The Litigation State by Farhang Sean;

Author:Farhang, Sean; [Farhang, Sean]
Language: eng
Format: epub
ISBN: 548755
Publisher: Princeton University Press
Published: 2010-04-19T04:00:00+00:00

The last sentence makes evident that, in Glickstein’s view, the American state’s weak enforcement of voting rights laws had less to do with lack of resources than with the disinclination of pivotal state actors to mobilize state resources to that end. The problem, in his estimation, lay in executive choices about the allocation and deployment of resources: he stated that Nixon’s Department of Justice was characterized by “lack of enthusiasm” and “reluctance” as an enforcer of the Voting Rights Act, and had been for years, and he supported fee shifting to mobilize needed private enforcement.171

John V. Tunney, chair of the Senate Judiciary subcommittee that held hearings on the bill—and the senator who would introduce the Civil Rights Fees Act less than four months later172—made this claim repeatedly. He suggested that private enforcement with fee shifting was necessary “because the Attorney General has not … exercised the diligence that he should have in enforcing the provisions of the Voting Rights Act.”173 Citing findings by the U.S. Commission on Civil Rights, which recommended an expanded private right of action and fee shifting in Voting Rights Act cases, he stated that “the Department of Justice is not doing an adequate job in attacking discriminatory practices” that violate the act.174 He clearly did not believe that the problem was simply one of insufficient Justice Department resources, stating that he “was not satisfied with the Justice Department’s excuses” for its enforcement failures.175 In the subsequent floor debates liberal Democrats likewise argued that the expanded private right of action and fee shift were imperative because the existing approach to enforcement of voting rights was inadequate. Important sections of the law were not being enforced by the attorney general, and thus the amendments were “intended to beef up enforcement.”176

In urging attorney’s fee awards for winning plaintiffs in voting rights cases, renowned southern ACLU lawyer Charles Morgan, Jr., who had been plaintiffs’ counsel in the landmark Reynolds v. Sims voting rights case (a cornerstone of the “one person, one vote” doctrine), proffered an even harsher assessment of the Nixon administration’s enforcement record in his committee hearing testimony. Echoing charges leveled in the 1971 House oversight hearings on enforcement of the Voting Rights Act, he claimed that as part of Nixon’s “Southern strategy” his Justice Department had ratified “discriminatory” voting rules for southern states and had decided “to generally not enforce the law.” He continued: “The Justice Department has lawyers that run around over there working on things that do not guarantee citizens’ constitutional rights. It is an obscenity.” Morgan looked back wistfully on the Kennedy administration’s Civil Rights Division, which, he said, despite its modest resources, was “fighting the crusades” alongside civil rights groups, a time he characterized as the “good old days.”177

The Lawyers’ Committee for Civil Rights Under Law had three representatives testify in support of private lawsuits with fee shifting to obviate dependence on executive enforcement. These witnesses were leading southern civil rights lawyers Frank Parker and Armand Derfner, and Nicolas Katzenbach, deputy attorney general under

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