[Senate Hearing 110-746]
[From the U.S. Government Publishing Office]
S. Hrg. 110-746
THE 50TH ANNIVERSARY OF THE CIVIL RIGHTS ACT OF 1957 AND ITS CONTINUING
IMPORTANCE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 5, 2007
__________
Serial No. J-110-53
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
47-679 PDF WASHINGTON : 2009
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 14
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 12
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 5
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 3
prepared statement........................................... 103
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 109
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York, prepared statement....................................... 123
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 4
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 2
WITNESSES
Driscoll, Robert N., Partner, Alston & Bird, Washington, D.C..... 26
Henderson, Wade, President and Chief Executive Officer,
Leadership Conference on Civil Rights, Washington, D.C......... 16
Heriot, Gail, Commissioner, Commission on Civil Rights, and
Professor of Law, University of California at San Diego, San
Diego, California.............................................. 22
Lewis, Hon. John, a Representative in Congress from the State of
Georgia........................................................ 6
Moses, Robert P., President, The Algebra Project, Inc.,
Cambridge, Massachusetts....................................... 24
Shaw, Theodore M., Director-Counsel and President, NAACP Legal
Defense and Education Fund, Inc., Washington, D.C.............. 18
Zamora, Peter, Washington, D.C., Regional Counsel, Mexican
American Legal Defense and Educational Fund [MALDEF],
Washington, D.C................................................ 20
QUESTIONS AND ANSWERS
Responses of Wade Henderson to written questions were not
available at the time of printing.
Responses of Robert P. Moses to questions submitted by Senator
Leahy.......................................................... 35
Responses of Theodore M. Shaw to questions submitted by Senator
Leahy.......................................................... 46
Responses of Peter Zamora to questions submitted by Senator Leahy 49
SUBMISSIONS FOR THE RECORD
Driscoll, Robert N., Partner, Alston & Bird, Washington, D.C.,
statement...................................................... 53
Henderson, Wade, President and Chief Executive Officer,
Leadership Conference on Civil Rights, Washington, D.C.,
statement...................................................... 56
Heriot, Gail, Commissioner, Commission on Civil Rights, and
Professor of Law, University of California at San Diego, San
Diego, California, statement................................... 97
Lewis, Hon. John, a Representative in Congress from the State of
Georgia, statement............................................. 111
Moses, Robert P., President, The Algebra Project, Inc.,
Cambridge, Massachusetts, statement............................ 115
Shaw, Theodore M., Director-Counsel and President, NAACP Legal
Defense and Education Fund, Inc., Washington, D.C., statement.. 125
Zamora, Peter, Washington, D.C., Regional Counsel, Mexican
American Legal Defense and Educational Fund [MALDEF],
Washington, D.C., statement.................................... 139
THE 50TH ANNIVERSARY OF THE CIVIL RIGHTS ACT OF 1957 AND ITS CONTINUING
IMPORTANCE
----------
WEDNESDAY, SEPTEMBER 5, 2007
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:01 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kennedy, Feinstein, Feingold,
Cardin, Specter, and Sessions.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Good morning. This Sunday our Nation is
going to mark the golden anniversary of the Civil Rights Act of
1957. It was the first major civil rights law passed since
Reconstruction. I remember it well. It was my first year in
college when it passed and I remember the excitement I heard on
a small college campus in Vermont. It remains one of the most
important pieces of legislation this Committee and the Congress
ever considered. Its story has been retold in the award-winning
books ``Master of the Senate'' by Robert Caro and ``Parting the
Waters'' by Taylor Branch.
With this hearing, we examine whether Federal civil rights
enforcement has remained faithful to our goal of achieving
equal justice for all. We meet with the Nation at a crossroads.
Two years after the devastation from Hurricane Katrina and its
aftermath and the failure of Government to protect our citizens
in the Gulf Coast and to help those displaced from the Lower
Ninth Ward of New Orleans and elsewhere, many Americans are
beginning to doubt this country's commitment to civil rights.
We have a Justice Department without effective leadership.
The Attorney General, the Deputy Attorney General, the
Associate Attorney General, the Assistant Attorney General for
Civil Rights, and many others have resigned in the wake of the
scandals. And we have witnessed what appears to be the
abandonment of the founding priorities of the Civil Rights
Division. That Division, which has so often served as the
guardian of the rights of minorities, has been subjected to
partisan hiring practices and partisan litigation practices.
The flood of recent departures from the Justice Department,
culminating in last month's resignation of the Attorney General
and the Assistant Attorney General for the Civil Rights
Division, underscores the Civil Rights Division's loss of
direction and the shaken morale of dedicated career staff. We
cannot allow the absence of meaningful enforcement to render
our civil rights laws obsolete.
America has traveled a great distance on the path toward
fulfilling the promise of equal justice under law, but we still
have miles to go. Just last year, this Committee received
extensive testimony during the reauthorization of the Voting
Rights Act of continuing racial discrimination affecting
voting. During last fall's election, we received reports about
several efforts to intimidate Latino voters. These civil rights
abuses ranged from false campaign mailings in Orange County,
California, to intimidation at the polls in Tucson, Arizona. An
important legislative initiative is on our Committee agenda
this week to try to stem deceptive voting practices and abuses
still being practiced against minority voters. As long as the
stain of discrimination remains on the fabric of our democracy,
the march toward equal justice must continue.
The Civil Rights Act of 1957 created an Assistant Attorney
General dedicated solely to civil rights enforcement which led
to the formation of the Justice Department's Civil Rights
Division. It also provided the Justice Department with a new
set of tools to prosecute racial inequality in voting. Although
the Department had prosecuted some criminal cases since 1939,
this law allowed the Department to bring civil actions on
behalf of African-American voters. And with this new authority,
the Division worked to correct civil rights violations and
helped set the stage for Congress to pass stronger legislation
with respect to voting, housing, employment, and other key
areas in the decade of the 1960's.
America must remain steadfast in our commitment that every
person--every person, regardless of race, or color, or
religion, or national origin--should enjoy the American dream
free from discrimination. That is something we owe to all
Americans, we owe to our children, we owe to our grandchildren.
We should continue to expand that dream to fight discrimination
based on gender or sexual orientation as well. We should
reaffirm our commitment to the promise of the Civil Rights Act
of 1957. I hope that today's hearing is a step in doing so, and
we are going to have a most distinguished panel of civil rights
leaders, and I thank them for being here today. But I will
yield first, of course, to the distinguished Senator from
Pennsylvania.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman, and I
commend you on convening this important hearing to commemorate
50 years from the enactment of the 1957 legislation on civil
rights. And I welcome Congressman John Lewis, who has such an
extraordinary record in civil rights, having been on the front
lines of the battleground for decades, and the other
distinguished witnesses who will appear here today.
We have come a considerable distance. I do not know that I
would go so far as to say we have come a long way, but I do
believe we have a long way to go. But there has been noteworthy
progress.
In 1957, there were four African-Americans serving in the
House of Representatives. Since 1957, there have been 85 new
House Members and an additional 5 non-voting House Members.
Since 1957, there have been three African-American Senators--
candidly, not enough, but some progress.
We have seen the advance of women. In 1980, when my group
was elected, only Senator Nancy Kassebaum was in the Senate,
representing the only woman in the U.S. Senate. Paula Hawkins
was elected that year. Now we have a total of 16 women
Senators, adding a great deal in diversity and a different
point of view to the U.S. Senate. We have seen legislation on
protecting women against violence. We have seen two of the
leading contenders for the Presidency of the United States now
coming from what had been a minority group--one woman and one
African American. Odd that women have been classified as a
minority since they are really a majority and in most
households are the dominant voice.
But there has been considerable progress. We have made
progress on fighting discrimination on sexual orientation. The
Bowers case was overruled by Lawrence v. Texas. There has been
considerable progress made on hate crimes legislation,
although, candidly, not enough. Senator Kennedy and I
introduced that legislation a decade ago or more. It has had a
rough road, but it is not a matter of if but a matter of when
that will be enacted.
But we still have substantial discrimination present in
America. You find incidents which have an overtone of
homosexuality or gay conduct being treated in a manner very,
very differently than if it had been heterosexual. It still
remains in our country and still a lot of discrimination
against African-Americans and the glass ceiling on women and
sexual orientation and remaining discrimination against many
other minority groups, still discrimination against Catholics
and Jews and Italians and the Poles and immigrants, lots of
discrimination remaining in this country.
So we can note with some pride the 50 years since we have
had the legislation, but we have to focus at the same time on
the great deal of work which is yet to be done.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Normally we would go right to the first witness, but,
Congressman Lewis, if you do not mind, the person who has been
on this Committee the longest of any of us in either party and
has been as strong a voice in civil rights as any Senator of
either party I have ever served with, as something that also
was very similar to his two brothers, is Senator Kennedy. And
if you do not mind, I would like to yield to him.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you. Thank you very much, Mr.
Chairman. And I join with Senator Specter and the others in
congratulating you in having this hearing. I think it is an
enormously important hearing, and it is good to see our
colleagues who are here who have joined to listen to some of
the really profound and thoughtful and concerned voices that we
are going to hear on our witness list, a very distinguished
group led by John Lewis.
This hearing is enormously important, I think, and I hope
the resonance of what we are going to hear during the course of
the morning will be listened to by Americans, and particularly
during this time of national discussion about the future
direction of our country, because what I see as someone that
observed the passage of the Civil Rights Act of 1957 and paving
the way for the actions that we had in 1962, 1964, 1968, on
through the 1970's and overturning Supreme Court decisions and
the rest, I see forces in this country that are using the path
and pattern that were brilliantly led by some of those who are
concerned about the lack of progress in civil rights during the
late 1950's and the early 1960's and using those kinds of
pathways in order to reverse the progress that we have made.
I may be wrong, and I hope I am, but I am enormously
distressed by the more recent Supreme Court judgments and
statements that are made by the courts, the Seattle case, and
by the failure of the Department to follow the age-old
traditions of professionalism and the law at a very, very
crucial and critical period in terms of our country. And I hope
that those who are here today can sort of put all of this,
where we have been, where we are going, awaken this country to
ensure that we are not going to make a misstep or a step
backward in what has been this extraordinary march to progress,
and has, I think, been invaluable in helping America be
America.
I thank the Chair.
Chairman Leahy. Thank you, Senator.
Senator Sessions. Mr. Chairman, could I welcome our guest
for 1 second?
Chairman Leahy. Please.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Congressman Lewis is, of course, one of
the most respected Members of the House and one of, I think,
America's greatest citizens. He represents Georgia, but he is a
native of Alabama, grew up a sharecropper's son near Troy,
Alabama. And I know you were back there recently at Troy
University speaking. I admire you greatly, and I think it is
sort of emblematic of what has happened that Troy University in
Montgomery has created the Rosa Parks Museum. It has an
interactive museum with a school bus just like the bus she
refused to move to the back of, and I think maybe that is
emblematic of some of the progress we have made.
