The Obfuscation Report

Maneuver gave Bush a conservative rights panel
By Charlie Savage, Globe Staff | November 6, 2007

WASHINGTON - The US Commission on Civil Rights, the nation's 50-year-old watchdog for racism and discrimination, has become a critic of school desegregation efforts and affirmative action ever since the Bush administration used a controversial maneuver to put the agency under conservative control.

Democrats say the move to create a conservative majority on the eight-member panel violated the spirit of a law requiring that no more than half the commission be of one party. Critics say Bush in effect installed a fifth and sixth Republican on the panel in December 2004, after two commissioners, both Republicans when appointed, reregistered as independents.

"I don't believe that [the law] was meant to be evaded by conveniently switching your voter registration," said Commissioner Michael Yaki, one of the two remaining Democrats.

The administration insists that Bush's appointments were consistent with the law because the two commissioners who reregistered as independents no longer counted as Republicans. The day before Bush made the appointments, the Department of Justice approved the move in a memo to White House counsel Alberto Gonzales's office.

Other presidents have been able to create a majority of like-minded commissioners, but no president has done it this way. The unusual circumstances surrounding the appointments attracted little attention at the time. But they have had a sweeping effect, shifting the commission's emphasis from investigating claims of civil rights violations to questioning programs designed to offset the historic effects of discrimination.

Before the changes, the agency had planned to evaluate a White House budget request for civil rights enforcement, the adequacy of college financial aid for minorities, and whether the US Census Bureau undercounts minorities, keeping nonwhite areas from their fair share of political apportionment and spending. After the appointments, the commission canceled the projects.

Instead, the commission has put out a series of reports concluding that there is little educational benefit to integrating elementary and secondary schools, calling for closer scrutiny of programs that help minorities gain admission to top law schools, and urging the government to look for ways to replace policies that help minority-owned businesses win contracts with race-neutral alternatives.

The conservative bloc has also pushed through retroactive term limits for several of its state advisory committees. As a result, some longtime traditional civil rights activists have had to leave the advisory panels, and the commission replaced several of them with conservative activists.

The commission has also stopped issuing subpoenas and going on the road to hold lengthy fact-finding hearings, as it previously did about once a year. The commission had three planned hearings in the works when the conservative bloc took over and canceled them. Instead, the panel has held only shorter briefings, all but one of which was in Washington, from invited specialists.

Commissioner Abigail Thernstrom, who dropped her GOP registration six weeks before Bush's appointments, said the selection of conservatives to the state civil rights advisory committees provided "intellectual diversity." She also said the commission's recent briefings and reports have been rigorous.

"They are completely balanced in a way they haven't been for years," said Thernstrom, a former member of the Massachusetts Board of Education who until recently lived in Lexington.

A core mission of the Civil Rights Commission is to use its bipartisan fact-finding power in racial disputes to "gather facts instead of charges [and to] sift out the truth from the fancies," as Senate majority leader Lyndon Johnson said in August 1957.

In its early days, the commission's work of collecting evidence of voter discrimination and police brutality laid the groundwork for major civil rights laws. But the panel has stayed on the sidelines in recent controversies with civil rights overtones.

For example, the panel did not investigate allegations that black neighborhoods in Ohio received too few voting machines in the 2004 election or the murky circumstances surrounding a racially charged assault case in Jena, La.

Kenneth Marcus, the commission's staff director, said the panel has not issued subpoenas because they are time-consuming and "disrupted" its relations with other government agencies.

Marcus also said that members of the panel considered investigating the 2004 Ohio election dispute, but decided it would not be "the best use of their resources." The commission staff, he added, was recently briefed by the Justice Department about the Jena case and is monitoring the situation.

Democrats say Bush's appointments threw the commission out of balance, violating the bipartisan intent of the law that forbids the panel from having more than four members of one party. Five commissioners must agree before the agency approves a report or recommendation.

But Marcus, a Bush appointee, said "it's not true" that the panel has become a party instrument.

"The commission is guided by four Republicans, two independents, and two Democrats, which is consistent with the statute governing the agency," Marcus said. "Certainly, we have a majority of conservatives right now, and that majority is taking the commission in a direction that is different than what we've seen in the past."

The commission - half appointed by the president and half by congressional leaders - has been under a 6-to-2 control by both liberals and conservatives before. Especially since the 1980s, presidents and lawmakers have tried to tilt the panel by appointing independents who shared their party's views on civil rights.

But until Bush's 2004 appointments, no president used reregistrations by sitting commissioners to satisfy the law that forbids presidents from appointing a fifth commissioner of the same party. Bush's move , represented an unprecedented "escalation" in hardball politics, said Peter Shane, Ohio State University law professor.

No court has ever ruled on the meaning of the political balance law, which does not say whether a commissioner's party identity is fixed at appointment, or whether a commissioner who reregisters no longer counts toward the party cap.

In a two-page memo Dec. 6, 2004, the day before Bush's appointments, the Justice Department said it was "clear" that it only matters what commissioners say their party identity is when a president makes appointments.

But Peter Strauss, an administrative law professor at Columbia University, said he believed a court would reject the administration's interpretation, especially if a judge decided that a commissioner reregistered "to manipulate the process" rather than because his or her ideology sincerely changed.

One of the extra Republican slots opened Oct. 27, 2004, when Thernstrom asked the town clerk of Lexington to change her voter registration to independent from GOP. Six weeks later, Bush promoted Thernstrom to be the commission's vice chairwoman.

Thernstrom acknowledged speaking with the White House about the impending vacancies.

"The discussion was who were the possible candidates and what did their [party] identification have to be," she said.

But Thernstrom said that no one asked her to reregister and that her decision had nothing to do with making space for another Republican. Instead, she said, she decided she would be "most comfortable" as an independent, having registered as a Democrat and as an independent in times past.

In more recent years, Thernstrom had been a consistent Republican. She voted in the March 2000 and March 2004 Republican primaries, gave $500 to the Bush-Cheney campaign in July 2004, and on Oct. 18, 2004, published an op-ed in the Wall Street Journal calling herself a Republican appointee - just nine days before she dropped her Republican registration.

The other GOP slot opened in 2003, when Republican Commissioner Russell Redenbaugh switched to independent. He had been an independent when Senate Republicans first appointed him to the commission in 1990, but registered GOP before being reappointed because, he said, "I felt it was dishonest to call myself an independent when I was so clearly a conservative."

Redenbaugh said he switched back to independent in 2003 because he leans libertarian, and the GOP's stance on social issues annoyed him. He called Bush's use of his switch to appoint a Republican "inappropriate" and "wrong."

Redenbaugh resigned in 2005, dropping the conservative majority to five. In early 2007, Senate Republicans restored the 6-to-2 bloc by appointing Gail Heriot, a member of the conservative Federalist Society who opposes affirmative action.

Heriot was an alternate delegate to the 2000 Republican National Convention and was a registered Republican until seven months before her appointment. In an interview, Heriot said her decision to reregister as an independent in August 2006, making her eligible to fill the vacancy, "had nothing to do with the commission."

"I have disagreements with the Republican Party," she said. Asked to name one, she declined.