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September|October 2005
An Uncivil Division By William R. Yeomans
Left to Their Own Devices By Theodore Ruger

An Uncivil Division

Political appointees to the Justice Department's civil rights division are driving career lawyers to retirement—then skipping the retirement parties.

By William R. Yeomans

"MAY IT PLEASE THE COURT, MY NAME IS WILLIAM YEOMANS, and I represent the United States." With those words, I began my first presentation in court for the civil rights division of the United States Department of Justice some 23 years ago. In the years that followed, as a career attorney at Justice, I used that opening on many occasions and always with pride, as did my career colleagues.

We shared in a tradition of public service that included attorneys who had successfully prosecuted Deputy Sheriff Cecil Ray Price and others for conspiring to kill Michael Schwerner, Andrew Goodman, and James Cheney in Mississippi, but failed to persuade a jury there to convict Ray Killen (a failure recently corrected); risked life and limb and suffered untold insults to bring desegregation to schools across the South and to metropolitan areas of the North; and prosecuted racists who burned crosses, churches, and homes. This tradition of public service and its attorneys brought to justice hundreds of abusive police officers, including those who beat Rodney King; challenged egregious conditions of confinement in prisons and psychiatric hospitals; and helped win passage of the Americans with Disabilities Act enforcing it in ways that made the daily activities of life easier for millions of people. As a trial lawyer and a manager, I was humbled every day to be a part of this tradition.

During the change from the Clinton to Bush administrations, however, the tradition began to be undermined. Political appointees who arrived in the division lacked experience in enforcement of the nation's civil rights laws or in managing a large organization, yet they were convinced that the career attorneys greeting them could not be trusted. As a result, the political leadership embarked on a very different path from the one marked by past Republican and Democratic administrations.

Rather than emerge from open discussion, decisions increasingly were made in isolation from career attorneys and were communicated as orders. Attorneys who sought to engage in discussion or propose alternative approaches were viewed as disloyal and suffered the consequences. Not too long after the change of administrations, a long-serving deputy chief of the employment section, which enforces federal prohibitions against discrimination in public employment, was told that he would be reassigned to the civil division, the unit at the Department of Justice that defends the government against such charges. Career attorneys widely perceived the move as an effort to punish him for leading litigation teams that defended affirmative action programs and that pursued large cases challenging discrimination by public employers, and for his attempts to discuss those issues with the new arrivals.

Many longtime career leaders of the division have left or have been removed, and personnel practices have been revamped to foster the removal of attorneys viewed as insufficiently loyal and replace them with attorneys selected because of ideology. Recently, one attorney with sterling credentials, who was hired into the division in the Clinton Administration, was told that she would be transferred involuntarily out of the appellate section. Another, also hired in that administration, was told that she would no longer be permitted to work on civil rights cases. If she stayed, she would be assigned a steady diet of deportation orders from the criminal division to defend.

It is the duty of career attorneys to follow the instructions of the political leadership, so long as they are lawful and ethical. It is also a duty to ensure that political leaders are fully informed about the law and facts and have been presented relevant options before deciding on a course of conduct. Career attorneys owe the political leadership the full benefit of their expertise and their experience. They owe a duty to political leaders and the institution they serve to maintain the confidentiality of the advice they give political leaders. Occasionally, career attorneys in various parts of the government have lost sight of these obligations, meriting rebuke from political appointees.

Personnel practices in the civil rights division during the current administration, however, have gone far beyond responding to those rare situations. As a result, the dialogue between career and political appointees has been stifled. Political appointees are not getting the benefit of the career staff's expertise and experience. Morale among career attorneys has plummeted, the division's productivity has suffered, and the pace of civil rights enforcement has slowed.

This is not the first period of tension I have witnessed between political and career appointees. Notably, during the 1980s, career and political attorneys differed on a number of issues—the lawfulness of affirmative action plans, for example, and the scope of school desegregation decrees. During that period, the political leadership occasionally felt the need to rule by directive. It sometimes assigned to political appointees particularly sensitive matters that would normally have been handled by career attorneys, tasks like the argument of a particularly contentious case in a court of appeals challenging race-conscious relief in employment.