Congressman Lewis, thank you for your service to America.
Thank you for being one of Alabama's finest sons. And thank you
for helping to make this a better country.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, and I apologize. I realize you
are both Alabamans, and you should have had the ability to say
something, too.
Senator Sessions. Thank you.
Chairman Leahy. John Lewis is a good and dear friend--oh,
yes, Senator Specter? Sorry. The short-term memory is falling
apart here. Go ahead.
Senator Specter. Just a word, Mr. Chairman. The
Subcommittee on Labor Appropriations where I am Ranking has a
hearing at 10:30 on the Utah mine disaster, and I am going to
have to excuse myself to go there. But I will follow closely
the testimony here today, and without my saying it, you know
you have my total support.
Chairman Leahy. Thank you. And I would note that the
Senator from Pennsylvania always has been in the forefront in
this, and--
Senator Feinstein. Mr. Chairman, if I might just say--
Chairman Leahy. Of course.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much.
Chairman Leahy. I am the most easygoing Chairman in the
Senate, as the former Attorney General used to say.
Senator Feinstein. Thank you. I do not think there is a
leader in the civil rights movement that is as respected for
his leadership as you, Congressman Lewis. I want you to know
that. I think your dignity, your constancy, your consistent
advocacy has really been important in these decades, and I want
you to know that.
I was not going to come to this hearing because I thought,
you know, we are really on the march with civil rights, things
are really going to be fine. And then last night I heard on the
news where the KKK has now gotten active in Virginia,
particularly with respect to the immigration issue. And I began
to think that, you know, no matter what the progress we make,
there are always people that want to turn back the clock for
one reason or another. And it really does cause us, I think, to
have a kind of warning that these values we cannot take for
granted, that we have to continue the advocacy. And I can think
of no one to be in that front row better than yourself.
So I just want to say thank you for the many decades of
leadership, and I look forward to your comments.
Chairman Leahy. Thank you.
Now, as I started to say, Congressman Lewis is one of my
dearest friends in the Congress. We have worked together and
talked together and plotted together on legislation. He
represents Georgia's 5th District, is a nationally recognized
civil rights leader. He was an architect and keynote speaker at
the March on Washington in 1963. Incidentally, I do remember
that speech. He served as Chairman of the pivotal Student
Nonviolent Coordinating Committee. He recently addressed the
graduating class at the University of Vermont, and he
instructed those graduates that they have an obligation, a
mission, and a mandate from all of those men and women who
sacrificed before their time.
You are right, and I agree with you. We have to do our part
for this great democracy, and so I welcome you back to the
Senate Judiciary Committee. You honor us with your presence.
Please, Congressman, go ahead.
STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF GEORGIA
Representative Lewis. Thank you, Chairman Leahy and Senator
Specter and other members of the Committee. Thank you for
inviting me to testify before the Senate Judiciary Committee
today. I thank each and every one of you for those unbelievable
remarks. I really appreciate it.
As we approach the 50th anniversary of the Civil Rights Act
of 1957, I appreciate having this opportunity to share my
thoughts and experiences with you. In particular, I would like
to discuss the importance of the Civil Rights Division of the
Department of Justice and how we can renew and strengthen the
Division in the future.
In the late 1950's, there was a tremendous amount of fear
in the American South. People were afraid to talk about civil
rights. I would ask my mother, my father, my grandparents, and
my great-grandparents, ``Why segregation? Why racial
discrimination? '' And they would say, ``That's the way it is.
Don't get in the way. Don't get in trouble.''
People of color couldn't vote; they couldn't register to
vote. They paid a poll tax. Black people could not sit on a
jury. Segregation was the order of the day. It was so real. The
signs were so visible. People were told to stay in their place.
People were beaten; people came up missing. Emmett Till, a
14-year-old boy, a boy 1 year younger than I, was lynched in
1955, and it shook me to the core. It could have happened to me
or any other African-American boy in the Deep South. It was a
different climate and environment. In some instances it
amounted to police-and state-sanctioned violence against people
of color. I remember reading about a man being stopped on the
highway, castrated and left bleeding to death. In 1956, in
Birmingham, Alabama, Nat King Cole was attacked while
performing, and he never returned to perform in the American
South. Black people were afraid, and white people were afraid
to speak out. It truly was terror.
In September of 1957, I was 17 years old--a child, really.
I was just arriving in Nashville, Tennessee, to begin my
studies at the American Baptist Theological Seminary. I had not
met Dr. Martin Luther King, Jr. I had met Rosa Parks. I had not
become involved in Student Nonviolent Coordinating Committee. I
had not taken part in the freedom rides or the sit-ins, and I
had not walked over the Edmund Pettus Bridge on Bloody Sunday.
But the ``Spirit of History,'' as I like to call it--Fate, if
you will--was beginning to move in important ways in 1957, both
for me and for our Nation.
That September, the Congress had passed and President
Eisenhower was signing the Civil Rights Act of 1957--the first
piece of civil rights legislation since reconstruction. Some
would look back and think that this legislation was mostly
ineffective, but it was significant because it created an
Assistant Attorney General for Civil Rights, and so began the
Civil Rights Division of the Justice Department. It also
created the Civil Rights Commissions, which did important and
at times dangerous work, hold hearings all across the South,
gathering data and information on voter registration and
discrimination. The 1957 Act was also significant because, for
the first time, it made it a crime to interfere with a person's
right to vote in Federal elections, setting the stage for
future legislation.
In the coming years, the Civil Rights Act of 1964 and the
Voting Rights Act of 1965 would give substance to the promise
of equal rights and formed the basis for the work of the Civil
Rights Division.
In 1958, at the age of 18, I met Dr. Martin Luther King,
Jr., for the first time--a meeting that would change the course
of my life. That year, you could feel the urgency in the air,
the need for change and the sense that things were about to
change.
Progress would begin slowly. The Supreme Court decision in
Brown v. Board of Education and the successful Montgomery bus
boycott, those threats to the Southern establishment created a
backlash, more violence and more fear. But at the same time,
young people, white and black, were joining the movement. We
were inspired to get in the way, to get in trouble; but it was
good trouble, it was necessary trouble.
My involvement in the movement was growing at the same time
as the Civil Rights Division was becoming an important tool for
protecting the rights of Americans who faced discrimination.
During the Kennedy and Johnson administrations, we knew
that the individuals in the Department of Justice were people
we could call any time of day or night. The Civil Rights
Division of the Department of Justice was a Federal referee in
the struggle for civil rights and civil justice.
John Doar, beginning in the Eisenhower administration, for
instance, was a Republican from Wisconsin. He was someone that
we trusted, we believed in. And he remained during the Kennedy
and Johnson years. And we felt during those years that the
Civil Rights Division of the Department of Justice was more
than a sympathetic referee. It was on the side of justice, on
the side of fairness. During the movement, people looked to
Washington for justice, for fairness. But today, Mr. Chairman,
I am not so sure that the great majority of individuals in the
civil rights community can look to the Division for that
fairness. The public has lost confidence in our Government, in
the Department of Justice, and in the Civil Rights Division. We
can and must do better.
The Civil Rights Division was special. It attracted the
best and the brightest, and those attorneys stayed with the
Civil Rights Division for decades. The civil rights laws were
enforced no matter which party was in the White House, and
these attorneys were able to do their jobs without political
interference. It is not so today.
In the last few years, we have lost more career civil
rights lawyers than ever before. The new lawyers are being
hired for the first time in the Division's history by political
appointees rather than career attorneys. It is not surprising
that the Division is hiring fewer lawyers with civil rights or
voting rights backgrounds.
There is also a clear shift in the types of cases being
brought by the Division. The Division is neglecting the
tradition of civil rights cases, and it appears to have given
up on enforcing the Voting Rights Act altogether.
Mr. Chairman and members of the Committee, I must tell you
that I am particularly disturbed by the way the Civil Rights
Division handled the Georgia voter ID law in 2005. It takes
special people to enforce Section 5 of the Voting Rights Act.
There is always the potential for political interference.
However, the Voting Rights Section has always been above
partisanship, and it has resisted attempts by administrations
to influence the outcomes of cases.
However, this was not this case with the Georgia law. The
Georgia voter ID law would have required voters to show a photo
ID at the polls and would have disproportionately prevented
minorities from voting in Georgia.
The career attorneys found that the law violated the Voting
Rights Act and recommended that it should be denied pre-
clearance. But the career attorneys were overruled by the
political appointees. This type of political influence
preventing the enforcement of our civil rights laws is shameful
and unacceptable. Thankfully, a Federal court saw the law for
what it was--a poll tax--and struck it down.
It is clear that the Civil Rights Division of the
Department of Justice has lost its way. The Civil Rights
Division, once guardians of civil rights, has been so weakened
that I do not recognize it.
Congressional oversight could have prevented some of this.
Freedom and equality are rights that are not simply achieved;
they must be preserved each and every day. But we have not been
focused on protecting our rights, and therefore, we are
watching them slip away.
The Civil Rights Division is still important, and it has
important work to do today, just as it did during the civil
rights movement. Yes, Mr. Chairman, we have come a long way,
but there is still discrimination in voting, in employment, and
housing that must be addressed.
Congress must restore the Civil Rights Division as the
champion of civil rights. Congress has a duty to perform strong
oversight and to investigate whether our civil rights laws are
being enforced. We must reverse the political hiring process
and put the decisions back in the hands of the career
professionals, who know what it takes to enforce our civil
rights laws.
In addition to strengthening the Department of Justice, I
also believe that we need to give our citizens a private right
of action to challenge federally funded programs that unfairly
disadvantage a particular group, whether or not there is
discriminatory intent. I am working with Senator Kennedy on
legislation that would ensure this private right of action.
We in Congress must do all we can to inspire a new
generation to fulfill the mission of equal justice, which is
the enduring legacy of the civil rights movement and the Civil
Rights Division. I still believe, as Martin Luther King, Jr.,
believed, that we can create a beloved community, an
interracial democracy, based on simple justice that values the
dignity and the worth of every human being. We need to let the
spirit of history move within us on this 50th anniversary of
the Civil Rights Act of 1957. We must rededicate our
international Government to justice, to service, to equality.
And we must begin by strengthening the Civil Rights Division of
the Department of Justice.
Thank you very much, Mr. Chairman.
Chairman Leahy. Well, thank you, Congressman. You mentioned
John Doar. I recall first meeting him when I was a law student
and then talking with him in later years when I was a
prosecutor. A very, very impressive man.
