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The White House filled several critical jobs at the Justice Department last week, but it was really just taking a breather between rounds of a heavyweight fight. Still looming for President George W. Bush is a battle over what promises to be a controversial nomination: his choice to head the Justice Department’s Civil Rights Division. But that choice hasn’t come quickly or easily. “I think it’s the single most challenging job to fill in the administration,” says Charles Cooper, a partner with Washington, D.C.’s Cooper, Carvin & Rosenthal who has advised the Bush transition team. And the same liberal civil rights groups that made the month of January miserable for Attorney General John Ashcroft are poised to do the same for an objectionable civil rights nominee. “Many in the civil rights community would be forced to do that by an extreme selection,” says Elliot Mincberg, litigation director of People for the American Way. That may be why people aren’t lining up in droves for the job. Identifying potential candidates for the vacant civil rights position hasn’t grown far beyond the speculative. And the Bush White House has become notoriously stingy about releasing prospects to the public. Still, there are names out there — although apparently no takers. One early candidate was said to be Brian Jones, a San Francisco lawyer and former counsel to Sen. Orrin Hatch, R-Utah, the chairman of the Senate Judiciary Committee. Jones says he doesn’t want the job. “I’ve tried to make it clear that I’m not interested,” he says. Jones won’t comment, however, on whether he had been interviewed or offered the job. Another name was Stephen Smith, a law professor at the University of Virginia and former clerk to Justice Clarence Thomas. But Smith says he has not been contacted by administration officials. “I’m just a lowly academic,” he says. A third is Peter Kirsanow, a labor and employment partner with Cleveland’s Benesch, Friedlander, Coplan & Aronoff and a counsel to then-Ohio Gov. (now Sen.) George Voinovich. Kirsanow is believed to have interviewed for the job. He did not return calls for comment. Jones, Smith, and Kirsanow are African-American. Two other candidates who were thought to be on the radar screen, law professors Gail Heriot at the University of San Diego and John Yoo of the University of California at Berkeley, say they have not been contacted about the job. Heriot, who has fought against affirmative action in California, says Ashcroft has her r�sum�. But, she says, no one has called to ask her to interview. Yoo raised his public profile during the Florida election dispute last November, when he suggested that the Florida Legislature could ignore the ruling of the Florida Supreme Court and elect a slate of pro-Bush electors. But Yoo says he isn’t interested. “It’s a hard job for any conservative administration to fill,” he says. “A lot of liberal groups are going to be scrutinizing everything — and not in a friendly way.” SITTING DUCKS It’s a position that virtually promises pitfalls for whoever ends up taking it. Two of President Bill Clinton’s nominees for the job, Yale Law School professor Lani Guinier and former NAACP Legal Defense and Education Fund lawyer Bill Lann Lee, were never confirmed by the Senate. And even President George H.W. Bush’s first nominee for the job, William Lucas, was done in by Congress in 1989. “It’s a problematic position to fill,” says a Democratic staffer on the Senate Judiciary Committee, which would review any nominee. “It’s not surprising that they would take some time to see how they are going to play it.” Lee ran the Civil Rights Division on an acting basis for two years. During his tenure, he annoyed Republicans for what they saw as his refusal to abide by Supreme Court rulings against racial preferences in government contracts and what they viewed as an expansive interpretation of civil rights laws. The division under Lee was active right until the end. It filed a flurry of discrimination suits in the final weeks of the Clinton administration, including suing Norwegian Cruise Lines for allegedly discriminating against blind passengers. With Lee now departed, the 323-lawyer division is being overseen by a career civil rights lawyer, William Yeomans. Yeomans is a former chief of staff to Lee and a department veteran. He represented the department before a United Nations panel on international torture last year. Ashcroft, who in his initial press conference last week pledged to make enforcement of civil rights laws a cornerstone of his tenure, met with senior civil rights lawyers in the division for the first time on Feb. 16. While Ashcroft has paid lip service to prioritizing civil rights, he has yet to outline a specific approach — other than to speak out against racial profiling by law enforcement organizations. RIPE FOR REVIEW There has been some speculation that, not wanting to embroil the president’s fledgling tenure in another confirmation fight, the White House will delay naming anyone to the civil rights post and instead will let Yeomans stay on the job for the time being. “I’ve heard talk among some conservatives of the possibility of leaving the job open to avoid some of the conflict that would otherwise occur,” Mincberg says. Administration sources maintain that the intent is to fill the post as soon as possible. And conservative civil rights advocates say it’s dangerous to leave the job open for an extended period. Several pending cases, they say, need the administration’s imprint. “There are costs to the action of not putting someone in place,” says Roger Clegg, general counsel for the Center for Equal Opportunity, a conservative civil rights think tank in Washington. “It’s possible to make policy from the attorney general’s office, but that’s logistically and politically difficult.” (Clegg is a columnist for Legal Times.) For example, the 4th U.S. Circuit Court of Appeals is poised to rehear arguments in the long-running Charlotte, N.C., school desegregation case. The Justice Department has filed an amicus brief, objecting to the court-ordered end of the desegregation plan. “In an ideal world,” Clegg says, “the division would reconsider that brief.” Also, right before Bush’s inauguration, the Reno Justice Department filed a brief in the U.S. Supreme Court supporting controversial racial set-asides for government programs. That position could be revisited by Ashcroft’s department — although the Supreme Court frowns on policy flip-flops by the government. In a similar vein, the department must decide whether to back an appeal of a decision last month by the D.C. Circuit that struck down minority preference rules at the Federal Communications Commission. Moreover, as highlighted by the tumult in Florida in the wake of the presidential election, cases involving voting rights are on the front burner. The Justice Department is actively investigating allegations of election improprieties involving minority voters in Florida. And as a result of the 2000 census, congressional districts will be redrawn — a process that the Civil Rights Division has previously monitored to ensure that minority voters are proportionately represented. “My strong advice to the transition team is that they get on top of that issue right away,” says Clint Bolick, legal director for the conservative Institute for Justice, “lest the Voting Rights Section act on its own initiative.” One area that could see a shift in strategy involves DOJ’s role in investigating alleged abuses by police departments. The Reno Justice Department brought civil rights suits against police forces in cities like Los Angeles, Pittsburgh, and Columbus, Ohio. In Los Angeles and Pittsburgh, the cities quickly entered into consent decrees. The Columbus case is being litigated in federal court. Two weeks ago, during his first week on the job, Ashcroft met with representatives of the national Fraternal Order of Police, which has opposed use of the decrees. “The Clinton administration saw fit to remedy real or perceived problems by imposing these consent decrees,” says Jim Pasco, the FOP’s legislative director. “They blackmailed these cities using the deep pockets of DOJ as a threat.” Pasco says that Ashcroft didn’t address the consent decree issue during the meeting, but instead talked “about the kind of a tone he was going to set” at the department. Still, Pasco says, “our experience with the Bush administration is very encouraging and refreshing.” Liberal groups will also be watching the division to see if it continues to use its discretion in intervening in private civil rights actions. In 1999, for example, the division filed a brief in support of the civil rights claim of Bradley Putman, a Kentucky high school student who claimed he was discriminated against because he was gay. The Justice Department entered the case despite the fact that sexual orientation is not covered by the civil rights laws. “We have a concern,” says Ruth Harlow, legal director of the Lambda Legal Defense Fund. “A chipping away at any of these protections sends the wrong message to all kinds of discriminators.”

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