However, the conversation between the political and career attorneys never broke down completely. The assistant attorney general in charge of the civil rights division, William Bradford Reynolds, who was regarded by many as having curtailed the enforcement efforts of career attorneys, was nonetheless an accomplished lawyer who avidly discussed the law and individual cases with career lawyers. Despite the commitment of the Reagan era political leadership to change civil rights law in fundamental ways, there was no comparable effort to exclude career attorneys and replace them based on ideology.

AS IN OTHER COMPONENTS OF THE DEPARTMENT OF JUSTICE, the president appoints the top layer of leadership, which usually includes a half dozen to a dozen lawyers. These political appointees come and go with changes in administrations. One such appointee used to refer to her colleagues and herself as the Christmas help. In reality, of course, the political leadership is empowered to make ultimate decisions regarding the division's activities. Over the years, some extraordinary people have led the division, including Burke Marshall, who shepherded it through the tumultuous years of the early 1960s and began to make the federal government an effective force for civil rights, and John Doar, who led the charge to enforce the newly enacted Civil Rights Act of 1964, the Voting Rights Act, and the mandate of Brown v. Board of Education to desegregate public schools. These men and their successors helped to reshape our society by opening opportunities to many who had been excluded because of race, color, religion, national origin, sex, or disability.

By convention, one or more senior career attorneys have served alongside the political appointees to assist in managing the civil rights division. Below the political leadership work the 700 career employees of the division, roughly 300 of them attorneys. The career employees work in 10 substantive sections, each led by a chief and a variable number of deputy chiefs. Traditionally, litigation and other legal activities have been conducted by trial attorneys under the immediate supervision of a career person. Major decisions, such as the initiation of a large civil investigation, the empaneling of a grand jury, or the determination to file a lawsuit or an appellate brief have been approved by political appointees based on recommendations from the career staff.

Historically, this arrangement has worked because there has been considerable interaction between career and political staff in the division. For much of the division's existence, major decisions have been discussed extensively between career and political attorneys. This conversation—dubbed "government by discussion" by former Attorney General Edward Levi—has encompassed law and policy.

The collapse of the conversation was brought home poignantly to me recently when I attended the retirement party for Joe Rich, a senior career attorney who was serving as chief of the voting section and leaving after almost 37 years in the division. A podium had been erected in front of the fountain in the center of the courtyard, and the afternoon's speakers were seated in chairs near the podium when I arrived. Scanning the crowd, I saw Jim Turner, the longtime career deputy assistant attorney general who led the failed effort to indict the Alabama law enforcement officers who beat civil rights marchers as they attempted to march from Selma to Montgomery on the day known as Bloody Sunday, before becoming the paragon of career attorneys in the division and retiring a decade ago. I saw Paul Hancock, the longtime chief of the housing section, who left the division several years ago after leading the effort to fulfill the promise of the Fair Housing Act.

At the dozens of similar events I'd attended over the past generation, political leaders in the division always used the occasion to reinforce the ties between political and career appointees. It was especially moving when a leader who had clashed with career attorneys expressed his admiration and reminded us of our common purpose. But there was not a single political appointee at the event to celebrate a decorated career that had been dedicated to enforcing the nation's civil rights laws, from leading the effort to desegregate the schools of Texas to enforcing the Voting Rights Act through the tumultuous election of 2000. Whether because none was invited or none chose to come, the absence of political appointees spoke volumes.

Sadly, career attorneys at the event seemed relieved. Many attorneys were upset—stunned and frightened—by the working conditions that they face. One career manager proclaimed in exasperation: "It's like working for Caligula!" He meant that he never knows what the rules are or when he will fall out of favor. The line between loyal disagreement and disloyal dispute is narrow. Another career manager said he felt lucky because he and his section seemed to be under the radar, and he estimated that he saw the political head of the division roughly once a year. He hoped that he could keep it that way and survive.

