WSJ Lists Debunked Right-Wing Myths On Holder's Civil Rights Record As His “Worst Overreaches”

Following Eric Holder's announcement that he was resigning, The Wall Street Journal attacked the legacy of the nation's first black attorney general by repeating debunked descriptions of his civil rights work and accusing him of turning the Department of Justice “into a routine instrument of social and racial policy.”

On September 25, Holder announced that he will step down as soon as his replacement is confirmed. Right-wing media were quick to celebrate, with Fox News host Andrea Tantaros calling him one of the “most dangerous men in America” because “he ran the DOJ much like the Black Panthers would” and Fox and ABC News contributor Laura Ingraham asking, “What are the race-baiters going to do now?”

The Journal joined the opportunity to bash Holder's civil rights legacy as attorney general, claiming in an editorial that he “explicitly turned the Justice Department into a political weapon.” The editorial specifically attacked Holder's efforts to curb racial discrimination in hiring, to promote desegregation in Louisiana schools, and to fight election restrictions that violate the Voting Rights Act:

Mr. Holder also turned Justice into a routine instrument of social and racial policy. Under the former head of the Civil Rights Division, Thomas Perez (now Secretary of Labor), Justice used “disparate impact” analysis to force racial adjustments on cities, police and fire departments and banks. The settlements were not based on proven racial discrimination, as traditionally required, but on arcane statistical analyses.

Among Mr. Holder's worst overreaches was filing suit last year to block Louisiana's private-school voucher program. That program overwhelmingly helps the state's poorest minority families escape bad schools. No matter, Justice's statistical cops said the program was unbalancing the “racial identity” of public schools by admitting too many black children into better schools.

In July 2012 the Attorney General invoked the specter of Jim Crow amid a presidential campaign. In a speech to the NAACP, he likened voter ID laws to “poll taxes,” an argument rejected by the Supreme Court in 2009.

These three specific complaints have been among right-wing media's favorite myths about Holder and his successful civil rights track record at the DOJ.

For example, the argument that discrimination suits “traditionally require” a showing of “proven” racism is as misleading as it was the previous time the Journal ignored half a century of civil rights law. Under Title VII of the Civil Rights Act, plaintiffs have for decades been able to prove illegal racial discrimination by showing that “a particular employment practice ... causes a disparate impact on the basis of race, color, religion, sex, or national origin” and that the challenged practice is not required for the position or is not necessary for the business to function. Many racial discrimination claims rely on this sort of “disparate impact” analysis in racial bias suits because employers who violate Title VII generally aren't foolish enough to document the illegal discriminatory intent behind their racial hiring or firing patterns.

This isn't the first time the Journal has complained about disparate impact litigation -- an established staple of modern civil rights law -- but it's still wrong that the analysis is “arcane.” Even conservative Supreme Court Justice Antonin Scalia has upheld the use of disparate impact analysis in racial discrimination suits. In a recent case brought by firefighters in Chicago, Scalia wrote:

By enacting [Title VII disparate impact provisions], Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer's motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix.

The Journal's claim that Holder's decision to file suit in Louisiana was an effort to “block” the state's voucher program is also incorrect. In reality, the DOJ filed suit because Louisiana was in apparent violation of several court orders that require state officials to study the impact any new educational reforms might have on historic efforts to desegregate the public school system. Republican Gov. Bobby Jindal implemented the voucher program without apparent regard for what affect it might have on remaining in compliance with the desegregation orders. In court documents, the DOJ explicitly noted that it was “neither opposing the Defendant State of Louisiana's school voucher program nor seeking to take vouchers away from any students who have received them,” but wanted Louisiana to implement its voucher program “in full compliance with federal law, including the desegregation order in this case.”

This in particular has been one of right-wing media's go-to myths to use in their efforts to attack Holder for his use of decades-old race-conscious civil rights policy and law -- using his involvement in a desegregation case to perversely compare him to the infamous segregationist George Wallace. Just yesterday, a Cato Institute fellow and occasional National Review Online contributor celebrated Holder's announcement by claiming (in a since-deleted post) that “like a modern-day George Wallace, Holder has called for racial preference now, racial preferences tomorrow, racial preferences forever.”  

And just because the editors of the Journal reject Holder's argument that strict voter ID laws are tantamount to a poll tax doesn't make his comparison any less accurate. The editorial board's reference to a 2009 Supreme Court case about voter ID -- presumably Crawford v. Marion County, although that case was decided in 2008 -- was actually a ruling on a 2007 Indiana law and not the ones Holder challenged most recently as attorney general. In fact, according to a 2012 report from the Brennan Center for Justice, the current costs associated with obtaining the required ID to vote are often higher than poll taxes were when they were legal:

More than 1 million eligible voters in these states fall below the federal poverty line and live more than 10 miles from their nearest ID-issuing office open more than two days a week. These voters may be particularly affected by the significant costs of the documentation required to obtain a photo ID. Birth certificates can cost between $8 and $25. Marriage licenses, required for married women whose birth certificates include a maiden name, can cost between $8 and $20. By comparison, the notorious poll tax -- outlawed during the civil rights era -- cost $10.64 in current dollars.

Even without the legal or historical knowledge to back them up, right-wing media have spent the last six years of Holder's tenure at the DOJ finding new and inventive ways to accuse him of lawlessness. He's not only been blamed for the racial resegregation of public schools and compared to Wallace, others have thoughtfully gone for the Stalin, Nazi, and Al Qaeda comparisons.

Despite the fact that it is the modern right-wing movement that has targeted civil rights gains for people of color for decades, for right-wing media, it was always Holder who was wielding a “political weapon” and "playing the race card."

Photo via North Charleston/Flickr under a Creative Commons License.