U.S. Commission on Civil Rights Office of Civil Rights Evaluation Redefining Rights in America The Civil Rights Record of the George W. Bush Administration, 2001–2004 Draft Report for Commissioners’ Review September 2004 U.S. Commission on Civil Rights The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 1957. It is directed to: Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. Study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin. Submit reports, findings, and recommendations to the President and Congress. Issue public service announcements to discourage discrimination or denial of equal protection of the laws. Members of the Commission Mary Frances Berry, Chairperson Cruz Reynoso, Vice Chairperson Jennifer C. Braceras Christopher Edley, Jr. Peter N. Kirsanow Elsie M. Meeks Russell G. Redenbaugh Abigail Thernstrom Les Jin, Staff Director U.S. Commission on Civil Rights 624 Ninth Street, NW Washington, DC 20425 (202) 376-8128 voice (202) 376-8116 TTY www.usccr.gov This report is available on disk in ASCII and WordPerfect 5.1 for persons with visual impairments. Please call (202) 376-8110. Redefining Rights in America The Civil Rights Record of the George W. Bush Administration, 2001–2004 Staff Draft September 2004 iii Acknowledgements This report was prepared by the Office of Civil Rights Evaluation, Terri A. Dickerson, director. Mireille L. Zieseniss, civil rights analyst, served as project director. Principal writing and research were performed by Manuel Alba, social science analyst, and Mireille L. Zieseniss. Monique Dennis-Elmore,* civil rights analyst, prepared an initial draft of the environmental justice and language accessibility sections; Latrice Foshee, civil rights analyst, prepared a draft of hate crimes and racial profiling; and Sock-Foon MacDougall, social scientist, drafted and finalized the housing discussion. The following interns also contributed to this report: Diego Chojkier, Washington University; Pierre Jasmine, Western Connecticut State University; and Adam Stella, Brown University. The Office of General Counsel, under the direction of Debra A. Carr, deputy general counsel, reviewed the report for legal sufficiency. Editorial review was performed by Debra A. Carr, Ivy Davis, chief of regional programs, and Deborah J. Vagins, senior attorney-advisor. Dawn Sweet,* editor, and Mara Voss,** copyeditor, prepared the report for publication. * No longer with the Commission. ** Contract employee. Staff Draft September 2004 iv Contents Executive Summary................................................................................................................................vii Chapter 1: Introduction: The George W. Bush Promise to America .................................................1 Presidential Power Over Civil Rights Outcomes...............................................................................2 Scope and Methodology ....................................................................................................................6 Summary Findings............................................................................................................................7 Chapter 2: The Administration’s Commitment to Civil Rights: Rhetoric, Action, and Initiative..8 Statements and Action: The Priority of Civil Rights.........................................................................8 Presidential Initiatives ...................................................................................................................9 Defining Civil Rights Through Diversity ....................................................................................11 Inclusive Outreach and Dialogue.................................................................................................12 Diversity in the Federal Government ..............................................................................................14 Judicial Nominations ...................................................................................................................14 Changing the Nomination Process ..........................................................................................16 Nominees Whose Civil Rights Records Have Been Challenged ............................................17 Charles Pickering Sr. for Fifth Circuit U.S. Court of Appeals............................................17 William H. Pryor Jr. for 11th Circuit U.S. Court of Appeals..............................................19 Priscilla Owen for Fifth Circuit U.S. Court of Appeals ......................................................20 Jeffrey Sutton for Sixth Circuit U.S. Court of Appeals.......................................................21 Carolyn Kuhl for Ninth Circuit U.S. Court of Appeals.......................................................22 Miguel Estrada for D.C. Circuit U.S. Court of Appeals .....................................................22 Janice Rogers Brown for D.C. Circuit U.S. Court of Appeals............................................23 Political Appointments ................................................................................................................24 Sub-Cabinet Appointments .....................................................................................................26 Diversity vs. Support for Civil Rights.....................................................................................27 The Federal Workforce................................................................................................................29 Hispanic Underrepresentation .................................................................................................29 Employees with Disabilities ....................................................................................................30 Minority and Female Underrepresentation at High Civil Service Levels ...............................30 Funding Civil Rights Enforcement..................................................................................................31 Chapter 3: The Bush Agenda and America’s Entrenched Discrimination Problems ....................37 Voting Rights..................................................................................................................................37 A History of Disenfranchisement ................................................................................................38 Democracy Damaged: Modern-Day Disenfranchisement...........................................................40 Has President Bush Helped Repair Democracy?.........................................................................41 Funding Delays........................................................................................................................41 Infrastructure Problems ...........................................................................................................42 Voter Intimidation ...................................................................................................................43 Equal Educational Opportunity .......................................................................................................43 No Child Left Behind ..................................................................................................................45 NCLB’s Effect on Poor, Minority, and Disabled Students .....................................................47 Students with Disabilities....................................................................................................48 Students with Limited English Proficiency.........................................................................49 Holding the Administration Accountable for NCLB Implementation ....................................50 Staff Draft September 2004 v Affirmative Action..........................................................................................................................52 Federal Contracting .....................................................................................................................54 Affirmative Action in Higher Education .....................................................................................56 The Court’s Ruling: Race as One Factor Among Many .........................................................59 Is the President’s Race-Neutral Diversity Strategy Feasible? .................................................59 Fair Housing ...................................................................................................................................61 Housing Disparities Persist..........................................................................................................63 Bush Administration Housing Actions: Limiting the Dream ......................................................64 A Home of Your Own .............................................................................................................64 Section 8 Housing Choice Voucher Program..........................................................................66 The HOPE VI Program ...........................................................................................................69 Fair Housing and Civil Rights Enforcement................................................................................70 Environmental Justice......................................................................................................................72 A History of Environmental Justice Policies...............................................................................73 Integration of Environmental Equity in EPA Policy ...................................................................74 Environmental Justice Enforcement and Guidance.....................................................................76 Defining Environmental Standards and Identifying Hazards ......................................................77 Fostering Public Participation......................................................................................................77 General Environmental Policies with Civil Rights Relevance ....................................................78 Racial Profiling...............................................................................................................................79 Profiling as a Law Enforcement Tool..........................................................................................81 President Bush’s Promise to End Racial Profiling ......................................................................82 Agency Responses to Post-Terrorism Profiling ......................................................................82 Department of Transportation Policies for Passenger Screening........................................83 Department of Homeland Security Office of Civil Rights and Civil Liberties...................83 Transportation Security Administration Civil Rights Policy ..............................................84 Data Collection on Racial Profiling ........................................................................................84 Federal Guidelines on Racial Profiling ...................................................................................85 Hate Crimes ....................................................................................................................................87 Identifying Hate Crimes: Data Collection ...................................................................................88 National Hate Crime Trends........................................................................................................90 Federal Efforts to Prevent and Redress Hate Crimes ..................................................................92 Words to Action: Prosecution and Prevention.............................................................................93 Combating Hate Crimes: Unfinished Business ...........................................................................94 Chapter 4: Tolerance and Justice: Protecting Rights of Disadvantaged Groups............................96 Immigration Policies and the Fair Treatment of Immmigrants .......................................................96 Viewing Immigration as a Threat: President Bush’s Policies .....................................................98 Undocumented Immigrant Workers ........................................................................................98 Haitian Asylum Seekers ........................................................................................................101 Treatment of Middle Eastern Immigrants and Visitors in an Era of Terrorism ....................102 A Dual System of Rights ...........................................................................................................105 Native Americans ..........................................................................................................................106 Promises Unkept........................................................................................................................107 An Uncertain Future ..................................................................................................................108 Individuals with Disabilities ..........................................................................................................112 New Freedom Initiative .............................................................................................................113 President’s Commission on Excellence in Special Education...................................................115 Recommendations for IDEA Reauthorization.......................................................................115 Staff Draft September 2004 vi The Administration’s Commitment to Special Education.....................................................117 Women’s Rights ............................................................................................................................118 Redefining Women’s Issues, Undercutting Women’s Rights ...................................................120 Title IX Under Attack................................................................................................................121 The Bush Administration’s Commission on Opportunity in Athletics .................................123 A Setback for Women’s Opportunity....................................................................................125 Women’s Entrepreneurship in the 21st Century........................................................................127 Gay Rights and the Administration of Justice ...............................................................................129 Pro- and Anti-Gay Appointments..............................................................................................130 Celebrating Gay Pride................................................................................................................132 Equality Denied .........................................................................................................................133 Lack of Workplace Protections .................................................................................................134 Chapter 5: Promoting Access to Federal Programs ..........................................................................137 Improving Access to Federal Services for Language Minorities ..................................................137 Enforcing Language Accessibility.............................................................................................138 