You know, I am going to save your testimony, and sometime
when my grandchildren, all of them, are old enough to read it,
I am going to have them read it, and I am going to say,
``Listen to what Congressman Lewis said about what life was
like,'' so that they understand what their grandfather and
others have done to make sure we do not go back to those days.
I think that if we are not always vigilant, we could go back
there.
You and I will never be blocked from voting. You and I will
never be blocked from going to a restaurant or being on a bus
or going to any public event. We will not. But there are others
who might, others who still are.
In 1957, when this Act was passed, a member of this
Committee filibustered it for 20-some-odd hours. We would not
see that today. But it is a different form of filibustering
that the Act is not being enforced, it is not being handled
right, and I thank you for what you said about the Civil Rights
Division.
The next Attorney General, indeed, the next President,
should have a mandate to make sure they put the Civil Rights
Division back to what it was, to put in good Republicans and
Democrats, put in people without thought of what their politics
are, and then tell them not to be political. The Civil Rights
Division cannot be political. It has to be colorblind. It has
to enforce the law. I agree with you it is not doing that. Let
us hope we get back to it, because I never want to go back to
the days you talked about with your grandparents.
Thank you.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
Congressman Lewis, you came of age during a time not too
long ago that we had an unfair system in America, particularly
in the South, where we had a system that discriminated against
a substantial number of our citizens, and it was just
maintained by power. We can say whatever we want to, but those
who know what happened know it was a powerful force determined
to maintain white supremacy, maintain inequality and unfairness
and injustice in that system. And it was not right, and you had
the courage, one of the very earliest ones. You have suffered
personally and physically for the courage you showed, and I
want to thank you for it because Alabama and the whole South
and the Nation is better for what you did.
Sometimes people tell me, ``Well, you know, we have made so
much progress and things are better,'' and indeed they are, as
we certainly know. You hear some, I guess, white constituents
say, ``Well, you know, I am just tired of hearing about that.
People are too worried about that. Nobody is going to deny
somebody the right to vote.'' But I have gained an appreciation
as I have thought about it that this was not that many years
ago. It was not that many years ago that you were acting
against a system that was established law and power.
I was a teenager during those years, and I remember those
years. We had bathrooms for the separate races--colored
bathrooms and white bathrooms. Schools were segregated
resolutely.
Would you share with us your thought, to the non-African
Americans, how it feels to have such a recent change in
historical times and why it is that you feel a special
obligation to be vigilant to see that things do not slide back
in any form or fashion?
Representative Lewis. Senator, thank you very much for your
comments and for your question. You know, growing up outside of
Troy in southeast Alabama and visiting places like Montgomery
and Tuskegee as a young child, I saw those signs that said,
``White Waiting,'' ``Colored Waiting,'' ``White Men,''
``Colored Men,'' ``White Women,'' and ``Colored Women.''
I remember in 1956, when I was 16 years old, some of my
brothers and sisters, we were deeply inspired by Dr. King and
Rosa Parks and others. We went down to the public library in
the little town of Troy trying to get library cards, trying to
check out some books, and we were told by the librarian that
the library was for whites only and not for coloreds. I never
went back to that library until July 5, 1998, for a book
signing of my book, ``Walking with the Wind.'' And hundreds of
blacks and white citizens showed up, and they gave me a library
card.
So I think that says something about the distance we have
come and the progress that we have made, but a lot of people, a
lot of young people of color, were denied an opportunity to go
in that library and read, to check out a book.
And I remember in 1957, again, 17 years old when I finished
high school, I applied to go to Troy State, now known as Troy
University. I submitted my application, my high school
transcript. I never heard a word from the school. It was only
10 miles from my home. So I wrote a letter to Martin Luther
King, Jr., and told him I needed his help. He wrote me back and
invited me to come to Montgomery to talk with him about it.
My folks were so afraid. They did not want to have anything
to do with me going to Troy State. They thought our house would
be burned or bombed; they thought it was too dangerous. So I
continued to study in Nashville.
Years later, after I got elected to Congress, the little
school in Brundidge--you know where Brundidge is? About 12
miles from Troy--where I attended high school, had a class
reunion and John Lewis Day, and Troy University then led the
parade through the town, and the late Senator Heflin came down,
and the chancellor said, ``We understand you could not go to
Troy State. Next year why don't you come and get an honorary
degree from Troy State? '' And at the next graduation, they
granted me an honorary degree, and Senator Heflin was the
commencement speaker.
I think it says something about the distance we have come
and the progress we have made in laying down the burden of
race. But we still have so far to go. I hear young people say
sometimes, ``Nothing has changed.'' And I feel like saying,
``Come and walk in my shoes. Things have changed.'' But there
are still those invisible signs of discrimination. You still
have, in a State like the State of Georgia, an attempt to take
us back. To tell people in 2006 you need a photo ID--you must
understand that hundreds and thousands of people, African
Americans, low-income whites, and others that were not born in
a hospital, they do not have a birth certificate. They do not
even know what a passport is. So they do not have a State ID,
so these people will be denied the right to participate in the
democratic process. That is why many of us took the position to
say that a photo ID amounts to a poll tax where you have to pay
for it.
Senator Sessions. Thank you, Mr. Chairman. Thank you,
Congressman Lewis.
Chairman Leahy. Thank you very much.
Senator Feinstein, then Senator Feingold, then Senator
Cardin. And I might note that both Senator Feinstein and
Senator Feingold have to leave shortly for an Intelligence
Committee meeting. Am I correct?
Senator Feinstein. Yes. Thank you.
Chairman Leahy. Senator Feinstein.
Senator Feinstein. Thank you very much.
Chairman Leahy. Thanks, Jeff.
Senator Feinstein. I really thank Senator Sessions for
asking those questions of you, Congressman Lewis, because I
think it gives people an understanding of the deeply personal
and personally hurtful part of discrimination, which is a very
complex reaction. But when I came down earlier and said hello
to you, you mentioned two pieces of legislation, and one of
them was the Hate Crimes Act and the other is the D.C. Voting
Rights Act. And I wanted to give you an opportunity to speak
about those two pieces of legislation and the importance of
them at this particular point in time.
Representative Lewis. Senator, thank you so much. I have
taken a very strong position in support of the hate crimes
legislation, and I say to people all the time in my district
and around the country that I fought too hard and too long
against discrimination based on race and color not to stand up
and fight against discrimination based on sexual orientation or
whatever. There is not any room in our society, it should not
be allowed by the Federal Government or local government for
people to engage in violent acts against other people because
of their religion or their color or sexual orientation.
I think it is a shame and a disgrace that we live in one of
the greatest democracies and that people died and fought for
the right to vote.
Later you are going to hear from Bob Moses, who was
Director of the Mississippi Summer Project in 1964, and three
young men that I knew and Bob knew very well went out as part
of an effort to get people registered to vote. These three
young men died in Mississippi during the summer of 1964. And I
tell young people all the time, they did not die in Vietnam or
the Middle East or Eastern Europe, in Africa or Central or
South America. They died right here in our own country. People
died. And then we are going to say to the District of Columbia,
where people leave this district, leave this city, they go and
fight in our wars, and then they cannot participate in the
democratic process. That is wrong, and I think we have a
constitutional right to give the District full voting rights.
It must be done. It must be done on our watch.
Senator Feinstein. Just a quick followup, if I may. You
mentioned in your opening comments about the importance of
Congressional oversight of the Civil Rights unit of the
Department of Justice and the feeling that it had deteriorated.
Can you be more specific on that, exactly what you mean?
Representative Lewis. Well, I will tell you one thing,
Senator. I do not want to be flip about it, but if you ask most
of us in the House today who had been the head of the Civil
Rights Division, we would not know the person. It is like they
do not exist. They are not engaged. And that is a problem.
There are problems in America today. It is not just affecting
one segment of this society where people are being
discriminated against. And I think the Congress, whether we be
in the Senate or the House, we have an obligation to hold
oversight hearings, to follow through, and say, ``What are you
doing? ''
Young people have been thrown in jail and sentenced to
large and long sentences in many parts of the South, and part
of it is race, nothing but race. And the Department of Justice
is not saying anything. It is just silent. Complete silence.
Senator Feinstein. I actually think the position is vacant
now, is it not?
Chairman Leahy. We just had a resignation, but there are
about a dozen resignations ranging from the Attorney General
straight down to the head of the Civil Rights unit. We
presently have the most dysfunctional Department of Justice in
my whole career.
Representative Lewis. We knew John Doar. We knew Burke
Marshall.
Chairman Leahy. And you could call them.
Representative Lewis. We could call them any time of day,
any time of night.
Senator Feinstein. And there was a discussion that took
place.
Representative Lewis. And they just did not remain in
Washington. They came South. They put themselves on the front
line.
Senator Feinstein. Hopefully we can change that.
Thank you very much, Mr. Chairman. Thank you, Congressman.
Chairman Leahy. Incidentally, is there anyone here from the
Department of Justice?
[No response.]
Chairman Leahy. Anyone here from the White House?
[No response.]
Chairman Leahy. That is interesting because when I have
other hearings, they send scores of people up. I hope they will
take the time to watch the tape of this hearing and read the
transcript. Maybe they could learn something by doing that.
Senator Feingold?
STATEMENT OF RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. It is always an
honor to be in the presence of Congressman Lewis, but
particularly on an occasion like this, and to hear your
accounts of the reality that you faced. It is a privilege to be
a Member of Congress and to hear that.
Every so often, it is important to look back and celebrate
important historic events that still have relevance to the
problems we seek to address today in the Senate. The enactment
of the Civil Rights Act of 1957 is one such event. The Civil
Rights Act of 1957 certainly does not have the fame of the
Civil Rights Act of 1964 or the Voting Rights Act of 1965, but
it was an extremely important milestone for our country. It was
the first civil rights bill passed into law since 1870, finally
breaking through the seemingly impenetrable roadblock built by
segregationists in the Senate against legislation to protect
the rights of African Americans. Lions such as Hubert Humphrey
and Paul Douglas, working with the extraordinary then-Senate
Majority Leader Lyndon Johnson, passed a bill that the public
and the pundits certainly thought would die, just as every
other civil rights bill in nearly a century had died. The law's
substantive achievements were modest compared with the landmark
legislation that followed, but the creation of the Civil Rights
Division of the Department of Justice has gained significance
over time and is that law's greatest legacy today.
And the symbolic value of the legislative accomplishment
was enormous. As Lyndon Johnson biographer Robert Caro writes
in ``Master of the Senate,'' which tells the story of Johnson's
struggle to pass the bill, ``The Civil Rights Act of 1957 made
only a meager advance toward social justice, and it is all but
forgotten today. But it paved the way. Its passage was
necessary for all that was to come.''
Because the Civil Rights Act of 1957 was only a beginning,
it is fitting that this hearing look ahead as well as back.
