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News Opinion Editorial

Tom Perez and the 'nuclear option'

Republicans accuse Thomas E. Perez, President Barack Obama's nominee for labor secretary, of twisting the legal process in three cases in St. Paul, Minn., to suit his political purposes. But it is they who are twisting the Senate's role to "advise and consent" on presidential nominees for their own political ends, and in so doing they have smeared the reputation of a talented public servant and damaged the institution in which they serve. Mr. Perez made it out of committee on a party-line vote Thursday, but Republicans are still suggesting they may try to block his nomination on the Senate floor. If they are unwilling to allow an up-or-down vote on Mr. Perez's confirmation, Senate Majority Leader Harry Reid should do what he should have done four months ago and enact real and substantial filibuster reform, whether Republicans like it or not.

The bulk of the complaints against Mr. Perez, a former secretary of the Maryland Department of Labor, Licensing and Regulation, center around his involvement in an apparent quid pro quo with the city of St. Paul. In his role as head of the Justice Department's Civil Rights Division, Mr. Perez persuaded St. Paul to drop an appeal to the Supreme Court in a fair housing case while the Justice Department agreed to withdraw its support for a whistle-blower complaint alleging that St. Paul had falsely certified to the federal government that it had complied with certain housing regulations. Just what role Mr. Perez had in that decision is a matter of some dispute.

But easier to evaluate is Mr. Perez's contention during his confirmation hearing last month that the outcome in St. Paul was "in the interest of justice." Here's why:

St. Paul's fair housing Supreme Court appeal threatened to become a classic example of hard cases making bad law. Its root was an effort by St. Paul to target extra housing code enforcement efforts in communities that needed them most. Landlords in those neighborhoods, who were forced to make expensive repairs to their properties as a result, sued, and they based their case on a cynical manipulation of fair housing law.

The accepted standard in such cases, known as "disparate impact," is that plaintiffs do not have to prove discriminatory intent but merely discriminatory effect to be illegal. The landlords contended that St. Paul's actions would ultimately result in less available housing for low-income, minority residents and were thus illegal — notwithstanding the fact that the city was merely trying to get the landlords to comply with the law to provide safe living conditions for their tenants. A lower court agreed to consider the case on those grounds, and it was that decision that St. Paul appealed to the Supreme Court.

What was tricky in this case was the risk that the Supreme Court would side with St. Paul and the interests of the low-income tenants but would do so in a way that threw out the principle of disparate impact, thus crippling the ability of the Justice Department — or anyone else — to bring fair housing cases. Mr. Perez was not the only person concerned about that; civil rights groups, housing advocates and even former Vice President Walter Mondale were urging the city to drop its case. St. Paul officials agreed, but they didn't drop their code enforcement actions. Rather, they are now in a position of fighting the lawsuit on its merits in district court.

As to the questions of whether the federal government forewent millions of dollars in possible damages in the whistle-blower case and whether it was proper to link it with an unrelated matter, the testimony of former Justice Department Attorney Shelly R. Slade is instructive. Ms. Slade, who previously worked on cases involving fraud against the government, said she would have advised against intervening in the whistle-blower case because it was unwinnable. Furthermore, she added, "The civil division's decisions on intervention often take into account another agency's broader policy concerns or interests outside the four corners of the case." In other words, what Mr. Perez did was not unusual.

There is something particularly patronizing about the way in which Republicans have gone after Mr. Perez. They are clearly skittish about derailing the only Latino nominee to Mr. Obama's cabinet, and they are hiding behind the objections of Sen. Marco Rubio, who has repeatedly praised Mr. Perez's "amazing personal story" while calling him a "disastrous" nominee. This obeisance to Mr. Perez's up-by-the-bootstraps story conveys the impression that his personal story is his sole qualification for a cabinet post. Nothing could be further from the truth. Mr. Perez is smart and dedicated, and he has experience as a state labor secretary and in running what may be the most sensitive division of the Justice Department — one where he faced the difficult task of undoing the massive politicization undertaken by the Bush administration. Mr. Perez got the nomination not because he is Latino but because he is an enormously talented public servant. He is more than qualified to run the Labor Department, and he is certainly qualified to get a confirmation vote.

Senator Reid, frustrated by Republican efforts to block Mr. Perez, Environmental Protection Agency nominee Gina McCarthy and others, has reportedly been gauging Democratic support for the so-called "nuclear option" to change Senate rules on filibusters without the usual 67-vote threshold. He is seeing now the folly of his decision not to do so in January, and if Republicans refuse to allow votes on fully qualified cabinet nominees on trumped-up excuses, he will have no choice but to rectify that mistake now.

Copyright © 2014, The Baltimore Sun
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