A breathless, front-page, above-the-fold article in the New York Times today on how the Obama administration is “reshaping the Justice Department’s Civil Rights Division” is actually a big yawn. Much of it is devoted to personnel issues, where the unsurprising bottom line is that the Obama administration will reverse the Bush administration’s efforts to hire a conservative lawyer once in a while to a career position, and that the Obama administration will give liberal career lawyers freer rein than the Bush administration did. There’s also an unenlightening he-said/she-said discussion about whether it was the Bush administration that “politicized” the Division, or whether — ironically — it is the Obama administration that is really politicizing it (Exhibit A: dropping a voter-intimidation prosecution of the New Black Panther Party). The answer is the latter.
Programmatically, the big news is that the Obama administration will bring more “disparate impact” lawsuits than the Bush administration did. Readers of NRO already know this: See my posts here and here. The renewed emphasis on these lawsuits is disturbing but, again, not surprising. Disparate-impact lawsuits challenge practices that lead to statistically worse results for a particular minority group (or women) relative to other racial groups (or men), without alleging that the practice is actually discriminatory in its terms, design, or application — that is, is actually “discrimination” at all, by any reasonable definition of the term. Such lawsuits result in (a) the abandonment or watering down of perfectly legitimate selection devices (like tests), or (b) the adoption of surreptitious quotas (to avoid the disparate impact in the first place), or (c) both. So Democratic administrations, which tend to like quotas more than productivity, have always had a penchant for using this approach that Republican administrations have generally lacked. See my testimony before the Senate and House a couple of years ago at their respective oversight hearings for the Division.
So the issues raised by the Obama administration’s civil-rights policies will be important, but they will not be surprising or even new. Here, as elsewhere, it’s just the usual liberal nonsense, warmed over and worse.