Mukasey Sign-on Letter by LCCR

Recipient: Senate Judiciary Committee

The Honorable Patrick J. Leahy
Chairman
Committee on the Judiciary
United States Senate
Washington, D.C. 20510

The Honorable Arlen Specter
Ranking Member
Committee on the Judiciary
United States Senate
Washington, D.C. 20510

Dear Chairman Leahy and Ranking Member Specter:

On behalf of the undersigned organizations, we write to you regarding the nomination of Judge Michael B. Mukasey to the office of Attorney General of the United States. This is one of the most important offices that a President can fill because the Attorney General is the nation’s chief law enforcement official, with unique responsibility for enforcing laws that protect the civil and human rights of all Americans and for ensuring that the United States government respects human rights in its conduct around the world. Given the office’s weighty duties and the grave concerns over the faithfulness, diligence and independence with which the previous Attorney General performed them, we urge that the Senate take great care as it performs its constitutional duty to review the nomination of Judge Mukasey.

The Department of Justice (DOJ), under the leadership of the Attorney General, represents the legal interests of the American people and is charged with carrying out its duties with integrity and fidelity to our nation’s laws and constitutional values. The DOJ gives effect to our laws and international obligations by initiating litigation, establishes and presents the government’s positions in significant ongoing litigation, and  advises the President and local governments on the legality of their policies. Over the past several years, however, public confidence in the DOJ’s commitment to fulfill its duties effectively and independently has eroded, reaching a critical low point. Priorities that are mandated by law and that command broad public support have been neglected and subordinated to an agenda driven by political considerations, while Administration decisions that should be made with the advice of a neutral and independent Attorney General have been ratified by political loyalists in the DOJ.

Judge Mukasey must be evaluated on the basis of his record, including whether he has demonstrated a strong commitment to the protection of civil and human rights. Moreover, careful questioning regarding the direction in which Judge Mukasey will take the DOJ is especially important at this time. We believe that the following areas represent issues of particular concern for the civil and human rights communities.

Voting Rights

The DOJ’s recent record with regard to the protection of voting rights vividly illustrates the impact that neglect for civil rights and politicization have had on some of its most important civil rights work. Because, as the Supreme Court has said, the right to vote is “preservative of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and determines who our elected representatives will be, it is especially critical that the protection of voting rights be vigorous and free from political influence. Yet the DOJ has repeatedly exercised its authority to encourage or permit states to limit, rather than expand, the voting franchise, often to the detriment of poor and minority voters, and in a manner that appears to favor certain political interests over others.

For example, in 2005, the DOJ approved a strict Georgia voter identification law that would disproportionately impact minorities, older Americans and other frequently disenfranchised groups who are far less likely to carry photo identification, despite the absence of a proven justification for the law. The DOJ supported a Michigan effort to reject provisional ballots cast at the wrong precinct. Under this Administration, the DOJ has filed barely any voting rights cases on behalf of African Americans and no cases on behalf of Native Americans. In fact, in 2004, political appointees at the DOJ blocked the investigation of serious allegations of voter discrimination against Native Americans in Minnesota. The DOJ has rubber stamped inadequate poll access measures for persons with disabilities, and failed to enforce the voter access provisions of the National Voter Registration Act (the “Motor Voter” bill). At the same time, the DOJ has urged states to engage in broad purges of voting lists, which has resulted in the disfranchisement of countless numbers of eligible voters.

It is particularly important that Judge Mukasey assure the Senate and the American people that, with a presidential election approaching, he will take steps to promote access to the polls for all eligible voters, challenge discriminatory barriers to the franchise, and ensure that voting rights are enforced in an evenhanded way, without regard to political interests.

Executive Power, Torture, and the Rule of Law

As the nation’s chief law enforcement officer, the Attorney General is responsible for ensuring that the President operates within the bounds of the law. A rescinded – but not yet repudiated – 2002 DOJ legal memorandum abdicates this responsibility, telling the President that as commander-in-chief he is not bound by the laws of the land prohibiting torture. A similar assertion of commander-in-chief authority to ignore the law was used to justify warrantless surveillance of people in the United States in the name of national security. It is essential that any nominee to serve as Attorney General confirm to the Committee the very basic principle that protects against tyranny – that even the President remains bound by the law.

