Streetcar Line

Why the Black Panther Case Matters

Holder team tramples civil rights -- by enforcing left-wing view that civil rights law exists only to protect certain minorities, the heck with everyone else.

By 2.3.11

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Attorney General Eric Holder and his minions, along with some of their slavish apologists in the media, are deliberately trafficking in lies of great note. They prevaricate with great enthusiasm, and they excuse lawlessness with fierce disdain. They -- both the Department of Justice (DOJ) officials and their leftist amanuenses pretending to be journalists -- brazenly ignore the public's right to information, and intentionally distract attention from relevant facts and from their own deep beliefs.

These conclusions arise from the accumulated weight of evidence in what should be a broadening scandal emanating from the infamous New Black Panther Party voter-intimidation case. Not that one would know it from the main pages or airtime of establishment-media outlets, but the Panther-related issue of race-based decision-making at DOJ reached crests last week on multiple fronts.

Deserving of howls of media outrage, but instead attracting barely a peep of protest, was the highly disturbing evidence of a major cover-up at DOJ, as discussed by both the Washington Times and the Heritage Foundation's Hans von Spakovsky. (Please do read both links for more information on those aspects of the scandal.) Von Spakovsky makes an excellent argument that both internal investigative arms at DOJ are "protecting Obama's political appointees and disregarding their ethical and professional violations in the New Black Panther Party case."

In any other circumstance, if an administration 1) claimed utterly bogus privileges never before recognized by law, 2) dragged its feet for 16 months on a rather simple internal investigation, 3) put partisan officials in place to oversee or skew the investigations, and 4) stiffed Congress and the media and an independent agency on formal, legally weighty information requests, then the axis of CBS/New York Times/AP/White House press corps would be in full-on Watergate mode with breathless updates about the latest nefarious occurrences.

Yet that's just the cover-up. In this case, the "crime" (metaphorically speaking) really is worse. For well over a year now, the biggest normative violation has not involved the actual Panther intimidation, or even anything focusing on the Panthers at all. Instead, the more important focus has been on the convincing evidence that both the DOJ Civil Rights Division and the Obama political team at the Department, up to and including Holder, exhibit a pervasive hostility against the idea of race-neutral enforcement of laws related to civil rights, and have both spoken and acted accordingly. Most concretely, did Deputy Assistant Attorney General Julie Fernandes adopt a policy of not enforcing, or not enforcing in an equal manner, two separate laws relating to voting rights and procedures? Two sworn testimonies say that she said as much at specific, widely attended Civil Rights Division meetings in the fall of 2009, and further sworn testimony says she and the Obama team directly ignored a key lawyer's recommendation to enforce one of those laws against eight states in obvious violation thereof.

These incidents get to the very heart of the entire investigation by the U.S. Commission on Civil Rights. From the very adoption of this topic for its statutorily mandated annual report, the Commission's investigation was deliberately broader than just the Panther case alone, but instead was to discover if DOJ had adopted "a change in policy or practice" that remained "consistent with proper enforcement" of civil rights laws. Contemporaneous media accounts made abundantly clear that the overriding issue was this (quoting the excellent Jennifer Rubin): "And therein lies the most likely answer to the mystery as to why the Obama team would want to undo a victory in a high-profile civil rights case. The notion that civil rights laws apply to all citizens, and are not on the books merely to protect minority groups or to pursue white racists, is an anathema to the liberal civil rights establishment and their sympathetic partners in the Justice Department."

All along, therefore, the question was if the Obama-Holder Justice Department was giving support to the internal Civil Rights Division belief that civil rights laws should not be enforced against black perpetrators who abused the rights of white victims. This is explosive stuff. It cuts to the very heart of equal rights under the law. It's also straight out of Orwell's Animal Farm, where some animals were "more equal than others."

In December the U.S. Commission on Civil Rights adopted the main text of its draft major report into all these matters, and last Friday the entire report officially was released -- after inclusion, for the first time on the record, of the comments dissenting from the report, and other comments rebutting those dissents, penned by individual members of the Commission.