Measuring Implementation and Assessing Success...................................................................141 Improving Access to Federal Programs for Underserved Groups.................................................141 President’s Advisory Commission on Asian Americans and Pacific Islanders.........................142 Initiative on Educational Excellence for Hispanic Americans ..................................................145 Federal Efforts to Address the Needs of Hispanic Students..................................................146 Plans Without Action or Outcomes.......................................................................................148 The White House Initiative on Historically Black Colleges and Universities...........................149 Agency Compliance with the 10 Percent Solution................................................................151 Financial Aid for HBCU Students.........................................................................................152 Access to Federal Funding for Religious Groups..........................................................................152 Expanding Charitable Choice: President Bush’s Faith-Based Initiative ...................................154 Executive Authority and Administrative Channels...............................................................154 The President’s Legislative Agenda......................................................................................155 An Inaccurate Representation: Charitable Choice as a Civil Right...........................................157 Permitting Religious Discrimination .........................................................................................158 Implications and Reaction .........................................................................................................160 Chapter 6: The Bush Record Reviewed ..............................................................................................162 Staff Draft September 2004 vii Executive Summary Civil rights problems remain entrenched in American society, the stubborn result of unequal treatment over time. Discrimination in housing, employment, and the voting booth, unequal educational opportunity, and other problems still stand between some Americans and true equality. Presidential leadership is necessary to break down obstacles and realize the promise of civil rights. The U.S. Commission on Civil Rights (Commission) examined the George W. Bush administration’s commitment to that end. What follows are the results of the Commission’s examination, expressed in terms of: (1) whether civil rights enforcement is a presidential priority; (2) federal efforts to eradicate entrenched discrimination; (3) expanding and protecting rights for disadvantaged groups; and (4) promoting access to federal programs and services for traditionally underserved populations. This report finds that President Bush has neither exhibited leadership on pressing civil rights issues, nor taken actions that matched his words. The report reaches this conclusion after analyzing and summarizing numerous documents, including historical literature, reports, scholarly articles, presidential and administration statements, executive orders, policy briefs, documents of Cabinetlevel agencies, federal budgets and other data. Priority of Civil Rights Through public statements and actions, by establishing a diverse executive branch that affirms civil rights, and by funding enforcement, an administration can express its commitment to equal opportunity. This report finds that President Bush has not defined a clear agenda nor made civil rights a priority. Statements and Action: Public statements are a means by which Presidents draw the country’s attention to important matters. However, President Bush seldom speaks about civil rights, and when he does, it is to carry out official duties, not to promote initiatives or plans for improving opportunity. Even when he publicly discusses existing barriers to equality and efforts to overcome them, the administration’s words and deeds often conflict. Federal Diversity and Support for Civil Rights: Although not to the extent of the previous administration, President Bush has assembled a commendably diverse Cabinet and moderately diverse judiciary. However, many of his nominees and appointees do not support civil rights protections. The effect may be eventual weakening of civil rights laws. Civil Rights Funding: Requests for funding is one means by which Presidents make their priorities known. In his first three years in office, the net increase in President Bush’s requests for civil rights enforcement agencies was less than those of the previous two administrations. After accounting for inflation, the President’s requests for the six major civil rights programs (Departments of Education, Labor, Justice, Health and Human Services, and Housing and Urban Development, and the Equal Employment Opportunity Commission) amount to a loss of spending power for 2004 and 2005. Staff Draft September 2004 viii Eradicating Entrenched Discrimination While judicial and legislative achievements of the 1960s and 1970s largely broke down the system of segregation and legal bases for discrimination, the effects persist and hamper equal opportunity in education, employment, housing, public accommodations, and the ability to vote. President Bush has implemented policies that have retreated from long-established civil rights promises in each of these areas. Voting Rights: Despite promising to unite the nation and improve its election system, the President failed to act swiftly toward election reform. • He did not provide leadership to ensure timely passage and swift implementation of the Help America Vote Act (HAVA) of 2002. Thus, Congress did not appropriate funds for election reform until almost two years into his presidency. • The administration seated the federal election reform oversight board 11 months behind schedule, resulting in delayed fund distribution to states. Consequently, states did not have the equipment, infrastructure, or guidance they needed to meet HAVA’s deadlines, including implementation of statewide voter registration databases, development of voter complaint procedures, and installation of new voting equipment. As a result of the President’s inaction, little will change before the 2004 elections, and the problems that linger, unless resolved, will most likely disenfranchise some eligible voters. Equal Educational Opportunity: Early in his administration, the President widely promoted an education reform proposal, the No Child Left Behind Act (NCLB), and garnered bipartisan support. Despite its worthy goals, however, NCLB has flaws that will inhibit equal educational opportunity and limit its ability to close the achievement gap. • NCLB does not sufficiently address unequal education, a major barrier to closing the achievement gap between minority and white students. • NCLB defers to states responsibility for defining achievement and adopting assessment measures. Educators fear that, unless there are safeguards in place, states will attach high stakes to tests, punishing students for the system’s failure to teach. • Students, especially those who are minority, limited English proficient, low income, or have a disability, disproportionately attend schools that do not have the resources to provide necessary learning tools and, thus, are more likely to be identified as low performers and subject to sanctions. • The lowest performing schools are also the poorest, amplifying the need for sufficient resources. However, President Bush has not aggressively pushed for increased funding, leaving NCLB underfunded every year except its first. Affirmative Action: The President’s stance on affirmative action is equivocal at best. President Bush has tried to please both supporters and opponents, a tactic that has resulted in a misleading and vague position. He has not exhibited strong leadership on this issue where leadership is vital. • In 2001, the administration asked the Supreme Court to dismiss a case challenging a Department of Transportation program for disadvantaged businesses. In announcing and Staff Draft September 2004 ix discussing the case, it was clear that the administration was not basing its position on support for affirmative action, but procedural technicalities with the case. • The administration later filed briefs with the Supreme Court challenging programs that allow race to be considered as one factor among many in college admissions decisions, discrediting existing case law and arguing erroneously that this practice amounted to a quota. • Instead of promoting affirmative action in federal contracting and education, the administration promotes “race neutral alternatives,” even though in some situations they are not applicable and in others not overly effective at maintaining diversity. • President Bush frequently speaks about the importance of diversity and exhibits such a standard within his own Cabinet. However, his actions with respect to affirmative action are not in line with that professed commitment as he has undercut programs designed to achieve diversity. Fair Housing: Policies instituted under the Bush administration have diminished housing opportunities for poor, disproportionately minority families. • The President shifted resources away from rent assistance for the poor and toward home purchasing programs for minorities. Although a worthwhile effort, the President’s A Home of Your Own program is hampered by insufficient funding to relieve the chronic affordable housing crisis. • The President outlined a plan to eliminate billions of dollars from programs to help low-income and disabled persons pay for housing through rent vouchers, including the Section 8 Housing Choice Voucher Program, and HOPE VI, which rebuilds distressed communities. Environmental Justice: The Environmental Protection Agency (EPA) under this administration, despite some attempts, has not always been successful in advancing the cause of environmental justice. • Although it developed an action plan for ensuring environmental justice goals are met, the agency has not developed measures of accountability and progress. • EPA has taken few actions to ensure that minority and low-income persons are not disparately affected by environmental contamination and has failed to develop a standard for assessing how exposure to hazards affects public health. • EPA has de-emphasized the significance of minority and low-income populations in its environmental justice efforts. • The administration has developed environmental proposals without adequate participation from minority populations, and has thus failed to consider the civil rights consequences of its actions. Racial Profiling: Early in his term, President Bush promised to end racial profiling. Although he has not completely fulfilled that promise, he issued guidelines to prohibit racial profiling in federal law enforcement, an action unprecedented among U.S. Presidents. President Bush took other actions, however, that had negative effects. • The administration responded to the September 11, 2001, terrorist attacks by instituting regulations that facilitate profiling rather than prevent it. Immigrants and visitors from Arab and Staff Draft September 2004 x Middle Eastern countries were subjected to increased scrutiny, including interviews, registration, and in some cases removal. • Early on, some federal agencies denounced profiling in the performance of their agents’ routine duties, but the administration did not introduce governmentwide policies complete or comprehensive enough to have measurable positive effects after September 11. • Commendably, two years later, the Department of Justice (DOJ) issued guidelines that prohibit federal agents from making enforcement decisions based on race or ethnicity. However, the guidelines contain a broad and loosely defined exception that permits race targeting if law enforcement alleges that individuals are suspected of posing a national security threat. This exception allows profiling in certain undefined circumstances and potentially gives cover to abusers. Hate Crimes: The administration paid little attention to hate crimes until after September 11. Since then, the President’s words and actions have conveyed mixed messages. • Immediately after the attacks, the administration declared that acts of violence and discrimination against Arab Americans, Muslims, and those perceived to be of Middle Eastern descent would not be tolerated. The executive branch launched a coordinated campaign to prevent hate crimes against such individuals. • The administration did not sustain its strong rhetoric after September 11. Neither did President Bush support passage of the Local Law Enforcement Act, a proposal that would protect gay men and lesbians, and persons with disabilities from hate crimes. • President Bush has further stated that “all violent crimes are crimes of hate,” a view which does not acknowledge the bias associated with such acts. Disadvantaged Groups in America African American rights dominated the pre-1970s struggles for equality, but they shared a common goal with other minority groups and women who sought comparable solutions to discriminatory treatment. Although the country has made progress, its struggle toward equal rights for all remains elusive. Immigrants: This report examines three administration immigration proposals or policies. All lack strong civil rights protections for immigrants. • President Bush has made encouraging comments about the extension of rights to immigrant workers, but has not followed through with action. For example, he initially considered granting amnesty to approximately 3 million undocumented Mexican immigrants in 2001, but subsequently terminated his efforts. In January 2004, the President again proposed a temporary worker program for undocumented immigrants but has not pushed for its passage. • President Bush has endorsed policies that allow discrimination against certain groups in the processing of asylum requests. For instance, on the unproven claim that Haitian refugees may threaten national security, President Bush granted authority to federal agents to hold them in detention indefinitely without bond until their cases are heard by an asylum court. The United States does not apply such policy to any other immigrant group. Staff Draft September 2004 xi • Following the terrorist attacks, the administration instituted policies that singled out immigrants from Middle Eastern and Muslim countries. The DOJ allowed local law enforcement to contact and question visitors, citizens, and other residents. It also detained witnesses on minor violations, held many in secret in harsh conditions, and did not inform them of charges against them. The administration limited available channels for legal entry and began requiring individuals from selected countries to register and submit fingerprints and photographs upon arrival. Native Americans: President Bush has acknowledged the great debt America owes to Native Americans. However, his words have not been matched with action. Commission reports document that the President has not effectively used the stature of his office to speak out on ending discrimination against Native Americans. Nor has he engaged in a consistent effort to alleviate their problems. He has not applied resources to improving conditions or adequately funded programs that serve Native peoples. For example: • President Bush has not requested sufficient funding for tribal colleges and universities, has proposed terminating $1.5 billion in funding for education programs that benefit Native Americans, and has not provided adequate resources to meet NCLB goals that apply to Indian Country. • For 2004, the administration requested $3.6 billion for the Indian Health Service, the primary provider of Native American health care. This falls far short of the $19.4 billion in unmet health needs in Native communities. • President Bush’s budget requests for housing programs have not approached the $1 billion required to meet the demand, and consequently, Native Americans have an immediate need for 210,000 housing units. • In 2003, President Bush terminated funding for critical law enforcement programs, including the Tribal Drug Court Program. Experts agree that problems with the criminal justice system in Indian Country are serious and understated. Persons with Disabilities: President Bush has demonstrated a commitment to improving the lives of individuals with disabilities, a goal he outlined during his campaign. Although too soon to measure the ultimate impact of the administration’s efforts, the disability rights community has embraced them. • The administration implemented the New Freedom Initiative (NFI) to integrate disabled individuals into the labor force and abolish hurdles to full participation in community programs and services. • President Bush directed several agencies to assist states in expanding community-based services for individuals with disabilities, and introduced a Web site to make information more readily available. • In his 2004 budget, the President proposed $2.1 billion in NFI funding over a five-year period. • President Bush also created the President’s Commission on Excellence in Special Education (PCESE) to gather data on and examine special education programs. It offered recommendations for the reauthorization of the Individuals with Disabilities Education Act (IDEA), many of which were similar to those the Commission made in 2002. However, while PCESE supported a limited Staff Draft September 2004 xii amount for IDEA, the Commission noted the need for full and immediate funding. Congress has yet to finalize IDEA’s reauthorization. In the meantime, President Bush has the opportunity to demand congressional action and demonstrate his commitment to individuals with disabilities. Women: President Bush’s record on women’s issues is mixed. Economic gains for which he has paved the way are overshadowed by other actions that have set back women’s rights. For example: • The Bush administration closed the White House Office for Women’s Initiatives and Outreach and attempted to close the Women’s Bureau at the Department of Labor (DOL). It retreated amid objections from women’s groups. • The administration withdrew Department of Education guidance on sexual harassment in schools from the Internet and ended distribution of information on workplace rights of women. • President Bush attempted to redirect Title IX enforcement, but ceased his effort after overwhelming public expressions of support for the law. • The administration commendably launched a plan to improve women’s access to capital by creating a Web site for women entrepreneurs and holding related conferences, but at the same time abolished DOL’s Equal Pay Initiative. Gay Men and Lesbians: President Bush appointed some gay rights supporters to Cabinet and administration positions. However, other actions he and his administration have taken have almost completely eclipsed the efforts he made. For example: • In 2003, Attorney General John Ashcroft did not allow a Gay Pride Month celebration at DOJ, even though it had been an established program at the agency. He relented after protestations, but did not permit the use of agency funds, even though they are used for other heritage and history commemorations. • President Bush opposes the Employment Non-Discrimination Act and Hate Crimes Prevention Act, both of which include protections for gay individuals. • In 2004, the Office of Special Counsel removed documents pertaining to sexual orientation discrimination in the federal government from its Web site. Only after the action was publicized did the administration direct that the materials be re-posted. • President Bush has stated unequivocal support for a constitutional amendment banning same-sex marriages. If passed, the amendment would be the first in U.S. history to limit rather than preserve and expand the rights of a group. Promoting Access to Federal Programs By continuously improving access to federal programs, an administration can promote equal opportunity and reduce economic and social disparities. President Bush has made efforts to improve access, but as with past administrations, equal access remains elusive and requires greater federal investment. Language Minorities: President Bush has indicated a commitment to improving access to federal programs for limited English proficient (LEP) individuals. Among the administration’s actions: Staff Draft September 2004 xiii • DOJ issued a memorandum to federal agencies stating the Bush administration was committed to implementing a Clinton executive order to improve LEP access. • The administration created the Federal LEP Interagency Working Group to improve efficiency and effectiveness of Title VI and executive order implementation, as well as the HERE Hispanic Initiative Grant Award to provide English instruction for immigrant workers and new American citizens. • However, the administration has not required agencies to develop output measures or other assessments to evaluate progress. No procedures exist to assess whether federal programs and services are becoming more accessible to language minorities, hampering Title VI enforcement. Underserved Minority Groups: President Bush extended several initiatives of earlier administrations designed to improve access for specific minority groups. Some assess a population’s general needs and develop solutions while others focus on a specific purpose. The administration modified each in some way. For example: • President Bush extended the work of the President’s Advisory Commission on Asian Americans and Pacific Islanders (PACAAPI) until July 7, 2003. Before the group’s work could be completed, President Bush let the initiative’s renewal lapse. Almost a year later and after pleas from Congress and civil rights groups, he renewed it. However, the administration moved the initiative from the Department of Health and Human Services to the Department of Commerce and, without input from affected communities, changed its focus from broad appeal to a narrow one of economic and small business development. Advocacy groups criticized the changes, stating that they narrowed the mission and would result in neglect of pressing health problems. • In 2001, the President also renewed the White House Initiative on Educational Excellence for Hispanic Americans. He created an advisory commission and charged it with developing a multiyear action plan to close the achievement gap. The administration has developed a Web site to help parents and students make college decisions, and increased funding for Hispanic serving institutions. Overall, it developed many plans but undertook few actions and offers minimal demonstrable outcomes. • In 2002, President Bush reestablished the President’s Board of Advisors on Historically Black Colleges and Universities (HBCUs) and extended the White House Initiative on HBCUs, a program to increase the participation of these institutions in federal grants and contracts. The board recommended that 27 participating agencies designate 10 percent of all money spent on higher education to HBCUs; only the Department of Education has met the goal. The board also is more than two years behind schedule in releasing annual performance reports, rendering a governmentwide evaluation of HBCU programs difficult. Funding for Religious Groups: When President Bush took office, he expanded the ability of religious groups to receive federal funds through the Faith-Based and Community Initiatives. Although the initiative constitutes a retreat from civil rights, President Bush has consistently presented it as an extension of civil rights to religious groups. • He advanced the plan as a flagship initiative, mentioning it in more than 350 speeches, issuing executive orders, directing federal agencies to revise regulations, and working with Congress to pass and strengthen related legislation. Staff Draft September 2004 xiv • President Bush does not speak about civil rights initiatives often, but when he does he promotes the faith-based program more than any other. He has presented the initiative as an end to discrimination against religious organizations, using terms such as “remove barriers,” “equal access,” and “equal treatment,” which convey that such programs have civil rights relevance. In reality, the program does not remove barriers to discrimination. On the contrary, it allows religious organizations that receive public funds to discriminate against individuals based on religion in employment. Staff Draft September 2004 1 Chapter 1: Introduction: The George W. Bush Promise to America While many of our citizens prosper, others doubt the promise, even the justice, of our own country. The ambitions of some Americans are limited by failing schools and hidden prejudice and the circumstances of their birth. And sometimes our differences run so deep, it seems we share a continent, but not a country. We do not accept this, and we will not allow it. Our unity, our union, is the serious work of leaders and citizens in every generation. And this is my solemn pledge: I will work to build a single nation of justice and opportunity. . . . America has never been united by blood or birth or soil. We are bound by ideals that move us beyond our backgrounds, lift us above our interests and teach us what it means to be citizens. Every child must be taught these principles. Every citizen must uphold them. And every immigrant, by embracing these ideals, makes our country more, not less, American.1 – President George W. Bush, January 2001 President George W. Bush’s address on January 20, 2001, gave civil rights watchers hope that his administration would protect each American’s right to equal education, housing, employment, and justice. After all, his presidency was already marked by a close and controversial election that dominated the news and refocused national attention on voting rights. The nation watched with anticipation to determine whether the new President would fulfill his promise to reform education, immigration, and election policies, and promote unity and opportunity. Within nine months, however, the America to which President Bush referred in his inaugural speech would forever and fundamentally change. Whereas few Americans had paid attention to the nation’s security level and most gave scant thought to shielding themselves and their families from terrorism, all of that changed on September 11, 2001. New words soon entered the popular lexicon, such as “emergency readiness,” “shelter-in-place,” “homeland security,” and “national terrorism threat level.” Overnight, combating terrorism became America’s most important policy objective. Events called for, and the administration responded with, policy action that anticipated terrorism. Those new policy actions affected prevailing antidiscrimination laws and as such demanded commitment to civil rights protections. Presidents have great power to direct national policy output, set priorities, and lead change. As such, they are entrusted with responsibility to make progress toward and uphold the most basic principle upon which civil rights laws were passed—equality. With this report, the U.S. Commission on Civil Rights (Commission) examines the Bush administration’s statements and actions to determine whether it has promoted or prioritized civil rights. This report measures President Bush’s civil rights record; it does not assess his actions with regard to foreign or domestic policy priorities that do not have direct civil rights implications. 1 President George W. Bush, Inaugural Address, Jan. 20, 2001, . Staff Draft September 2004 2 PRESIDENTIAL POWER OVER CIVIL RIGHTS OUTCOMES Whether Presidents are main characters or minor players on the national policy stage depends on myriad factors. Some say that even though they occupy the power seat, Presidents are too dependent on Congress and the courts to influence policy significantly. Others conclude that Presidents are not minor players and point to vast differences in their accomplishments as evidence. Although legislatively dependent on Congress, the President has powerful tools that he can use to shape civil rights policy and influence public opinion, including judicial nominations and political appointments, executive orders, budget proposals, administrative policies, and the authority of the office.2 In addition, the federal agencies under his management can be, and are, means to promote and implement policies. Presidential effectiveness depends on how an administration funds and utilizes government offices that write regulations and implement operating policies to carry out legislative, executive, and judicial edicts.3 This report examines how the Bush administration has applied such tools to forming and promoting a civil rights agenda. It assesses public statements and actions as measures of presidential commitment. It posits whether or not statements and public actions have produced outcomes and, if so, what the results were. A few Presidents made significant policy advances, even with judicial and legislative dissonance at times, and left strong civil rights legacies. Others have, in promoting personal ideologies, effectively blocked civil rights progress. After the Civil War, Reconstruction governments passed laws to open economic and political opportunities to black Americans. But any advances that black people had made vanished as local laws separated the races for most of the century that followed. By 1877, local “Whites Only” laws segregated the nation’s transportation, schools, restaurants, and public accommodations.4 By the late 1800s, blacks sued unsuccessfully to stop separate seating in railroad cars, disenfranchisement, and segregation in schools and restaurants. In its Plessey v. Ferguson decision in 1896, the Supreme Court ruled “separate but equal” accommodations constitutional.5 Little changed in the decades that followed, until the Franklin D. Roosevelt administration, which was active in civil rights. Its policies had strong—positive and negative—outcomes. In the 1930s, President Roosevelt opened federal jobs to blacks and appointed Supreme Court justices who favored rights for black Americans. His administration renewed hope among African Americans that the federal government might be their ally, a sentiment that had not been felt since the Civil War.6 However, the Roosevelt administration also engineered and executed Japanese American internment during World War II, one of the most egregious civil rights injustices in the nation’s history. 2 Lance T. LeLoup and Steven A. Shull, The Presidency and Congress: Collaboration and Combat in National Policymaking (New York: Pearson Education, 2003), p. 139 (hereafter cited as LeLoup and Shull, The Presidency and Congress). 3 Hugh Davis Graham, Civil Rights and the Presidency (New York: Oxford University Press, 1992) p. 8. 4 LeLoup and Shull, The Presidency and Congress, p. 131. 5 Plessy v. Ferguson, 163 U.S. 537 (1896). 