Book Review

Brian K. Landsberg was an attorney in the Civil Rights Division (CRD) of the Department of Justice from 1964 to 1986. Now a law professor at the University of the Pacific, he has written this analytical account of the division's work. Many books have been written about the politicization of the judiciary and the judicial usurpation of political process in contemporary America; Landsberg helps us to understand the contribution of the career bureaucrats—the permanent government of the "fourth branch"—who work in tandem with the judges. He makes a truly original argument that his conflict between the political appointees at the top and the career professionals in the ranks is a deliberate constitutional structure, that "Congress has created a system of internal checks within the executive branch very roughly analogous to the internal checks" of bicameralism, so that "two sets of executive branch personnel ideally will result in wiser administration" (156). A great deal of useful information in this volume lets us scrutinize this claim, but without a narrative format or clear interpretive slant, its usefulness is limited.	1
The very terms "justice" and "civil rights" are among the most powerful in American social and political discourse, implying that there is a distinction between law and politics, and in postwar America, many have depicted civil rights as the touchstone of justice and idealism. Upon closer inspection, and as we move from declaration of principles to enforcement of them, we begin to see some of the complications of civil rights idealism. This should not be surprising, since the legal theory taught in the law schools from which most civil rights era judges and lawyers are drawn is legal realism. In short, legal realism denies the distinction between law and politics, holding that law is merely the expression of will and is inherently arbitrary, subjective, and expedient. Landsberg is far from trying to prove that the CRD is a mere political agency, more often trying to explain its policies on legal-principled-idealist grounds. But his account of how it carries on its work does not dispel this suspicion.	2
Enforcing civil rights is precisely the juncture of realism and idealism. The problem lies in the conflict over the definition of civil rights equality since the 1960s. Landsberg repeatedly refers to the civil rights movement's goal and the CRD's mission of dismantling the "racial caste system" in America. That goal was widely approved outside the white South, but there has been less consensus about the requirements of justice since then. A critic would argue that the Civil Rights Division has pursued a policy not of equal opportunity for individuals regardless of race (color-blindness), but of equal outcomes on a racial group basis (racial proportionalism), and that the Division has in effect been "captured" by a "civil rights lobby." We end up with the opposite of civil (that is, individual, or citizen) rights, and pursuing group power.	3
Although he does not focus on this central problem, Landsberg does reveal himself to be an advocate of the proportionalist policy pursued by the CRD since the 1960s (without much interruption during the Reagan years). Discussing the disparate impact theory that statistical racial imbalance is proof of discrimination, he argues that "The number of successful suits such [statistics-triggered] investigations have spawned suggests that the assumption is well-founded" (101). But this suggestion is tautological—the success of the suits depended on the legal standard of disparate impact devised by the administrative agencies, supported by the CRD, and accepted by the courts. In his conclusion, he advocates the criminalization of race discrimination, assuming that this would not threaten racial discrimination in favor of blacks, since "it should not be difficult to draft a statute that punishes only invidious discrimination and allows affirmative race-based efforts to overcome a pattern of racial exclusion" (175). The language of civil rights statutes having been so easily manipulated in the past, it is no wonder Landsberg is so confident about the future.	4
Landsberg remembers and retells the heroic early years of the civil rights movement in the South, but most of this slim but dense volume is a functional analysis of the mundane legal work of the Division since then. Its most engaging moments are those in which the author discusses a policy decision as presenting a dilemma of principle versus politics. One of the most common of such problems is that of consistency—law, if it is something more than convenience of the sovereign or expediency, should show some consistency, as should the decisions of courts and the policy of prosecutors. But we all know that politics and elections often impinge on courts and agencies, undermining consistency. One would expect that the Civil Rights Division has its own agenda, shaped by the civil rights lobby and shared by the career attorneys who come out of the large eastern law schools, and that it decides to change course when changing course suits its interest, and to stand pat when standing pat suits its interest. Changes that its allies and clients favor will be called credible; changes that they disfavor will be called a threat to credibility. Landsberg is aware of this, but argues that bureaucratic concerns about consistency and "credibility" are to be taken as seriously as the Supreme Court's self-proclaimed regard for its own disinterestedness (144).	5
Similarly, the Division faces the problem of conflicting interpretations of law by Congress, the president, and federal courts. Again, a realist would expect the Division to follow its own agenda, and to favor Congress or the Court when convenient. Arguments over the transformation of civil rights law usually proceed from an assumption that Congress's definitions and intent in the Civil Rights Act of 1964 were unusually "ambiguous." Landsberg too relies on this point (119), but makes an unusually weak articulation of it, and a weak argument to justify the disparate impact doctrine as consistent with it. Another career civil rights bureaucrat, Alfred W. Blumrosen of the EEOC, did not praise Griggs as consistent with congressional intent, but praised the Court for accepting that agency's rewriting of the Act (130). Landsberg provides more evidence that Griggs was consistent not with the Civil Rights Act, but with the Kerner Commission Report, and thus seems to support a riot-reaction justification for affirmative action (128, 130)—a justification based on force rather than law.	6
It is a standard refrain of memoirs of civil rights activists, usually parroted by historians, that the movement vindicated belief in the efficacy of law, spoke truth to power, got stateways to change folkways—that is, that the civil rights movement was the embodiment of legal idealism. But it could also be argued that the civil rights legislation, and more so, its enforcement, demonstrates the triumph of legal realism and positivism—that the government acts as lawlessly enforcing civil rights legislation as it did in depriving blacks of civil rights protection before 1964. The incoherent enforcement of incoherent statutes is in reality the negation of the very idea of "law" and "rights," and an admission that all we are dealing with is power. Our current system of judge- and bureaucratic-made law ("authoritarian judicialism" in Alexander Bickel's terms) may be preferable to the local majoritarian tyrannies it displaced, but Landsberg needs to consider the constitutional problem Bickel posed more carefully (50).	7
Paul D. Moreno St. Thomas Aquinas College

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