Abigail Thernstrom Disagrees On The Black Panthers Cases

Never let it be said that all conservatives march in lockstep. I recently posted an article on the reprehensible dismissal of the Black Panther voter intimidation cases. Dr. Abigail Thernstrom, a member of the US Commission on Civil Rights and a solid conservative takes issue with those of us who felt this deserved serious scrutiny and a few lopped-off heads.

Dr. Thernstrom has been a strong advocate for civil rights the old-fashioned way. Equal treatment for all, regardless of race, creed, color, social station or economic class. So when she takes a stand quite different from mine, I can't simply dismiss her as being a kook. She is not. And I feel that if I am to justify my position, I must examine hers with a neutral eye (not easy to do for someone with my ego). I respectfully disagree, but she makes a point. Let's talk a bit about where she's coming from, and where she wants to go.

In the wake of the Black Panther controversy, Thernstrom says: "Forget about the New Black Panther Party case; it is very small potatoes. Perhaps the Panthers should have been prosecuted under section 11 (b) of the Voting Rights Act for their actions of November 2008, but the legal standards that must be met to prove voter intimidation--the charge--are very high." Fair enough. But just because a case is difficult doesn't automatically mean it shouldn't be pursued. More importantly, default judgments had already been entered in specific cases, so there's nothing left to prove except monetary damages--and that's the easy part.

"Too much overheated rhetoric filled with insinuations and unsubstantiated charges has been devoted to this case," says Thernstrom. I respectfully disagree. She bases her "overheated" accusation on the fact that "the two Panthers have been described as 'armed'--which suggests guns." No, it suggests armed--as in clubs and chains. Dr. Thernstrom has never been involved in a gang fight. She apparently doesn't know that those instruments can inflict serious bodily harm. The law is about the threat--the intimidation--not about an actual assault and battery. "Brandishing" is a charge all of its own, yet Dr. Thernstrom says "one of them was carrying a billy club, and it is alleged (actually it was proved) that his repeated slapping of the club against his palm constituted brandishing it in a menacing way." Yep--I'd certainly call that brandishing.

Here's where I think Dr. Thernstrom went over the cliff (on this single issue only): "Get a grip, folks. The New Black Panther Party is a lunatic fringe group that is clearly into racial theater of minor importance. It may dream of a large-scale effort to suppress voting . . . . But the Panthers have not realized their dream even on a small scale." When it comes to a basic American right such as voting, there is no "small scale," and just as it doesn't take a weatherman to know which way the wind blows, it doesn't take a genius to know that what the Panthers did in Phildelphia was voter-intimidation. There's absolutely no way to spin that into harmlessness.

It's also important to remember that these were civil, not criminal prosecutions against the Panthers. Dr. Thernstrom seems to be making the mistake of thinking that proving the cases beyond a reasonable doubt would be difficult if not impossible. But that is not the standard in civil prosecutions. Such suits require only proof by clear and convincing evidence, of which there was plenty.

So now that I've discussed why I think Dr. Thernstrom is wrong on the Black Panther cases, how do I go on to be almost effusive in my praise for her? I look to her record, which is one of bold support of equal rights and bold opposition to special rights, and her inability to remain silent in the face of massive injustice and race preferences. Her tenure on the Civil Rights Commission has included many ugly confrontations with the race-baiting leftist members. One of the most intense was Thernstrom's ongoing battle with former Chairman Mary Frances Berry who refused to seat a Bush appointee to the Commission and attempted to retain her own seat at the end of her term. One of Berry's statements particularly incensed Thernstrom: "Civil rights laws were not passed to protect white men and do not apply to them."

She might take issue with me on this, but I think two factors motivated her outburst on the Black Panther cases. First, after so many years on the Commission, Dr. Thernstrom has become just plain exhausted trying to rectify even the simplest and most obvious of civil rights violations. It has been a herculean task, and she can be forgiven for being dismissive of a series of cases which will probably end up going nowhere, given the nature of the Holder Justice Department and the passage of time.

