[Dialogue] Bush Turns Civil Rights Commission Into 'Conservative Rights' Commission

[Harry Wainwright]

Published on Tuesday, November 6, 2007 by The Boston Globe
<http://www.boston.com/news/nation/washington/articles/2007/11/06/maneuver_g
ave_bush_a_conservative_rights_panel/>  

Bush Turns Civil Rights Commission Into 'Conservative Rights' Commission

by Charlie Savage

WASHINGTON - The US Commission on Civil Rights, the nation's 50-year-old
watchdog for racism and discrimination, has become a critic of school
desegregation efforts and affirmative action ever since the Bush
administration used a controversial maneuver to put the agency under
conservative control.

Democrats say the move to create a conservative majority on the eight-member
panel violated the spirit of a law requiring that no more than half the
commission be of one party. Critics say Bush in effect installed a fifth and
sixth Republican on the panel in December 2004, after two commissioners,
both Republicans when appointed, reregistered as independents.

"I don't believe that [the law] was meant to be evaded by conveniently
switching your voter registration," said Commissioner Michael Yaki, one of
the two remaining Democrats.

The administration insists that Bush's appointments were consistent with the
law because the two commissioners who reregistered as independents no longer
counted as Republicans. The day before Bush made the appointments, the
Department of Justice approved the move in a memo to White House counsel
Alberto Gonzales's office.

Other presidents have been able to create a majority of like-minded
commissioners, but no president has done it this way. The unusual
circumstances surrounding the appointments attracted little attention at the
time. But they have had a sweeping effect, shifting the commission's
emphasis from investigating claims of civil rights violations to questioning
programs designed to offset the historic effects of discrimination.

Before the changes, the agency had planned to evaluate a White House budget
request for civil rights enforcement, the adequacy of college financial aid
for minorities, and whether the US Census Bureau undercounts minorities,
keeping nonwhite areas from their fair share of political apportionment and
spending. After the appointments, the commission canceled the projects.

Instead, the commission has put out a series of reports concluding that
there is little educational benefit to integrating elementary and secondary
schools, calling for closer scrutiny of programs that help minorities gain
admission to top law schools, and urging the government to look for ways to
replace policies that help minority-owned businesses win contracts with
race-neutral alternatives.

The conservative bloc has also pushed through retroactive term limits for
several of its state advisory committees. As a result, some longtime
traditional civil rights activists have had to leave the advisory panels,
and the commission replaced several of them with conservative activists.

The commission has also stopped issuing subpoenas and going on the road to
hold lengthy fact-finding hearings, as it previously did about once a year.
The commission had three planned hearings in the works when the conservative
bloc took over and canceled them. Instead, the panel has held only shorter
briefings, all but one of which was in Washington, from invited specialists.

Commissioner Abigail Thernstrom, who dropped her GOP registration six weeks
before Bush's appointments, said the selection of conservatives to the state
civil rights advisory committees provided "intellectual diversity." She also
said the commission's recent briefings and reports have been rigorous.

"They are completely balanced in a way they haven't been for years," said
Thernstrom, a former member of the Massachusetts Board of Education who
until recently lived in Lexington.

A core mission of the Civil Rights Commission is to use its bipartisan
fact-finding power in racial disputes to "gather facts instead of charges
[and to] sift out the truth from the fancies," as Senate majority leader
Lyndon Johnson said in August 1957.

In its early days, the commission's work of collecting evidence of voter
discrimination and police brutality laid the groundwork for major civil
rights laws. But the panel has stayed on the sidelines in recent
controversies with civil rights overtones.

For example, the panel did not investigate allegations that black
neighborhoods in Ohio received too few voting machines in the 2004 election
or the murky circumstances surrounding a racially charged assault case in
Jena, La.

Kenneth Marcus, the commission's staff director, said the panel has not
issued subpoenas because they are time-consuming and "disrupted" its
relations with other government agencies.