Obviously, we have come a long way in the past 50 years in the
fight for racial equality, but there is much more to be done.
Continuing our oversight of the Civil Rights Division is
crucial, especially in light of what we have learned in recent
months about the improper hiring practices and political
interferences in decisions in the Voting Rights Section. The
next Attorney General must make putting the Civil Rights
Division back on track a very top priority.
We also have to do more legislatively, as you have already
been talking about. This week the Committee will take up a bill
to prohibit deceptive practices and voter intimidation--the
21st century version, if you will, of poll taxes and
registration tests that are used to prevent minority citizens
from exercising the right to vote.
Later in this Congress, I hope the Senate will consider the
Fair Pay Restoration Act to reverse the Supreme Court's cramped
interpretation of Title VII's pay discrimination prohibition.
We must end racial profiling and do much more to bring the
promise of equality to other racial minorities, the disabled,
and gays and lesbians. And, yes, we must get D.C. voting
rights, something which I have supported from the very
beginning of my time in the Senate.
This is all noble work, Mr. Chairman, which builds on the
foundation laid by the Civil Rights Act of 1957. I am proud to
stand with those who believe that guaranteeing civil rights for
all Americans is one of Congress' most important duties, and I
am honored to again be with Representative Lewis and, of
course, Dr. Bob Moses, two giants of the civil rights movement,
and the other witnesses today. We have much to learn from them,
and I appreciate very much the opportunity to speak.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Feingold.
Senator Cardin?
STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE
STATE OF MARYLAND
Senator Cardin. Well, Mr. Chairman, first, thank you for
convening this hearing and commemorating the 50th anniversary
of the Civil Rights Act of 1957. I must tell you this is a
personal pleasure for me to have John Lewis as our witness.
Twenty-1 years ago, I was elected to the House of
Representatives, which was the single honor in my life, but to
be elected with John Lewis in the same class--and the two of us
became very good friends and almost soul mates during some very
difficult times. And, Congressman Lewis, I just really want to
thank you for what you have done not only in the civil rights
movement, but what you have done in the Congress of the United
States. You have always had that passion. You and I served on
the Ways and Means Committee I guess for many, many years. I
sort of miss the Ways and Means Committee, but it is really
nice to be in the U.S. Senate.
I want you to know that you have always been an inspiration
to all of us as far as your passion for these issues and your
faith in our country. This is a great country. And we have made
progress, as you have pointed out, but we still have much that
needs to be done.
You know how to connect with people. You know how to really
relate to the problems that we have in our community, and you
are effective in getting things accomplished. So I just really
want to followup on some of my colleagues and just point out
that we have an agenda. The 50th anniversary should not be just
a celebration, but it should be to establish where we need to
go from here in order to complete the journey, as you so often
talk about. And that means as Members of the U.S. Congress,
there are some things that we can do. We do have an important
role in looking at what is happening in the executive branch of
Government, and as our Chairman pointed out, the Civil Rights
Division, which was one of the crowning accomplishments of the
1957 Civil Rights Act, where we would have a focus within the
Department of Justice on civil rights, has lost that focus.
We had a hearing not too long ago in this Committee that I
had the opportunity to chair in which it became pretty obvious
that the traditional role of the Civil Rights Division and
standing up and fighting for racial discrimination cases has
been missing and that the hiring within the Civil Rights
Division of career attorneys has been compromised.
So I think we have a responsibility to restore that, and we
have a chance to do that in that there now will be new
leadership within the Department of Justice, and I think it is
very important for this Committee and the Judiciary Committee
in the House and each one of us to make sure during this
process that we refocus the Department of Justice back on that
Civil Rights Division and what it should do within the Civil
Rights Division.
My colleagues have pointed out legislation we should be
passing. The hate crimes statute should be passed. Tomorrow we
are going to have an opportunity in this Committee to do what
you have already done in the House and pass the Voter
Intimidation Act, to say once and for all that it is wrong, it
is illegal, and we are not going to tolerate campaign
strategies that try to win by suppressing the minority vote.
That should be off the table. And I agree with my colleague
Senator Feingold about the D.C. voting rights. That is
something that needs to be done. That is a civil rights issue
that needs to be accomplished.
Now, Mr. Chairman, I would also point out I think it is
right for us in the confirmation process of judges to make sure
judges have a passion for protecting the civil liberties of the
people of this Nation, and that is part, I think, of our
responsibility to make sure we complete the journey.
So to my friend John Lewis, thank you for coming over and
gracing our Committee and for inspiring us to do more, and I
just look forward to many more years of working with you in the
U.S. Congress so that we can continue to make progress so that
every American can truly enjoy the liberties of this great
country. It is a great country. We have made a lot of progress.
That is why it is so painful when we see the types of detours
that have been taken recently. And I think we have the
opportunity now to correct that and to move forward so that
everyone in this country can enjoy this great Nation.
So congratulations on the work that you have done, and it
is good to see you here, and please say hello to my friends in
the House of Representatives.
Representative Lewis. Well, Senator, thank you very much. I
am very pleased and delighted to see you. We have been friends
and we will remain friends, and it is good to be able to call
you ``Senator Cardin.'' Thank you.
I agree with you. We must give up. We must continue to push
on. We can legislate, but we can also speak up and speak out. I
think there is a great need for leadership, and I think the
American people are prepared to make that leap. We just need to
get out there. And what I said in the earlier statement, find a
way to get in the way. And under the leadership of the Chairman
and the members of this Committee, I know you will do the right
thing. And I appreciate the opportunity to be here and
especially to see the Chairman and to see you, sir.
Senator Cardin. Thank you.
Mr. Chairman, I might point out, John Lewis was truly
reluctant in advising me to run for the U.S. Senate because of
our friendship. But then he realized that I had more seniority
in the Ways and Means Committee than he did; then he encouraged
me to run.
[Laughter.]
Chairman Leahy. I might say, I am glad you ran. I enjoy
having that extra seat. And I am delighted that you were
willing in a very weak moment to allow me to convince you to
come on the Senate Judiciary Committee. You have been a very,
very valuable member.
Senator Cardin. It has been very rewarding. Thank you, Mr.
Chairman.
Chairman Leahy. We will stand in recess for about 4 minutes
while they set up for the next panel. And, Congressman Lewis,
that was some of the most powerful testimony I have heard in
all my years here, and I appreciate you doing this.
Representative Lewis. Thank you, Senator. Thank you, Mr.
Chairman.
[The prepared statement of Representative Lewis appears as
a submission for the record.]
[Recess 10:54 a.m. to 10:58 a.m.]
Chairman Leahy. If we might come back. we are going to have
a distinguished panel: Wade Henderson, the President and CEO of
the Leadership Conference on Civil Rights; Theodore Shaw--I
have always called him ``Ted''--Director-Counsel and President
of the NAACP Legal Defense and Education Fund; Peter Zamora,
the Washington, D.C., Regional Counsel of the Mexican American
Legal Defense and Educational Fund, or MALDEF; Gail Heriot,
Commissioner, United States Commission on Civil Rights, and
Professor of Law, University of California at San Diego; Robert
P. Moses, who is the President, as we know, of the Algebra
Project in Cambridge; and Robert Driscoll is a partner at
Alston & Bird in Washington, D.C.
Following the procedure for non-Congressional members who
are testifying, would you please all stand and raise your right
hand? Do you solemnly swear that the testimony you are about to
give before this Committee shall be the truth, the whole truth,
and nothing but the truth, so help you God?
Mr. Henderson. I do.
Mr. Shaw. I do.
Mr. Zamora. I do.
Ms. Heriot. I do.
Mr. Moses. I do.
Mr. Driscoll. I do.
Chairman Leahy. Thank you.
The first witness will be Wade Henderson, as I said, the
President and CEO of the Leadership Conference on Civil Rights
that works on issues involving voting rights and election
reform, Federal judicial appointments, economic justice,
educational equity, hate crimes, criminal justice reform,
issues of immigration and refugee policy, human rights.
Mr. Henderson, welcome. You are no stranger to this
Committee. On both sides of the aisle, we have found your
testimony to be extremely important. Please proceed, and what I
am going to do is go down through each of you before we go to
questions.
STATEMENT OF WADE HENDERSON, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, LEADERSHIP CONFERENCE ON CIVIL RIGHTS, WASHINGTON,
D.C.
Mr. Henderson. Well, good morning, and thank you, Mr.
Chairman and members of the Committee. It is an honor to be
with you today. Indeed, I am Wade Henderson, President of the
Leadership Conference on Civil Rights, the Nation's oldest,
largest, and most diverse civil and human rights coalition. I
am also honored to serve as the Joseph L. Rauh, Jr, Professor
of Public Interest Law at the University of the District of
Columbia, and it is a special pleasure to represent the civil
rights community before the Committee today and to discuss the
important topics at hand.
Fifty years ago, the attempt to integrate Little Rock High
School demonstrated the need for the Federal Government to
finally say, ``Enough.'' Enough of allowing the States to defy
the U.S. Constitution and the courts; enough of Congress and
the executive branch sitting idly by while millions of
Americans were denied their basic rights of citizenship. The
1957 Act and the creation of the Civil Rights Division were
first steps in responding to this growing need.
For years, we in the civil rights community have looked to
the Department of Justice as a leader in the fight for civil
rights. Yet, recently, many civil rights advocates have been
concerned about the direction of the Division's enforcement. In
order for the Division to once again play a significant role in
the struggle to achieve equal opportunity for all Americans, it
must rid itself of the missteps of the recent past, but also
work to forge a new path. It must respond to contemporary
problems of race and inequality with contemporary solutions. It
must continue to use the old tools that work. But when they
don't, it must develop new tools. It must be creative and
nimble in the face of an ever-moving target.
Today, the Leadership Conference on Civil Rights Education
Fund is releasing a new report, ``Long Road to Justice: The
Civil Rights Division at 50,'' which outlines the critical role
the Civil Rights Division has played over the last 50 years in
helping our Nation achieve its ideals. In the report, we also
assess the current state of the Division's enforcement efforts
and outline some recommendations for a way forward. The
following are a few highlights of those recommendations:
First, the Civil Rights Division must restore its
reputation as the place for the very best and brightest lawyers
who are committed to equal opportunity and equal justice. It is
not a question of finding lawyers of a particular ideology;
rather, it is a rededication to hiring staff who share the
Division's commitment to the enforcement of Federal civil
rights law. That is not politics. It is civil rights
enforcement.
In the area of voting rights, rather than promoting schemes
that deny equal opportunity to citizens to vote, the Civil
Rights Division should be focused on ways to increase voter
access, such as combating voter ID laws--which John Lewis so
eloquently spoke about--that have a disproportionate negative
impact on racial, ethnic, or language minorities.
