Obama's Justice

by Thomas Sugrue

In a provocative op-ed published in last Sunday's WaPo, Princeton historian Julian Zelizer highlights continuities between the presidencies of George W. Bush and Barack Obama. Zelizer's list includes the expansion of presidential power and secrecy, counterterrorism policy, and a faith in war as a vehicle for regime change. To the list, I would add public education.

Zelizer's takeaway is this:

Dismantling the past is extraordinarily difficult. In a host of arenas, Obama is holding on to the Bush administration's policies and practices, even some that he decried during his presidential campaign and vowed to undo. From the wars we fight to the oil we drill for, we're still living in the Bush era -- like it or not.

Zelizer is right on the mark. But I would add a few important qualifications. Many of the Obama administration's most important breaks from Bush are happening beneath the radar in the executive branch agencies whose activities seldom make the headlines. Consider, as a quick example, labor policy. Obama's recess appointment of labor lawyer Craig Becker to the NLRB was one of the few publicly visible signs of the administration's mostly quiet reversal of Bush's antilabor policies.

Perhaps the most consequential changes have happened in the Department of Justice. That message came home yesterday in reports about the DOJ threatening to sue Maricopa, Arizona sheriff Joe Arpaio for failing to cooperate in an investigation of charges that his department discriminates against Hispanics.

During the Bush years, the DOJ systematically withdrew resources from civil rights enforcement, marginalized many staff civil rights attorneys, and hired inexperienced but outspokenly conservative career attorneys in violation of civil service provisions. Altogether 236 career civil rights lawyers left the DOJ between 2003 and 2007 (out of a staff of about 350), many alienated by the increasingly politicized atmosphere there. In addition, Bush's Justice Department nearly ceased litigating housing and employment cases, shifted energy away from minority voting rights cases to allegations of voter fraud, and filed relatively few amicus briefs in support of privately litigated civil rights cases.

Beefing up the DOJ's civil rights enforcement is one of the promises that the Obama administration has kept. In a speech at Howard University, shortly after launching his campaign, Obama unsparingly criticized "a Justice Department whose idea of prosecuting civil rights violations is trying to rollback affirmative action programs at our colleges and universities; a Justice Department whose idea of prosecuting voting rights violations is to look for voting fraud in black and Latino communities where it doesn't exist." The DOJ's decision to drop the spurious Bush-initiated lawsuit against the New Black Panther Party for alleged voter intimidation, is one example of improvement.

At Howard, and in his campaign platform, Obama pledged that he would staff the Civil Rights Division "with civil rights lawyers who prosecute civil rights violations, and employment discrimination, and hate crimes. And we'll have a Voting Rights Section that actually defends the right of every American to vote without deception or intimidation." As president, Obama quietly but aggressively upheld that promise. Under his attorney general, Eric Holder, the Department of Justice began stepping up civil rights enforcement.

The DOJ turned its attention to "high impact" discrimination cases. It filed briefs supporting affirmative action in the New Haven firefighters case (struck down by the Supreme Court), argued on behalf of maintaining preclearance provisions in voting rights enforcement (the requirement that districts with a history of discrimination get Department of Justice approval for changes in voting arrangements), and supported a lawsuit (won in a federal court in New York) that requires Westchester County, New York, communities to construct affordable housing to expand options for minorities in the job-rich suburbs.

Although centrists hoped that Obama would find a "third way" between "liberal racialists who believe that we've made little progress on race since the 1960s," and conservatives who "insist that anti-discrimination laws are no longer necessary," Obama's DOJ has resisted narrowing civil rights law from a focus on disparate impact to discriminatory intent, and has called for the strict enforcement of existing laws.

Obama's record on civil rights issues has, overall, been spotty. (If you want my detailed explanation of why that's the case, I will refer you to my little book on Obama and race). Obama has stepped away from the third rail of racial issues because on the few occasions when he did not (his quip about not looking like other presidents on dollar bills or the Skip Gates affair), he has gotten burned. It's not politically viable for Obama to use the presidency as a bully pulpit on race, given the trigger-happy readiness of his opponents to paint him as someone who hates white America. But look behind the scenes--to Holder and his colleagues. That's where the real change is happening.