The questioning could be intense for President Donald Trump’s pick to head the Justice Department’s civil rights division, as Eric Dreiband’s nomination goes before the Senate judiciary committee Wednesday.
Dreiband has come under a wave of criticism from civil rights organizations and LGBT activists because of his work defending major corporations against discrimination lawsuits, and in some cases flip-flopping his position. But the White House and some former colleagues have described Dreiband as a hard worker with impeccable integrity.
The NAACP Legal Defense Fund said that Dreiband’s nomination serves to undermine “fundamental civil rights priorities.”
Jesselyn McCurdy, deputy director of the ACLU’s Washington legislative office, characterized Dreiband as someone “with a history of restricting civil rights” and urged lawmakers to “ask the tough questions” during the confirmation process.
Civil rights groups are concerned about Dreiband’s work since 2005 as a labor attorney for prominent Washington law firms Akin Gump and Jones Day, where he is currently a partner. Dreiband has defended companies like R.J. Reynolds Tobacco Company in an age discrimination case, Bloomberg in a pregnancy discrimination lawsuit, CVS Pharmacy in an employee severance agreement lawsuit brought by the Equal Employment Opportunity Commission.
LGBT groups criticized Dreiband for his representation of the University of North Carolina when it decided to honor provisions of the state’s controversial “bathroom bill” that banned people from using public bathrooms that do not correspond to their biological sex as listed on their birth certificates. Those provisions were repealed in March.
“I think that Mr. Dreiband has a great deal to answer for,” Gregory Angelo, president of the Log Cabin Republicans, a conservative group that advocates for LGBT rights, told CNN.
Flip-flop?
Most troubling for some legal observers is Dreiband’s seeming flip-flop when it came to minority hiring at the retailer Abercrombie and Fitch. In 2004, while serving as general counsel at the Equal Employment Opportunity Commission under President George W. Bush, Dreiband led a successful discrimination case against the company.
The case alleged that the company violated the Civil Rights Act by maintaining hiring and recruiting practices that favored white men over minority and female job applicants. Abercrombie agreed to pay $50 million to resolve the EEOC lawsuit, and signed a consent decree enjoining it from discriminating against applicants based on their race or sex.
“The retail industry … need(s) to know that businesses cannot discriminate against individuals under the auspice of a marketing strategy or a particular ‘look,’ ” Dreiband said at the time.
But in a 2015 case that went all the way to the Supreme Court, Dreiband was on the legal team defending Abercrombie in a lawsuit that accused the clothing company of refusing to hire a Muslim teenager because her religious headscarf violated its “look” policy. In the Supreme Court brief submitted by Dreiband and other lawyers, they argued “the look policy is crucial to Abercrombie’s success, and complying with it is an important part of a Model’s job.” The term “Model” is what Abercrombie called its floor associates.
The argument seemed to be directly contradictory to what Dreiband had stated as general counsel for the EEOC in the previous Abercrombie lawsuit.
Dreiband’s stark change in stance as a private attorney is unsettling to at least one senator on the judiciary committee who hasn’t decided if she’ll be voting for or against his confirmation.
Unconvinced
Sen. Mazie Hirono, D-Hawaii, met with Dreiband on Tuesday afternoon, during which time she says he worked to convince her that his two years as general counsel of the EEOC represent examples of his commitment to civil rights.
But Hirono remains unconvinced.
“The purpose of the civil rights division is to enforce anti-discrimination laws, and considering he spent most of his professional life defending the people accused of discriminatory acts, I’m concerned,” she said. “Especially considering where this administration is when it comes to minority rights, this nomination does not look good.”
Several other senators on the judiciary committee said they wouldn’t comment on the nomination until the hearing Wednesday.
Former acting-Assistant Attorney General for Civil Rights under the George W. Bush administration, William Yeomans, is urging the judiciary committee to ask tough questions of Dreiband.
“I think it’s legitimate to look at what he’s done since he left the EEOC,” Yeomans said. “He did pro-civil rights litigation when he was at EEOC. But when he was freed of institutional obligations, he became an opponent of victims of civil rights and acted on behalf of corporations. I do think there’s cause for serious concern.”
Dreiband support
There are many in the legal community who stress Dreiband was simply doing his job.
Richard Seymour is a civil rights and employment law attorney who worked with Dreiband at the EEOC and is jumping to his defense in the face of this widespread criticism.
“The thing I value most in people is integrity and judgment,” Seymour said. “And Eric has those qualities immensely.”
Seymour has written a lengthy letter to the senate judiciary committee rebutting the arguments of civil rights groups challenging Dreiband’s nomination. In it, he points out that Dreiband was not the counsel of record in the 2015 Abercrombie case, and did not argue the case. Instead, Dreiband was one of seven attorneys representing the company.
“The rule of law requires that anyone must be free to seek the lawyer of their choice, and any lawyer must be free to represent them … without the lawyer being confused with the client or accused of opposing the laws in question merely by properly defending the client,” Seymour said, adding: “The ideological purity being insisted upon here is absolutely bizarre.”
The White House issued a similar statement.
“The White House judges nominees on the merits of their character and not on the clients they once represented as counsel,” White House spokeswoman Kelly Love told CNN. “Mr. Dreiband is highly qualified to run the civil rights division, and we are privileged to have his service.”
Washington attorney Leslie Silverman, who also worked closely with Dreiband at the EEOC, touted his commitment to his country and to civil rights.
“Eric was incredibly respected and well-regarded at the agency by the career employees and pretty much everybody that dealt with him, Silverman said. “He’s a lawyer’s lawyer. He’s a hard worker. He has incredible integrity.”
The Senate panel will hear from Dreiband, among other judicial nominees, at 10 a.m. ET on Wednesday.