Fresh attention must also be paid to racial and ethnic
segregation in housing. Discrimination in real estate sales and
racial steering and discrimination in lending that destroys
neighborhoods cannot continue to go unchecked. And as long as
discrimination based on race, ethnicity, religion, gender, or
disability remains a sad, harsh reality in this country, the
battle against it must remain a central priority of the Civil
Rights Division.
And in the wake of the Supreme Court's decision in the
Seattle and Louisville cases, the Division must develop new
tools that fight to create and maintain integrated and high-
quality schools.
The complete text of ``Long Road to Justice'' can be found
on our new website, www.reclaimcivilrights.org, which is being
launched today as an important tool in our public education
campaign on the issue of civil rights enforcement.
The 50th anniversary of the 1957 Civil Rights Act and the
creation of the Civil Rights Division is a time to take a stock
of where we have been, where we are, and where we need to go in
the struggle for equal rights and equal justice in America. And
we have come a long way, as has been noted--a very long way
from legally segregated lunch counters, poll taxes, and whites-
only job advertisements. But we are not finished. Today, we
face predatory lending practices directed at racial minorities
and older Americans, voter ID requirements that often have
discriminatory impact on minority voters, and English-only
policies in the workplace. So our work continues.
As our report outlines, one of the critical tools to our
collective progress in civil rights has been the Civil Rights
Division at the Department of Justice, and the heart and soul
of the Division has always been its career staff. For 50 years,
and regardless of which political party was in power, the staff
has worked to help make our country what it ought to be: a
place where talent trumps color and opportunity knocks on all
doors; where you cannot predict the quality of the local school
system by the race or ethnicity of the school's population,
where access is a right not a privilege, and where difference
is not just tolerated but valued.
We have concerns with the direction of the Civil Rights
Division in recent years. The hope is that we can meet those
concerns with positive action for our future. This report
attempts to begin to map out the way forward, and we look
forward to continuing the conversation.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Henderson appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Mr. Henderson.
Mr. Shaw is, as I said, the Director-Counsel and President
of the NAACP Legal Defense and Education Fund. I would also
mention he participates in briefing and oral arguments in the
U.S. Supreme Court and litigation of civil rights cases--again,
no stranger to this Committee.
Happy to have you here, Mr. Shaw.
STATEMENT OF THEODORE M. SHAW, DIRECTOR-COUNSEL AND PRESIDENT,
NAACP LEGAL DEFENSE AND EDUCATION FUND, INC., WASHINGTON, D.C.
Mr. Shaw. Thank you, Mr. Chairman. I join in what Wade
Henderson has said about the career attorneys at Justice, and I
would like the Committee's indulgence as I talk personally
about my experience.
I started out my legal career at the Justice Department in
the Civil Rights Division. It was one of two jobs I longed for
as a law student. The other one was to be an attorney for the
Legal Defense Fund, and I have been blessed to work in both
places.
When I joined the Justice Department, I was part of a cadre
of lawyers, many who had been there since the halcyon days of
the civil rights movement, who were committed to civil rights
enforcement. They were apolitical. Their deepest commitment was
to enforcing the civil rights statutes and laws of our Nation.
I think in understanding where we are now, we must
recognize that the changes at the Justice Department that many
of us lament today did not begin with this administration,
although they certainly have been accelerated. In fact, these
changes began in 1981, at least that far back, when appointees
to the Civil Rights Division leadership began a course of
intentionally shifting the direction of the Division, stepping
away from school desegregation, stepping away from the class
action employment discrimination cases that had been brought on
behalf of African-American and Latino men and women and other
people of color, and those who suffered both racial and gender
discrimination.
The Department, as I understood it when I worked there, had
a special role to play, and I think that it has lost its focus
on that role. Not only was it the enforcer on behalf of the
Federal Government of the Nation's civil rights laws, but it
also was the leading entity within the Federal Government in
coordinating civil rights. And so, for example, the Civil
Rights Division was deeply involved in working with the
Department of Education's Office of Civil Rights or Housing and
Urban Development with respect to its enforcement of housing
policies.
My view today, of course, is that there is a vacuum with
respect to those functions, or if there is not a vacuum, there
is a complete reversal with respect to the Department's focus
and its role. A couple of quick examples.
In the aftermath of the Michigan cases in which the Supreme
Court upheld the constitutionality of the consideration of race
as a limited factor in college admissions, the Department of
Education put out a set of guidelines with respect to
interpreting those decisions and applying them that focused on
undercutting what the Supreme Court had said was allowable as
opposed to taking the basis the Supreme Court had given.
Another more recent example. The two cases that the Supreme
Court decided--actually, one case involving two school
district, Seattle and Louisville, in June, those two cases were
the first time that the Supreme Judicial Court, to my
knowledge, has argued against school desegregation or
integration of public schools since the Department weighed in
on the side of the plaintiffs in Brown v. Board of Education in
the 1950's. That is a reversal of historic proportions. The
Department of Justice, through the Solicitor General, argued a
position in support of those who were opposed to voluntary
school integration--a deeply disturbing development, made even
more disturbing by the absence of the voice of African-American
students and their parents at oral argument because the Court
did not allow them to have a voice at oral argument.
So where was the Department of Justice? Where was its
voice? What did it say? What did it do? I believe that it was a
betrayal of the promise of Brown v. Board of Education.
Many years ago, in the civil rights movement, there was a
saying out of Mississippi: ``There's a town in Mississippi
called `Liberty.' There's a Department in Washington called
`Justice.''' It was aspirational, at best.
Finally, I would like to pick up on something that Senator
Cardin mentioned. It is so important to the Nation that this
Committee continue to exercise even more vigilance with respect
to judicial appointments, because while the Department of
Justice needs to recommit itself to civil rights, it is
ultimately the judges and the Justices who are confirmed by the
Senate who interpret the law. And we look forward to continuing
to work with this Committee to ensure not only enforcement of
civil rights with respect to the Department of Justice, but to
make sure that the judges and Justices confirmed by the Senate
are those who are open to the enforcement of civil rights.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Shaw appears as a submission
for the record.]
Chairman Leahy. Thank you very much, Mr. Shaw.
Mr. Zamora is the Washington, D.C., Regional Counsel for
the Mexican American Legal Defense and Educational Fund,
MALDEF, as I mentioned, that works on Federal policy matters--
immigration, education, voting rights.
We are glad to have you here. Please go ahead.
STATEMENT OF PETER ZAMORA, WASHINGTON, D.C., REGIONAL COUNSEL,
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND [MALDEF],
WASHINGTON, D.C.
Mr. Zamora. Thank you very much, Chairman Leahy, Senator
Cardin. It is a real pleasure to be here today to testify in
recognition of the 50th anniversary of the Civil Rights Act of
1957. The Act really remains as important today as it was 50
years ago because it codified the intent of Congress that the
Federal Government should play a central role in protecting the
civil rights of all Americans.
The Act intended to ensure that all qualified citizens be
allowed to vote without distinctions based on race or color,
and it specifically prohibited interference with voting rights
in the election of any Federal officers. To enforce of these
provisions, the Act authorized an additional Assistant Attorney
General to initiate Federal civil rights enforcement actions.
The Civil Rights Act of 1957 ensured that voting rights
were no longer dependent upon actions brought by private
individuals, often at great personal risk and expense. In
creating the Civil Rights Division of the Department of
Justice, in addition to the U.S. Commission on Civil Rights,
Congress provided key investigative and enforcement mechanisms
that continue to play a central role in protecting our civil
rights.
We currently live in a critical period for the U.S. Latino
community, one in which our hard-won civil rights are
particularly at risk. Congress' failure to enact comprehensive
immigration reform has exacerbated an ongoing civil rights
crisis that affects all Americans but falls especially hard
upon Latinos.
States and localities have increasingly taken it upon
themselves to enact laws that aim to intimidate, destabilize,
and displace undocumented immigrants. Prince William County, in
fact, right down the road here in Virginia, recently approved
such an ordinance.
These laws, which often violate Federal law, may target
undocumented immigrants, but they undermine the civil rights of
all of those who live in these communities, especially those
who allegedly look or sound ``foreign.'' To an extent
unprecedented in recent years, America's Latino population has
become a focus of hateful and racist rhetoric and violence.
The growing presence of Latinos in local communities across
the Nation, including communities that have not historically
had a strong Latino presence, will give rise to pressing civil
rights issues in the 21st century. In voting, minority
communities are often subject to discrimination as they gain
political influence. While MALDEF frequently brings legal
actions on behalf of Latino voters, private individuals and
organizations lack sufficient resources to guarantee free and
fair elections nationwide. The growing Latino electorate must
be able to depend upon the Voting Section of the Civil Rights
Division to enforce Section 2, Section 5, and Section 203 of
the Voting Rights Act to ensure that no voter is wrongly
disfranchised.
In education, many children in America suffer in schools
that are so unequal and inadequate that the programs and
conditions violate the students' Federal civil rights. Latino
students, who comprise one in five U.S. public school students,
often continue to face significant barriers to fair and equal
educational opportunities, including increasingly segregated
school sites.
As Federal, State, and local governments respond to the
recent Supreme Court decision regarding voluntary school
integration plans in Seattle and Louisville, the Educational
Opportunities Section of the Civil Rights Division must protect
against school resegregation. The section must also enforce the
Equal Educational Opportunities Act, which requires schools to
take actions to overcome language barriers that impede English-
language-learner students from participating equally in school
programs.
In employment, the Office of Special Counsel for
Immigration-Related Unfair Employment Practices protects
against employment discrimination based upon national origin
and citizenship status. Nearly 50 percent of OSC's settlements
during fiscal year 2005 involved Hispanic workers.
Finally, the Criminal Section of the Division must
prioritize the prosecution of hate crimes. The past several
years have seen a growing number of violent assaults and
attacks by white supremacists against Latinos, with crimes
ranging from vandalism to brutal assaults and murders. In most
cases, the perpetrators did not know the victims but targeted
them solely based upon their appearance. In 2004, law
enforcement agencies reported 7,649 incidences of hate crimes
in the United States.
In conclusion, the most lasting effect of the Civil Rights
Act of 1957 may be that it fostered a tradition of strong
Federal civil rights enforcement in America. Congress has since
passed more comprehensive civil rights legislation, but the
1957 Act was a critical catalyst that engaged the Federal
Government as the key guardian of Americans' civil rights. We
must use the tools provided under the Civil Rights Act and
subsequent legislation to respond to civil rights trends in a
Nation that has changed much since 1957, where discrimination
may assume different forms now than it did then. And as
minority populations increase in size and in proportion of the
U.S. population, the proposition that every individual shall
receive fair and equal treatment under the law must continue to
be the principle under which we live. If the Federal Government
does not meet its obligation to protect 21st century civil
rights, our Nation will be much impoverished on the 100th
anniversary of the Civil Rights Act of 1957.