6 See Nancy J. Weiss, Farwell to the Party of Lincoln: Black Politics in the Age of FDR (Princeton, NJ: Princeton University Press, 1983). Staff Draft September 2004 3 After World War II the movement toward equality began to gain momentum, marked by a few significant events. In 1945, President Harry S. Truman desegregated the military. Though proactive, his decision was connected to not a social or legal responsibility, but a personal sense of honor. Neither his advisors nor his electoral base were pushing him to act. He possessed neither an electoral mandate nor a reputation for strong leadership. However, revolted by reports that decorated black war veterans had been dragged, in uniform, from buses in the South and beaten within hours of being discharged, Truman called on his advisors and Cabinet officers to desegregate the military.7 While he failed to garner congressional support for anti-lynching laws, he used his executive order powers to induce an end to discriminatory federal government hiring practices. Nine years later, during the presidency of Dwight Eisenhower, the Supreme Court overturned the 58-year-old precedent of school segregation in the Brown v. Board of Education decision.8 Brown brought an onslaught of litigation about which President Eisenhower had to decide if and how to react. Nothing in his agenda suggested he favored rapid or forceful public school integration or a fervent desire to remedy racial injustice. He acted foremost on a duty to enforce law and order when he sent troops to escort black students into a Little Rock, Arkansas, high school.9 Although cautious on civil rights matters, President Eisenhower created the Civil Rights Commission and requested the abolishment of poll taxes and literacy tests designed to limit minority voting.10 President John F. Kennedy proceeded incrementally on most civil rights issues, straddling all sides until or even in the hope that other actions, such as court rulings, would bring them to a close. A turning point came in 1962 when a black student attempted to enroll at the University of Mississippi. After a night of violence, President Kennedy sent troops to enforce the law. The event left little doubt in segregationists’ minds as to the administration’s civil rights position. Its later reactions to church fire bombings and introduction of a civil rights bill in Congress were stronger and swifter.11 The change in strategy signaled the administration’s desire to recast the President’s actions in Mississippi as victorious and farsighted, not reactionary.12 President Kennedy was also the first to use the term “affirmative action” in a racial context, and he established a Committee on Equal Employment Opportunity, the predecessor to the Equal Employment Opportunity Commission, to implement nondiscriminatory policies in federal jobs and contracting.13 Amid unprecedented social unrest during the Kennedy and Lyndon Johnson administrations, Congress passed new civil rights laws. President Kennedy declared civil rights a moral issue and 7 Ronald D. Sylvia, “Presidential Decision Making and Leadership in the Civil Rights Era,” Presidential Studies Quarterly, vol. 24, no. 3 (summer 1995), p. 396 (hereafter cited as Sylvia, “Presidential Decision Making”). 8 Brown v. Board of Education, 347 U.S. 483 (1954). 9 Sylvia, “Presidential Decision Making,” p. 399. 10 LeLoup and Shull, The Presidency and Congress, p. 133. 11 Sylvia, “Presidential Decision Making,” pp. 401–02. 12 Ibid., pp. 402–03. 13 Establishing the President’s Committee on Equal Employment Opportunity, Exec. Order No. 10,925, 3 C.F.R. 448 (1959–1963). The Equal Employment Opportunity Commission was established in the Civil Rights Act of 1964. Staff Draft September 2004 4 proposed comprehensive legislation, although it faced fierce opposition in Congress and failed to gain momentum. Immediately following President Kennedy’s assassination, President Johnson, a Southerner, became an unlikely champion for civil rights, skillfully urging Congress to honor President Kennedy’s memory with the passage of civil rights legislation.14 In 1964, President Johnson signed the Civil Rights Act, which, among other things, outlawed segregation in education and public accommodations; in 1965 he signed the Voting Rights Act, which would become the primary tool for ensuring equality in the voting booth.15 President Johnson became a fervent civil rights supporter and was recognized as an ally by leaders of the movement.16 President Richard Nixon’s record on civil rights is mixed. He was the first President to implement federal policies to encourage minority hiring. In 1969, his administration developed the Philadelphia Plan, which required federal contractors to set specific minority hiring goals.17 In 1970 and 1971, federal courts upheld the plan. However, in his desire to court the Southern electorate, President Nixon announced his opposition to busing and made two controversial nominations to the Supreme Court, one of whom was vocally opposed to desegregation and had, at an earlier point in his career, professed a belief in white supremacy.18 Until this point, civil rights policy had largely centered on blacks. In the early 1970s, however, more groups began seeking protection, including Hispanics, Native Americans, Asian Pacific Americans, individuals with disabilities, and gay men and lesbians.19 The century-old struggle for women’s equality also gained resonance against political and social resistance. The Equal Rights Amendment (ERA), which would have guaranteed employment, economic, and other rights for women, failed to gain state ratification and was a setback for civil rights policy- and lawmaking. President Gerald Ford was not assertive either legislatively or administratively with respect to civil rights and thus did little to advance equality for any protected groups.20 Although President Jimmy Carter was a civil rights advocate who appointed blacks and women to judicial and executive branch positions, he was not active or effective in the legislative arena.21 For example, he espoused support for the ERA, but was unable to garner broad 14 U.S. Equal Employment Opportunity Commission, “Pre-1965: Events Leading to the Creation of EEOC,” (last accessed Aug. 11, 2004). 15 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 1971, 1975a– 1975d, 2000a–2000h-6 (2000)); Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971, 1973–1973bb-1 (2000)). 16 LeLoup and Shull, The Presidency and Congress, p. 133, citing Eric F. Goldman, The Tragedy of Lyndon Johnson (New York: Knopf, 1969), p. 515. 17 The White House, “Affirmative Action Review,” (last accessed June 21, 2004); Borgna Brunner, “Timeline of Affirmative Action Milestones,” (last accessed June 21, 2004). 18 LeLoup and Shull, The Presidency and Congress, p. 135; John Anthony Maltese, “Confirmation Gridlock: The Federal Judicial Appointments Process Under Bill Clinton and George W. Bush,” Journal of Appellate Practice and Process, vol. 5 (spring 2003), p. 8, citing a statement by G. Harold Carswell who was nominated in 1970. The other Nixon nominee criticized by civil rights groups was Clement Haynsworth (1969). 19 LeLoup and Shull, The Presidency and Congress, p. 134. 20 Ibid., p. 140. 21 Ibid., pp. 135, 140. Staff Draft September 2004 5 endorsement of the measure. He relied instead on executive orders to make his policy positions known, such as an order to promote leadership in and consolidate federal fair housing programs and another to increase the participation of Historically Black Colleges and Universities in federally sponsored programs.22 President Carter also used executive orders to broaden EEOC’s mandate to include federal equal employment opportunity, equal pay, and age discrimination functions.23 Conversely, the Ronald Reagan administration, owing to the President’s own ideology, actively pursued a narrow civil rights agenda, effectively nullifying earlier efforts. Through public statements, President Reagan expressed a belief that many programs, such as affirmative action and antidiscrimination laws, divided the United States along racial lines. He believed that affirmative action itself constituted discrimination.24 As a result, his administration ended programs that had promoted minority advancement, including those applying to government contractors, and brought several legal challenges to affirmative action. President Reagan also opposed busing public school children to achieve racial integration. He appointed three of the sitting Supreme Court justices, including the first woman to serve. Some of his nominations were controversial, however; for example, in 1987, the Senate refused to confirm a Reagan nominee, by the widest margin in history, in part because of the nominee’s position on equal rights for minorities and women.25 He was also the first President to openly oppose the Equal Rights Amendment. President George H.W. Bush upheld many Reagan policies. He made few public statements about civil rights, and did so only after intense political pressure. His greatest civil rights achievements were successfully pursuing passage of the Americans with Disabilities Act of 1990, a landmark legislative effort to protect the rights of persons with disabilities, and issuing disability-related executive orders.26 His overall civil rights leadership, on issues other than disability, has been characterized as weak and reactive.27 For example, experts conclude that he 22 Steven A. Shull, American Civil Rights Policy from Truman to Clinton: The Role of Presidential Leadership (Armonk, NY: M.E. Sharpe, 1999), pp. 39, 123 (hereafter cited as Shull, American Civil Rights Policy). See also Leadership and Coordination of House in Federal Programs, Exec. Order No. 12,259, 46 Fed. Reg. 1,253 (Jan. 6, 1981); and Historically Black Colleges and Universities, Exec. Order No. 12,232, 45 Fed. Reg. 53,437 (Aug. 12, 1980). President Reagan revoked this order when he signed Executive Order 12,320 on Sept. 15, 1981. Exec. Order No. 12,320, 3 C.F.R. 176 (1982). 23 See Transfer of Certain Equal Employment Enforcement Functions, Exec. Order No. 12,106, 44 Fed. Reg. 1,053 (Jan. 3, 1979); and Transfer of Certain Equal Pay and Age Discrimination in Employment Enforcement Functions, Exec. Order No. 12,144, 3 C.F.R. 404 (1980). 24 Neal Devins, “Affirmative Action After Reagan,” Texas Law Review, vol. 68 (December 1989), p. 353. 25 Michael J. Gerhardt, “Toward a Comprehensive Understanding of the Federal Appointments Process,” Harvard Journal of Law and Public Policy, vol. 21 (spring 1998), p. 467; Ann E. Freedman and Sylvia A. Law, “Thomas I. Emerson: A Pioneer for Women’s Equality,” Case Western Reserve Law Review, vol. 38 (1987/1988), p. 539. 26 Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101–12213 (2000)). See, e.g., Interagency Committee on Handicapped Employees, Exec. Order No. 12,672, 3 C.F.R. 273 (1989); and Noncompetitive Conversion of Personal Assistants to Employees with Disabilities, Exec. Order No. 12,685, 3 C.F.R. 232 (1990). 27 Neal Devins, “Reagan Redux: Civil Rights Under Bush,” Notre Dame Law Review, vol. 68 (1993), pp. 956–57; Shull, American Civil Rights Policy, pp. 118–19. Staff Draft September 2004 6 signed the Civil Rights Act of 1991 reluctantly and under political pressure, and only after much compromise.28 In campaign statements, President William J. Clinton expressed a desire to fundamentally improve race relations. He appointed a presidential advisory board that held a series of meetings aimed at understanding racial tensions. President Clinton also upheld his campaign promise to put in place government leadership that “looks like America,” by assembling the most racially, ethnically, and gender diverse administration in history. He defended affirmative action, calling it “a moral imperative, a constitutional mandate and a legal necessity.”29 President Clinton also increased enforcement of fair housing laws. Although he was the first President to back measures to end bias against gay men and lesbians in the federal workplace and the military, he eventually adopted a compromise position.30 By voicing strong and frequent support for equal opportunity and including minority groups in the policymaking process, President Clinton made many rhetorical inroads into civil rights and improved dialogue on race relations. However, his administration’s statements were not always matched by enforcement action, and its potentially innovative policies were at times tempered by ineffective implementation.31 George W. Bush entered the presidency at a time of promise for civil rights. The foundation that had been established in administrations since the 1930s provided a base for future progress. Has President Bush built upon existing civil rights laws and policies? What have been his administration’s civil rights priorities? What statements and actions has President Bush put forth to promote civil rights, and what have been the results? This report will examine these questions. SCOPE AND METHODOLOGY With this report, the Commission examines the Bush administration’s statements and actions with respect to civil rights and the quest for equality. Chapter 2 covers the administration’s commitment to civil rights based on public messages and actions to promote civil rights, including its political appointments and judicial nominations, and funding for enforcement. Traditionally, civil rights advances have grown out of policy that furthers equal educational opportunity, affirmative action, housing, immigration, and voting rights. Chapter 3 examines the administration’s progress on these fronts among others. As civil rights have evolved, other groups have become involved in the fight for equality. Chapter 4 examines the policies and initiatives that have either moved those groups, including immigrants, Native Americans, persons with disabilities, women, and gay men and lesbians, toward or away from equality. Chapter 5 assesses the administration’s actions toward new or inherited other programs designed to promote access to federal services for individuals traditionally neglected. Finally, the 28 Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified as amended at 2 U.S.C. §§ 1201–1224, 29 U.S.C. § 626, 42 U.S.C. §§ 1981, 1988, 2000e to 2000e-16 (2000)). See LeLoup and Shull, The Presidency and Congress, p. 149–52. 29 President William J. Clinton, remarks on affirmative action, July 20, 1995, as excerpted in “Give All Americans a Chance . . .” Washington Post, July 20, 1995, p. A12. 30 LeLoup and Shull, The Presidency and Congress, p. 147. 