by Mitch Kokai
Senior Political Analyst, John Locke Foundation
History doesn’t repeat, but it rhymes. Eighteen years ago, without the Senate’s consent, Bill Clinton illegally appointed Bill Lann Lee to head the Justice Department’s Civil Rights Division. The uproar that resulted led Congress to pass the Federal Vacancies Reform Act (FVRA), a major reform of our vacancies law, limiting the time someone can be an “acting” high official without Senate confirmation. Now under the Obama administration, that same law may be the undoing of another illegally appointed civil-rights head. Bill Lee, thy rhyme is Vanita Gupta.
The current saga in the Civil Rights Division began nearly three and a half years ago, when its leader, Tom Perez — the embodiment of the Peter Principle, whereby managers rise to their level of incompetence — was promoted to the position of secretary of labor. President Obama nominated Debo Adegbile, formerly an attorney with the NAACP (and this week appointed to the U.S. Civil Rights Commission), to replace Perez. But Adegbile’s nomination immediately ran into severe Senate headwinds. During his time at the NAACP, he contributed to a brief on behalf of the convicted cop-killer and cause célèbre Mumia Abu-Jamal. That connection prompted an outpouring of objections, stalling his nomination.
While Adegbile’s nomination was pending in the Senate, the civil-rights shop was led by a succession of “acting heads,” as permitted under the FVRA. Eventually, in September 2014, Adegbile withdrew his nomination in the face of certain defeat. At that moment, an important statutory timer began running: Acting officials may serve for a maximum of only seven months after a permanent nominee’s withdrawal.
This time limit was put into the FVRA to incentivize the president and Senate to reach consensus on permanent officials to fill a given vacancy. But here, President Obama decided that trying to find someone acceptable to the Senate wasn’t worth the hassle — and so he simply hasn’t sent up a new nominee. The seven-month clock, meanwhile, ran out in April 2015. Vanita Gupta, the division’s deputy head, has continued serving as acting chief, although, according to the law, her time was up.