The Fox Guarding the Henhouse

By Earl Ofari Hutchinson, AlterNet. Posted December 7, 2004.

What a difference a purported presidential election mandate makes. Three years ago President Bush pulled out all stops to get Gerald Reynolds confirmed as assistant secretary of education for civil rights. It didn't work. More than two-dozen civil rights, women and disabled groups screamed bloody murder. They threatened to wage the same bruising and ugly campaign against Reynolds that they did a decade earlier against the confirmation of Clarence Thomas to the Supreme Court.

They never had to wage that battle. Senator Ted Kennedy and other Democrats slammed Bush for the Reynold's appointment and called it and him a disaster for civil rights enforcement. They bottled up the nomination in Congress for months. But Bush didn't give up. He made a recess appointment of Reynolds to the position.

Presidents use recess appointments to get top officials into vital departments and offices during periods when Congress is out of session and unable to approve presidential appointments on a timely basis. But it's also a back door ploy presidents can use to get a controversial nominee in an office and to avoid the political embarrassment of a contentious fight that might wind up in a defeat. The move only bought time. A year later Reynold's term ended and his chances of being confirmed were still just as problematic. Bush threw in the towel and appointed him to an obscure, backwater post in the Justice Department as an advisor on civil litigation matters. That didn't require Senate confirmation.

With the flush of election victory, Bush no longer needs to use end around maneuvers to get Reynolds an administration job, or failing that to shove him into a government agency spot. Bush quickly appointed Reynolds as the new boss of the Civil Rights Commission. He is the exact political opposite of the pro affirmative action, liberal Democrat gadfly that Mary Frances Berry, the ousted chair of the commission, was. Reynolds is a former staff counsel and board member of the conservative Center for New Black Leadership. This is the Washington D.C. group that claims personal responsibility and free market solutions are the solutions to discrimination and rails against civil rights leaders for promoting "racial victimization."

He's also a former legal analyst for the even more conservative Center for Equal Opportunity. Linda Chavez who has boasted that she is the "premier voice" opposing affirmative action, bi-lingual education, and immigration reform founded the Center in 1995. The Center has ferociously opposed vigorous enforcement of the Americans with Disabilities law, even urging Congress to narrow (i.e. torpedo the law).

Reynolds, unlike the taciturn Thomas, has been unabashed in his knock of civil rights leaders and affirmative action. In a 1997 Washington Times op-ed piece he slammed affirmative action as the "Big Lie – -a corrupt system of preferences, set aside and quotas against affirmative action, and branded civil rights leaders, "the civil rights industry." In a 1999 op-ed piece in the San Jose Mercury News, he harangued Jesse Jackson as a "race hustler" for leading a discrimination fight against Silicon Valley computer corporations. Reynolds also publicly railed against the Americans with Disabilities Act. A large percent of all discrimination complaints are for violations of the disability rules. Reynolds called it a bad law that in his view would stymie economic development in urban centers across the country.

But the issue that got Reynolds in the hottest water with women's and civil rights groups, and ultimately undid him in the Senate, was the deep fear that given his oft stated opposition to affirmative action, he would at best be less than vigorous in enforcing Title IX, and at worst ignore it altogether. If Reynolds had been confirmed to the civil rights post in the Office of Education his job would have been to oversee enforcement of Title IX.

The landmark act prohibits sex discrimination in education programs that receive federal monies. Title IX has been praised for opening the door wide for women in high school and college sports. But it also has been damned for allegedly draining money from men's sports programs.

Whether Reynolds would have upheld the Title IX law, or done everything he could to undermine it if he had gotten the job that Bush originally wanted him for is a mute point. Bush instead has dumped in the potentially high profile job of chair of the Civil Rights Commission and he does not have to worry about a nasty confirmation fight. The commission is under-funded and has no enforcement power, and critics on both sides of the political fence, generally regard it as an agency that has been ineffectual. But Reynolds can quickly turn the commission into a bully pulpit to say and do whatever he pleases about civil rights. And he didn't waste any time doing that, he's already called for a "conversation" on what civil rights means. That conversation almost certainly guarantees that the commission will be embroiled in even more rancor and controversy.

Earl Ofari Hutchinson is an author and political analyst. He is a featured columnist for Blacknews.com and African-American newspapers nationally. He is the publisher of The Hutchinson Report Newsletter, an on-line public issues newsletter.

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