some extent by the philosophical predilections of any particular Administration. Democrats and Republicans differ in their approach to civil rights policies,(1) and any Administration is entitled, within certain boundaries, to implement its civil rights vision through policy.

   But the boundaries are important: every civil rights law enforcement official must take an oath to uphold the Constitution and the civil rights laws he or she will enforce.(2) That oath obligates the official to act in conformity with the rule of law,(3) not to behave like an ideological zealot possessed of a vast federal litigation arsenal. That is the central lesson of the Clinton Administration's civil rights debacle.

   The next Administration's compass on civil rights can largely be taken from the preceding Administration's mistakes. In the pages that follow, I shall outline five areas where the Clinton Administration erred and suggest ways in which the next Administration needs to take serious remedial action.

   1. Objective Civil Rights Law Enforcement

      As a former lawyer in both the EEOC and Civil Rights Division and as a public interest lawyer today, I have a first-hand view of the difference between the two vocations. A civil rights lawyer engaged in public interest advocacy litigates toward what he or she believes the law should be. A civil rights lawyer working for the government enforces the law as it is. The two jobs are fundamentally different: the first requires imagination, the second restraint. That is particularly true in the area of civil rights, for our nation's civil rights laws reflect the outer boundaries of a precious moral consensus.(4) To stray recklessly beyond the boundaries of the law necessarily does violence to that consensus.

      Civil rights law enforcement officials are lobbied relentlessly by establishment civil rights groups, business groups, and officials of federal, state, and local governments. Their job is to listen to all of them but ultimately to follow the law.

      Bill Clinton obliterated the line between special-interest advocacy and civil rights law enforcement. Establishment civil rights groups were given free rein over civil rights law enforcement. The advocacy groups and civil rights law enforcers became one and the same, destroying any facade of effective civil rights law enforcement.

      Things initially appeared more optimistic. As a candidate, Clinton's rhetoric on civil rights and race relations was soothing and conciliatory. "America needs to restore the old spirit of partnership, of optimism, of renewed dedication to common efforts," he declared.(5) During the campaign, Clinton assailed the rap singer Sister Souljah for her provocation of violence against whites.(6) Once elected, President Clinton lashed out against the "bean counters" who wanted him to play "quota games" with Administration appointments.(7)

      But the optimism was short-lived, and reality hijacked rhetoric. Clinton appointed to every major civil rights post in his Administration an alumnus of an establishment civil rights organization. To the crucial position of Assistant Attorney General for Civil Rights, Clinton appointed Professor Lani Guinier, who previously litigated for the NAACP Legal Defense Fund ("LDF"). After Guinier's radical views were exposed to the public and her nomination was imperiled in the Senate, Clinton withdrew the nomination.(8) But subsequent picks were Guinier clones: Deval Patrick and Bill Lann Lee both also worked for LDF.(9) Patrick's deputies included Kerry Scanlon, another LDF alumnus, and Isabelle Pinzler, director of the Women's Rights Project at the American Civil Liberties Union.(10)

      At the EEOC, Clinton appointed as chairman Gilbert Casellas, formerly with the Puerto Rican Legal Defense and Education Fund.(11) As commissioners, Clinton named Paul Igisaki, who served as director of the Asian Law Caucus; and Paul Miller, who was the litigation director for the Western Law Center for Disability Rights.(12) The commission's legal counsel, Ellen Vargyas, worked for the National Women's Law Center.(13)

      At the U.S. Department of Education, Clinton named Norma Cantu as Assistant Secretary for Civil Rights the former regional director of the Mexican-American Legal Defense and Education Fund.(14) Roberta Achtenberg, named Assistant Secretary for Fair Housing and Equal Opportunity at the U.S. Department of Housing and Urban Development, was executive director of the National Center for Lesbian Rights.(15) And Clinton elevated as Chairperson of the U.S. Commission on Civil Rights Mary Frances Berry, who had come to national attention in 1985 when she opined that "civil rights laws were not passed to give civil rights to all Americans," but only for the benefit of "disfavored groups" such as "blacks, Hispanics, and women."(16)

      Clinton's bean-counting and quota games were so obsessive that they imperiled civil rights law enforcement. The Washington Post assailed the Clinton Administration for leaving the EEOC chairman's post unfilled for 21 months as it searched for a nominee who was "not just Hispanic," but specifically of "Puerto Rican descent."(17) Meanwhile, the agency compiled a massive backlog of eighty thousand discrimination complaints.(18)

      By picking ideological activists, Clinton exposed his civil rights nominees to serious scrutiny by the U.S. Senate, which exercised its important "advise and consent" role. After the embarrassing withdrawal of the Guinier nomination, Clinton suffered a second setback when his appointment of Bill Lann Lee to the same position faced certain defeat in the Senate Judiciary Committee.(19) Instead of withdrawing Lee, Clinton bypassed the Senate and installed Lee as "Acting" Assistant Attorney General,(20) draining the Civil Rights Division of the constitutional imprimatur of Senate confirmation and making a further mockery of the...