Fort Liberalism: Can Justice's civil rights division be Bushified?

Transit cops in Philadelphia can't afford to take long snack breaks at the doughnut shop. They have to stay fit and trim, able to run eight or ten city blocks, sometimes going up and down flights of stairs carrying heavy gear. When they arrive at a scene to assist commuters, they must have enough energy to grapple with criminals or help people in trouble.

It's a tough assignment, but the Southeastern Pennsylvania Transportation Authority (SEPTA) makes sure it hires people who are up to the task. Eleven years ago, it developed a test requiring applicants to run one-and-a-half miles in under 12 minutes while wearing 26 pounds of equipment. Since this testing started, a lot of applicants have failed to meet the standard, including 93 percent of women. Feminists howled about sexism and filed a lawsuit against SEPTA. They didn't have much of a case, but that hardly mattered to the adventurous spirits who ran the civil rights division at the Department of Justice during the Clinton years; in 1997, they joined the suit.

Over the next four years, a judge ruled twice ruled in favor of SEPTA. Last fall, as the never-say-die plaintiffs wanted to press forward against increasingly hopeless odds, the civil rights division -- now headed by Bush appointee Ralph F. Boyd -- would have none of it and pulled out. Though considered wildly controversial in the fever swamps of civil rights activism, this was actually a responsible decision, breaking from the reckless litigation strategies of the Clinton years. "All the bad stuff we used to see, such as the SEPTA case, has slowed to a trickle," says Roger Clegg of the Center for Equal Opportunity, which monitors the division's activities.

Assistant attorney general for civil rights is one of the most contentious posts in the entire federal government. Lani Guinier failed to get the job during the Clinton administration; Bill Lann Lee got it only because Clinton installed him as "acting" head of the division when the Senate was poised to reject his nomination. In 1989, Democratic senators blocked Bill Lucas, a black lawyer and former sheriff from Michigan who was said to lack civil rights expertise.

Last year, the White House reportedly had a hard time finding a Republican for the job, which was seen as a career killer. Bradford Reynolds held the post during the Reagan administration, but it doomed his advancement within the federal government: In 1985, he was denied a promotion to become the third-ranking official at Justice because he ran the civil rights division in a conservative manner. The Bush administration eventually settled on Boyd, a Boston former prosecutor who hadn't voted for a GOP presidential candidate until 1996. Without Guinier's long paper trail, Lee's history of activism, or Lucas's uninspiring resume, however, he was an acceptable candidate, and the Senate confirmed him in July.

There may be no part of the federal government where liberalism is more deeply entrenched. "Everything's political around here," complains one career lawyer. "Several of my colleagues took vacation time to campaign for Al Gore in 2000. You should have heard all the cheering when the Florida Supreme Court issued that ridiculous ruling after the election. It was like the home team had just hit a walk-off home run in the bottom of the ninth."

Many of the civil rights division's lawyers are hired directly from such groups as the ACLU and NAACP. "Certain kinds of people aspire to be civil rights attorneys, and not many of them are conservative," explains Clint Bolick of the Institute for Justice, who worked in the division in the 1980s. Boyd won't admit that this is a big deal. "The overwhelming preponderance of career staff are exceptionally good at what they do," he says. "There is a very small minority of folks who I will just say are less professional than I would like to see." Most of Boyd's top aides, however, think the less-professional types pose a serious problem -- and their ability and willingness to hurt Boyd has recently become apparent.

In the months following his confirmation, Boyd didn't make much news. Then, in March, a parade of Washington Post stories on the civil rights division started to appear -- every one of them the result of hostile career lawyers within the division choosing to play Deep Throat. The coverage began with unnamed sources criticizing Boyd for moving Katherine Baldwin, the lawyer in charge of the employment-litigation section, onto a special task force. This was spun as a sneaky effort to gain more control over the division, though almost nobody mentioned that Baldwin herself had risen to section chief under similar circumstances shortly after Bill Clinton's inauguration -- or that Clinton's people had replaced one-third of the division's section chiefs at the time. (The Clinton purge probably wasn't seen as quite so newsworthy because not many career lawyers complained about it -- they in fact welcomed a more politicized division.)

Two days after the Baldwin story, Boyd was in the Post again -- this time for issuing a "gag order" on career lawyers. The "gag order," however, was simply a memo written by a fellow career lawyer reminding them that they shouldn't disclose internal law-enforcement deliberations. Yet it was presented to the Post as a dastardly document that was spreading fear in the ranks.

Then came the big story: a front-page Post article headlined "Bias Case Decree May Be Lifted." It said Boyd was thinking about ending a consent decree signed by the Adam's Mark hotel chain two years ago. The company had agreed to pay fines and undergo monitoring as part of a lawsuit settlement rising from its treatment of black patrons. Last October, Boyd met with Adam's Mark officials, who pleaded for modifications. Boyd refused to grant them any. Even if he had, it would hardly have risen to the level of front-page news: Multi-year consent decrees are often altered over the course of their implementation. The Post cited a February letter from Boyd to the company saying that if Adam's Mark continued to obey the consent decree over the next nine months, terminating it prior to its 2004 expiration was a possibility. Again, Boyd did not commit to any course of action -- but then he didn't explicitly promise not to make changes, either. This was the thin reed the Post had to go on. "They might have headlined the story, 'Boyd Refuses To Change Decree,'" says one of his deputies. "But then that wouldn't be a good news article, would it?"

The Missouri-based hotel chain eventually dropped its request for a review, after critics pointed out that its CEO and other employees had been financial supporters of attorney general John Ashcroft over the years. For those who didn't pay close attention to this case or the other recent ones, however, they left the false impression that Boyd is more interested in playing politics than enforcing the law.

Career lawyers have made this interpretation possible by leaking like sieves; one of their goals may be to influence Boyd and the administration in its future decision-making. Coming soon is what former deputy assistant attorney general Mike Carvin calls "the big enchilada": a lawsuit over the University of Michigan's system of racial preferences. The case is currently before a panel of federal appeals judges. Their decision hardly matters because the case is almost certainly headed toward the Supreme Court. Assuming the high court takes it up, the Department of Justice may then offer an opinion on the key dispute in the case -- whether "diversity" is a sufficient rationale for employing racial preferences. Several Court watchers believe Sandra Day O'Connor's swing vote may hinge on where the Bush administration comes down on the issue.

There's no guarantee the Bushies will want to challenge the concept of diversity. Last year in Adarand, the Department of Justice filed a brief before the Supreme Court arguing in favor of set-aside contracts. If something like that happens with regard to the Michigan case, career lawyers in the civil rights division will have occasion to congratulate themselves for helping make possible such a legal disaster for conservatives.

Republicans should work to gain more control over the civil rights division and its renegade lawyers. The forces of opposition have burrowed in and they're willing to wait out any GOP regime. Yet a few obvious steps would begin to address fundamental problems. Instead of putting a single section chief on what Boyd calls a "temporary" task force, the administration should permanently replace those it believes it can't trust. "Four or five new section chiefs would do a world of good," says a career lawyer with experience in the division. At the same time, Republican political appointees should seize control of the hiring process. They don't need to make sure every new lawyer is a member of the Federalist Society; simply hiring competent professionals who don't come from left-wing organizations would be an enormous improvement.

Finally, Boyd should consolidate and move his own office out of the main Justice building on Pennsylvania Avenue. His lawyers are currently scattered across the city in several locations, none of them under the direct authority of a Bush appointee. "The front office doesn't know what's going on a lot of the time," says one career lawyer. "That encourages some of the attorneys to act with more independence than they might otherwise. Around here, that isn't usually a good thing."