The Obama Watch

Justice is Blind

But not color-blind at Obama's Department of Justice.

By 3.18.10

Something is rotten at Barack Obama's Justice Department. These days, most of the criticism of the DOJ is aimed at the stubbornly liberal Attorney General Eric Holder. But while Holder is trying to decide which densely-populated metropolis to try Khalid Sheikh Mohammed in, another wing of his department has been pursuing alleged "hate crimes" and "discrimination" cases with a vengeance.

The DOJ's Civil Rights Division is, as Assistant Attorney General for Civil Rights Thomas Perez put it, "open for business again." Perez has expressed shock at the lack of hate crimes prosecutions under George W. Bush. He plans to increase the Civil Rights Division's tempo and will hire more than 100 new employees to bolster its ranks.

Obama's Justice Department is notoriously tin-eared, but you still think they'd know to be cautious. Earlier in the year, the Supreme Court delivered a harsh blow to hyperactive civil rights lawyers in the Ricci v. DeStefano case. That ruling called into question key tenets of civil rights law and almost sent Sonia Sotomayor's confirmation hearings into a tailspin. A Quinnipiac poll found that Americans supported the firefighters by a three-to-one margin.

That hasn't fazed Perez, who said in a speech that Ricci wouldn't stop his lawyers from prosecuting other so-called "disparate impact" cases. With precedent cast aside, there's not much standing in his way. Perez's prosecutions have usually targeted state and local police departments, sheriff's offices, and voting boards. These are stories for the local news, unlikely to ignite a national controversy.

Perez has done a lot with little attention called to him. Just a few of the cases the CRD has taken up:

• In New Jersey, a written test is administered for police officers seeking to advance to the rank of sergeant. As in New Haven, the test quizzes candidates on state and local law. The Civil Rights Division filed a lawsuit against the New Jersey Civil Service Commission because a greater percentage of whites were passing than Hispanics or African-Americans.

• In Oklahoma, the Bryan County Sheriff's Office evoked Perez's wrath because the Sheriff had been reassigning pregnant female corrections officers to desk duty while they were pregnant. (It boggles the mind, I know.) A consent decree was established and employees of the Sheriff's Office must now submit to mandatory training on something called "pregnancy discrimination."

• In Georgia, the Voting Rights Act of 1965 requires the state to get permission from the Justice Department before they can change state voting laws. A new law passed by the state would require new voters to present proof of citizenship, including driver's license information and a Social Security Number, before they can register. The Civil Rights Division refused to clear the law because they think it would somehow discriminate against minority voters. Georgia's government became so aggravated, they finally decided to sue the DOJ. "The State of Georgia will no longer watch the Obama Justice Department play politics with our election processes and protections," said Georgia Secretary of State Brian Kemp.

It begs the question: Is there any civil rights situation in which Perez won't stick his nose? Actually, yes -- the Black Panther case has been ignored for months. 

Much of this has to do with who's running the Civil Rights Division. Perez is a lifelong civil rights lawyer whose specialty is suing racist cops. He grew up in the Civil Rights Division during the 1990s and went on to advise Ted Kennedy on civil rights.

Perez's crusades against employment tests are surprisingly legal. Title VII of the Civil Rights Act forbids "disparate impact," which bans employment hurdles, such as police tests, that aren't intentionally discriminatory, but whose outcomes ultimately exclude minorities. Unfortunately, the Supreme Court hasn't gotten around to jiving Title VII with the Constitution's guarantee of equal protection under the law.

Title VII is used sparingly in the hands of a wise lawyer. During Bush's presidency, disparate impact lawsuits dropped sharply, as did hate crimes prosecutions. But Obama's CRD is brandishing the Civil Rights Act as a javelin while they charge at phantom racist windmills across America. Listening to Perez rant about the legal "weapons in our arsenal," it almost feels like he's on a crusade. This is litigation at its worst.

At its very core, America was founded as a place where individuals would advance based on their merit, not their birthright or social status. After the racially charged tumults of the 1960s, that ideal became threatened by progressives who transformed anti-discrimination laws into racial preferences.

Perez is cut from that mold, though he's 25 years too late. He hollers about crusading against racism and hate while most of America sits in relative racial harmony, governed by its first black president. He's waving the flag ready to storm the beaches of Normandy, but it's 2010.

And now Barack Obama has him in a senior position in our Department of Justice.

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Matt Purple is an editor at