31 U.S. Commission on Civil Rights, A Bridge to One America: The Civil Rights Performance of the Clinton Administration, April 2001, p. 4 (hereafter cited as USCCR, A Bridge to One America); Staff Draft September 2004 7 Commission assesses whether the administration’s efforts, cumulatively, have advanced or retarded civil rights. The Commission reviewed public statements and documents, policy briefs, budget data, and executive orders. In addition, staff analyzed the policies that executive Cabinet agencies implemented. To the extent clarification was needed, staff contacted agencies. Staff also conducted an extensive literature review, with special emphasis on reports, studies, statements, and publications offered from scholars, political analysts, government sources, experts on presidential leadership, and affected communities. Staff consulted historical documents to establish context for understanding modern-day antidiscrimination targets. This evaluation does not comprehensively review all administration policies or initiatives, but selects based on applicability to civil rights and prominence within the administration’s overall agenda. The Commission considered several factors when making its selection: whether a policy or initiative involved a matter of longstanding civil rights interest; whether it was based on a campaign promise; whether it stemmed from events demanding immediate attention; and whether it grew from a new opportunity or the President’s own ideology. It is beyond the scope of this evaluation to assess the outcomes of individual civil rights initiatives. Because many are still in the planning stages, it would be premature to measure effectiveness. Rather, this review regards the administration’s overall agenda and its potential to advance civil rights. As with past administrations, historical retrospective will provide the keenest insight to President Bush’s civil rights legacy. SUMMARY FINDINGS Several themes emerge from this study. Specifically, this examination will show that the administration’s statements frequently do not match its actions. Its civil rights promises often suffer for lack of funding and ineffective implementation. To his credit, President Bush has not dismantled some good programs that previous administrations had implemented. However, he has also not comprehensively advanced them or demanded accountability for their outcomes. And finally, through the views of his executive and judicial appointments and his own professed priorities, President Bush redefines civil rights, at times by promoting unrelated initiatives under a civil rights banner. Staff Draft September 2004 8 Chapter 2: The Administration’s Commitment to Civil Rights: Rhetoric, Action, and Initiative This chapter assesses whether the administration has clarified and articulated its commitment to civil rights and equal opportunity, and whether it has aggressively secured resources for civil rights promotion and enforcement. The Commission examined the President’s public statements, political appointments and judicial nominations, and funding requests as a measure of leadership, commitment, and goals. STATEMENTS AND ACTION: THE PRIORITY OF CIVIL RIGHTS Presidents play a crucial role in shaping civil rights policy through their messages because only with presidential support are major and lasting policy changes likely. . . . Some presidential communications, especially in an emotionally charged policy area such as civil rights, may be more symbolic than substantive. Yet even symbolism can have important policy consequences by focusing public attention on the problem.1 Strong leadership requires ideological commitment and assertiveness.2 The President has the power to call public attention to social matters and shape public dialogue, which in turn influence policy development. Presidential rhetoric not only informs the public of the administration’s goals and agenda, but precedes presidential action. It is critical, then, to judge a President’s commitment both on statements and actions. History reveals that the two are not always consistent. For example, President Reagan expressed support for the broad principles of civil rights early in his administration, but acted to the contrary when he later moved away from programs supporting equality.3 President George H.W. Bush, trying to soften the image of his party, called for a “kinder and gentler America.” But, in policy, he opposed the passage of an equal rights amendment for women and programs to redress past discrimination against African Americans and Native Americans.4 While President Clinton espoused strong support for civil rights, at times he did not follow up with action.5 For example, although he spoke frequently about the persistence of discrimination and the need for affirmative action programs, his administration failed to actively pursue affirmative action cases and Title VI violations in court.6 In each of these instances, presidential actions did not match rhetoric; thus, a comprehensive analysis must consider both. 1 Steven A. Shull, American Civil Rights Policy from Truman to Clinton: The Role of Presidential Leadership (Armonk, NY: M.E. Sharpe, 1999), p. 58 (hereafter cited as Shull, American Civil Rights Policy). 2 See Ibid., p. 9. 3 Ibid., p. 59. 4 Ibid., pp. 63–64. 5 See U.S. Commission on Civil Rights, A Bridge to One America: The Civil Rights Performance of the Clinton Administration, April 2001 (hereafter cited as USCCR, A Bridge to One America). 6 Ibid., pp. 25, 70. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in programs and activities receiving federal financial assistance. See 42 U.S.C. § 2000d (2000). Staff Draft September 2004 9 Commission staff found that 153 of President Bush’s public statements between January 2001 and December 2003 included the phrases “civil rights,” “diversity,” or “discrimination.”7 Given the thousands of presidential records (including public statements, proclamations, speeches, etc.), released during this period, this indicates that President Bush rarely uses these terms. When he does, it is most often in reference to heritage and history celebrations and holidays, such as African American History Month, Hispanic Heritage Month, Asian Pacific American Heritage Month, and the Martin Luther King Jr. holiday.8 In addition, a significant portion of his statements referred to civil rights in the historical context or in reference to his nominations for civil rights positions (discussed below). As such, the vast majority derive from official duties, and not action-oriented proposals for improving or advancing civil rights. The dearth of substantive presidential statements reveals that civil rights is not a priority for this administration. Presidential Initiatives Of the 153 statements, only 27 (or 17 percent) outline plans of action or concrete initiatives (see table 2.1). The Faith-Based and Community Initiatives is the one most frequently promoted by the President, and in fact, accounts for more than half of the references (15 of 27). In discussing it, President Bush promotes an end to what he describes as discrimination in the distribution of federal funds (see chapter 5). In one statement promoting the administration’s efforts, the President said, “My Administration has been working to ensure that faith-inspired organizations do not face discrimination simply because of their religious orientation.”9 The President often expresses interest in religious matters; however, his consistent use of terms such as “funding discrimination” to describe this program seems designed to attach civil rights relevance to a completely unrelated effort. In fact, the faith-based initiative’s only civil rights significance may be that it actually allows employment discrimination. As will be discussed in chapter 5, this initiative reflects the President’s desire to recast civil rights in a manner that suits his narrow agenda and, as such, has been highly controversial.10 The Commission found no reference to presidential statements on the President’s Commission on Excellence in Special Education, Women’s Entrepreneurship in the 21st Century, or the President’s Commission on Asian Americans and Pacific Islanders (see chapters 4 and 5). Thus, 7 Staff used the U.S. Government Printing Office’s online resource, Weekly Compilation of Presidential Documents, which can be found at . The weekly compilation is issued every Monday and contains statements, messages, and other materials released by the White House during the preceding week. These search terms were chosen because they represent common civil rights sentiment and are general enough to encompass a variety of civil rights contexts. 8 Other proclamations include: Thomas Jefferson Day, National Volunteer Week, Loyalty Day, National Day of Prayer, the Anniversary of the Americans with Disabilities Act, Citizenship Day and Constitution Week, White Cane Safety Day, National American Indian Heritage Month, Women’s Equality Day, National Birmingham Pledge Week, Irish American Heritage Month, World AIDS Day, Observances of Ramadan and Eid al-Fitr, Religious Freedom Day, National Fair Housing Month, Jewish Heritage Week, Cinco de Mayo, the Centennial of Korean Immigration to the United States, German American Day, and Black Music Month. 9 President George W. Bush, “Proclamation 7640: Religious Freedom Day, 2003,” Jan. 15, 2003. 10 Lance T. LeLoup and Steven A. Shull, The Presidency and Congress: Collaboration and Combat in National Policymaking (New York: Pearson Education, 2003), pp. 137–38. Staff Draft September 2004 10 the President may not view these initiatives as important or relevant to his civil rights agenda. If measured by public statements, these projects are left to administrative channels to promote, develop, and implement. Various agencies are responsible for carrying out the administration’s initiatives, but without direction or clear expression of priority, their progress is limited. Table 2.1. Content of Presidential Speeches, Statements, and Other Documents, 2001–2003 2001 2002 2003 Proclamations/heritage celebrations/holidays 15 14 16 “Civil rights” in a historical or general context 6 5 5 Support of “diversity,” generally 7 9 7 Opposition to “discrimination,” generally 4 2 1 Nominations to civil rights positions/judicial nominees 5 6 4 Substantive discussions/policy proposals: Faith-Based and Community Initiatives 6 3 6 Community Based Alternatives for Individuals with Disabilities 1 President’s Commission on Election Reform 1 No Child Left Behind Act 3 2 Interagency Disability Web Site 1 Teaching American History and Civil Education Initiatives 1 Welfare Reform Reauthorization 1 Head Start 1 Fair and Accurate Credit Transactions Act of 2003 1 Miscellaneous references 6 7 1 Comments not related to civil rights in the U.S. 4 2 6 Total* 55 54 50 *Note that the totals add up to more than the number of documents (153) because some have more than one reference. Source: USCCR analysis of document search retrieved from U.S. General Printing Office, “Weekly Compilation of Presidential Documents,” . Education reform was one of the most visible efforts on the President’s domestic agenda during his campaign and early in his tenure. The No Child Left Behind Act (NCLB) gained bipartisan support and was noteworthy in its acknowledgement that an achievement gap exists between minority and nonminority students (discussed in chapter 3). In promoting NCLB, the President stated, “Equal education is one of the most pressing civil rights of our day,”11 and described education as “the next frontier of civil rights.”12 However, as will be demonstrated, the administration has not fought sufficiently to make sure the act was funded or provided the 11 President George W. Bush, remarks to the National Urban League Conference, Pittsburgh, PA, July 28, 2003. 12 President George W. Bush, remarks at ceremony honoring presidential scholars, Washington, D.C., June 25, 2001. Staff Draft September 2004 11 guidance necessary for successful implementation. Moreover, education experts fear that the school sanctions associated with failure to comply with NCLB will have a disparate impact on minority students. Students in the lowest performing schools, which are primarily in low-income and minority communities, will not have the same opportunities to succeed. Those schools will be under the greatest pressure to improve, increasing the risk of student punishment for the system’s failures. Thus, this public call for equal education for all was not matched by action. Defining Civil Rights Through Diversity The President uses the term “diversity” frequently, usually in a general way referring to American ideals and not specific programs.13 He also does so to the exclusion of discussions on civil rights, as if the former is a substitute for the latter. For example, during an Asian Pacific American Heritage Month proclamation, he noted: “Diversity represents one of our greatest strengths, and we must strive to ensure that all Americans have the opportunity to reach their full potential.”14 Likewise, in announcing the African American History Month Celebration in 2003, President Bush stated, “By promoting diversity, understanding, and opportunity, we will continue our efforts to build a society where every person, of every race, can realize the promise of America.”15 This statement, although in isolation a seemingly bold expression of support for equal opportunity, was made the same month the administration filed a brief opposing university policies that allow race to be considered as one factor to promote diversity in college admissions (see chapter 3). Specifically, the President characterized University of Michigan admissions policies as “clearly unconstitutional means to achieve diversity” and called for “race-neutral” policies despite overwhelming evidence that such methods do not result in diversity.16 President Bush verbalized his position that such policies violate the Constitution, but for political reasons, he at the same time professed support for diversity. In a less publicized, but related action, the Bush administration has stopped making available to researchers and the public statistical information on the race, ethnicity, gender, and job 13 For the purpose of this report, the term “diversity” is defined as a pool of characteristics, including but not limited to race, ethnicity, gender, age, religion, life experience, beliefs, etc. It is most frequently used in the context of the workforce and higher education. While there is no legal standard or requirement for diversity, the Supreme Court has found it to be a “compelling government interest.” See Grutter v. Bollinger, et al., 539 U.S. 306 (2003). 14 President George W. Bush, “Proclamation 7434, Asian/Pacific American Heritage Month,” May 7, 2001. 15 President George W. Bush, “Proclamation 7645: National African American History Month, 2003,” Jan. 31, 2003. 