From the moment Debo Adegbile was nominated to the most recent smear in the Washington Examiner, right-wing media have made clear that their objection to President Obama's pick to head the Civil Rights Division of the Department of Justice (DOJ) is that he is one of the preeminent civil rights attorneys of his generation.
Paradoxical? Only if you believe in civil rights precedent and the idea that civil rights experts should be the ones bringing civil rights cases.
Right-wing media, apparently, believe in none of that.
Byron York's attempt in the Examiner to tenuously link Adegbile with guidance from the Equal Employment Opportunity Commission was just another example of right-wing media's concern that Adegbile might do his job a little too well. Resorting to invoking right-wing media's favorite civil rights bogeyman of the long-established legal doctrine for establishing impermissible racial discrimination from unjustified racial effects, York accused Adegbile of “embrac[ing]” the EEOC's “crazy” use of disparate impact precedent. From the March 3 column:
It's not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past -- well, that can put a quick end to the application process.
But Obama's Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory.
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they'll be in trouble if they don't hire convicted felons?
Of course a business, after a background check, might well choose to hire a felon. But that is the employer's decision -- not the Obama administration's.
At the moment, EEOC “guidance” does not have the force of law, no matter the threats from top EEOC officials. That's where Debo Adegbile comes in. When he was with the NAACP, Adegbile praised the commission's guidelines. Now, if he becomes the assistant attorney general for civil rights, he will have the power to pursue the same or similar policies.
In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, “take action to abridge or eliminate an employer's ability to perform criminal background checks on potential employees.” Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. “If employers do perform background checks, the EEOC has released guidance on the subject,” he told Grassley.
But York is stretching in this failed attempt to land a new hit on Adegbile.
The EEOC is a separate body from DOJ, so Adegbile won't “come in” at all on their disparate impact guidance, at least no more so than any other nominee to any government civil rights post would. This meaningless insinuation that adherence to precedent is automatically suspect could also be lobbed at nominees to the civil rights divisions of other federal agencies, such as the Departments of Agriculture or Education, who also would unremarkably “have the power to pursue the same or similar policies.”
Beyond trying to hold Adegbile responsible for the actions of an agency he is not being nominated to, York's Facebook analogy is only “crazy” because it grossly misrepresents the guidance.
Like other right-wing media before him, York's column “Should Government Force Businesses To Hire Felons? Obama Nominee Debo Adegbile Says Yes” pretends that the EEOC guidance eliminates employer discretion. In fact, following well-established precedent, the EEOC guidance notes that in light of the unreliable system of background checks currently relied upon, a blanket refusal to hire those with a criminal record without a legitimate job-related reason may be a violation of civil rights law, in addition to condemning many potential employees to perpetual unemployment.
Specifically, the EEOC guidance points out that an across-the-board ban is not only unnecessary for many jobs, but because of the disparate impact of such indiscriminate policies, the ensuing racial discrimination may run afoul of decades-old civil rights law. Adegbile actually noted this in his full answer to the Senate Judiciary Committee questionnaire, which York cut off.
As explained by Adegbile, rather than forcing employers to hire felons as York's column claims, the only “categorical bar” that the EEOC is warning against is that of employers who cannot satisfactorily explain why their jobs can't be filled by anyone who raises a flag in all too-frequently erroneous background checks. From Adegbile's full answer to the question cited by York:
ANSWER: I would not oppose the ability for employers to perform reasonable criminal background checks on potential employees. If employers do perform background checks, the EEOC has released guidance on the subject. As I understand it, the guidance does not embrace a categorical bar on using information gleaned from such employment screens but rather requires some reasonable inquiry into the nexus between the conviction and the job responsibilities involved in the particular position.
Unfortunately, this type of attack untethered to the law and facts has been all too routine in the smear campaign against Adegbile.
Accompanied by "race-baiting and dog whistle politics," right-wing media like York have attacked Adegbile for supporting voting rights, diversity programs in higher education, and constitutional death sentencing. These smears have been denounced by legal experts, the American Bar Association, the National Organization of Black Law Enforcement Executives, and multiple editorial boards for disregarding the law at the root of the cases in question.
In large part, the pushback against this misinformation has been so significant because it is based on the simple truth that the right-wing media noise machine has completely distorted the validity of Adegbile's civil rights record.
Worse, the willingness to misrepresent the law in a baseless effort to paint this highly qualified and mainstream nominee as a dangerous radical has infected the political debate over his Senate confirmation vote, currently scheduled for March 5. The accuracy of the smears has gotten no better as they've made the jump to Congress, with Republican Senator Pat Toomey recently getting called out by Politifact for peddling a long-debunked falsehood about Adegbile's credentials.
At the close of a nasty campaign of character assassination that has at times resorted to disturbingly "racially charged rhetoric," York's last minute attempt to scuttle the nomination of Adegbile is a reminder of just how unsubstantial the attack on his qualifications has been. This was always more about right-wing media's hatred of civil rights precedent, not Adegbile.