THE EFFORT TO SILENCE THE CONVERSATION between the career attorneys and the political appointees has been taken to an unprecedented level in the division's hiring practices. Traditionally, career attorneys were hired into the division in two ways. First, every year a handful of applicants who had just graduated from law school or finished a judicial clerkship were hired through the Attorney General's honors program. This program was conducted department-wide and was extremely competitive, attracting some of the nation's top recent law graduates. To identify these people, the division established a hiring committee composed of career attorneys from the division's various sections. The career attorneys traveled the country, interviewing applicants, and on their return made a committee recommendation to the assistant attorney general about who should be offered career positions in the division. These recommendations were almost always accepted without further examination of the applicants. Through this process, the experienced career attorneys, who knew best what it took to do their jobs well, were able to provide a steady flow of outstanding young civil rights attorneys into the division. I participated in this process for a number of years and supervised it for several more. It produced and maintained a corps of talented and dedicated career attorneys.

In 2003, the assistant attorney general abolished the hiring committee. Since then, only political appointees have reviewed incoming resumes and interviewed applicants for the honors program. Gradually, this process has largely taken over the hiring of experienced attorneys as well. Political officials screen resumes and interview applicants. Section chiefs are told that attorneys they have never met will report for work in their sections. Increasingly, experienced hires have been identified because they are friends or former associates of political appointees. Few bring any experience in enforcing civil rights laws. Most bring an ideological commitment that is inconsistent with vigorous enforcement of civil rights laws. Overall, career managers say, their records and preparation do not compare well with the hires made when career attorneys were more involved.

Declining morale and talent drain have contributed to a decline in the division's enforcement activity. Part of the decline reflects a policy determination to reduce the vigor of civil rights enforcement. Many attorneys have expressed frustration at delays in getting work approved at the political level, and they complain that they are not permitted to pursue investigations or court filings that would have been undertaken in the past.

Some of these complaints result from legitimate decisions to emphasize different priorities. For example, the division has been more active in prosecuting individuals for trafficking in persons, which includes forcing individuals to engage against their will in commercial sex, or farm, factory, or domestic labor, and it has emphasized ensuring that individuals of limited proficiency in English receive the language services to which they are entitled. It is plain, however, that the loss of experience and talent, combined with decisions to de-emphasize enforcement in a number of areas, has made the division less productive.

TRAC, the Transactional Records Access Clearinghouse at Syracuse University, recently released a report showing that the division has misreported the number of cases it has pursued in recent years. TRAC concluded that the division's enforcement activity has dropped off, despite protestations from political appointees to the contrary. Among career attorneys, there is no doubt that enforcement activity has declined, except in those few areas emphasized as priorities. They report that not only are fewer cases being pursued, but that those being pursued are generally smaller and designed to have less impact than in previous years.

A look at the division's appellate section is instructive. The section handles the appellate work generated by litigation in the other sections of the division, and it files briefs as amicus curiae at the appellate level in civil rights cases in which the United States has an interest. The number of cases coming up from the other sections is small by historic standards because of the decline in enforcement activity. Similarly, the number of amicus filings in the Courts of Appeals for 2004 (6) was less than a third of the number filed five years before (22), even though the number of attorneys in the section has increased.

These discretionary filings are a good barometer of the division's enforcement activity. The division filed no amicus brief in an appeals court addressing, much less opposing, such things as discrimination in housing, employment, or education on the basis of race or gender. Perhaps most disturbingly, the section has been drafted into the business of filing briefs in cases rising out of the criminal division's office of immigration litigation. These are briefs in support of deportation orders, decidedly not a traditional civil rights function.

CIVIL RIGHTS ENFORCEMENT HAS ALWAYS BEEN CONTROVERSIAL. First, that was largely because of geography: The division was launched in 1957 in the wake of Brown, when Southern states determinedly resisted the Supreme Court's ruling. Later, it was because the field became a prime subject for partisan politics: Either the division was doing too much or too little, depending on the administration and the era.

Career attorneys who stayed through political changes have provided the stability, consistency, and expertise necessary to the credibility of any civil rights enforcement program. They have reassured courts and the public that enforcement was grounded in the law rather than in the prevailing partisan political mood. They have supplied the experience needed for navigating difficult questions that inevitably confront political leaders of the division. The conversation between those leaders and career attorneys is as necessary today as it has been since the division was founded.

William R. Yeomans served in the Justice Department's civil rights division from 1981 until this year.

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