Marcus also said that members of the panel considered investigating the 2004
Ohio election dispute, but decided it would not be "the best use of their
resources." The commission staff, he added, was recently briefed by the
Justice Department about the Jena case and is monitoring the situation.

Democrats say Bush's appointments threw the commission out of balance,
violating the bipartisan intent of the law that forbids the panel from
having more than four members of one party. Five commissioners must agree
before the agency approves a report or recommendation.

But Marcus, a Bush appointee, said "it's not true" that the panel has become
a party instrument.

"The commission is guided by four Republicans, two independents, and two
Democrats, which is consistent with the statute governing the agency,"
Marcus said. "Certainly, we have a majority of conservatives right now, and
that majority is taking the commission in a direction that is different than
what we've seen in the past."

The commission - half appointed by the president and half by congressional
leaders - has been under a 6-to-2 control by both liberals and conservatives
before. Especially since the 1980s, presidents and lawmakers have tried to
tilt the panel by appointing independents who shared their party's views on
civil rights.

But until Bush's 2004 appointments, no president used reregistrations by
sitting commissioners to satisfy the law that forbids presidents from
appointing a fifth commissioner of the same party. Bush's move , represented
an unprecedented "escalation" in hardball politics, said Peter Shane, Ohio
State University law professor.

No court has ever ruled on the meaning of the political balance law, which
does not say whether a commissioner's party identity is fixed at
appointment, or whether a commissioner who reregisters no longer counts
toward the party cap.

In a two-page memo Dec. 6, 2004, the day before Bush's appointments, the
Justice Department said it was "clear" that it only matters what
commissioners say their party identity is when a president makes
appointments.

But Peter Strauss, an administrative law professor at Columbia University,
said he believed a court would reject the administration's interpretation,
especially if a judge decided that a commissioner reregistered "to
manipulate the process" rather than because his or her ideology sincerely
changed.

One of the extra Republican slots opened Oct. 27, 2004, when Thernstrom
asked the town clerk of Lexington to change her voter registration to
independent from GOP. Six weeks later, Bush promoted Thernstrom to be the
commission's vice chairwoman.

Thernstrom acknowledged speaking with the White House about the impending
vacancies.

"The discussion was who were the possible candidates and what did their
[party] identification have to be," she said.

But Thernstrom said that no one asked her to reregister and that her
decision had nothing to do with making space for another Republican.
Instead, she said, she decided she would be "most comfortable" as an
independent, having registered as a Democrat and as an independent in times
past.

In more recent years, Thernstrom had been a consistent Republican. She voted
in the March 2000 and March 2004 Republican primaries, gave $500 to the
Bush-Cheney campaign in July 2004, and on Oct. 18, 2004, published an op-ed
in the Wall Street Journal calling herself a Republican appointee - just
nine days before she dropped her Republican registration.

The other GOP slot opened in 2003, when Republican Commissioner Russell
Redenbaugh switched to independent. He had been an independent when Senate
Republicans first appointed him to the commission in 1990, but registered
GOP before being reappointed because, he said, "I felt it was dishonest to
call myself an independent when I was so clearly a conservative."

Redenbaugh said he switched back to independent in 2003 because he leans
libertarian, and the GOP's stance on social issues annoyed him. He called
Bush's use of his switch to appoint a Republican "inappropriate" and
"wrong."

Redenbaugh resigned in 2005, dropping the conservative majority to five. In
early 2007, Senate Republicans restored the 6-to-2 bloc by appointing Gail
Heriot, a member of the conservative Federalist Society who opposes
affirmative action.

Heriot was an alternate delegate to the 2000 Republican National Convention
and was a registered Republican until seven months before her appointment.
In an interview, Heriot said her decision to reregister as an independent in
August 2006, making her eligible to fill the vacancy, "had nothing to do
with the commission."

"I have disagreements with the Republican Party," she said. Asked to name
one, she declined.

C 2007 The Boston Globe

Article printed from www.CommonDreams.org 

URL to article: http://www.commondreams.org/archive/2007/11/06/5041/

 

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