Bench Memos

Perez’s Double Standard

On Monday, President Obama nominated Thomas Perez, currently head of the Department of Justice’s Civil Rights Division, to serve as labor secretary. Perez’s tenure as head of the Civil Rights Division has come under great criticism, and many are calling for Senate Republicans to block his nomination. One source of criticism is a recent inspector general report about the Voting Section of Perez’s Civil Rights Division. The report for example was critical of their hiring practices:

We did not find sufficient evidence to conclude that CRT staff considered applicants’ political or ideological affiliations when hiring experienced trial attorneys for the Voting Section in 2010. Nevertheless, the primary criterion used by the Voting Section hiring committee in assessing the qualifications of applicants, namely prior voting litigation experience, resulted in a pool of select candidates that was overwhelmingly Democratic/liberal in affiliation

The report made four recommendations to prevent future discrimination, including expanding the criterion for new hires. Not surprisingly, Perez’s response pushed back on these recommendations, essentially dismissing the potential “disparate impact,” or statistical bias, against conservatives created by their criterion. Perez thought that the relevancy of the Voting Section’s current narrower criterion for hiring candidates justified the resulting skew.

What’s ironic about Perez’s dismissal of “disparate impact” worries in this context is that he has gone to great lengths to protect this same theory in the Fair Housing context, which I’ve written about before. As the Wall Street Journal explained yesterday, Perez “intervened to undermine two civil complaints against the City of St. Paul in order to get St. Paul to drop a Supreme Court case that might have blown apart the legal rationale for [disparate impact liability].” Disparate impact liability uses statistics to hold lenders accountable for “discriminatory” loans, regardless of intent, and the DOJ has used this to threaten many prominent banks to agree to historically high settlements. Apparently though, their supreme concern about a practice’s unintended consequences for a marginalized group—a relevant enough concern in the Fair Housing context to merit historically high settlements—are irrelevant when the context shifts to potential bias against conservatives.

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