Equally importantly, Dr. Thernstrom sees the possibility of major future confrontations over the Voting Rights Act, most specifically the ongoing problem of majority minority districts which wish to free themselves from earlier consent decrees that required minimum representation by minorities. The Holder Justice Department has consistently refused the pleas of nearly all black districts to be released from the consent decrees which were entered when whites completely controlled those districts. These decrees have ceased to serve their purpose, since the odds are extremely high that no matter which party or which philosophy prevails in one of those districts, the winner will almost certainly be a black person. And that was the sole purpose of the consent decrees in the first place.

The Holder Justice Department has also strongly stated that in the wake of the Census, it will actively support the maximum possible number of majority minority districts, whether they are under the consent decrees or not. This no longer simply guarantees black representation, it in reality nearly assures the perpetual election of Democrats. And this all flies in the face of the core civil rights belief that in a non-racist society, minorities would be elected to political office solely in numbers proportional to the black and Hispanic populations. By careful redistricting, the Holder people will be supporting artificially gerrymandered "all black" districts regardless of the actual distribution of the racial and ethnic groups over the larger picture of a given geographical area.

So long as the consent decrees continue, that means that in those districts, any consideration other than race will give rise to massive litigation and delays in holding elections, particularly when the office of the Attorney General (charged with allowing or disallowing release from the consents) is determined never to let a good consent decree go to waste. Requests for release from the decrees are routinely denied, despite what has frequently turned out to produce ludicrous results. This process is called "preclearance," and it only requires the disapproval of a very minor DOJ functionary.

Though Thernstrom (and I) believe that absent a major shift in the makeup of the US Supreme Court, it is substantially likely that Section 5 of the Voting Rights Act will ultimately be declared unconstitutional. But we both recognize how much serious damage can be done both to voting rights and racial relations between now and then. Thus, she considers the Black Panthers cases to be "small potatoes" because of the limited number of perpetrators and victims involved as compared with the vast potential mischief built into the plans of the Holder Justice Department as they relate to the Voting Rights Act. I concede that she has a point, but just because one issue may involve fewer people than a bigger issue, that doesn't mean it's small potatoes when major rights are involved. The Black Panthers weren't charged with spitting on the sidewalk, after all.

On July 5, I posted a piece about the Black Panthers, and one attorney specifically (even though half your comments still seem to be in the Blogger Black Hole). J. Christian Adams testified as scheduled, and though it was not a blockbuster, he did name a few names, referred to several others, and fully demonstrated that the dismissal of the Black Panthers cases was purely political. The Committee seems to be viewing the testimony with the same lack of enthusiasm shown by Dr. Thernstrom, though likely for entirely less noble reasons.

But there has been another development involving this attorney, and the "bigger picture" that Dr. Thernstrom was determined to call to the attention of the public. While Thernstrom emphasized the importance of the consent decrees and future gerrymandering, Adams has decided to go public with a related issue. Section 8 of the Federal Motor Voter Act specifically requires that voter registrars remove deceased and illegal voters from the voter rolls. A section chief at Holder's DOJ has apparently ordered the DOJ attorneys not to enforce this provision because "it would decrease voter participation." I'm afraid that there's no way to parody that remark because it is pure parody in and of itself. Yes, it's true. If dead people are forbidden to vote, participation will indeed go down. In Chicago alone, dead Democrats comprise 20 or 30 percent of the vote.

I mention this recent development for two reasons. First and most obviously, it will be interesting to see how Dr. Thernstrom feels that this facet of the law fits into the pending future voting disasters along with the consent decrees. But secondly, it is fascinating that Adams has decided that just being a good boy and doing his job, even at the risk of being fired, is not sufficient. He has now decided to go very public with his accusations. And he has proven he's a smart lawyer by pre-empting many future attacks on his character and abilities. He has used PajamasMedia to post his entire work record, which is comprised entirely of favorable to highly-favorable reviews by his superiors at DOJ, Democrats and Republicans alike.