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The report on the NBPP case

The report of the Commission on Civil Rights on the New Black Panther Party case is out. John took a look at the report in this post. Jennifer Rubin took a look at the report this post. So far as I can tell via Google News, the report has generated no coverage among the mainstream media. Yet attention should be paid.
It’s styled an “interim report,” but it is likely to be the final report. The terms of two of the conservative commissioners have now expired, and Obama has replaced them with appointees who will no doubt be more to his liking. The newly-reconstituted Commission is likely to drop the matter.
That’s too bad. The Department of Justice has been uncooperative with the Commission’s investigation from the start, and it continues to withhold relevant evidence. Access to that information would have made for a better report. Despite that limitation, however, the interim report is really quite devastating.
Some of the 210-page document is familiar to those who watched the Fox News coverage of the investigation. But it does more than just recount the facts of the New Black Panther Party case itself. It summarizes and analyzes the testimony of the two whistle-blowing Civil Rights Division attorneys — Christopher Coates and Christian Adams — that the Civil Rights Division is so openly hostile to the race-neutral enforcement of the law that some staff members flatly refuse to work on voter intimidation cases brought against black defendants.
Of particular note are the formal statements by remaining conservative commissioners — Todd Gaziano, Gail Heriot, and Peter Kirsanow. These three knock down many of the arguments advanced by the Pelosi- and Reid-appointees to the Commission and try to put the New Black Panther Party case in perspective. In the end, they provide strong evidence that the accusations of Coates and Adams are true: The Civil Rights Division’s Voting Section is nest of far-left lawyers who view the ideal of color-blind justice as naïve and contemptible. Their abandonment of the New Black Panther Party case is just one among many manifestations of this attitude.
The Democrats on the Commission argue that it is simply unbelievable that Obama appointees would be motivated by the race of the defendants in deciding the fate of the New Black Panther Party case. They respond to the allegations that Deputy Assistant Attorney General Julie Fernandes specifically instructed Voting Section attorneys that the Obama Administration had no interest in approving voter intimidation lawsuits against minority defendants similarly: They insist that the allegations could not possibly be true.
But they agree (at least publicly) that, if true, the allegations are serious. As Pelosi-appointee Michael Yaki put it when members of the press were present, “[L]et me just say this for the record. If someone made that statement within the Department of Justice, that person should be fired. That person should be tossed out on their ear in two seconds flat.”
But after reading the report, it is hard to believe that the allegations against Fernandes are not true — especially given that the Department of Justice has conspicuously failed to deny them. During the Bush Administration, the Civil Rights Division filed its first ever voter intimidation lawsuit against a black defendant — United States v. Brown — in which Noxubee County, Mississippi Democratic boss Ike Brown and his political machine were accused of massive voter intimidation and fraud in that majority-black county.
Coates testified that the case was intensely controversial within the Division. At the time, Fernandes was employed by the Leadership Conference on Civil Rights. As Heriot, a law professor at the University of San Diego, points out in her statement, Fernandes “took a keen interest in [the Brown case].”
In a contemporaneous blog post, Fernandes was quoted as follows: “‘People are wondering why aren’t you bring[ing] cases with voting and African-Americans — what is the issue,’ said Julie Fernandes of the Leadership Conference on Civil Rights. ‘How can it be that the biggest case involving discrimination in Mississippi [United States v. Ike Brown and Noxubee County] was brought on behalf of white voters … The law was written to protect black people.’”
Heriot writes: “It is unclear what caused her to conclude that the events in Noxubee could not possibly have been the most significant case of voter intimidation in Mississippi at the time. The level of wrongdoing proven in Brown was unusually high. It is difficult to avoid the conclusion that her view was driven by bias. As she put it herself, ‘The law was written to protect black people.’ To Fernandes this seems to have meant that the rights of blacks merit more energetic protection than the rights of non-blacks.”
According to the report, Fernandes’s superior at the Leadership Conference on Civil Rights, President Wade Henderson, was also sharply critical of the Brown case. He testified before the House Judiciary Committee on March 22, 2007:

“Recently, the [Bush Administration] Civil Rights Division has come under intense scrutiny from civil rights organizations and community leaders regarding cases that have been filed that appear to extend beyond the Division’s historical mandate. Perhaps the most scrutinized of these cases was the Voting Section’s recent litigation on behalf of white voters in Noxubee, Mississippi. This case recently went to trial and a decision in pending. However, the Division must deal with and respond to growing distrust among minority communities who feel increasingly abandoned and marginalized by the Division’s litigation choices and priorities.”

Heriot observes: “This is not the statement one would expect from a lawyer who believes that Section 2 and Section 11(b) should be applied in a race-neutral manner.” “Instead,” she writes, “Henderson has made it clear that he believes that by bringing an action to protect white voters, the Division has ‘gone beyond [its] historical mandate’ and somehow ‘abandoned and marginalized’ minorities.”
Heriot cites several other civil rights organizations and several present and former Civil Rights Division attorneys complaining bitterly about the filing of the Brown case without pointing to a single case against white defendants that should have been brought instead. Under the circumstances, it hardly seems strange that Fernandes would attempt to put a stop to cases against black defendants once she became Deputy Assistant Attorney General.
The Commission may be ready to drop this matter after this interim report, but the new Congress is not. Rep. Lamar Smith (R-TX), the new chair of the House Judiciary Committee, seems to be prepared to take up the torch the Commission has dropped. Oversight hearings for the Civil Rights Division are almost certain to become interesting in the coming months. Despite the best efforts of the Obama administration, we may not yet have heard the end of the story.

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