16 President George W. Bush, remarks following a meeting with economists and an exchange with reporters, Washington, D.C., Jan. 21, 2003. For analysis of race-neutral alternatives to admissions see U.S. Commission on Civil Rights, Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education, staff report, November 2002; The Civil Rights Project, Harvard University, Percent Plans in College Admissions: A Comparative Analysis of Three States’ Experiences, February 2003; The Civil Rights Project, Harvard University, Appearance and Reality in the Sunshine State: The Talented 20 Program in Florida, February 2003; Marta Tienda et al., Closing the Gap? Admissions & Enrollments at the Texas Public Flagships Before and After Affirmative Action, January 2003; and Tomàs Rivera Policy Institute, The Reality of Race Neutral Admissions for Minority Students at the University of California: Turning the Tide or Turning Them Away? March 2003. Staff Draft September 2004 12 classification of employees at the nation’s largest companies.17 The Equal Employment Opportunity Commission (EEOC) had made such data available for more than 30 years, and it was used by government agencies conducting compliance reviews and complaint investigations, plaintiffs in discrimination suits, and employers seeking to develop diverse workforces.18 It has also served as a starting point for uncovering patterns of employment discrimination. Without it, workplace equality cannot be widely and uniformly measured, nor can employers appropriately gauge their outreach efforts. By withholding the data, EEOC and the administration have minimized its significance and compromised the most comprehensive indicator of national workforce diversity. Thus, the President has made conflicting statements, and his espoused support for diversity contradicts the administration’s actions. To speak about the importance of diversity without acknowledging the role of affirmative action or the need for comprehensive data is to disregard the remaining vestiges of discrimination. Moreover, the President seems to deliberately, and in a highly disciplined manner, alter public discourse by expressing diversity and civil rights as interchangeable concepts. He talks about diversity to the exclusion of enforcement or ways to strengthen protections. Although a worthwhile goal, diversity does not necessarily translate into support for civil rights, as illustrated by the staffing of this administration (discussed below). By conflating the terms, the President minimizes the persistence of discrimination and the remaining barriers to equal opportunity, which are at the center of civil rights. Inclusive Outreach and Dialogue Historically, civil rights policy has drawn momentum from external actors, including grassroots and religious activists, lawmakers, academicians, and advocacy groups. The Commission thus identified as a key indicator of the administration’s commitment its willingness to develop a strategy in collaboration with civil rights leaders and representatives from affected communities. Rarely during his first three years in office did President Bush speak at meetings of civil rights organizations.19 As a candidate in 2000, President Bush gave a speech at the NAACP’s national convention, but during his first three years in office, did not attend the group’s meetings or call its leaders to the White House to confer with him. Nor has he engaged the NAACP in policy conversations, breaking a tradition that began under President Warren G. Harding and had been carried on by 11 consecutive Presidents beginning with Franklin D. Roosevelt and ending with Clinton.20 The NAACP president has requested several White House meetings, but the President 17 Private companies with 100 or more employees and government contractors with 50 or more employees must file Standard form 100 (or EEO-1) with the EEOC no later than September 30 of each year, as required by section 709(c) of Title VII of the Civil Rights Act of 1964. See U.S. Equal Employment Opportunity Commission, “2004 EEO-1 Survey,” (last accessed July 19, 2004). 18 Joseph Sellers, partner, Cohen, Milstein, Hausfeld, & Toll, LLP, statement before the U.S. Commission on Civil Rights, Washington, D.C., Dec. 12, 2003, transcript, pp. 73–75; see also Alfred Blumrosen, Thomas A. Cowan Professor of Law Emeritus, and Ruth Blumrosen, adjunct professor of law, Rutgers University, statements before the U.S. Commission on Civil Rights, Washington, D.C., Dec. 12, 2003, transcript pp. 115–20. 19 Among those he did address are the Urban League, a caucus of Hispanic leaders, a group of women business owners, the American Jewish Committee, and the Hispano Chamber of Commerce of Albuquerque. 20 Deb Reichmann, “President is not Targeting Liberal Blacks, Say Political Analysts,” Ethnic Newswatch, Aug. 13, 2004, p. 1 (hereafter cited as Reichmann, “President is not Targeting Liberal Blacks”); “NAACP Leaders Blast Staff Draft September 2004 13 has not obliged.21 President Bush and several top advisors also declined to attend annual conferences of the National Council of La Raza, a Hispanic civil rights advocacy group.22 Likewise, President Bush has not brought together a broad coalition of notable or acknowledged civil rights groups or leaders to the White House to advise him on policy, despite the effective use of this strategy by former administrations. For instance, the chair of the Leadership Conference on Civil Rights Compliance and Enforcement Committee and executive director of the National Asian Pacific American Legal Consortium noted that minority groups have had difficulty gaining access to the Bush White House.23 The Congressional Black Caucus met with President Bush shortly after he took office, but was denied numerous subsequent requests for meetings.24 Not only would such meetings represent gestures of cooperation and support, but also would demonstrate that the President values advice from various constituencies. In short, the President does not present a focused civil rights agenda, and his public statements offer a limited expression of commitment. He does not speak frequently about civil rights policies, and usually when he does, it is in reference to his faith-based initiative, which chapter 5 will demonstrate actually erodes such rights. He seems to place no value on including civil rights leaders in policy discussions or soliciting input from anyone other than his own close circles, and even then only those who share his views. For example, when asked during a press conference why he had not accepted invitations to meet with NAACP leaders and how he would respond to criticisms that his record on civil rights is weak, President Bush replied: “There I was, sitting around the table with foreign leaders, looking at Colin Powell and Condi Rice,” referencing two African American members of his Cabinet.25 This reply not only misses the point about the importance of collaboration, but assumes that accomplishments such as Cabinet diversity, although important, are a substitute for a comprehensive civil rights agenda. Ironically, the President offers these two individuals as evidence of his commitment to civil rights, but as will be discussed, he does not hold their civil rights opinions, such as their stance on affirmative action, in high regard. Bush, Three Democrats for Missing Candidate Forum,” The Bulletin’s Frontrunner, July 15, 2003; “Bush and the NAACP,” Ethnic Newswatch, vol. 86, no. 29, p. 4A. 21 Reichmann, “President is not Targeting Liberal Blacks”; NAACP, “NAACP Leaders Challenge the President and Congress to Seek Common Ground at the 92nd Annual NAACP Meeting,” press release, Feb. 17, 2001. 22 Armando Villafranca, “Hispanic Leader Bashes Bush; Advocate: He’s Losing Our Vote,” Houston Chronicle, July 15, 2003, p. A13. 23 Wayne Washington and Susan Milligan, “Minorities Say Bush is Falling Short; Diverse Staff Not Seen as Enough,” Boston Globe, July 6, 2003, citing Karen K. Narasaki, president and executive director, National Asian Pacific American Legal Consortium and chair of the Leadership Conference on Civil Rights Compliance and Enforcement Committee. 24 Deb Reichmann, “NAACP Still Seeking Meeting with Bush,” Associated Press, July 27, 2003. President Bush met with members of the Congressional Black Caucus in February 2004 to discuss the volatile political situation in Haiti. See The White House, “Digest of Other White House Announcements,” vol. 40, no. 9 (Mar. 1, 2004), . 25 President George W. Bush, The President’s News Conference, July 8, 2002. The President was referring to Secretary of State Colin Powell and National Security Advisor Condoleezza Rice, two prominent African Americans in his administration. Staff Draft September 2004 14 DIVERSITY IN THE FEDERAL GOVERNMENT The federal government employs more than 2.7 million people, 2.6 million of whom work in the executive branch.26 The federal obligation to diversity is important for many reasons, perhaps foremost to serve as a model for private employers and because of the effect it can have on the workforce due to the number of people it employs. As for federal managers and executives, according to the U.S. General Accounting Office (GAO): Diversity can bring a wider variety of perspectives and approaches to bear on policy development and implementation, strategic planning, problem solving, and decision making and can be an organizational strength that contributes to achieving results.27 Federal managers and executives must maintain a commitment to the civil rights of both government employees and the public they serve. The importance that the administration places on diversity in the career civil service ranks, those who carry out the government’s mission, also is critical. Career federal workers fulfill the objectives of the agencies they serve and, in many ways, are the implementers of the administration’s policies and operators of federal programs. Regulations that agencies offer for public comment before finalization and internal procedures that they write are critical to policy continuity and its aggregated impact.28 Furthermore, offices that enforce statutory provisions like Titles VI and VII of the Civil Rights Act of 1964 must be expert in and committed to civil rights laws.29 Thus, the Commission examined federal workforce diversity, both in absolute terms as well as in relation to prior administrations. The following discussion will document that, in terms of numbers, the federal workforce is diverse; it looks more like America than ever before. However, in the career service, plurality fades as a function of level, resulting in disproportionately low minority and female representation among supervisors, managers, and executives. Although President Bush has commendably diversified his Cabinet, his success with respect to high-level appointments has focused on racial, ethnic, and gender diversity, not necessarily civil rights commitment. The same can be said of his judicial nominations. Judicial Nominations For more than 50 years, federal courts have been instrumental in eliminating segregation, protecting rights, and prosecuting discrimination. Through judicial nominations, a President can 26 Figure is as of Sept. 30, 2002, the most recent available. U.S. Office of Personnel Management, The Fact Book 2003 Edition: Federal Civilian Workforce Statistics, p. 8 (hereafter cited as OPM, The Fact Book). 27 U.S. General Accounting Office, Senior Executive Service: Enhanced Agency Efforts Needed to Improve Diversity as the Senior Corps Turns Over, January 2003, p. 1 (hereafter cited as GAO, Senior Executive Service). Effective July 7, 2004, the U.S. General Accounting Office changed its name to the U.S. Government Accountability Office. The former is used in this report because it is the name under which the references cited were published. 28 Hugh Davis Graham, Civil Rights and the Presidency (New York: Oxford University Press, 1992), p. 8 (hereafter cited as Graham, Civil Rights and the Presidency). 29 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 1971, 1975a– 1975d, 2000a–2000h-6 (2000)). Staff Draft September 2004 15 influence public policy and national affairs for years after leaving office.30 Thus, a President’s selection of nominees who will uphold and strengthen civil rights protections is critical. In that regard, many view judicial diversity as necessary because it increases support for enforcement of civil rights laws. According to one legal scholar, “diversity on the bench is key to promoting the sort of mutual understanding that produces the best results in civil rights cases.”31 Moreover, because they lack sufficient voting power to influence the legislative and executive branches, racial, religious, and other minorities must often rely on the judiciary to protect their interests.32 Diversity on the bench, coupled with a judicial commitment to civil rights, is one way to ensure that their interests and rights are protected. Historically, however, the federal court system has not reflected the growing diversity of the nation. President Carter made the first real effort to end discrimination that had resulted in homogenization of the bench; he nominated 41 women (15.7 percent) and 55 African Americans to the federal judiciary.33 Only 8.3 percent of President Reagan’s nominations were women, and he appointed fewer African Americans than any President since the Eisenhower administration.34 President Bush Sr. nominated more female district court judges than any of his predecessors, 18.7 percent. With respect to racial and ethnic diversity, President Bush Sr. exceeded President Reagan, but not President Carter.35 President Clinton made history by appointing more female and minority judges to the lower courts than any other President, a distinction his presidency still holds. During his first term, 30 percent of his appointees were women, and 28 percent were minorities.36 By the end of his term, the number of female and minority judges had nearly doubled.37 President Bush has demonstrated a commitment to parity beyond any other President of his party, although not nearly as strong as his predecessor. In announcing his first 11 judicial nominees in May 2001, President Bush emphasized that “they come from diverse backgrounds, and will bring a wide range of experience to the bench.”38 Of his first 11 nominees, six (54.5 percent) were either people of color or women.39 However, this diverse record slowed with subsequent nominations. Of the 174 Bush nominations confirmed by July 2004 for whom biographical information is available, 20.7 percent are women and 19.0 percent are minorities. 30 Elliot E. Slotnick, “Federal Judicial Selection in the New Millennium: Prologue,” University of California–Davis Law Review, vol. 36 (February 2003), p. 589. 31 Theresa M. Beiner, “What Will Diversity on the Bench Mean for Justice?” Michigan Journal of Gender and Law, vol. 6 (1999), p. 113 (hereafter cited as Beiner, “Diversity on the Bench”). 32 Fay Clayton and Elyssa Balingit Winslow, Lawyers’ Committee for Civil Rights Under Law, “The Role of the Senate in Judicial Nominations: Evaluating Judicial Philosophy and Ideology,” June 2003, p. 2. 33 Beiner, “Diversity on the Bench.” 34 Ibid. 35 Ibid. 36 Ibid. 37 USCCR, A Bridge to One America, pp. 22–23. 38 The White House, “Remarks by the President During Federal Judicial Appointees Announcement,” May 9, 2001, . 39 Wayne Washington, “Bush Nominates 11 to Serve on Federal Bench; Names Include a Clinton Choice for Fourth Circuit,” Boston Globe, May 10, 2001, p. A3. Staff Draft September 2004 16 Of those, 8.0 percent are African American and 10.3 percent are Hispanic. Only one Asian Pacific American, but no Native American, has been nominated and confirmed during this administration.40 Moreover, as the following examples illustrate, race and gender alone do not guarantee support for civil rights. Some of President Bush’s nonminority nominees hold views that would limit the scope and strength of civil rights laws, as do some of his minority and female nominees. Changing the Nomination Process President Bush’s first action on judicial nominations was to change the selection process. In March 2001, the administration terminated the longstanding relationship between the American Bar Association (ABA) and the White House Counsel’s Office. For 50 years, ABA had advised Presidents on the qualifications of judicial nominees for service.41 White House Counsel Albert Gonzales wrote to ABA’s president informing her that the administration did not wish to grant a “quasi-official role to a group such as the ABA that takes public positions on divisive political, legal and social issues that come before the courts.”42 In a news conference following the White House announcement, the ABA president expressed concern that “the role of politics may be taking the place of professionalism in choosing judges.”43 Some newspapers and civil rights advocacy groups voiced opposition to the decision and said that removing ABA could have a negative effect on civil rights law enforcement.44 The Bush administration’s move to eliminate ABA’s role presaged fierce partisan rancor over the President’s nominees. One commentator cites the President’s campaign promise to effect an ideological transformation of the federal judiciary as the reason for increased politicization.45 The judicial nomination process has historically been subject to political connection and ideological compatibility to the party in power. However, critics attribute the recent contentiousness to nominees’ views, which they consider so far out of the mainstream that they would eviscerate enforcement of federal civil rights laws.46 40 Calculations are based on data obtained from the Federal Judicial Center, History of the Federal Judiciary, . As of July, 14, 2004, 198 judges had been confirmed, but biographical data was pending for 24. 