Thank you very much.
[The prepared statement of Mr. Zamora appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Professor Heriot is, as I said, Commissioner on the U.S.
Commission on Civil Rights, also Professor of Law at the
University of California at San Diego.
Professor, thank you very much for being here today. Please
go ahead.
STATEMENT OF GAIL HERIOT, COMMISSIONER, UNITED STATES
COMMISSION ON CIVIL RIGHTS, AND PROFESSOR OF LAW, UNIVERSITY OF
CALIFORNIA AT SAN DIEGO, SAN DIEGO, CALIFORNIA
Ms. Heriot. Well, thank you very much for allowing me this
opportunity to participate in the commemoration of the Civil
Rights Act of 1957.
Many civil rights scholars like to characterize the Civil
Rights Act of 1957 as a ``weak act,'' and in some respects they
are correct. Compared to the ambitious bill that Senator Paul
Douglas of Illinois earlier envisioned, the 1957 Act was puny
indeed. Senator Douglas hoped that the first civil rights bill
passed by Congress since Reconstruction would be a sweeping
one--outlawing race discrimination in public accommodations
across the country. But it was not to be--not in 1957, anyway.
I prefer to think of the Civil Rights Act of 1957 not as a
weak legislative effort but, rather, as a vital building block.
Without it, it is not at all clear that the Civil Rights Acts
of 1960, 1964, 1965, 1968, and 1972 would indeed have passed.
And seen in this light, the 1957 Act is not puny at all but,
rather, the beginning of a long overdue journey. It is,
therefore, fitting that this Committee should commemorate its
passage today.
You will often hear the 1957 Act referred to as a ``voting
rights act,'' and, of course, that is accurate. But the most
significant step taken in that Act was probably the creation of
these two new arms of the Federal Government that have already
been referred to today that are assigned the task of looking
after civil rights law, and that is the Civil Rights Division,
indirectly created by creating an extra Assistant Attorney
General's position, and the Commission on Civil Rights, which
is what I am most familiar with. So that is what I will talk
about.
If the value of a Federal agency could be calculated on a
per dollar basis, it would not surprise me to find that the
Commission on Civil Rights would be among the best investments
that Congress has ever made. My back-of-the-envelope
calculations show that the Commission now accounts for less
than 1/2000th of 1 percent of the Federal budget; back in the
late 1950's, it would have been similar in size. But,
nevertheless, it has packed quite a punch, particularly in its
early years.
Soon after the passage of the 1957 Act, the then-six-member
bipartisan Commission, consisting of John Hannah, President of
Michigan State University; Robert Storey, Dean of the Southern
Methodist University Law School; Father Theodore Hesburgh,
President of Notre Dame University; John Battle, former
Governor of Virginia; Ernest Wilkins, a Department of Labor
attorney; and Doyle Carleton, former Governor of Florida--they
set about to assemble a record.
Their first project was to look for evidence of racial
discrimination in voting rights down in Montgomery. But they
immediately ran into resistance in the form of then-Circuit
Judge George Wallace, who ordered that voter registration
records be impounded. Quoting Judge Wallace, ``They are not
going to get the records,'' he declared. ``And if any agent of
the Civil Rights Commission comes down to get them, they will
be locked up. . . .I repeat, I will jail any Civil Rights
Commission agent who attempts to get the records.'' Again, that
is quoting Judge Wallace.
The hearing, nevertheless, went forward with no shortage of
evidence. Witness after witness testified to inappropriate
interference with his or her right to vote. And the facts
gathered by the Commission went into the Civil Rights Acts of
1960, 1964, the Voting Rights Act of 1965, and the Fair Housing
Act.
What is important was the revolution in public opinion that
occurred during that period, and although the Commission on
Civil Rights was certainly not the only institution that helped
bring about that change, it was a very significant factor.
In 1956, just before the Act, less than half of white
Americans agreed with the statement, ``White students and Negro
students should go to the same schools.'' By 1963, the year
before the 1964 Act, that figure had jumped to 62 percent.
Similar jumps on other civil rights issues also occurred during
that period.
Given the amount of time I have, the one thing I wanted to
be sure to talk about is some of the people who were important
for passing the 1957 Act. We all know about President
Eisenhower's importance in that. He called for it in his State
of the Union Address. Attorney General Brownell, and especially
then-Majority Leader Lyndon Johnson.
However, there is an unsung hero that I would like to point
out who I first learned about when reading through Robert
Caro's biography of Lyndon Johnson, ``Master of the Senate,''
and this person, unlike Johnson, Eisenhower, and Brownell, is
still very much alive, is 92 years old, and is still an active
part of the teaching faculty at the university at which he
works.
It seems that the bill was hopelessly hung up over the
issue of remedies law, and as a remedies professor, that is a
very dear issue to my heart, and a law professor then at the
University of Wisconsin proposed a solution. There was some
controversy over jury trial issues for contempt of court since
the Act authorized the Department of Justice to seek
injunctions for violations of voting rights. And some
supporters of the bill wanted to have no right to a jury for
criminal contempt proceedings. Others were not willing to vote
for the bill if it had that in it. And this law professor
suggested a compromise: Don't eliminate the right to a jury
trial in those criminal contempt proceedings but, rather, rely
on civil sanctions for contempt. Lyndon Johnson latched onto
that idea, and he persuaded his colleagues, and as a result,
according to Caro, the bill passed.
That law professor was Carl Auerbach, then of the
University of Wisconsin, later Dean at the University of
Minnesota, and now for over 20 years, my colleague at the
University of San Diego. So I would like to honor him today.
[The prepared statement of Ms. Heriot appears as a
submission for the record.]
Chairman Leahy. Thank you.
Mr. Moses is President of the Algebra Project, as I
mentioned, an organization dedicated to achieving quality for
students in inner-city and rural areas through mathematics
literacy. When I read ``Parting the Waters,'' Mr. Moses, you
were there, of course, in some detail. You were field secretary
for the Student Nonviolent Coordinating Committee and then the
Director of the Mississippi Project, and you and John Lewis
have testified here, somewhat younger at the time, but equally
dedicated. I thank you for being here. Go ahead, sir.
STATEMENT OF ROBERT P. MOSES, PRESIDENT, THE ALGEBRA PROJECT,
INC., CAMBRIDGE, MASSACHUSETTS
Mr. Moses. Thank you, Senator Leahy.
After our Constitutional Convention of 1787, freedom and
slavery struggled for the soul of our National workable
Government. African slaves became constitutional property, and
if they stole themselves as insurgent runaways, the Feds were
permitted through Article IV, Section 2, Paragraph 3 to capture
and return them as property, across the lines of sovereign
States to their slave owners. This way of working worked for
about three-quarters of a century.
After our civil wars from 1860 to 1875, slavery was
replaced by caste and Jim Crow, constitutional property by
constitutional exiles. C. Vann Woodward says that Jim Crow laws
were ``constantly pushing the Negro farther down.''
The last battles of the Civil War were fought by the White
Leagues of Mississippi in the fall elections of 1875, and the
following summer, a Senate Select Committee, led by Senator
George Boutwell of Massachusetts, took testimony all across the
State and issued the Boutwell Report. Senator Boutwell
concluded that the election of the 1875 Mississippi State
Legislature was carried by Democrats by a preconceived plan of
riots and assassinations. Mississippi winked and the Nation
blinked. Federalism and Federal rights, the Civil War
amendments establishing citizenship and the right to vote, were
recognized by non-recognition. This way of working worked for
another three-quarters of a century.
In the early darkness of a winter evening in February 1963,
Jimmy Travis slipped behind the wheel and Randolph Blackwell
crowded me beside him in a SNCC Chevy in front of the Voter
Registration Office in Greenwood, Mississippi, to take off for
Greenville on U.S. 82 straight across the Delta. Jimmy
zigzagged out of town to escape an unmarked car, but as we
headed west on 82, it trailed us and swept past near the turn-
off for Valley State University, firing automatic weapons,
pitting the Chevy with bullets. Jimmy cried out and slumped; I
reached over to grab the wheel and fumbled for the brakes as we
glided off 82 into the ditch, our windows blown away, a bullet
caught in Jimmy's neck.
After Jimmy caught that bullet in his neck, SNCC regrouped
to converge on Greenwood, and black sharecroppers lined up at
the courthouse to demand their right to vote. When SNCC field
secretaries were arrested, Mississippi was not looking and the
FBI could not find the White Leaguers who gunned us down. Burke
Marshall, the Assistant Attorney General for Civil Rights under
Robert Kennedy, removed our cases to the Federal District Court
in Greenville and sent John Doar to be our lawyer. From the
witness stand, I looked past John at a courtroom packed with
black sharecroppers from Greenwood, hushed along its walls,
squeezed onto its benches, and attended to the question put by
Federal District Judge Clayton: ``Why are you taking
illiterates down to register to vote? '' A good question.
After the Civil War, as the Nation drove west, built
railroads and industrialized, it established an education
system to drive its caste system, or as James Bryant Conant
discovered to his astonishment, the clearest manifestation of
our caste system is our education system.
In Mississippi, the deal went down on that legislature of
1875. Alexander Percy of Greenville entered politics for one
legislative session for the express purpose of ensuring that
one of the Articles of Impeachment against the Republican-
elected Governor, Adelbert Ames, shifted the money and
resources Republicans had allocated for the education of the
freed slaves to the building of railroads to crisscross the
Delta, to support cotton plantations and sharecropping.
Sharecropper education has long been the subtext of the
struggle in Mississippi in this country for the right to vote.
Sharecroppers, constitutional exiles, were pushing against
the constitutional gate, seeking status as constitutional
people, using their 15th Amendment rights in an effort to
establish their 14th Amendment rights. Three-quarters of a
century after our civil wars, the Supreme Court in Brown v.
Board of Education acknowledged that our education system had
left a whole people behind, and this past June, a half-century
later, the New York Times spread pictures of all nine Supreme
Court Justices on its front page to alert the Nation of its
ongoing struggle about the 14th Amendment and what it means to
be a constitutional person. In the words of Harvard law
professor Laurence Tribe, ``There is a historic clash between
two dramatically different visions not only of Brown, but also
the meaning of the Constitution.''
It was Amzey Moore, the head of the local branch of the
NAACP in Cleveland, Mississippi, who saw that the energy of the
student sit-in movement could bring down Jim Crow in
Mississippi. The SNCC-led movement for the right to vote in
Mississippi called on the whole country to do that, but we have
yet to accomplish what Amzie wanted for all the people of the
country: first-class citizenship.
[The prepared statement of Mr. Moses appears as a
submission for the record.]
