Why the Acosta nomination is very bad news for conservatives

When the left sinks a Trump appointee, or the appointee sinks himself, the left doesn’t necessarily win. The left wins only if the replacement is more appealing to it than the original guy.

Unfortunately, Alex Acosta, the replacement for Andrew Puzder at the Department of Labor, is vastly more appealing to the left than Puzder was. The Acosta selection represents a win for the left and a defeat for conservatives.

At first blush, this might seem an odd assertion. Acosta was a law clerk for the excellent Justice (then Judge) Alito. He was associated with two great conservative organizations — the Federalist Society and the Ethics and Public Policy Center. He has the endorsement of Sen. Cruz, with whom he attended Harvard law School.

At the same time, though, Acosta has been praised by AFL-CIO president Richard Trumka and by several large unions. Of Acosta’s selection, Trumka gushed, “In one day, we’ve gone from a fast-food CEO who routinely violates labor law to a public servant with experience enforcing it.”

I put more weight in the reaction of the unionists than I do in Acosta’s conservative connections. Their enthusiasm is based on what Acosta did as a member of the National Labor Relations Board in the early 2000s. This seems more relevant than a clerkship years earlier, a friendship formed in law school, and organization memberships.

But the most relevant consideration is Acosta’s record in the Justice Department under President Bush, first as Principal Deputy Assistant Attorney General in the Civil Rights Division and then as Assistant Attorney General for the Civil Rights Division. Sources say his record is not conservative.

They say that during his time at DOJ, Acosta’s priority wasn’t the advancement of the administration’s policy goals. Rather, it was to stay on the good side of left-wing civil rights groups.

Acosta sought to accomplish this primarily by meeting their demands to bring certain kinds of cases and by not bringing cases the left didn’t like. But Acosta’s appeasement of the left seems to have gone further than that. I’m told that in crunch time during the 2004 election, he was more accommodating to the Democrats than to the Republicans on voting issues with the potential to influence the outcome.

Let’s explore these charges.

Acosta was in frequent contact with left-wing civil rights groups. If they complained that DOJ wasn’t bringing enough of a certain kind of case — say, discrimination claims based on disparate impact — his typical response would be to order the bringing of two or three such cases. According to my information, the facts were not important. What mattered was raising the number of the particular category of cases that civil rights activists had expressed interest in.

The Hispanic community had a strong interest in Executive Order 13166. Signed by President Clinton in August 2000, it requires federal agencies to examine the services they provide, identify any need for services to those with limited English proficiency (LEP), and develop and implement a system to provide those service.

Acosta promised Latino organizations that he would issue favorable guidance for complying with the Order. When he encountered opposition in the Justice Department, Acosta said it was too late to oppose what he wanted because the White House had already signed off informally. Thus, the Justice Department signed off.

According to my information, the White House had not signed off. It’s possible that President Bush would have done so even without the Justice Department’s concurrence. But Acosta successfully manipulated the situation to increase the likelihood of White House approval.

Acosta was loath to bringing cases civil rights activists didn’t like. The best example is the voting rights lawsuit against Ike Brown, the notorious African-American political boss of Noxubee County.

Brown’s blatant violations of the Voting Rights Act are set forth in detail by a federal judge in this opinion. But the case that gave rise to the opinion probably wouldn’t have been brought if Acosta had had his way.

I’m told that Acosta did not want to bring the case because he considered it too controversial. He insisted that no action against Brown be brought until after the 2004 election. After the election, he still opposed bringing the case, but was thwarted when Civil Rights Division attorneys went over his head.

The result? A significant victory for DOJ and for voting rights.

Now, let’s turn to the 2004 election. Both sides in that bitter contest were deeply concerned about voting procedures. Republicans worried about voter fraud; Democrats worried about voter suppression.

As the enforcer of the Voting Rights Act, the DOJ’s Civil Rights Division received many phone calls from civil rights groups and Democratic legislators on the one hand, and Republican legislators on the other. The legal issues raised were of vital partisan interest.

My information is that, as the election drew close, Acosta stopped taking calls from Republican Senators. However, he continued to take them from the likes of Patrick Leahy, Ted Kennedy, and John Conyers.

The pressure appears to have paid off. I’m told that Acosta was not supportive of the Bush position on the casting of provisional ballots in Ohio, a key matter in that battle ground state.

Naturally, Acosta’s stance in the 2004 election caused plenty of resentment among the political appointees in the Justice Department and within the Bush team generally. But Acosta had a golden ticket out of Main Justice. Alberto Gonzalez secured his appointment as United States Attorney for the Southern Florida.

Such was the bitterness among Bush loyalists that, according to my information, when Harriet Miers announced his appointment as U.S. attorney at a meeting of her White House counsel staff, some staffers protested vehemently. Miers had to tell them it was a done deal and that, in effect, they should cool it.

Why did Acosta behave the way he did at DOJ? Is he a liberal on the issues he dealt with or, having established good conservative credentials early in his career, was he trying to curry favor with the other side, perhaps in anticipation of a “confirmation moment” like the one that now has arrived?

It doesn’t matter. Either way, his service as Secretary of Labor would pose a large and obvious risk for conservatives.

The Department of Labor plays a key role in areas of major interest to conservatives, especially immigration, wage and hour law, and civil rights. The left had its way, and then some, under Tom Perez, President Obama’s Labor Secretary.

Conservatives were counting on the new Secretary to reverse the many excesses of the past eight years. Acosta’s history of determination not to upset the left strongly suggests that our expectations will be dashed.

On immigration, Acosta is a strong supporter of the kind of “comprehensive immigration reform” pushed by Sen. Marco Rubio and by Democrats. As PoliZette reports, he made this clear in remarks at a 2012 forum sponsored by the Hispanic Leadership Network Conference.

Opponents of amnesty style reform are alarmed. Ira Mehlman, a spokesman for the Federation of American Immigration Reform, says that Acosta’s preferred policy “kind of sounds like open borders.” William Gheen, founder of the Americans for Legal Immigration PAC, says:

It’s very clear that this guy is from the amnesty side of the aisle. It’s very unfortunate that someone like that would ever be considered for any position in the Trump administration.

Gheen noted that Acosta has been backed in the past by the National Council of La Raza, a left-wing civil rights group. It endorsed him to head up the Civil Rights Division under President Bush. As discussed above, Acosta rewarded them.

Acosta’s confirmation is virtually assured. Republicans won’t block a Trump nominee, and Acosta’s record guarantees him sufficient support from Democrats.

It will be imperative that the White House watch Acosta carefully to make sure he undoes Tom Perez’s mischief and does none of his own. Unchecked, the Labor Department can undermine key elements of the Trump agenda.

It is also crucial that the new head of the Civil Rights Division be a strong conservative, one with demonstrably solid views on the entire range of issues the division deals with, and one who can be counted on to stand up to civil rights activists — both within and outside the department.

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