41 Neil Lewis, “White House Ends Bar Association’s Role in Screening Federal Judges,” New York Times, Mar. 22, 2001, p. A13. 42 Ibid. 43 Ibid. 44 Institute for Democracy Studies, “Institute for Democracy Studies Sounds Alarm on Bush’s ABA Decision,” PR Newswire, Mar. 23, 2001; People for the American Way, “President Bush, the Senate and the Federal Judiciary: Unprecedented Situation Calls for Unprecedented Solution,” Fall 2001, ; “Blocking Judicial Ideologues,” New York Times, Apr. 27, 2001, p. A24; “Bush Invites Partisanship on Judicial Selections,” Virginian-Pilot, Mar. 26, 2001, p. B12. 45 Jeffrey Toobin, “Advice and Dissent; The Fight Over the President’s Judicial Nominations,” New Yorker, May 26, 2003, p. 42. 46 Leadership Conference on Civil Rights, “What’s at Stake—Bush’s Nominations to the U.S. Court of Appeals,” Mar. 12, 2003, . Staff Draft September 2004 17 Nominees Whose Civil Rights Records Have Been Challenged Because federal judges have the power to interpret and establish precedent upon which future case law can be based, and because they serve life terms, their civil rights views are critical. Civil rights organizations and leadership have objected to and launched campaigns against several of President Bush’s nominees, claiming that the administration is trying to pack the judiciary with anti-civil rights ideologues.47 Supporters of the President’s nominations, on the other hand, assert that their views have been misrepresented and accuse opponents of racializing the process and using the religious beliefs of nominees against them.48 They also argue that the failure to approve some of President Bush’s nominees reflects the growing partisanship in Congress and election year politicking. However, as the following discussion will illustrate, the Senate has rejected only those with the most controversial civil rights records. Charles Pickering Sr. for Fifth Circuit U.S. Court of Appeals On January 7, 2003, President Bush renominated Charles Pickering Sr. for a U.S. Appeals Court post, after the Senate Judiciary Committee voted him down the previous year.49 Of particular concern to civil rights advocates was a 1994 case in which Pickering actively sought a reduced sentence for a man convicted of cross burning, a widely used hate group intimidation tactic. At one point Pickering referred to the act as a “youthful prank,” diminishing its symbolic representation of race baiting and hatred.50 Pickering took the further step of contacting a friend at the Department of Justice during the trial to try to get the offender’s sentence reduced, a move considered unethical by several legal experts.51 Pickering has also argued for a more narrow application of the Voting Rights Act and suggested that, generally, discrimination cases have no bases. He has also been criticized for his votes in the Mississippi legislature, early in his career, to support funding for an organization established to resist court-ordered desegregation after the 1954 Brown v. Board of Education decision.52 Many civil rights organizations, including every chapter of the NAACP in Mississippi, the national NAACP, and the Magnolia Bar Association (Mississippi’s African American bar association) opposed his confirmation. However, some also praised the nomination, including Charles Evers, the brother of slain civil rights leader Medgar Evers, who said that Pickering has 47 Ori Nir, “Groups Aim to Torpedo President’s Judge Pick; Pryor Opposed on Church-State,” Ethnic Newswatch, vol. CVI, no. 31 (May 16, 2003), p. 1 (hereafter cited as Nir, “Groups Aim to Torpedo President’s Judge Pick”). 48 Rep. John Cornyn (R-TX), “Restoring Our Broken Judicial Confirmation Process,” Texas Review of Law and Politics, vol. 8 (Fall 2003), pp. 3–4 (hereafter cited as Cornyn, “Restoring Our Broken Judicial Confirmation Process”). 49 Joan Biskupic, “President Repeats Choice for Judge Job,” USA Today, Jan. 8, 2003, p. 3A. 50 R. Jeffrey Smith, “Judge’s Fate Could Turn On 1994 Case; Pickering Fought to Reduce Sentence for Cross- Burning,” Washington Post, May 27, 2003, p. A1. 51 Jennifer A. Dlouhy, “GOP to Use Pickering Debate to Criticize Democrats,” CQ Today, Oct. 27, 2003, p. 13 (hereafter cited as Dlouhy, “GOP to Use Pickering”); Alliance for Justice, “Judicial Selection in the First Two Years of the George W. Bush Administration,” spring 2003, , p. 26. 52 Dlouhy, “GOP to Use Pickering”; Jennifer A. Dlouhy, “Wavering Democratic Senators Urged to Block Pickering,” CQ Today, Oct. 30, 2003, p. 16. Staff Draft September 2004 18 an “admirable record on civil rights issues.”53 Supporters also argue that, as a federal district court judge, Pickering was lenient in cases involving drug offenders who were black, and note that in 1966 he testified against a Ku Klux Klan member charged with murdering civil rights leader Vernon Dahmer.54 But civil rights advocates and some members of Congress are convinced that Pickering would continue to narrow civil rights laws if given the opportunity to serve on the appellate court. On October 2, 2003, Pickering was approved by the Senate Judiciary Committee—all 10 Republicans voted in favor and nine Democrats voted against—but Democrats stalled with a filibuster in the Senate.55 On January 16, 2004, President Bush bypassed Senate approval and used his recess appointment powers to seat Pickering. Because it was a recess appointment, Pickering will serve until January 2005, when a new session of Congress begins, rather than for a life term, as is generally the case with judicial appointments.56 The President’s action drew immediate fury from civil rights leaders, and many organizations viewed it as an affront.57 Members of the Congressional Black Caucus characterized the timing of the President’s appointment, made one day after he had visited the memorial site of Dr. Martin Luther King Jr. with the slain leader’s widow, as “a disgrace to the memory of Dr. King” and reflecting “utter disdain for civil rights.”58 Representative Elijah Cummings stated that the recess 53 Cornyn, “Restoring Our Broken Judicial Confirmation Process,” p. 33. 54 Dlouhy, “GOP to Use Pickering”; Nat Hentoff, “The Real Judge Charles Pickering; As Shown By Mike Wallace,” Washington Times, Apr. 26, 2004, p. A21. 55 Helen Dewar, “Panel Backs Pickering for Appellate Bench,” Washington Post, Oct. 3, 2003, p. A21; Charles Hurt, “GOP Plans to Push on Bush Court Nominations,” Washington Times, Oct. 12, 2003, p. A3 (hereafter cited as Hurt, “GOP Plans to Push on Bush”); Ritu Kelotra, “Confirmation of Pickering Defeated,” Oct. 31, 2003, ; Nick Anderson, “Senators Pull an All-Nighter Over Judicial Confirmations; The GOP Plans to Protest the Use of Filibusters to Stall 4 Nominees. Democrats Point to 168 Bush Picks Who Were Confirmed,” Los Angeles Times, Nov. 13, 2003, p. 21 (hereafter cited as Anderson, “Senators Pull an All-Nighter”). 56 Jennifer A. Dlouhy, “Pickering Court Appointment May Presage Even More Divisiveness on Nominations,” CQ Today, Jan. 20, 2004, p. 15; Stephen Henderson, “President Installs Controversial Judge,” Miami Herald, Jan. 17, 2004, p. A3. 57 President George W. Bush, statement regarding the recess appointment of Charles Pickering, Jan. 16, 2004, (last accessed Jan. 23, 2004); Mike Allen and Helen Dewar, “Bush Bypasses Senate On Judge,” Washington Post, Jan. 17, 2004, p. A1 (hereafter cited as Allen, “Bush Bypasses Senate”); “End Run for Mr. Pickering,” Washington Post, Jan. 17, 2004, p. A24; “Poor Judicial Choice,” Miami Herald, Jan. 20, 2004, p. A16; Charles Hurt, “Bush Names Judge Despite Filibuster,” Washington Times, Jan. 17, 2004, p. A1 (hereafter cited as Hurt, “Bush Names Judge”); Ritu Kelotra, “President Invites Judges Controversy as New Session Begins,” saveourcourts.org, Jan. 21, 2004, (last accessed Jan. 22, 2004) (hereafter cited as Kelotra, “President Invites Controversy”); Paul Krugman, “Going for Broke,” New York Times, Jan. 20, 2004, p. A19; Neal Lewis, “Bush Seats Judge After Long Fight,” New York Times, Jan. 17, 2004, p. A1; Paul Schwartzman and Jonathan Finer, “Clark Vows to Protect Black Electorate,” Washington Post, Jan. 20, 2004, p. A8. 58 James Wright, “Pickering Appointment Angers CBC,” The Baltimore Afro-American, vol. 112, no. 24, p. 1 (Jan. 30, 2004) (hereafter cited as Wright, “Pickering Appointment Angers CBC”). See also Kelotra, “President Invites Controversy”; Julian Bond, chairman, NAACP, statement before the Campaign for America’s Future, “Take Back America” Conference, June 2, 2004, as published by Federal News Service; J. Zamgba Browne, “Rev. Jackson: To Honor Dr. King, Bush Appoints Anti-Black Pickering to Federal Judgeship?” Ethnic Newswatch, vol. 95, no. 4, p. 3 (Jan. 28, 2003), quoting the Reverend Jesse Jackson and Senator Hillary Rodham Clinton. Staff Draft September 2004 19 appointment was “yet one more attempt by the Bush administration to turn back the clock on the rights and freedoms that countless Americans marched and died for over the last 40 years.”59 Other commentators contend that the President’s decision to appoint Pickering above all other pending nominations, despite that African Americans had reason to oppose it more than any other, was intended to send a political and philosophical message about his disregard for civil rights.60 William H. Pryor Jr. for 11th Circuit U.S. Court of Appeals After President Bush nominated Alabama Attorney General William Pryor for the 11th Circuit Court of Appeals on April 9, 2003, several civil rights groups quickly announced their disagreement.61 Their opposition was based on Pryor’s legal view, which critics perceive to be so narrow as to severely hamper federal enforcement of civil rights laws. During his tenure as Alabama’s attorney general, Pryor used litigation, amicus curiae briefs, and public speeches as tools to advocate limiting protections against discrimination.62 Civil rights advocates note that, in the past, Pryor advocated the repeal or modification of a provision of the Voting Rights Act, urged the Supreme Court to bar state employees from suing for damages under the Americans with Disabilities Act, filed a brief opposing the Violence Against Women Act, and described the Court’s decision to order the Virginia Military Institution to cease discrimination against women as “political correctness for decisionmaking.”63 Religious organizations argue that Pryor has a troubling record on issues of religious freedom, supports prayer in school, and has used his public office to advance the concept of America as a Christian nation, excluding those of other faiths.64 Other commentators have pointed to Pryor’s record as evidence of “extremism and disdain for the legal rights of many Americans” rendering 59 Rep. Elijah E. Cummings, chair, Congressional Black Caucus, “Statement of CBC Chairman Elijah Cummings on the Misguided Recess Appointment of Charles Pickering to the Federal Bench,” Jan. 16, 2004 (last accessed July 13, 2004). 60 Wright, “Pickering Appointment Angers CBC,” quoting Sherrilyn Ifill, associate professor, University of Maryland School of Law. 61 The White House, “Presidential Nomination William H. Pryor,” Apr. 9, 2002, (last accessed Sept. 24, 2004); “Coalition Declares Nominee William Pryor Unfit for Seat on 11th Circuit Court of Appeals,” U.S. Newswire, June 9, 2003; Jonathan Ringel, “11th Circuit Nominee Draws Instant Criticism,” The Legal Intelligencer, vol. 228, no. 71 (Apr. 14, 2003), p. 4 (hereafter cited as Ringel, “11th Circuit Nominee Draws Instant Criticism”; Bill Rankin, “Pryor, Another Contentious Bush Nominee, Faces Hearing,” Atlanta Journal-Constitution, June 11, 2003, p. 3A. 62 Leadership Conference on Civil Rights, “In Eleven-Day Recess, President Sidesteps Confirmation Process Again,” Feb. 24, 2004, (last accessed May 10, 2004) (hereafter cited as LCCR, “President Sidesteps Confirmation Process Again”). See also Nir, “Groups Aim to Torpedo President’s Judge Pick.” 63 People for the American Way, “Report of People for the American Way in Opposition to the Confirmation of William H. Pryor Jr. to the United States Court of Appeals for the Eleventh Circuit,” June 10, 2003, p. 21; Rhonda Cook, “Black Leaders in State Divided Over Bill Pryor,” Atlanta Journal-Constitution, July 31, 2003, p. 8A; Mary Orndorff, “Pryor’s Record on Race a Bipartisan Topic,” Birmingham News, June 16, 2003. 64 Interfaith Alliance, “Alabama Attorney General Bill Pryor Poses Threat to Religious Liberty,” U.S. Newswire, July 23, 2003; “Two Jewish Groups Oppose Pryor for 11th Circuit,” Associated Press State and Local Wire, May 17, 2003; Ringel, “11th Circuit Nominee Draws Instant Criticism.” Staff Draft September 2004 20 him unsuited for service as a federal judge.65 Senate aides from both parties said that Pryor has “perhaps the most controversial views of any nominee who has come up for confirmation during Bush’s presidency.”66 The Senate Judiciary Committee approved Pryor on July 23, 2003, but again, the confirmation was held up in the Senate.67 In February 2004, however, President Bush sidestepped the nomination process again and placed Pryor on the bench using a recess appointment.68 Once again, the President ignored opposition from civil rights groups. Even conservative supporters of President Bush viewed the recess appointment as an administration effort to appease them for his inaction in other areas, such as same-sex marriage and an illegal immigrant amnesty proposal (both are discussed in greater detail in chapter 4).69 Priscilla Owen for Fifth Circuit U.S. Court of Appeals President Bush first nominated Texas Supreme Court Justice Priscilla Owen during the 107th Congress. She received a hearing before the Senate Judiciary Committee, which eventually declined her nomination.70 In early January 2003, a coalition of civil rights groups wrote a letter to President Bush, urging him not to renominate Justice Owen, in part because her opinions “reveal a troubling hostility to discrimination and employee rights.”71 Another observer noted that “her judicial record suggests strongly that she lacks a commitment to equal access to justice for all.”72 One civil rights group cited a case in which her narrow interpretation of a statute permitted age discrimination, despite the fact that the majority of the Texas Supreme Court found the statute “unambiguous” in banning age discrimination.73 Commentators note that, even on the conservative Texas Supreme Court, Owen is far to the right of mainstream. White House Counsel Alberto Gonzales, a former state supreme court associate, once described Owen’s 65 “Beyond the Pale,” New York Times, June 23, 2003, p. A20; see also Jannell McGrew, “Civil Rights Veterans Denounce Pryor,” Montgomery (Alabama) Advertiser, May 7, 2003, p. A1. 66 Mike Allen, “Judicial Nominee Admits Mistake,” Washington Post, June 12, 2003, p. A37. See also Jeremy Leaming, “Pryor’s Problems: Federal Appeals Court Nominee with Record of Hostility to Church-State Separation Becomes Mired in Senate Debate,” Church and State, vol. 56, no. 8 (Sept. 1, 2003), p. 10. 67 Hurt, “GOP Plans to Push on Bush.” 68 LCCR, “President Sidesteps Confirmation Process Again.” 69 William Douglas, “Bush Appoints Opposed Judge,” Miami Herald, Feb. 21, 2004, quoting Paul Weyrich, chair, Free Congress Foundation. 70 Chuck Lindell, “Senators Reject Owen for Appeals Court Seat,” Austin American-Statesman, Sept. 6, 2002, p. A1. 