Whether they supported President-elect Trump or not, conservatives (minus some libertarians) will generally applaud the nomination of Senator Jeff Sessions as Attorney General.
Further, it seems likely he will be confirmed by his colleagues, after Democrats go through the inside-the-Beltway exercise of providing various interest groups a platform to oppose a nomination that everyone knows will succeed.
It will be no surprise when civil-rights groups will feature prominently in this made-for-MSNBC opposition. They see the DOJ, and particularly the Civil Rights Division, as an “agent of change” on the cutting edge of civil-rights law, rather than a law-enforcement agency enforcing the laws Congress has passed.
In contrast, Senator Sessions will likely take the more traditional “apply the law to the facts” approach of Republican attorneys general. Civil-rights laws are important, exist for a reason, and need to be enforced vigorously. But civil-rights law, like securities law or patent law, is governed by statutes and the Constitution. A Republican approach to this area of law understands that the terms “law I disagree with” is not synonymous with “unconstitutional” and every “desire to do something” is not a “civil right.”
But that does not mean that a Republican Civil Rights Division cannot have an active mission. Democrats and the Left will surely accuse any Republican civil-rights record as “turning back the clock” on transgender rights, voter ID, affirmative action, and other hot-button issues. This is unavoidable, and seeking approval of those who level such criticism is a pointless effort.
But an affirmative civil-rights agenda, one that is consistent with conservative principles, can and should be pursued, both for the good of the nation and to assuage the fears stoked by the Left and the media that the coming years will be a civil-rights disaster.
Drawing on my experience as a past deputy assistant attorney general in the Civil Rights Division, here are a few unsolicited ideas for such an agenda:
While the Left has presumed that Candidate Trump’s lack of political correctness portends an assault on gay rights, he is, after all, essentially the first president to win election while favoring same-sex marriage, having declared the issue “settled” (President Obama announced his support only months before the 2012 election, his hand forced by his running mate). He is a lifelong Manhattan and Palm Beach resident who runs beauty pageants – it is unlikely he is, at heart, an anti-gay-rights crusader. Moreover, many conservatives objected more to the anti-democratic nature of the same-sex-marriage wave and the judicial pirouettes required to find constitutional rights related to LBGT issues than they opposed actual equal treatment of gay and lesbian friends and relatives.
Trump could upset the applecart by proposing a straightforward amendment to Title VII of the Civil Rights Act to ban workplace discrimination based on sexual orientation, while simultaneously proposing strong religious-freedom provisions to protect Catholic Charities, the University of Notre Dame, Jewish Community Centers, and all such organizations whose religious tenets have been under assault.
Such a proposal would reflect the nation’s broad consensus that gay and lesbians should not be fired from most employers simply for their sexual orientation and provide a concrete example of the conservative principle that law should generally change via democratic majorities, not judicial fiat.
Note: A democratic majority exists on this issue. It does not on transgender rights, bathroom access, and the like, and these issues would be omitted from the legislation and left to the states. This would place the Left on civil rights in a similar position to where it is on the issue of late-term abortion — defending extreme positions while opposing legislation that reflects public opinion. The average American would view a limited expansion of federal rights to gays and lesbians as worthwhile, and would hardly be in favor of opposing such a move because it did not allow men who think they are women to enter girl’s locker rooms or force nuns to buy birth control.
Conservative skepticism of “disparate impact” theories (using mere numerical disparities to allege discrimination) is often incorrectly characterized as opposition to enforcement of racial-discrimination laws. Republicans could demolish this theory by pointing out that focus of unintentional discrimination takes the focus off intentional discrimination, particularly against blacks, that still exists.
Make no mistake: It does exist. Under a Republican DOJ as a Democratic one, black and white paralegals given identical or similar resumes and credit scores, known as “testers,” will be sent to many areas of the country to test for intentional housing discrimination. Unfortunately, they will find many instances where the black tester is told no apartment is available while the white tester is shown vacancies.
This is precisely the kind of discrimination that we all think should be eradicated. The cases may not bring the headlines that a disparate-impact case against a major bank will, but the affected minority communities will appreciate the emphasis on civil-rights laws being enforced in the trenches instead of new legal theories being fished out of faculty lounges.
A Republican administration, which will not be beholden to a plethora of racial-interest groups, could also acknowledge that old-school straight-up discrimination is more common perpetrated against blacks (particularly black men) than any other minority and thus worthy of more enforcement. Who could argue with making intentional discrimination against blacks a stated priority?
