Behind Congress' Back

Commentary: While Capitol Hill was empty, Bush slipped a foe of affirmative action and the Americans With Disabilities Act into an important civil-rights post.

By Earl Ofari Hutchinson

April 4, 2002

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If nothing else, George Bush Jr.'s backdoor appointment in late March of Gerald Reynolds as assistant secretary of education for civil rights proved that he is a good student of history. A decade ago, George Bush Sr. ignited one of the most bruising confirmation hearings in memory when he nominated hyper-conservative Clarence Thomas to succeed Thurgood Marshall on the Supreme Court. Now, his son has slipped someone who should have been equally controversial into an important post without a battle -- by doing it while Congress was out on recess.

When Bush told the Senate last September that he intended to nominate Reynolds, more than two dozen civil rights, womens, and disabled groups came out against him. At a February hearing, Sen. Ted Kennedy said he had "serious doubts about (Reynolds') qualifications for this important position that affects the civil rights of millions of Americans."

And with good reason. Reynolds will oversee the Education Department unit responsible for ensuring that all school districts, colleges, and universities receiving federal funds comply with civil rights laws, including those aimed at protecting the rights of minorities and the disabled. But unlike the taciturn Clarence Thomas, Reynolds has publicly ranted against affirmative action and the Americans With Disabilities Act.

Since Bush named him as a candidate for the post, Reynolds has said that his critics are misrepresenting him, and that he supports affirmative action programs as long as they are "constitutional and fair to all." His record suggests otherwise. In a 1997 Washington Times op-ed piece, he slammed affirmative action as "a corrupt system of preferences, set-asides and quotas", and branded civil rights leaders "the civil rights industry". He has called the ADA a bad law that "would retard economic development in urban centers across the country," according to People for the American Way, a liberal advocacy group.

Reynolds is also a former president of the hard-right Center for New Black Leadership. This Washington, D.C.-based think tank claims personal responsibility and the free market are the solutions to discrimination, and criticizes civil rights leaders for promoting "racial victimization." Reynolds is also a former legal analyst for the Center for Equal Opportunity, which ardently opposes affirmative action, bi-lingual education, and immigration reform, and has lobbied Congress to narrow the definitions of people covered under the ADA.

The original idea behind recess appointments was to give presidents a tool to get top officials into vital positions when Congress was out of session and unable to approve appointments in a timely manner. Recently, presidents have since used it to slip their pals into positions of power.

During his one term, Jimmy Carter made 68 recess appointments, according to Michael Hafken, a research analyst at the Brookings Institution, a Washington, D.C.-based public policy think tank. Bush Sr. made 78 during his term. Reagan topped the list with a whopping 239 recess appointments during his two terms. But it was Clinton's 140 recess appointments, especially the appointment of Bill Lann Lee to run the Justice Department's Civil Rights Division, that really brought the practice into the public eye. Conservatives accused Clinton of mocking the Constitutional process by using such appointments to get liberal activists into government positions.

Now Reynolds has been slipped in through the back door by a president anxious to avoid the same political embarrassment that befell his father. Reynolds will serve in the post until the current Senate ends its term in 2003.

Civil rights and disability rights advocates must keep a hawk-like vigilance over Reynolds' actions to insure that he isn't a total disaster. Meanwhile, Bush has served notice that he will do what other presidents have done and use recess appointments to get whom he wants in office, regardless of whether it angers civil liberties groups and Democrats. The next time he signals his intention to make such an appointment, civil rights groups must blow the warning whistle before it's too late.

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