Recent revelations indicate that the DOJ may have taken great pains to circumvent laws prohibiting torture and cruel treatment by writing legal opinions giving the CIA free rein to carry out abusive interrogations even as Congress, under Senator McCain’s leadership, was passing legislation prohibiting cruel, inhuman, and degrading treatment. As the Judge Advocates General of the Army, Navy, Air Force and Marines have since told the Congress, some of these techniques – such as water boarding, binding in painful positions, and use of dogs – violate U.S. and international law. The Committee should seek Judge Mukasey’s commitment to reject his predecessor’s convoluted interpretations of the laws prohibiting torture and cruel treatment. He should also affirm that he would not authorize any interrogation techniques that the United States would not want inflicted on an American – the “golden rule” that has served our military so well for so long.

Warrantless secret surveillance jeopardizes the privacy rights of people in the United States in their phone calls and emails to family and friends overseas. It is important for the Committee to seek Judge Mukasey’s commitment to independent judicial oversight to protect the individual rights of people in this country to the privacy of their international communications.

Under past leadership, the DOJ has also provided guidance that would allow the President to unilaterally declare any one of the 11.6 million legal permanent residents in this country an “enemy combatant,” lock him up in a military brig, and forever deny him access to court to review the grounds for his detention. The Committee should seek Judge Mukasey’s support for restoring the basic checks and balances that define the American system of government.

Employment Discrimination

In the Employment Section of the Civil Rights Division, the number of discrimination cases brought under Title VII of the Civil Rights Act of 1964 – one of the most important federal employment discrimination laws – has plummeted in this Administration. The decline is most noticeable in areas that historically have provided the highest percentage of charges. Cases alleging a pattern or practice of job discrimination against African Americans and women have dropped precipitously, and the DOJ has yet to file one Title VII case alleging job discrimination against a Latino individual. The DOJ also has filed fewer disparate impact cases, even though such cases can be a powerfully effective tool to combat systemic discriminatory employment practices. This apparent de-emphasis of certain types of cases is deeply troubling, and creates the perception that political motives – rather than actual discrimination trends – have displaced vigorous enforcement of the law.

Adding to the concerns about its failure to pursue certain employment discrimination cases, the DOJ also has changed legal positions taken in litigation, putting critical rights and protections at risk. In several recent Supreme Court cases, the DOJ has argued for an interpretation of Title VII that would narrow or effectively eliminate the rights of employees, contrary to the expert opinion of the Equal Employment Opportunity Commission (EEOC). Now, with several employment cases pending before the Supreme Court in which the DOJ has or may be taking a position, it is important to ascertain Judge Mukasey’s views on the issues raised therein. The rights of employees are also implicated in cases raising issues of federalism and the scope of congressional authority to fully protect women, persons with disabilities and other state employees under civil rights laws such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), which come before the Supreme Court with some regularity. The DOJ has typically taken positions in support of broad congressional power, but given how dramatically federalism decisions threaten to limit federal civil rights laws, it is important that Judge Mukasey state his position on federalism issues.

Finally, it is critical that Judge Mukasey assure the Committee of his commitment to vigorous enforcement of the employment rights of all Americans in light of certain employment discrimination cases he decided as a federal district court judge. For example, in one particularly troubling case, Sorlucco v. NYPD, 703 F. Supp. 1092 (S.D.N.Y. 1989); 780 F. Supp. 202 (S.D.N.Y. 1992), he overturned a jury verdict in favor of a female police officer who brought discrimination claims against the New York Police Department for taking a series of punitive actions against her, culminating in termination, after she reported being raped by a fellow officer.

Fair Housing

In addition to an unexplained decline in overall cases brought, the Civil Rights Division’s Housing and Civil Enforcement Section announced it would no longer pursue disparate impact housing cases, even though facially neutral housing policies can negatively affect women, minorities, and people with disabilities. The anemic performance of the DOJ on housing discrimination stands in sharp contrast to the data and common perceptions in the relevant communities indicating that housing discrimination continues to be a major barrier to neighborhood integration. Moreover, despite the recent focus on subprime lending abuses, including the steering of minority applicants to subprime loans, the DOJ has filed few fair lending cases in the recent years. The Attorney General will be in a position to help reverse these disturbing trends.

Women’s Health, Privacy, and Violence Issues

The DOJ bears a critical role in enforcing and protecting women’s basic rights affecting their health, privacy and safety through the positions it takes in key constitutional and statutory interpretation cases, and in many other ways. For example, it is responsible for enforcing the Freedom of Access to Clinic Entrances (FACE) Act, which is key in protecting women’s access to reproductive health care. In addition, serious questions have arisen concerning the DOJ’s commitment to protecting the privacy of women’s medical records. Under the current Administration, the DOJ attempted to obtain women’s private medical records through the civil discovery process, raising serious questions about the DOJ’s sensitivity to women’s privacy rights.