Here is the absolutely key thing to note about the individual statement of the two liberal commissioners, Arlan Melendez and Michael Yaki: Nowhere in the main text of their 23-page comment did they even mention the name of Julie Fernandes. The entirety of their discussion of this most explosive of the commission's findings was relegated to a single footnote that never even addressed the substance of Fernandes' alleged statements or actions, but only highlighted an alleged, almost infinitesimal, discrepancy between the two whistleblowers that told of the Fernandes meetings. There is good reason for the liberal commissioners' failure to address this issue: Fernandes' statements and actions can neither be denied nor justified. Too many people were at the meetings in question for it to be plausibly refuted. The Holder team repeatedly has ignored the same questions; it repeatedly refused to allow Fernandes to be deposed on the matter; most importantly, it has not explained why -- if the department's policy is not as Fernandes (according to the whistleblowers) described it -- the administration never did enforce the law against the eight states in violation even after whistleblower Christ Coates, in his official capacity, brought the violations to the Holder team's attention and recommended action on it.

If the Fernandes issue is not addressed, then everything else by Messrs. Melendez and Yaki is pure misdirection and obfuscation. After all, in Commissioner Gail Heriot's formal comments released last Friday, Heriot noted "Commissioner Yaki's earlier declaration that if Deputy Assistant Attorney General Julie Fernandes made the statement she is alleged by Christian Adams to have made, she 'should be fired.' As he so colorfully put it, 'That person should be tossed out on their ear in two seconds flat.'"

Abigail Thernstrom, vice chairman of the Commission, was even more colorful during hearings: "It is simply impossible to believe that [Fernandes] said anything remotely like]" what was reported. "…. She surely didn't announce that. I mean, unless she is some sort of moron." Yet Thernstrom herself wrote a dissent to the official report saying as follows: "The majority charges that racial double standards govern the enforcement of the Voting Rights Act in the Holder Justice Department. If that can be convincingly demonstrated, it will be a grave indictment of this administration. But that evidentiary showing awaits further investigation by the Department of Justice and Congress."

Thernstrom ignores the fact that sworn testimony, by law, is evidence, unless directly disputed and refuted. And the only reason it "awaits further investigation" is because of the lawless stonewalling by Holder's team -- made easier by Thernstrom's repeated refusal to support a single Commission effort (once the topic was chosen as its official report) to garner further evidence on its own about whether Fernandes was indeed the sort of "moron" who would say what seemed inconceivable to Thernstrom.

The failure to enforce the law against the eight scofflaw states, and the unrefuted charges that Fernandes announced a policy of refusing to enforce that law, are themselves strong evidence of partisan and probably racialist attitudes ruling the roost at DOJ. As Commissioner Gail Heriot noted in her own formal comments released last Friday, the allegations about Fernandes are made all the more believable because Fernandes also was quoted by a liberal news service expressing just those abhorrent views -- the views that civil rights laws aren't intended to protect whites also -- on an occasion before she joined DOJ. "The law was written to protect black people," Fernandes said back then.

The truth is that this viewpoint enjoys overwhelming support in lefty legal circles. Sickeningly wrongheaded as it is, it is not unusual, but an ideological touchstone. That truth was made abundantly clear especially in the pointed rebuttal by Commissioner Heriot, and also in the other interlocking statements by her and Commissioners Todd Gaziano and Peter Kirsanow. Together, their statements are brilliant expositions of the entire, sprawling matter. (They are included in the report that is the first entry at this site, which also provides every other document of note in this case.) As Gaziano noted, even the former chairman of the Commission itself, Mary Frances Berry, wrote in an official Commission report -- blatantly ignoring the text of the civil rights laws themselves -- that "Civil rights laws were not passed to give civil rights protections to all Americans." Read that again: The civil rights of whites should not be protected, according to a liberal former chair of the Commission, pushing the same noxious view (in dissent from the majority) attributed to Ms. Fernandes and the bulk of her compatriots at DOJ. The Washington Post and the Christian Science Monitor, among others, have found and published ample evidence (cited by Heriot) of other current and former DOJ attorneys saying much the same thing.

