Article/Column

February 14, 2009

AFRO-American

Toward renewed respect for the Rule of Law

by Congressman Elijah E. Cummings

Senate approval of Eric Holder, Jr., one of America's most well-respected lawyers, to be Attorney General of the United States has been applauded by civil rights organizations and career Justice Department attorneys alike.

They understand - as do I - that only a leader of Attorney General Holder's competence and stature can rescue the Department from the moral swamp in which it has become mired.

I have known and admired Eric Holder for more than a decade.  As a former U.S. Attorney, Judge and Deputy Attorney General, his reputation for intelligence, independence and legal skill is well-deserved.  If anyone can lead the Justice Department back toward competence and respect for the Rule of Law, Eric Holder is that man.

No one, however, could reasonably expect him to accomplish this transformation by himself.  Even with President Obama's full support for reform, the Justice Department's trek toward firm legal ground will be both hard and long.

In part, this is because our new Attorney General must concentrate (at least initially) on unresolved legal issues that have global consequences abroad and serious constitutional implications here at home.

He has been expressly charged by President Obama with determining what we lawfully can do with the prisoners at Guantánamo Bay (so that the President can close that controversial facility within his promised deadline of one year).

Also unresolved is the constitutionality of the Ali al-Marri detention on suspicion of terrorism but without criminal charges or a trial - and whether detainees now held in Afghanistan have habeas corpus rights that they can raise in our federal courts.

Closer to home, Attorney General Holder must give the President better legal advice than the Bush Administration received on "national security" issues like the legality of domestic wiretapping, broader reform of the USA Patriot Act, and the legal and moral alternatives to torture.

Intellectual honesty requires that we acknowledge that the precise legal boundaries that must guide us on many of these issues may not be fully revealed for years to come.

Meanwhile, however, the first African American President and Attorney General must begin to fundamentally reform a Justice Department that has been receiving failing grades on critical issues of civil rights.

Like Eric Holder, President Obama is a lawyer with a strong record of civil rights advocacy.  As a community organizer, he helped 150,000 African Americans register to vote; and as a civil rights lawyer, he successfully litigated both employment discrimination and voting rights cases.

That is one of the reasons I was so proud to support the first legislation that Barack Obama signed into law - the Lilly Ledbetter Fair Pay Act that strengthens the ability of women and minorities to challenge discriminatory pay practices.

Yet, as important as issues like "pay equity" continue to be, no one can reasonably assert that assuring equal pay is the only unresolved civil rights issue of our time.

The social changes that have given us our first African American President and Attorney General reflect progress that is both substantive and lasting.  This reality, however, does not mean that America's long journey toward becoming a truly fair and inclusive society is at an end.

Indeed, during the Bush years, our progress along the road to equal justice and opportunity was largely diverted into that moral and intellectual swamp to which I already have referred.  Now, it is up to our new President, Attorney General and all Americans to get us back on course.

On some of the unresolved civil rights issues of our time, legislation will be required if we are to regain our moral and legal footing.  The Congress quite properly should take the lead in reforming our existing laws to end sentencing disparities and racial profiling and perfect our response to "hate crimes."

In other civil rights areas, however, fundamental change in enforcement by the Justice Department will be essential.  More vigorous enforcement of the 1964 Civil Rights Act and the 1965 Voting Rights Act are cases in point.

In many areas of our nation, strong litigation efforts by the Justice Department's Civil Rights Division are absolutely critical to protecting African American's voting strength under Section 2 of the Voting Rights Act.

Yet, despite all of the African American voting issues that have been raised since the 2000 presidential election, the Civil Rights Division's Internet site lists only five cases that the Division filed to protect Black voters between 2001 and 2008.

Likewise, during the current economic crisis when the practice of "last hired, first fired" all too often disproportionately harms Black workers, the record of the Civil Rights Division's Employment Litigation Section demands immediate reform.

On its Internet site, the Employment Section claims to have filed only 16 cases nationwide during the last four years based upon allegations of racial discrimination.  I should also note that this pathetic record includes "reverse discrimination" cases initiated by petitioners who are White.

In light of the scandals coming into public view that charge unlawful, ideological hiring decisions within the Bush Administration's Justice Department, the reasons for the Civil Rights Division's near-abdication of its legal duty to protect our votes and our jobs can be understood.

That failure, however, can no longer be tolerated - whatever the Justice Department's other pressing priorities may be.

I am confident that President Obama and Attorney General Holder will act promptly to restore the competence and the respect for the Rule of Law that American justice demands by asking the most qualified attorneys in America to enter public service on the side of civil rights.  I also am hopeful that the Congress will provide the additional funding needed to support that initiative.

In Washington, our places of employment and our voting booths, all Americans have important parts to play in the defense of civil rights.  It is time to restore the pursuit of justice to the federal law enforcement department that bears this name.

- The Honorable Elijah E. Cummings represents the 7th Congressional District of Maryland in the United States House of Representatives.