President Trump has nominated my friend and former law partner Eric Dreiband to be Assistant Attorney General for the Civil Rights Division of the Department of Justice. This is a fantastic selection. Eric is an outstanding lawyer, a solid conservative, and one of the finest individuals I know.
Politico greets Eric’s nomination with a hit piece, called “Activists unhappy with Trump’s nominee to lead civil rights unit.” The article, by Diamond Naga Siu, emphasizes that Eric has defended companies accused of discrimination. The horror!*
The article breezes past the fact that, as General Counsel of the Equal Employment Commission during the Bush administration, Eric litigated against companies accused of discrimination. A fair-minded observer would probably conclude that a lawyer who has litigated on both sides in discrimination cases is particularly well-qualified to lead the Civil Rights Division. But the activists whose voices dominate Siu’s article aren’t fair-minded.
Eric was well-regarded by the lawyers I know at the EEOC. At the time he left the Commission to become a partner at our law firm, at least three EEOC lawyers spoke glowingly to me about him. Their politics ranged from center-left to hard left.
Eric earned their praise not by selling out his conservative principles, as sometimes happens in these cases. Instead, he earned it by treating EEOC lawyers with respect, hearing them out, supporting them when he agreed with their conclusions, and not making them look bad when he did not.
The other attack against Eric aired in Siu’s article is that he “brings little to no experience in the critical areas of voting rights, policing reform or criminal justice generally.” This attack is wrong on the facts. Eric has experience in the area of criminal justice. Indeed, he has experience both on the prosecution side (he received an award for his work in the prosecution of Webb Hubbell) and the defense side, for example representing an African-African homosexual in a homicide case.
In any event, the head of the Civil Rights Division does not need experience in every subject matter area under his purview, any more than the Attorney General needs experience in all areas of his portfolio — e.g., civil rights, antitrust, criminal law — or the Secretary of State needs experience or expertise regarding all of the major world powers and hot spots.
Did Deval Patrick, who headed the Civil Rights Division during a portion of the Bill Clinton administration, have experience in all of the relevant areas — e.g., criminal justice, employment discrimination, voting rights, fair housing — when he was selected by Clinton at the age of 38? It appears not. Same, it appears, with Vanita Gupta, who headed the Division towards the end of the Obama administration and is one of the main activist critics cited by Politico’s Siu.
But Patrick and Gupta are of the left, and not white males, so the breadth of their experience didn’t matter to activists.
Gupta gives the game away when she says: “Whoever leads the ‘crown jewel’ of the Justice Department must have deep relationships with stakeholders and marginalized communities. . .” In other words, the Civil Rights Division must be headed by someone who supports the left’s civil rights agenda.
President Trump apparently did not get that memo. Neither did the Attorney General and his top officials. They take the quaint view that the leader of the Civil Rights Division should be someone whose commitment is to enforce the civil rights laws as written and interpreted by the Supreme Court, not to promote the special interests of “stakeholders and marginalized communities.”
* Years ago, some conservatives I respect criticized the Obama administration for filling important legal positions, including some with relevance to the war on terrorism, with attorneys who had provided legal services for terrorist detainees. I defended the Obama administration, and came in from criticism from conservatives I respect after I told the Huffington Post that the attacks on the attorneys in question resembled “McCarthyism” in some respects, though not in others.
If a lawyer isn’t disqualified from service in positions relevant to combating terrorism by virtue of having defended suspected or actual terrorists, I am hard-pressed to see why a lawyer should be disqualified from service in positions relevant to combating unlawful discrimination by virtue of having defended companies, one or more of whose employees may (or may not) have engaged in unlawful discrimination.
NOTE: I have updated this post to discuss Eric’s experience in the area of criminal law.