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Nearly two years into the tenure of Alberto Gonzales, the nation’s first Hispanic attorney general, the senior leadership of the Department of Justice is less representative of America’s racial diversity than under either of Gonzales’ two predecessors. There are no African-Americans in the 19 top-level, presidentially-appointed positions that oversee the department’s investigative agencies, courtroom litigation, and relations with Congress. That group includes the assistant attorney generals of each of the seven litigating divisions and three top advisory offices, the political appointees atop agencies such as the FBI and the Drug Enforcement Administration, and the senior officials who control much of the department’s day-to-day management. When Gonzales meets with his top deputies, he may be the only minority in the room. In those 19 senior-level posts, the only other minority is Wan Kim, the head of the Justice Department’s Civil Rights Division. Nor is the picture for African-Americans much more encouraging outside Washington. Of the nation’s 93 politically appointed U.S. attorneys, the top law enforcement officers whose regional offices handle most of the department’s litigation, just three are African-American. So just who is the most powerful African-American in the Justice Department? “That’s a good question,” says Rita Sampson, the head of the Equal Employment Opportunity staff at the DOJ’s Executive Office of U.S. Attorneys. The question is vexing even to African-American Republican lawyers with close ties to the administration and the Justice Department. “I couldn’t answer,” says Charles James, who headed the DOJ’s Antitrust Division from 2001 to 2002 and is now general counsel of Chevron Corp. “There aren’t any,” says another black Republican lawyer who has served in the Bush administration. One possible answer is Regina Schofield, the head of the low-visibility Office of Justice Programs, the DOJ’s statistics-gathering and grant-making arm, who was confirmed by the Senate in 2005. Another contender is Michael Battles, the director of the Executive Office of U.S. Attorneys. His is an administrative post that doesn’t require Senate confirmation but wields significant budgetary clout over U.S. attorneys. Diversity, of course, can be measured in a number of ways. Women, for instance, are relatively well represented in the DOJ’s senior leadership � at least in comparison with a snapshot of the department in 2002 and 1998 compiled by Legal Times. Six of the 19 top posts at the DOJ are currently held by women, including the jobs at the head of the Criminal Division and the Tax Division and the top two posts at the DEA. And nearly a dozen U.S. attorneys are Hispanic or Asian-American � a figure significantly better than in either 2002 or 1998. Credit for gender diversity, as well as blame for the relative paucity of African-Americans, can’t be laid only at the feet of Gonzales. The White House exercises considerable influence over the choices for the highest-ranking and most sensitive senior jobs, and home-state congressional representatives are influential in U.S. attorney selection. “The attorney general is proud to be the first Hispanic attorney general in U.S. history, and while his first priority when making hiring decisions is finding the most qualified person for the job, he certainly appreciates and respects the benefits of a diverse workforce,” says Justice Department spokeswoman Tasia Scolinos. But in examining the leadership of the federal government’s law enforcement arm, it’s the low number of African-Americans in top politically appointed positions that stands out. THE ASHCROFT BOUNCE That hasn’t always been the case. Former Attorney General John Ashcroft faced fierce opposition from civil rights groups when he was nominated to the job in 2001. But one of Ashcroft’s first acts was to push for the nomination of Larry Thompson, a black lawyer from Atlanta, to become the department’s No. 2. Ashcroft also tapped James, then at Jones Day in Washington, to become head of the Antitrust Division and Ralph Boyd Jr., an African-American from Boston, as the DOJ’s civil rights chief. Fred McClure, a conservative African-American lobbyist who helped shepherd Ashcroft’s nomination, predicted the appointments were a sign of things to come. “This is the next generation of Republican leadership,” he told Legal Times back in 2001. If so, it was short-lived. All three have since left government for high-paying jobs with large corporations. James went to Chevron, Boyd went back to private practice before taking a top post at Freddie Mac, and Thompson, who was rumored to be a candidate to replace Ashcroft as attorney general and later floated as a potential Supreme Court nominee, took a high-paying job as PepsiCo’s general counsel in 2004. Today, McClure says the drop in the number of blacks in senior