Again, this is at the center of the entire Commission investigation springing from the Black Panther affair, and at the root of questions pushed by a number of Republican congressmen led by Frank Wolf of Virginia and Lamar Smith of Texas -- questions stonewalled by DOJ in the same way DOJ stonewalled the Commission. Holder knows this is the case. Every one of his minions knows this is the case. Their toadies in lefty (and even some in the "mainstream") media know this is true. And why should they not: It is only a step away, different in degree but not entirely different in kind, from their advocacy of the more aggressive forms of affirmative action. In affirmative action, the government provides extra benefits to minorities; in these civil rights disputes, the left would have government protect minorities against illegal actions that whites are unprotected from. The logic is the same, except that in affirmative action they can pretend they are merely offering benefits but with no "victims"; whereas with a failure to protect the civil rights of white Americans, the lefties would be forced to assert that the victims just aren't really worth protecting.

They apparently feel morally justified in acting on this racialist basis, but they cannot say so in public because they know the public strongly disagrees. Heck, they know that even their favored, aggressive forms of affirmative action are deeply unpopular with a majority of Americans, and that this further step of race-based favoritism would infuriate a larger majority still.

The most froth-mouthed (and at times flat-out nasty) of the left's media lackeys, Adam Serwer of the American Prospect, who too often also pollutes the Plum Line blog at the Washington Post, actually admits and excuses the double standard even while denying that DOJ applies it:

There's no question that civil rights laws cover Americans of all backgrounds -- and indeed, the voting section under Obama has intervened on behalf of white voters. But civil rights enforcement can't be anymore 'race-neutral' than our own society or history. Ensuring that people's rights are protected regardless of race can't actually be achieved through color-blindness.

(The so-called "interven[tion] on behalf of white voters" is a total red herring, by the way, as whistleblower Christian Adams explained -- even before the DOJ took action -- exactly why that particular action, if taken, would amount to more of an invitation to wrongdoing than a blockage of wrongdoing.)

What Serwer is suggesting, again, is the old "some are more equal than others" approach to determining whose civil rights do or don't merit active government protection rather than lip service. This is racialism, pure and simple -- not to be confused with the overt racism that Serwer repeatedly insinuates is the real reason for conservative interest in these matters.

(Of many examples of Serwer cheap shots that could be given, consider two: 1) He writes of "the feverish alternate universe of racial resentment in which some conservatives seem to reside." 2) "This whole 'scandal' isn't really about 'race neutral' enforcement of civil rights laws. It's about discrediting the whole concept of civil rights enforcement by undermining the legitimacy of the federal agency charged with doing so." In Serwer's world, conservatives want no civil rights enforcement: We secretly pine for a return to all-white lunch counters and exciting cross burnings. Serwer's vicious calumny merits, and will receive in this space in another column, a full and devastating refutation.)

Commissioner Kirsanow's excellent rebuttal statement summed up the issue perfectly:

Racialist sentiments like those attributed to Fernandes demonstrate a deeply flawed understanding of the Voting Rights Act, whose plain language protects all American voters, not just members of minority groups…. [DOJ] treads on constitutionally treacherous ground where it identifies the beneficiaries of its enforcement efforts on the basis of race…. Our Constitution forbids this type of gross, race-based meting out of benefits and burdens.

Those of us who have pushed this case believe deeply in civil rights for all, and feel in our very marrow a particular revulsion against the unfairnesses, indignities, and sometimes pure horrors that black Americans suffered for decade after decade. In his eloquent racial protest song "What did I do/to be so black, and blue?", Louis Armstrong sang that "The only sin/ is in my skin." His message was right, that there is no sin in dark brown skin -- nor is there sin in skin of any color.

People of every skin color deserve the laws' equal protection. Compelling evidence indicates Eric Holder and his team do not appear to act according to that principle. It is not latent racism for Americans to "call them out" on their immoral lawlessness.

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About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.