Recipient: President Bush
The Honorable George W. Bush
President of the United States of America
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Mr. President:
During your 2000 campaign for president, you spoke often of being a “uniter, not a divider.” In light of the recent events involving Senator Trent Lott (R-MS), and his statements in support of the racist policies of the past — which you rightly criticized — we hope that you will take this opportunity to demonstrate to all Americans the meaning of your commitment to inclusion, fairness, and equal opportunity. There are a number of issues facing your Administration that are real opportunities for you to further equal justice in America.
University of Michigan Affirmative Action Cases
Earlier this month, the U.S. Supreme Court announced that it would review two cases challenging the affirmative action programs at the University of Michigan: one, Grutter v. Bollinger, involving the law school and the other, Gratz v. Bollinger, the University’s undergraduate program. Both cases raise the critical issue of whether and under what circumstances public universities can use race as one factor among many in admissions.
In 1978, the Supreme Court, in University of California v. Bakke, established that campus diversity can be a compelling governmental interest that permits the use of race as a factor in a narrowly tailored university admissions program. However, several recent decisions by lower federal courts — notably the Fifth Circuit’s 1996 decision in Hopwood v. University of Texas Law School — have encouraged some to question the continued validity of the Bakke decision. In upholding the Michigan Law School admissions program, the Sixth Circuit majority noted that they were “satisfied that the school’s admissions policy sets appropriate limits on the competitive consideration of race and ethnicity.” In its decision, the court clearly affirmed that diversity is a compelling interest that permits the narrowly tailored use of race as a factor in admissions. The college admissions program at issue in Gratz was upheld by the federal district court and is currently pending before the Sixth Circuit. Nevertheless, in an unusual move, the Supreme Court also granted certiorari in this case, bypassing Sixth Circuit review.
We strongly urge the Administration to file a brief with the Supreme Court defending the Michigan affirmative action programs and supporting the notion that “diversity” can be a compelling state interest that justifies the narrowly tailored use of race in university admissions. For most of our nation’s history, women and people of color faced insurmountable legal barriers depriving them the ability to compete for positions in colleges and workplaces or for government contracts. Even after these legal obstacles were removed, beginning in the 1960s, Congress has repeatedly recognized that women and people of color continue to encounter systematic illegal discrimination that deprives them an equal opportunity to secure success. With these challenges still with us, it is important for our elected government to reaffirm that affirmative action remains a useful tool to help achieve equality of opportunity and to enrich the educational experience at higher educational institutions across the country.
We believe that the composition of the federal judiciary is a civil rights issue of profound importance to all Americans. Because the individuals charged with dispensing justice in our society have a direct impact on civil rights protections for all, the federal judiciary must be perceived by the public as an instrument of justice, and the individuals who are selected for this branch of government must be the embodiment of fairness and impartiality. As such, we are very concerned that many individuals who you have nominated to serve on the federal bench have records of deep hostility to core civil rights principles and to Congress’s historic role in protecting the civil rights of all Americans. Examples include:
- Charles Pickering, who was nominated to the U.S. Court of Appeals for the Fifth Circuit, has a shocking public record of intolerance and hostility towards civil rights, including during his ten years as a federal district judge in Mississippi. For example, in one recent case, Judge Pickering tried to pressure the U.S. Justice Department to reduce a charge against a convicted cross-burner to avoid having the defendant serve a mandatory minimum sentence of five years in prison.
- Priscilla Owen, also nominated to the Fifth Circuit, effectively tried to rewrite a key Texas civil rights law to make it much more difficult for employees to prove a violation of their rights. Her dissent would have required employees to prove that discrimination was the sole determining reason for a firing or other action in cases in which it is alleged that the employer has advanced some other reason for the action as a pretext for discrimination, even though the statute clearly states that discrimination must simply be a motivating factor.
- Carolyn Kuhl, a nominee to the Ninth Circuit, was one of two Justice Department officials who persuaded the Attorney General to reverse the IRS’s eleven-year policy against providing government tax breaks to entities that engage in racial discrimination and reinstate the tax-exempt status of Bob Jones University, which at the time banned interracial dating by its students. In a nearly unanimous decision, the Supreme Court held that a school with racially discriminatory policies should not be eligible for federal tax breaks, regardless of the school’s religious teachings.
- Terrence Boyle, a former Jesse Helms staffer who was nominated to the Fourth Circuit last year, has been criticized by many civil rights groups for his conservative judicial activism in civil rights cases. As a district court judge, Boyle twice invalidated a congressional district in North Carolina, finding that it was a racial gerrymander. The Supreme Court reversed both of Boyle’s decisions (including in a unanimous opinion authored by Justice Thomas) ultimately concluding that the district’s lines were predominantly motivated by politics, not race.
- Jeffrey Sutton, nominated last year to the U.S. Court of Appeals for the Sixth Circuit, has been a leader in the effort to limit congressional power to enact laws protecting civil rights. Sutton has prevailed in a series of 5-4 cases before the Supreme Court that have curtailed civil rights, including: City of Boerne v. Flores (striking down the Religious Freedom Restoration Act); Garrett v. Alabama (finding that states are immune from damages actions under the Americans with Disabilities Act); Sandoval v. Alabama (holding that there is no private right of action under Title VI of the 1964 Civil Rights Act’s disparate impact regulations); and United States v. Morrison (holding that the civil remedy provisions of the Violence Against Women Act was beyond Congress’s power to enact). Even more troubling, Sutton has strongly advocated going far beyond the Court’s 5-4 majority in restricting Congress’s power to protect civil rights.
Federal judges wield enormous power to shape the legal framework that supports our nation’s civil rights laws. In the last two years, we have been bitterly disappointed that so many of this Administration’s nominees to the federal bench have records that are deeply hostile to our nation’s core civil rights principles. In addition, we are very concerned that some nominees with limited public records, such as Miguel Estrada, have refused to discuss with the Senate Judiciary Committee any of their views on a variety of civil rights issues, which makes it impossible to determine whether they possess a commitment to fundamental civil and cons