DOJ posts may be merely part of a cycle, one that’s played out at other agencies as well. “Early on, I think the presidential personnel office made a concerted effort to be extremely diverse,” he says. Indeed, in the first year of the Bush administration, the White House named six African-Americans to either the No. 1 or No. 2 positions in the 14 executive departments: Colin Powell as secretary of state, Roderick Paige as secretary of education, Claude Allen as the No. 2 at the Department of Health and Human Services, Alphonso Jackson as the deputy secretary of Housing and Urban Development, and Leo Mackay Jr. as the deputy at Veterans Affairs. But that figure, like the number of black senior officials at the DOJ, dropped in later years. Today there are just two African-Americans holding the rank of secretary or deputy secretary in the federal government’s 15 departments (the Department of Homeland Security was created in late 2002). Many of the administration’s political opponents, of course, have always doubted its long-term commitment to naming African-Americans to senior positions. “Obviously, this administration does not appear to have made that a priority,” says Loretta Argrett, an African-American who headed the DOJ’s Tax Division during the Clinton administration and who reported to another African-American, former Deputy Attorney General Eric Holder Jr. WANING INFLUENCE Other factors may well have played a role. Foremost is the high demand for African-American lawyers with high-level government experience. “These folks are very much in demand,” says Reginald Brown, a partner at WilmerHale who worked in the White House Counsel’s Office until last year. “The DOJ has to compete with the private sector for talent.” Additionally, if being a political supporter of President George W. Bush is a prerequisite for a high-level job, the pool of African-Americans is small: Exit polls showed Bush winning just 8 percent of the black vote in 2000 and 11 percent in 2004. And minority rights groups have been heavily critical of how the DOJ has enforced federal civil rights laws. “You can’t separate the political party affiliation and demographic trends,” says McClure. “You have to measure diversity from the pool from which you’re going to pull.” The low numbers of blacks in senior DOJ positions may also be a reflection of the low number of African-Americans in America’s largest law firms, from which many politically appointed Justice officials are drawn. “If you look at the upper echelon of the legal profession . . . you don’t see a massive amount of diversity there, either,” says James. Indeed, the nation’s largest law firms still have miserable diversity records. Just 3.4 percent of all lawyers at major law firms are black, and a smaller percentage are partners, according to a survey of 240 firms published this year by Minority Law Journal, a publication owned by Legal Times‘ parent company. But James says he and other black leaders at the department during Bush’s first term could have done more to groom African-American deputies to replace them in the DOJ’s top jobs after they left. “That is the group of people who succeeds to these positions,” James says. NOT LOOKING HARD ENOUGH Others disagree that the pool of African-Americans who are both qualified and interested in running the federal government’s law enforcement and legal arm is so small. “There are a lot of black lawyers around who have more than enough credentials,” says David Bositis, a senior analyst at the Joint Center for Political and Economic Studies, a liberal Washington think tank that researches African-American issues. Roscoe Howard Jr., who attributes his previous work experience with Thompson as a key to his nomination as U.S. attorney for the District of Columbia in 2001 (Howard stepped down in 2004), says a little more effort might also yield better results. “Sometimes it’s just a matter of looking a little harder,” he says. “The folks who I get an impression are getting named to U.S. attorney jobs are guys who were in front of the administration.” That, at least, was the case with the two white men who have succeeded Howard as the top law enforcement official in a majority-black city, Kenneth Wainstein and Jeffrey Taylor. Both had significant experience as prosecutors before being named U.S. attorney, but both had also worked inside Justice Department headquarters and were well-connected to its top officials. “It’s not as if you don’t have black lawyers out there,” says Howard, who was not a registered Republican when picked to head the nation’s largest U.S. Attorney’s Office in 2001. “The question is whether you have somebody you feel comfortable with. The one place you can find black lawyers is Washington, D.C. It’s not as if there aren’t top people who don’t want these jobs.”
Jason McLure can be contacted at [email protected].

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