Chairman Leahy. Thank you very much, Mr. Moses.
Robert Driscoll is a partner at the Washington office of
the law firm Alston & Bird, but from 2001 through 2003, he
served as Deputy Assistant Attorney General and Chief of Staff
to the Civil Rights Division of the U.S. Department of Justice.
Mr. Driscoll, thank you for taking time to come by.
STATEMENT OF ROBERT N. DRISCOLL, PARTNER, ALSTON & BIRD,
WASHINGTON, D.C.
Mr. Driscoll. Thank you, Mr. Chairman. I am reluctant to
follow the testimony of Mr. Moses. It seems clear in retrospect
that he probably should have been the clean-up hitter on this
panel with what he had to say, but I will go forth, anyway.
Thank you again, Mr. Chairman and Senator Cardin, for
having this hearing. I am Bob Driscoll and I am a partner with
Alston & Bird here in Washington. From 2001 to 2003, I was
Deputy Assistant Attorney General in the Civil Rights Division,
which, of course, was created by the 1957 Act. And during that
time I worked on some of the issues that were discussed by
previous panelists, including racial profiling guidance to
Federal law enforcement, some school desegregation issues, and
police misconduct.
Today's panel is distinguished, and I have enjoyed hearing
everybody's perspectives on this topic. I believe that every
other panelist has, in some way, dedicated their career to the
advancement of civil rights, and for that I am grateful, and I
would like to thank all of them. My own perspective is that of
a working lawyer who has spent several years in leadership of
the Division--an institution for which I have great respect. It
is my experience doing my best for those 2 years helping manage
the Division that provides the basis for my comments.
Essentially, as I reflected on the 50th anniversary of the
passage of the Act, I have been struck by several points: first
is the progress we have made in this country in the 50 years
since the Act was passed; second, how the Act has served as a
framework--and I think other panelists have talked about this--
for the advances in civil rights legislation that followed;
and, finally, how the Act can serve, I think, as inspiration
for those of you on the Committee crafting legislation today
and how legislation can, in fact, change the Nation.
I think that the Act--and professor Heriot mentioned this--
will be remembered for protecting voting rights, but I also
think it is important to recognize it as a building block for
the 1964 Act and the 1965 Voting Rights Act, which were much
broader substantively. And the institutions created by the
Act--the Civil Rights Division and the Commission on Civil
Rights--really served as the tools through which lots of facts
were gathered to pass future civil rights legislation.
When one looks at what going on at the time and listens to
the testimony of Representative Lewis and Robert Moses, it is
hard not to be struck by the progress that has been made in the
50 years since the passage of the Act.
I am reluctant to speak of progress sometimes for fear of
being misinterpreted as someone who thinks that racial
discrimination no longer exists--and I can see that it does--or
that it is not in many areas in society where we are falling
down on our ideals of equality among men and women, because I
think certainly we have. Nor do I mean to suggest that the
gains that have been made were not hard fought, or that
progress was not resisted by certain circuit court judges and
certain other people that were discussed today all the way. But
I think there is no escaping that the moral imperative of equal
opportunity that has animated legislation such as the 1957 Act
has largely taken hold and been internalized by most Americans,
and we need to recognize that.
To take an obvious example that was discussed today, to
compare the wake of the Brown decision and the massive
resistance of certain school districts to integrate schools,
compare that to today, and I know it is a controversial
decision, which Ted Shaw mentioned and I think which members of
the Committee have mentioned, being litigated in the Supreme
Court in the Louisville and Seattle cases is that there is
clearly a disagreement among members of the Court and among
people that filed briefs in that case--I filed one on the
opposite side of Mr. Shaw--as to what the right answer was. But
when you look at what was being litigated, I think there is no
question it is a sign of progress. The question being litigated
was: Was the school board of Louisville, Kentucky, being so
aggressive in its efforts to integrate its school system that
it violated the Constitution? And I think we can all disagree
in good faith or people can disagree in good faith about
whether or not the Court reached the right result in that case.
But I think the people that originally were litigating on
behalf of the Civil Rights Division, enforcing early
desegregation orders, would be very surprised to hear that one
of the main points of contention in the Supreme Court would be
whether or not the school district had gone too far, and I
think that is quite a change from school districts that were
massively resisting any attempt at integration in prior years.
Finally, given the time constraints, I would just like to
say that I think the 1957 Act--it is interesting to look at as
an inspiration for possible future legislation. I think other
people have talked on the panel and on the Committee about
certain advances they would like to see in the civil rights of
the country. And I think when you look back at the 1957 Act,
you can say it was a compromise. People have noted it was not
an incredibly strong substantive Act, and I think that we can
all learn from that and look at that and say that sometimes
progress is incremental and sometimes what you view as a first
step today ends up being something that in retrospect was a
very important building block. And I think when people look at
different issues, you know, such as the Committee discussed
hate crimes legislation or rights of gays and lesbians, things
like that, I think that looking at the 1957 Act, I think
sometimes you look at the compromise that it was, and you look
at what it did not have--you know, it did not have national
prohibitions on public accommodation discrimination; it did not
have a particularly strong voting rights provision to it in
retrospect when you compare it to the 1965 Act. And so I think
that, you know, we look at our controversial and divisive
political issues today, and nothing could be as controversial
and divisive as this was back in 1957. And so maybe in that
regard it can serve as an inspiration to the Committee and to
the folks drafting legislation.
Thank you very much.
[The prepared statement of Mr. Driscoll appears as a
submission for the record.]
Chairman Leahy. Thank you, Mr. Driscoll.
I also should have noted that Mr. Driscoll served as a law
clerk to a classmate of mine from Georgetown and a very, very
good friend, an extremely good friend, the late Fred Parker,
who served both as chief district judge in Vermont and then as
Vermont's representative on the Second Circuit.
Now, I look at the 2004 report by the Harvard Civil Rights
Project, ``Brown at 50: King's Dream or Plessy's Nightmare? ''
Which shows a major increase in segregation, and the concern
the Civil Rights Division has paid insufficient attention to
ending housing segregation, which brings about segregation in
our schools. There are also reports on the ADA--whether the
Americans with Disabilities Act is being enforced. I see such
things, again, when a local school board in Louisville sought
to integrate public schools, the Justice Department sued the
school board, and we seem to be turning things on their head.
I see very few cases being brought about racial
discrimination against African-American voters, which makes you
think that that does not exist anymore.
MALDEF attorneys found anti-immigrant activists
aggressively intimidating Latino voters in Tucson, Arizona. In
fact, the Arizona Republic reported that Russell Dove, a local
anti-immigrant activist, proudly acknowledged his effort to
intimidate Latino voters. Mr. Zamora knows of what I speak.
When I hear Mr. Moses talk about John Doar--and I know your
work in Mississippi forged a close personal relationship with
him. I had the privilege of meeting him the first time when I
was a law student at Georgetown. And I think of what you said
about his active participation--what many of you have said. But
then I see the Urban Institute says 50 percent of African-
American 9th graders, 49 percent of Native Americans, 47
percent of Latino Americans do not graduate from high school in
4 years. And in some of the poorest urban and rural areas--and
I come from a rural State--dropout rates approach almost 80
percent. Mr. Moses, you are aware of that with the Algebra
Project.
So I am going to ask one question. There are a whole lot of
questions I could ask, but I know most of you, and you have no
hesitation in letting me or my office know your thoughts.
Someday--someday--we are going to have a new--I would hope the
administration will send up a name of a new head of the Civil
Rights Division. He or she is going to have to come before this
Committee for confirmation. Now, assume you were sitting where
I am as Chairman of the Committee. What would you ask as the
first question of a new head of the Civil Rights Division? That
may be unfair. Anybody want to start?
[Laughter.]
Chairman Leahy. I mean, talking about things you want to do
when you are in school. I only had two dreams when I was in law
school. I hoped someday I might be a prosecutor, and I hoped I
might be a U.S. Senator. I thought being a Democrat from
Vermont, that would never happen, and I ended up being both.
So, Mr. Shaw, do you want to take a stab at it?
Mr. Shaw. Dreams do come true sometimes.
Chairman Leahy. Sometimes.
Mr. Shaw. Mr. Chairman, I would ask any nominee to head the
Civil Rights Division what that nominee's plans were to restore
the Division to its full strength and integrity with respect to
its carrying out of its mission. I would want to know, for
example, in the aftermath of the Seattle and Louisville
decision, whether that nominee would consider re-establishing
the General Litigation Section, the section I joined when I was
at the Division years ago. It was dismantled, but the section
existed pursuant to a theory that there was a relationship
between school and housing segregation. And in the aftermath of
the Supreme Court's decision, I think the Department and the
Division should revisit the issue of trying to get at
segregation in schools and in housing through that housing
focus.
In general, I think the task is to re-establish a core of
committed, apolitical line attorneys who will not be subjected
to political interference in spite of the recognition that
administrations get to set policy. How would that nominee go
about re-establishing the integrity of the Division?
Chairman Leahy. Mr. Zamora? And then we will go to Mr.
Henderson. Mr. Zamora?
Mr. Zamora. Thank you. MALDEF has very specific criteria by
which we evaluate and issue recommendations for nominees. And,
you know, we have had experiences recently before this very
Committee where we have had nominees to courts who have made
representations about their future intentions with respect to
enforcing the laws or--
Chairman Leahy. I recall that.
Mr. Zamora. Yes, I am sure that you do.
Chairman Leahy. With some chagrin. Go ahead.
Mr. Zamora. Exactly. And so what we really look at is the
life history, the record of the individual, and what that life
history shows in terms of the perspective upon civil rights and
a real commitment. And I think we have heard from many
witnesses today who have demonstrated through their
professional experiences, through their careers, that there is
that commitment.
Also for MALDEF, certainly diversity is a consideration. It
is not the sole consideration, but we do feel that it is
important generally that the Federal Government reflect the
diversity of the population, and particularly, obviously, for
the Assistant Attorney General for Civil Rights, we would
appreciate a nominee who has walked in the shoes of individuals
who have suffered civil rights violations.
Chairman Leahy. Mr. Henderson?
Mr. Henderson. Mr. Chairman, I had hoped that my colleagues
going before me would do as they have done and focus on the
importance of career attorneys and the importance of restoring
integrity and commitment to the Department.
I wanted to take a slightly deeper dive, though, in an
issue that has gotten little attention, but in the wake of the
Louisville and Seattle cases deserves a closer review, and that
is the topic that Mr. Shaw touched upon--the link between
school integration and quality education and housing
discrimination.
