Some have argued that, given limited prosecutorial resources and the rarity of voter intimidation prosecutions, the case should not have been brought to begin with. Despite the dramatic video, it’s not clear that any voters were actually intimidated.21 Nevertheless, once the case was successful, requiring only negligible additional resources to win a final court order, it was passing strange that the Justice Department declined to see it through.
The Obama administration denied that political appointees played any role in the disposition of the New Black Panther case. But the administration has not been able to explain a stream of emails that went back and forth about the case among senior Obama political appointees in the days before the Justice Department abandoned its prosecution.22 These emails, a federal judge later wrote, “would appear to contradict” Assistant Attorney General (and future Secretary of Labor) Thomas Perez’s sworn testimony before the US Commission on Civil Rights “that political leadership was not involved in that decision.”23
The Justice Department’s Office of Professional Responsibility ultimately investigated the department’s handling of the case. Attorney General Holder told the New York Times while the investigation was still under way that “there is no ‘there’ there,” and that the investigation was over a “made up controversy.”24 Given that Holder was the boss of the OPR employees undertaking the investigation, his public prejudgment compromised the investigation’s integrity.25
The charitable explanation of the New Black Panther Party fiasco is that the Obama administration was rebuking the Bush Justice Department. The new administration sought to send a somewhat juvenile message that “we think the Bush administration’s prosecution priorities were so screwed up, we are not even going to pursue a case it was about to win.” The Obama Civil Rights Division similarly dismissed a Bush-era lawsuit against the state of Missouri for failing to purge registration lists of deceased and no-longer-resident voters as required by the National Voter Registration Act of 1993.26 The Obama administration sought to focus its resources on barriers to voting like voter ID laws, not on cleaning up voter lists.
Some former Bush officials, however, believed that the Justice Department’s failure to pursue the New Black Panther Party case resulted from top Obama administration officials’ ideological belief that civil rights laws only apply to protect members of minority groups from discrimination by whites. Department spokes-woman Tracy Schmaler denied any such motives. She asserted that “the department makes enforcement decisions based on the merits, not the race, gender or ethnicity of any party involved.”27 But an anonymous Justice Department official told the Washington Post that “the Voting Rights Act was passed because people like Bull Connor [a white police commissioner] were hitting people like John Lewis [a black civil rights activist], not the other way around.”28 The Post concluded that the New Black Panther Party case “tapped into deep divisions within the Justice Department that persist today over whether the agency should focus on protecting historically oppressed minorities or enforce laws without regard to race.”29
The Office of Professional Responsibility’s report on the case found that several former and current DOJ attorneys told investigators under oath that some lawyers in the Civil Rights Division don’t believe that the DOJ should bring cases involving white victims of racial discrimination. The report also found that Voting Section lawyers believed that their boss, appointed by President Obama, wanted them to bring only cases protecting members of American minority groups. She phrased this as having the section pursue only “traditional” civil rights enforcement cases. Her employees understood that by “traditional” she meant only cases involving minority victims.30
The boss in question claimed she was misunderstood, and that she was only alluding to a specific section of the Voting Rights Act that required certain states to get Justice Department “preclearance” before they modified their voting rules in a way that could potentially be deemed discriminatory. Since all voting rule changes affect one group or another in different ways, applying this rule to white voters as well as minority voters would require the section to spend significant resources preclearing every voting change in the affected states.
If there was, in fact, a misunderstanding, it was likely because the Obama/Holder Justice Department had provided ample reason to question whether it wanted to apply the law in a racially neutral manner. In addition to dropping most of the New Black Panther Party case, the department canceled an existing investigation into an alleged ballot theft in Noxubee, Mississippi, that benefited an African-American incumbent. Meanwhile, Holder himself made some racially charged comments, including suggesting that the controversy over the New Black Panther Party case demeans “my people,” by which he meant African Americans.31
Meanwhile, the Obama Justice Department resumed civil service hiring for the Civil Rights Division based on illegal ideological criteria. In a 2008 speech to the liberal American Constitution Society, Holder had promised the Justice Department would be “looking for people who share our values,” and that “a substantial number of those people would probably be members of the American Constitution Society.”32 As attorney general, Holder went about finding such people by looking for civil service candidates with a “commitment to civil rights.”33 Commitment to civil rights was in practice interpreted not as a commitment to enforcing the laws on the books, but as a commitment to left-wing political activism, as demonstrated by past work for liberal activist groups.
The result was rather astonishing. During the first two years of the Obama administration, over 60 percent of attorneys hired for civil service positions had liberal entries (such as working for a left-wing activist group) on their resumes and none had conservative entries.34 The Justice Department’s rationale for hiring progressive activist lawyers is that their “traditional civil rights backgrounds” gave them appropriate law-enforcement credentials.35 In fact, few of the lawyers in question had much in the way of law-enforcement experience. Rather, much of their experience was in challenging existing law as insufficiently left-wing and advocating for new or amended laws. Yet, once hired by the Justice Department, they were charged with enforcing the same laws that they had been denouncing in press releases and friend-of-the-court briefs as oppressive, unjust, unfair, and racist.
For example, many attorneys hired by the Justice Department had worked for organizations that opposed any significant constitutional restrictions on government preferences in favor of members of minority groups. By contrast, existing Supreme Court precedent limits such preferences to very narrow circumstances. One top Obama appointee suggested that recent Supreme Court precedent on race preferences was analogous to Dred Scott, a notorious 1857 case that both endorsed nationwide slavery and held that people of African descent had no “rights the white man need respect.”36 Someone who so vehemently disagrees with the current state of the law is not best positioned to enforce it. Meanwhile, even when desperately searching for attorneys to fill new civil service positions, the Justice Department, for reasons it couldn’t explain to investigators from the Office of the Inspector General, failed to contact experienced former Bush administration attorneys who could potentially have been lured back to the department.37
If all that isn’t sufficient evidence to show illegal political bias in hiring in the Obama Justice Department, consider the Civil Rights Division’s nonattorney civil service hires just in the Voting Rights Section. They had worked for left-wing activist groups, including the NAACP, the Stanford Immigrants Rights Project, the Lawyers Committee for Civil Rights Under Law, the American Constitution Society, the Urban Institute, the Asian American Justice Center, the “no human is illegal” campaign, and more.38 It’s hard to think of a good reason why a paralegal or other nonlawyer Civil Rights Division hire needed experience in an activist organization to do his job properly. But providing nonattorney employees at low-paying liberal organizations with government jobs is a tacit way of subsidizing those organizations. It signals potential employees of such organizations that they will have the inside track on higher-paying, more secure government jobs in Democratic administrations.
The Civil Rights Division is not the only highly politicized part of the Justice Department in