The DOJ also supports local prosecution and sometimes directly prosecutes crimes under the Violence Against Women Act (VAWA), and it is responsible, via the Office on Violence Against Women, for administering millions of dollars of funding for local law enforcement, courts, and advocates. The Attorney General’s independence, enforcement and support on all of these issues is especially critical since newly issued policies designed to undermine women’s health and safety have been repeatedly used to score political points in recent years.

Immigration

The DOJ under this Administration has also failed to meaningfully address – and in fact has aggravated – a crisis in our immigration tribunals. Immigration judges are badly overworked and their decisions in deportation cases have been characterized by arbitrariness, while their treatment of parties, including asylum-seekers, has sometimes verged on abusive. This problem has been compounded by the DOJ’s  appointment of political loyalists, rather than experts in immigration law, to immigration judge posts. Despite the questions regarding the quality of immigration judge decisions, the DOJ has also limited the appellate review of their decisions by the Board of Immigration Appeals. Considering the devastating consequences of immigration decisions – including separating families and deporting individuals into countries where they potentially face serious danger – solutions for fixing this badly broken system are needed from a new Attorney General.

Native American Rights

The DOJ carries primary responsibility for investigation and prosecution of crimes on reservations, and so Native Americans depend on the Attorney General to allocate sufficient resources within the DOJ to fight crime in their communities. The DOJ under the current Administration has shown a lack of commitment to address this issue, and crime rates in Native American communities have disproportionately risen in recent years.

Hate Crimes and Racial Profiling

The DOJ is also responsible for prosecuting hate crimes and racial profiling cases. While these continue to be areas of significant concern for minority communities, particularly in the aftermath of 9/11, there are questions as to whether the DOJ has devoted sufficient resources to them.

Disability Rights

The DOJ ensures that persons with disabilities are not unnecessarily segregated in institutional facilities, including hospitals, nursing homes, correctional facilities, and other institutions, and assists in protecting the employment and voting rights of disabled people. Unfortunately, the DOJ’s present commitment to integrating people with disabilities into community settings, along with giving them fair treatment at work and access to the polls, is in serious doubt.

Hiring and Promotion Decisions

Lastly, the use of ideological and political litmus tests for hiring and promoting career attorneys throughout the DOJ, at the expense of talent and expertise, has significantly contributed to the deterioration of the DOJ’s credibility and its ability to effectively enforce our civil rights laws. The new Attorney General must reexamine hiring practices to ensure that talented persons who understand and are committed to the laws  They will enforce are hired and promoted within the DOJ.

Nowhere is the Senate’s “advise and consent” role in the review of a presidential cabinet appointment more important than in the case of Attorney General. We strongly urge that you engage in a searching and thorough review of both Judge Mukasey’s views and his future plans for the Justice Department. We also ask that the Senate Committee on the Judiciary ensure that the hearings on Judge Mukasey’s nomination are full and fair, and include the voices of individuals who will look to the next Attorney General to protect their rights.

Thank you for your consideration. If you have any questions, please feel free to contact LCCR Vice President and Director of Public Policy Nancy Zirkin at (202) 263-2880, or LCCR Counsel and Policy Analyst Paul Edenfield at (202) 263-2852. We look forward to working with you.

Sincerely,

Leadership Conference on Civil Rights
ADA Watch/National Coalition for Disability Rights
AFL-CIO
AFSCME
American-Arab Anti-Discrimination Committee
American Association for Affirmative Action
American Association of People with Disabilities (AAPD)
American Association of University Women
A. Philip Randolph Institute
American Civil Liberties Union
Asian American Justice Center
Center for Reproductive Rights
Demos: A Network of Ideas and Action
Feminist Majority
Global Rights: Partners for Justice
Human Rights Campaign
Human Rights First
Human Rights Watch
The Interfaith Alliance
Judge David L. Bazelon Center for Mental Health Law
Justice and Witness Ministries
United Church of Christ
Lawyers’ Committee for Civil Rights Under Law
Legal Momentum
Mexican American Legal Defense and Educational Fund (MALDEF)
NAACP
NARAL Pro-Choice America
National Abortion Federation
The National Association of Human Rights Workers
National Congress of American Indians
National Council of Jewish Women
National Employment Lawyers Association
National Fair Housing Alliance (NFHA)
National Lawyers Guild
National Partnership for Women & Families
National Women’s Law Center
National Urban League
Open Society Policy Center
People For the American Way
Planned Parenthood Federation of America
Service Employees International Union (SEIU)
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