In contrast to LBGT rights, disability law has mostly evolved as conservatives think civil rights should evolve. Congress understood that fully integrating the disabled would extract a cost on society, and decided that the cost was worth it. The ADA has been a great success, in large part due to the cooperative approach taken in explaining ADA requirements to business. As technology advances (think self-driving Ubers for the wheelchair bound) the DOJ can facilitate ADA compliance and propose amendments if necessary, while being sensitive not to stunt the advancement of broadly available technology (the Obama administration opposed e-textbooks because they were not immediately usable by the blind, for example, rather than simply recognizing that the technology would catch up faster than they could sue their way to a desired result).
The Developmentally Disabled
The Civil Rights of Institutionalized Act, or CRIPA, allows DOJ to pursue reforms, generally cooperatively, against not only prisons but also state facilities that house the developmentally disabled. Some of these facilities house, for years, people without families or regular visitors. These residents have constitutional rights, but lack the strong lobby that traditional civil-rights groups have. Cooperative enforcement backed by a willingness to stand up for the voiceless in court if needed can truly make a difference in the lives of people who aren’t a political constituency. Bringing attention to these facilities may not pay political dividends, but it would be the right thing to do.
Black Lives Matter
There is nothing to be done to win over Black Lives Matter politically — they will oppose a Republican DOJ from the jump. But a Republican DOJ can do its best to lower the tension of the police-shooting political cycle.
The first step is to simply state what has been longstanding policy: every police-involved shooting death is and will be looked at by the FBI. Far too often, the mere existence of an investigation is used as a cudgel by civil-rights groups to argue that a crime may have been committed by an officer. In reality, opening an investigation should not be news.
A Republican DOJ can do its best to lower the tension of the police-shooting political cycle.
An effort must also be made to educate the public about how high the standard is for a federal criminal civil-rights case. A non-prosecution does not mean that nothing was done wrong. Rather, all it means is that the officer did not intend to violate the rights of the citizen. An officer can be successfully disciplined, fired, and sued, all without meeting the standard of a federal criminal civil-rights violation. We should be educating communities that convicting officers is not a measure of whether the DOJ takes civil rights seriously (after all, how many high-profile cases did the Holder DOJ win?).
With respect to investigations about patterns and practices within departments, the DOJ should be cooperative where it can, and refrain from opening such an investigation as “cover” to “do something” where no pattern exists, but a high-profile incident occurred. Law enforcement perceives, correctly, that under current standards, DOJ could open a pattern and practice investigation wherever it wants and often does so in an arbitrary and media-driven manner. Not proving them right consistently would be a good place to start.
Ironically, the Supreme Court’s neutering of Section 5 of the Voting Rights Act should minimize the politicization of this area of civil-rights law, which used to require every partisan redistricting in the covered jusrisdictions to be submitted to DOJ. However, Section 2 (which, unlike Section 5, applies nationwide) still exists and protects what the average citizen thinks of as voting rights. The Obama administration’s largely unsuccessful forays into voter-ID and early-voting issues notwithstanding, it has not been particularly vigorous enforcing Section 2. Moreover, the Obama civil-rights division is viewed as partisan because it appears to follow the faulty syllogism that blacks vote Democrat, the Voting Rights Act protects blacks, and thus the Voting Section should function as an arm of the DNC. A few years of even-handed enforcement, without regard to whose political ox is being gored, would be a breath of fresh air.
Immigration and Terrorism
No one is sure where President Trump will lead in these areas, but the DOJ should make clear that enforcing the laws passed by Congress is nothing to complain about.
If deportations of unlawful immigrants are prioritized, so be it. Opponents can propose legislative changes to protect illegal immigrants they think should stay. This is not to say that the issue is not fraught as a policy and political matter (I personally believe in a limited path to legal status) but should aggressive enforcement of the law be the stated priority, it would help wean political interest groups from thinking that lobbying the DOJ, rather than Congress, is the way to achieve immigration reform.
#related#With respect to a “Muslim ban,” it has looked clear for some time that Trump is not really serious about such a religious test. More likely is enhanced vetting of immigrants from certain countries, which is unlikely to create a legal problem. But the Civil Rights Division can nevertheless prosecute, and publicize, any crimes or discrimination against legal immigrants or religious minorities to prove the point that, once legally admitted, we are all equal as Americans and worthy of the full protection of our laws.
These are but a few of the initiatives an ambitious conservative Civil-Rights Division could implement.
Far from “turning out the lights” on civil rights, the Sessions DOJ could end up with a record that — politics being what it is — they will never get credit for, but can and should be proud of.
— Robert N. Driscoll is the managing partner of McGlinchey Stafford’s Washington, D.C., office and a former deputy assistant attorney general in the U.S. Department of Justice, Civil Rights Division. You can follow him on Twitter at @RNDriscoll.