Fort Liberalism: Can Justice's civil rights division be Bushified?

Transit cops in Philadelphia can't afford to take long snack breaks at the doughnut shop. They have to stay fit and trim, able to run eight or ten city blocks, sometimes going up and down flights of stairs carrying heavy gear. When they arrive at a scene to assist commuters, they must have enough energy to grapple with criminals or help people in trouble.

It's a tough assignment, but the Southeastern Pennsylvania Transportation Authority (SEPTA) makes sure it hires people who are up to the task. Eleven years ago, it developed a test requiring applicants to run one-and-a-half miles in under 12 minutes while wearing 26 pounds of equipment. Since this testing started, a lot of applicants have failed to meet the standard, including 93 percent of women. Feminists howled about sexism and filed a lawsuit against SEPTA. They didn't have much of a case, but that hardly mattered to the adventurous spirits who ran the civil rights division at the Department of Justice during the Clinton years; in 1997, they joined the suit.

Over the next four years, a judge ruled twice ruled in favor of SEPTA. Last fall, as the never-say-die plaintiffs wanted to press forward against increasingly hopeless odds, the civil rights division -- now headed by Bush appointee Ralph F. Boyd -- would have none of it and pulled out. Though considered wildly controversial in the fever swamps of civil rights activism, this was actually a responsible decision, breaking from the reckless litigation strategies of the Clinton years. "All the bad stuff we used to see, such as the SEPTA case, has slowed to a trickle," says Roger Clegg of the Center for Equal Opportunity, which monitors the division's activities.

Assistant attorney general for civil rights is one of the most contentious posts in the entire federal government. Lani Guinier failed to get the job during the Clinton administration; Bill Lann Lee got it only because Clinton installed him as "acting" head of the division when the Senate was poised to reject his nomination. In 1989, Democratic senators blocked Bill Lucas, a black lawyer and former sheriff from Michigan who was said to lack civil rights expertise.

Last year, the White House reportedly had a hard time finding a Republican for the job, which was seen as a career killer. Bradford Reynolds held the post during the Reagan administration, but it doomed his advancement within the federal government: In 1985, he was denied a promotion to become the third-ranking official at Justice because he ran the civil rights division in a conservative manner. The Bush administration eventually settled on Boyd, a Boston former prosecutor who hadn't voted for a GOP presidential candidate until 1996. Without Guinier's long paper trail, Lee's history of activism, or Lucas's uninspiring resume, however, he was an acceptable candidate, and the Senate confirmed him in July.

There may be no part of the federal government where liberalism is more deeply entrenched. "Everything's political around here," complains one career lawyer. "Several of my colleagues took vacation time to campaign for Al Gore in 2000. You should have heard all the cheering when the Florida Supreme Court issued that ridiculous ruling after the election. It was like the home team had just hit a walk-off home run in the bottom of the ninth."

Many of the civil rights division's lawyers are hired directly from such groups as the ACLU and NAACP. "Certain kinds of people aspire to be civil rights attorneys, and not many of them are conservative," explains Clint Bolick of the Institute for Justice, who worked in the division in the 1980s. Boyd won't admit that this is a big deal. "The overwhelming preponderance of career staff are exceptionally good at what they do," he says. "There is a very small minority of folks who I will just say are less professional than I would like to see." Most of Boyd's top aides, however, think the less-professional types pose a serious problem -- and their ability and willingness to hurt Boyd has recently become apparent.

In the months following his confirmation, Boyd didn't make much news. Then, in March, a parade of Washington Post stories on the civil rights division started to appear -- every one of them the result of hostile career lawyers within the division choosing to play Deep Throat. The coverage began with unnamed sources criticizing Boyd for moving Katherine Baldwin, the lawyer in charge of the employment-litigation section, onto a special task force. This was spun as a sneaky effort to gain more control over the division, though almost nobody mentioned that Baldwin herself had risen to section chief under similar circumstances shortly after Bill Clinton's inauguration -- or that Clinton's people had replaced one-third of the division's section chiefs at the time. (The Clinton purge probably wasn't seen as quite so newsworthy because not many career lawyers complained about it -- they in fact welcomed a more politicized division.)

Two days after the Baldwin story, Boyd was in the Post again -- this time for issuing a "gag order" on career lawyers. The "gag order," however, was simply a memo written by a fellow career lawyer reminding them that they shouldn't disclose internal law-enforcement deliberations. Yet it was presented to the Post as a dastardly document that was spreading fear in the ranks.