The Corner

A Response to Thernstrom on the New Black Panther Case

My colleague on the U.S. Commission on Civil Rights, Abigail Thernstrom, has written a bewildering response to Andy McCarthy’s dismantling of her assertion that the New Black Panther Party case is “small potatoes.” The piece makes many errors, so in the interest of space, this rebuttal will be confined to just five points (for further debunking of myths about the NBPP matter, see my post from last night):

1. The evidence is “weak”: Where to begin? The now-famous video gives visual confirmation of the testimony of several witnesses, both fact and expert, who have appeared before the Commission. The Justice Department’s own case-justification memo confirms the intimidation. The testimony of long-time civil-rights attorney Bartle Bull confirms the intimidation. The testimony of poll watcher Chris Hill confirms the intimidation. Every single one of the career Justice Department attorneys assigned to the NBPP case maintained that the case should be pursued, thereby disputing Thernstrom’s assertion that the evidence is “weak.” Even aside from the copious evidence adduced before the Commission on this issue, Thernstrom seems to be asking the millions who have seen the video, “Who you gonna believe, me or your lyin’ eyes?”

2. Thernstrom would “join [her] colleagues in welcoming further testimony” from DOJ individuals who could testify about whether the DOJ has a policy or practice of enforcing certain civil-rights laws in a racially discriminatory manner and refusing to enforce certain voting-rights laws: This is news to the other members of the Commission. On July 16, a majority of Commissioners approved a motion to once again request that the Justice Department produce the very witnesses that Thernstrom now claims she is interested in hearing from. The motion was crafted in a manner to circumvent the Justice Department’s year-long refusal to produce such witnesses.

Thernstrom refused to support the motion.

Furthermore, Thernstrom neglects to note that her friend, former DOJ attorney J. Christian Adams, specifically testified to hearing a high-level political appointee tell the Voting Rights Section that the administration will not enforce Section 8 of the National Voter Registration Act — the section designed to prevent ineligible individuals from voting.

3. The matter must be put “in perspective”: Thernstrom continues to belittle the significance of the evidence adduced before the Commission. Even if one were to accept Thernstrom’s contention that the 2008 Philadelphia incident is “small potatoes,” the same cannot be said of the evidence concerning the allegation that high-level political appointees in the Justice Department have a) enunciated a policy of enforcing certain civil-rights laws in a racially discriminatory manner, b) enunciated a policy of refusing to enforce Section 8 of the NVRA, and c) tolerate within the Civil Rights Division a culture hostile toward enforcing voting-rights laws against minority defendants or on behalf of white victims. The claim that such alleged policies are “small potatoes” is nothing less than astonishing.

4. “As the Commission’s work on the matter proceeded, my doubts only grew”: This statement by Thernstrom is flatly irreconcilable with logic. In fact, in a Dec. 21, 2009, piece for NRO — before the Commission had even heard from eyewitnesses who were at the polling station — Thernstrom pronounced the NBPP case a “blatant case of voter intimidation.” As the investigation proceeded, evidence accumulated that DOJ’s decision to dismiss the NBPP case appeared indefensible. More importantly, evidence accumulated that the NBPP case may have been a manifestation of a policy and/or practice in the Civil Rights Division.

5. The only witness who has testified before the Commission that Thernstrom seems to credit is the witness who had absolutely no involvement in the NBPP case: Thernstrom gives deference to the testimony of the head of the Civil Rights Division. That’s fine, even though he did not even assume his office until six months after the case had been dismissed. In contrast, Thernstrom dismisses the testimony of witnesses who were actually present at the polling place, expert witnesses who have been involved in voting-rights cases, and several former DOJ attorneys who corroborated important aspects of the testimony of J. Christian Adams.

The Commission investigation proceeds. A final report will be issued in the next few months. At that time, individual members of the public can make their own determinations as to whether the NBPP matter is “small potatoes.”

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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