You know, next year is the 40th anniversary of the Fair
Housing Act, first enacted in 1968, and yet housing
discrimination remains one of the last frontiers of civil
rights enforcement. The link between barriers of school
integration and housing discrimination have been well
documented, and the Supreme Court itself has spoken on numerous
occasions about that link. The Department of Justice has
extraordinary power in this area, the power to use pattern and
practice litigation techniques to really look at this question
of housing discrimination. And yet, in reviewing the number of
cases that have been brought with that extraordinary power, the
Department has largely been silent on the sidelines in
addressing this important area of our work.
If this country is ever going to get to the point where
quality education becomes a universal right, recognized for all
students as a part of their citizenship in the United States as
a whole, we are going to have to get beyond the point where
States have the ability under the guise of federalism to
exercise control over the schools within their boundaries in
ways that work against extending quality education to all
students. And fair housing enforcement in a very aggressive and
effective way can be an important tool.
I am hopeful that the next Attorney General and the next
head of the Civil Rights Division will make a commitment to
using the Nation's fair housing laws to look at cases of real
disparate treatment. Unlike other areas that we have talked
about, you still see intentional discrimination in the area of
housing sales and rental housing that have not been addressed.
And so I am hoping that the next Attorney General and head of
the Division will make a real commitment to making a deeper
dive in that area.
Chairman Leahy. Mr. Driscoll, you were there. If you were
sitting up here, what would you ask?
Mr. Driscoll. I think, Mr. Chairman, I would ask the
nominee to explain where he or she saw their position in the
Civil Rights Division in the Department of Justice, where they
saw that position fitting in with the general executive and
legislative scheme of civil rights enforcement. And I think
what you would want is someone who would pledge to enforce the
laws that the Congress passes and that are signed by the
President without fear or favor and apolitically, as has been
said by other witnesses, that would call balls and strikes on
enforcement of the civil rights laws and that would not take
upon themselves an ability to set policy, because I think that
is very dangerous for a law enforcement position to do, and
that if there are going to be extensions of certain statutes or
certain legal principles and to argue for them before this
Committee and to pledge not to just go do what they want as
head of the Division, that the position, while it has policy
implications, when you are in the offices over a 950
Pennsylvania, you realize it is pretty circumscribed by the
statutes that are passed by Congress and that there are a lot
of--sometimes there are some gaps in those statutes, and you
look at the options you have. And I think that getting a real
sense of where the nominee would draw that line to say what are
the limitations on what I can do and what can I do with vigor
and pride, and you would want to ask those questions. And I
also think it would be entirely appropriate to address some of
the other issues that the panel has raised about dealing with
some of the recent controversies in the Department and how they
would work to restore confidence in the career attorneys.
Chairman Leahy. Professor Heriot, you get the penultimate
question on this, and then we will go to Mr. Moses.
Ms. Heriot. Actually, all the questions that my fellow
panelists have suggested are excellent questions, and that if I
were asked what question to ask after those questions, I might
be inclined to just wish the nominee good luck and hope that
they remember that no matter what they do, someone will
criticize them for it.
Chairman Leahy. Not me.
[Laughter.]
Chairman Leahy. Mr. Moses?
Mr. Moses. I guess the simple question is why does that
person want that job.
Chairman Leahy. Yes, I know. You want somebody who wants it
because they can do good--or do right, I should say.
Mr. Moses. Yes, and I guess the question is how do we
understand their response to that and how do we gauge their
response against their record, against their life.
Chairman Leahy. I know what you are saying, and I know what
I would listen to. I would listen to a lot more than just the
words in somebody answering that question.
Senator Cardin? And I apologize. I have impinged on your
time. Senator Cardin, as I said before, is one I rely on very
much in this office and in this area. Coming from a State with
the racial makeup of Vermont, I have to rely very much on
somebody like Senator Cardin, who has experienced in his work
even before he was in the Congress, has experienced very much
in these areas. Senator Cardin?
Senator Cardin. Well, Mr. Chairman, thank you very much. I
do come from a State that has a rich diversity, but it presents
challenges. And I appreciate very much your leadership on this
hearing. I think this hearing is extremely important, and I
thank each of you for your commitment in your careers to civil
liberties and civil rights and for being here to help establish
a record for this Committee, because we have important
decisions to make, whether it is the confirmation process of
the next Attorney General or the person who will head up the
Civil Rights Division, some important decisions on laws and, as
I said earlier, in our confirmation of judges. And I think the
record that you all have helped us establish in this Committee
points out that we have a lot of work to do.
Mr. Shaw, I listened very carefully about your assessment
of historically some of the changes that have been made in the
Civil Rights Division and its priorities, and each
administration has the right to appoint its political
appointees in these positions, subject to confirmation. But
this administration has gone beyond just shifting priorities. I
think that we have to be very careful that they have not
created permanent damage in our ability to deal with the civil
rights of the people of this country. And I say that,
recognizing that their policy, for example, on dealing with
voter fraud for people voting who should not, which has never
been documented, is to try to disenfranchise a large number of
minority voters. That is just a practice that cannot be
tolerated in this country.
And you look at the last decade, with school desegregation
becoming more intense, and their answer is to challenge those
who want to have plans to try to have schools more integrated.
It turns the traditional role of the Civil Rights Division on
its head.
And as we had at our last hearing testimony about the
hiring practices--yes, you have the right to make political
appointments to the Department of Justice, but you do not have
the right to try to interfere in a partisan way with the career
attorneys. And this administration, of course, changed the
hiring procedures, using political appointees to select the
career attorneys. All of that has had incredible damage in the
Civil Rights Division.
So I think we have our work cut out for us. I do not want
to minimize that. I think we have a tremendous burden in
dealing with the Civil Rights Division.
I can tell you, Mr. Chairman, the first question I am going
to ask the nominee for Attorney General is his commitment to
the Civil Rights Division because I think that is an issue that
needs to be addressed by the Attorney General and the President
of the United States, and not just the person who heads the
Civil Rights Division.
Let me ask one question, if I might. Tomorrow we are going
to have a chance, I hope, to improve the tools available to the
Department of Justice dealing with voter intimidation and
trying to intimidate minority voters in this country by
misleading and wrong information.
I don't know whether that bill will ultimately be signed by
the President and enacted into law. I hope it is. But my
question to you is: Knowing what is happening today, the types
of efforts made to disenfranchise minority voters, what should
the Department of Justice be doing in order to ensure that
every person in this country has the right and opportunity to
participate in our political system through the right of
voting? What should the Federal Government be doing in order to
assist us in helping those who have been disenfranchised?
Mr. Zamora. I would jump in and, first of all, thank you
for your sponsorship of the voter intimidation and deceptive
practices bill, which MALDEF has supported. I think it does
become another important set of tools that the Division can use
to protect against this kind of disenfranchisement--of course,
against the backdrop that it has to be used properly, like any
Federal civil rights statute. We have some great laws on the
books that have not been properly enforced over the last
several years, so this will add to the number of laws that need
to be appropriately enforced.
But we have seen an increase of voter intimidation directed
against Latinos, and my written testimony cites several very
striking examples. But there is still an opportunity in this
administration, in this Civil Rights Division, to undertake
vigorous outreach, to train local election officials to be
prepared to recognize and report incidences of voter
intimidation. Then we need for the Civil Rights Division,
through the election and beyond, to actually prosecute these
individuals. We have reported the incident in Tucson to Voting
Section officials who are going to refer it to the Criminal
Division. We have not heard the results of that investigation
as of yet.
In California, I cited in my testimony to an incident where
an actual candidate for the House of Representatives mailed a
letter to 14,000 Latino voters that had wrong information. It
was trying to drive people away from the polls. The State
investigation has concluded, but to my knowledge, the Federal
investigation is ongoing, and we have not seen a priority made
of the prosecution of these sorts of incidents.
So I think the combination of outreach and training of
local election officials along with the vigorous prosecution of
the law.
Senator Cardin. Does the Department of Justice have those
tools today, they could use those?
Mr. Zamora. Yes, certainly, there are statutes on the books
that do protect against certain types of voter intimidation. I
think your bill actually expands that which classifies as voter
intimidation, I think in very positive ways. But, yes, there
are laws on the books that we have not seen vigorous,
prioritized enforcement of.
Senator Cardin. Mr. Shaw? Mr. Henderson?
Mr. Henderson. Thank you, Mr. Cardin. I would like to
respond going beyond the consideration of the new bill, which I
think Mr. Zamora addressed, you know, very effectively. I think
enforcing existing law in a meaningful way would make a huge
difference. For example, I think John Lewis spoke quite
eloquently about the need for the Division and the Department
of Justice to look more closely at voter ID laws that do have a
disproportionate impact on racial minorities who should be
protected by the Constitution, as with all citizens.
Second, the National Voter Registration Act, which has been
on the books for now over a decade, does have the ability to
make a real difference in registering voters and providing
meaningful access through social service agencies, and those
provisions have been underenforced and largely ignored by the
Department.
And then, thirdly, I think there has in the past existed a
real firewall between the Criminal Division in the Department
and the Civil Rights Division. And the idea of voter fraud
cases being handled in the Criminal Division that bleeds into
the responsibilities of the Voting Section it seems to me is
problematic and it invites the kind of politicization that you
have seen in the way in which some of these cases have been
handled.
So I think emphasizing the enforcement of existing laws is
also an important part of any serious enforcement scheme.
Mr. Shaw. Senator Cardin, if I may address the question at
a little bit more length, Section 11(b) of the Voting Rights
Act states that, ``No person shall intimidate, threaten, or
coerce, or attempt to intimidate, threaten, or coerce, any
person from voting or attempting to vote.''
Since the Act's inception, to our knowledge, 11(b) has been
used only three times by the Department of Justice. Clearly,
that is a statutory provision that has been underutilized given
the ubiquity of reports with respect to voter intimidation of
various types every election cycle. And so in addition to the
legislation you are proposing, which we commend you on, we also
think that 11(b) should be enforced vigorously by the Justice
Department.
I might add that Mr. Henderson and I and others were at a
meeting I remember very clearly with the former Attorney
General, John Ashcroft, a few years back in which he made clear
the Department's priorities with respect to voter fraud, a
problem--or, rather, a solution in search of a problem. And we
made it very clear that that priority was misplaced, and we
understood it in the context that I believe you described that
focus, even though you were not specifically referring to
Attorney General Ashcroft.
So we believe that the Department's priorities ought to be
reset to protect minority voters who are subjected to
intimidation as opposed to this attempt to focus on fraud,
which we interpret as an attempt to dissuade minority voters
from going to the polls.
Senator Cardin. Thank you. Thank you all very much again
for your careers and for your testimony.
Chairman Leahy. Thank you. And we will, as we always do,
keep the record open. You will certainly have a chance to go
through your own testimony. If there is something that you
thought you left out or wanted to add or change, feel free to
do so. I thank you. It has been a long morning for all of you,
but this is a record we wanted to make.
Thank you.
[Whereupon, at 12:02 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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