71 Texas Ad Hoc Coalition on Judicial Nominees, “Open Letter to President Bush re: Justice Owen,” Jan. 2, 2003, ; see also Jonathan Groner, “Committee Rejects 5th Circuit Hopeful,” The Legal Intelligencer, vol. 226, no. 48 (Sept. 6, 2002), p. 4. 72 Alliance for Justice, “Texas Supreme Court Justice Priscilla Owen Nominee to the U.S. Court of Appeals for the Fifth Circuit,” n.d., p. 1 (hereafter cited as Alliance for Justice, “Priscilla Owen Nominee”); see also Kevin Herrera, “Black Congress, NAACP Pass Judgment on Judicial Appointments,” Ethnic Newswatch, vol. 67, no. 24 (Sept. 11, 2002), p. 9. 73 People for the American Way, “Why the Senate Judiciary Committee Was Right to Reject the Confirmation of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit,” Jan. 23, 2003, p. 11. Staff Draft September 2004 21 attempt to legislate from the bench in a case involving reproductive rights as “an unconscionable act of judicial activism.”74 Nearly 40 organizations, including the NAACP, the Mexican American Legal Defense and Educational Fund, the National Women’s Law Center, the National Council of Jewish Women, and the National Employment Lawyers Association, oppose Owen’s nomination.75 Despite these objections, President Bush renominated her. In April 2003, the Senate Judiciary Committee approved Owen, but she has yet to receive a vote before the full Senate.76 Jeffrey Sutton for Sixth Circuit U.S. Court of Appeals The Senate confirmed Jeffrey Sutton to the Sixth Circuit Court of Appeals over the protestations of more than 70 national groups and 375 regional, state, and local organizations, including the NAACP, the National Organization on Disability, among other disability rights groups, and environmental justice organizations.77 These groups expressed concern that Sutton’s legal views would curtail Congress’ ability to enforce federal protections against discrimination.78 He has argued against allowing private individuals to sue to enforce the disparate impact regulations of Title VI of the Civil Rights Act of 1964, and for placing limitations on the ability of state employees who are victims of age discrimination to recover damages.79 Disability rights groups objected to comments Sutton made about the Americans with Disabilities Act (ADA), which, in an oral argument before the Supreme Court, he stated was essentially not needed because there are state laws that protect the rights of persons with disabilities. He argued furthermore that ADA prohibitions should not apply to state governments despite overwhelming evidence of discrimination by state actors.80 Advocates for the disabled further contended that Sutton attempted to dismantle core protections for persons with disabilities and “would make a mockery of many of the critical rights for which individuals with disabilities have fought so hard.”81 Likewise, environmental justice groups claimed that Sutton is 74 Alliance for Justice, “Priscilla Owen Nominee,” p. 17, citing In re Jane Doe 1 (II), 19 S.W.3d 365 (Tex. 2000). 75 See, e.g., NAACP, “NAACP Supports Senate Rejection of Owen Nomination,” press release, Sept. 5, 2002, (last accessed June 24, 2004). 76 “Democrats Block 2nd Bush Court Nominee,” Los Angeles Times, May 2, 2003, part I, p. 22. 77 See, e.g., Eve Hill, director, Western Law Center for Disability Rights, “Sutton Nomination Threatens to Wall Out People with Disabilities,” Nov. 13, 2001, ; and “NAACP Slams Bush Administration Policies,” NAACP News, Feb. 15, 2003, (last accessed May 11, 2004). 78 Kenneth Jost, “Should the Senate Confirm Bush’s Nominees?” CQ Researcher, July 27, 2001, p. 2; Elliot M. Mincberg, “Federal Judicial Nominations and Confirmations During the Last Two Years of the Clinton Administration,” chapter 3 in Dianne M. Piché, William L. Taylor, and Robin A. Reed, eds., Rights at Risk: Equality in an Age of Terrorism (Washington, D.C.: Citizens’ Commission on Civil Rights, 2002) p. 30. 79 Wade Henderson, executive director, and Dorothy I. Height, chairperson, Leadership Conference on Civil Rights, letter to Senator Orrin G. Hatch, chair, Senate Judiciary Committee, Feb. 11, 2003, re: opposition to the confirmation of Jeffrey Sutton. 80 University of Alabama v. Garrett, 531 U.S. 356 (2001), oral argument transcript at 13, 24. 81 The Judge David L. Bazelon Center for Mental Health Law, “Jeffrey Sutton: Taking Aim at the Rights of Persons with Disabilities,” fact sheet, July 23, 2001, (last accessed May 11, 2004). Staff Draft September 2004 22 a leading advocate for limiting private causes of action against states for claims of environmental injustices.82 Carolyn Kuhl for Ninth Circuit U.S. Court of Appeals Another nomination that evoked criticism in the civil rights context is that of California State Judge Carolyn Kuhl for the Ninth Circuit U.S. Court of Appeals. Objections to Kuhl’s nomination stem primarily from her tenure as deputy solicitor general in the Reagan administration, during which she persuaded the attorney general to argue in favor of granting tax-exempt status to Bob Jones University, an institution that sanctioned and practiced racial discrimination.83 In addition, she co-authored an amicus brief asserting a position that would have made it more difficult for women to prove sexual harassment in the workplace,84 and she attempted to restrict the remedies that courts can order in employment discrimination cases.85 For these reasons, among others, Kuhl’s views on civil rights and equal opportunity have been described as “outside the mainstream.”86 Kuhl’s nomination has yet to be voted upon on the Senate floor.87 Miguel Estrada for D.C. Circuit U.S. Court of Appeals The nomination of Miguel Estrada to the D.C. Circuit Court of Appeals also was controversial. Although his Hispanic heritage made him appealing to many who favor racial and ethnic diversity on the bench, and even his critics acknowledged his stellar academic and professional credentials, uncertainty about his ideology divided the Hispanic legal community.88 Estrada did not reveal his views on landmark Supreme Court decisions, and the White House refused to answer questions about his judicial philosophy or release memos he wrote during his tenure in the solicitor general’s office in the Bush Sr. administration.89 The Hispanic National Bar Association and the League of United Latin American Citizens both called upon the Senate to 82 Community Rights Counsel, “Jeffrey Sutton: A Threat to the Constitution and Fundamental Environmental Protections,” Apr. 2, 2003, (last accessed May 11, 2004). 83 Wade Henderson, executive director, and Dorothy I. Height, chairperson, Leadership Conference on Civil Rights, letter to Senator Orrin G. Hatch, chair, Senate Judiciary Committee, Mar. 31, 2003, re: opposition to the confirmation of Carolyn Kuhl (hereafter cited as Henderson and Height letter), citing Bob Jones University v. United States, 461 U.S. 574 (1983); see also Susan Milligan, “GOP Leader’s Woes Wound His Party, Apology Doesn’t Silence Critics,” Boston Globe, Dec. 15, 2002, p. A18. 84 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). 85 Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421 (1986). 86 Henderson and Height letter, p. 2. 87 Helen Dewar, “Action on Energy, Medicare Critical to GOP Scorecard,” Washington Post, Oct. 27, 2003, p. A17; Anderson, “Senators Pull an All-Nighter.” 88 Alliance for Justice, “Judicial Selection in the First Two Years,” p. 32; Tony Mauro, “Hispanic Groups Divided Over Estrada Nomination,” Legal Times, Sept. 23, 2002, p. 1. 89 Julie Hirschfeld Davis, “Estrada Withdraws as Nominee for Bench,” Baltimore Sun, Sept. 5, 2003, p. 1A; The White House, “President’s Statement on Miguel Estrada,” Sept. 4, 2003, ; Hurt, “GOP Plans to Push on Bush.” Staff Draft September 2004 23 confirm Estrada,90 while 15 past presidents of the Hispanic National Bar Association, the Puerto Rican Legal Defense and Educational Fund, numerous other Hispanic groups, and the Leadership Conference on Civil Rights opposed the nomination.91 One conservative advocacy group supporting President Bush’s judicial nominations conducted a survey of Hispanics that demonstrated the importance they place on seeing their ethnicity represented in the federal courts. The survey found that 94 percent of respondents believe it is important that Hispanics are represented on the bench, and 80 percent believe it is important to the Hispanic community that Estrada be confirmed by the Senate.92 However, Estrada withdrew his nomination on September 4, 2003, after waiting more than two years for confirmation. Janice Rogers Brown for D.C. Circuit U.S. Court of Appeals Despite opposition from nearly 80 national organizations and more than 200 law professors and legal academicians, President Bush nominated Janice Rogers Brown for a seat on the U.S. Court of Appeals for the D.C. Circuit in July 2003.93 As a judge on the California Supreme Court, Brown consistently demonstrated hostility to affirmative action, civil rights, and the rights of disabled individuals, workers, prisoners, and women, according to the Leadership Conference on Civil Rights.94 In an affirmative action case in California, a fellow Republican-appointed justice, despite concurring with the result of the case, described her view as “a serious distortion of 90 League of Latin American Citizens, “LULAC Urges Senate to Confirm Miguel Estrada,” Feb. 11, 2003, . 91 Leadership Conference on Civil Rights, “Diverse Group of Latino Leaders Unite Against Estrada Nomination,” Mar. 4, 2003, ; Leadership Conference on Civil Rights, “LCCR Letter to Senate Judiciary Committee Opposing Estrada Nomination,” Jan. 28, 2003, (hereafter cited as LCCR, “Letter to Senate Judiciary Committee”). Much of LCCR’s opposition to Estrada is based on the fact that he defended anti-loitering statutes, which have been shown to have a disproportionately negative impact on African Americans and Latinos. State and federal courts across the country have struck down anti-loitering statutes as unconstitutional in part because they inhibit expression in violation of the First Amendment. LCCR, “Letter to Senate Judiciary Committee.” Since that letter was written, the U.S. Supreme Court unanimously ruled that anti-loitering policies are not facially invalid under the First Amendment. Virginia v. Hicks, 539 U.S. 113 (2003). 92 Committee for Justice, “2003 Survey of Hispanic Adults,” June 11, 2003, . It should be noted that 64.6 percent of respondents were not aware that President Bush was the first President to appoint a Hispanic to the D.C. Circuit Court of Appeals and that Estrada had not yet been confirmed. Ibid. 93 “African-American Leaders Voice Opposition to Janice Rogers Brown,” saveourcourts.org, Nov. 5, 2003, (last accessed June 24, 2004) (hereafter cited as “African-American Leaders Voice Opposition”); NAACP, “NAACP Calls for Senate Opposition on Confirmation of Janice Rogers Brown to D.C. Court of Appeals,” press release, Nov. 5, 2003, (last accessed June 24, 2004); Anderson, “Senators Pull an All-Nighter.” 94 National Women’s Law Center, “Janice Rogers Brown: A Troubling Record on Issues of Critical Importance to Women,” October 2003; Michelle Woolley, “Civil Rights Coalition Expresses Great Disappointment in Committee Vote to Approve Brown Confirmation,” Nov. 6, 2003, (hereafter cited as Woolley, “Civil Rights Coalition”); “African-American Leaders Voice Opposition”; Anderson, “Senators Pull an All-Nighter.” Staff Draft September 2004 24 history.”95 In that case, not only did Brown issue a lengthy opinion opposing affirmative action programs, but she also strongly condemned Supreme Court decisions that had upheld such programs in the public sector, even in limited circumstances.96 Several of Brown’s statements disclosed during her confirmation hearing led one former supporter, a University of California law professor emeritus, to rescind his support.97 Brown was criticized for engaging in “government-bashing” and presenting “extreme and outdated ideological positions” that are “outside the mainstream of today’s constitutional law.”98 In one speech, criticizing government programs, she stated that the federal government is “the opiate of the masses [and a drug for] multinational corporations and single moms, for regulated industries and Midwestern farmers and militant senior citizens.”99 The Senate Judiciary Committee approved Judge Brown and forwarded her nomination, but it has not come up for a full vote.100 Political Appointments An important indicator of a President’s agenda is the commitment to civil rights and level of diversity among those he can personally select and appoint to positions of power, including White House aides, Cabinet secretaries, attorneys general and their deputies, and the many lower-level advisory appointees.101 In all, the President relies on nearly 4,000 political appointees—roughly 500 of whom are in top positions—to develop and promote policies and ensure that they are carried out by career government staff.102 A diverse administration signals to the public that the federal government is open to the aspirations, and concerned with the wellbeing, of all people. Although political theorists disagree on why diversity is desirable in a democratic society, they generally agree that in order to become fully democratic, a society that has historically denied rights to certain groups must demonstrate a commitment to including 95 Richard L. Abel, visiting professor of law, New York University Law School, et al., letter to Senator Orrin Hatch, chair, and Senator Patrick Leahy, ranking member, Senate Judiciary Committee, Oct. 21, 2003, re: opposition to the confirmation of Janice Rogers Brown (hereafter cited as Abel et al., letter opposing Brown), citing Hi-Voltage Wire Works v. City of San Jose, 12 P.3d 1095 (Cal. 2000) (George, C.J. concurring). 96 Abel et al., letter opposing Brown. 97 Ritu Kelotra, “Opposition to Judicial Nominee Grows: Legal Expert Rescinds Endorsement,” Oct. 29, 2003, . 98 Ibid. 99 Abel et al., letter opposing Brown, citing Janice Rogers Brown, “Fifty Ways to Lose Your Freedom,” speech before the Institute for Justice, Aug. 12, 2000. 100 Karen MacPherson, “They Could Have Danced All Night; They Talked Instead,” Pittsburgh Post-Gazette, Nov. 13, 2003, p. A-1; Woolley, “Civil Rights Coalition.” 101 Graham, Civil Rights and the Presidency, p. 8. 102 This number does not include the roughly 2,800 career senior executive appointments in the federal government. Political appointments include Presidential Appointments with Senate Confirmation (PAS), which includes Cabinet secretaries, ambassadors, and other high-level positions; Presidential Appointments (PA) who serve on boards and commissions and as White House staff; non-career Senior Executive Service (SES); and Schedule C Excepted Appointments who hold midlevel positions and serve in policy-related positions or as assistants to other appointees. U.S. Senate, Committee on Government Affairs, United States Government Policy and Supporting Positions, 106th Cong., 2d Sess., Nov. 8, 2000, appendix 1 (hereafter cited as U.S. Senate, Policy and Supporting Positions). See also Brookings Institution, Presidential Appointee Initiative, “Staffing a New Administration: A Guide to Personnel Appointments in a Presidential Transition,” November 2000. Staff Draft September 2004 25 those groups in political life.103 The rhetoric and actions of the Clinton and Bush Sr. administrations indicate that in the last decade, political leaders have taken this ideal to heart. As the current administration has demonstrated, however, diversity does not guarantee support for civil rights. Historically, progress toward a diverse Cabinet has been slow. President Roosevelt appointed the first female Ca