Second Circuit Nominee Michael Park’s Assault On Our Democracy

Every 10 years, the U.S. Census Bureau conducts a census to count the number of people in the United States. The decennial census is conducted on Census Day, and the next one is exactly one year from today – April 1, 2020. But while civil rights groups are fighting to ensure every person is counted, Michael Park, a partner at Consovoy McCarthy (which one commentator described as “the go-to legal shop for conservative ideologues looking to fight everything from voting rights to affirmative action to abortion”) has been fighting to ensure 6.5 million people are not counted. And this effort appears to have helped earn him a prestigious nomination to a powerful federal court, the Second Circuit Court of Appeals.

The data the census collects is critical. The information determines representation in the House, and it is used to allocate billions of dollars in federal funds, including critical money for education, health care, economic development, and transportation.

Unfortunately, the Republican Party (which has repeatedly engaged in racial gerrymandering and partisan redistricting to make it harder for people of color, Latinos, Native Americans, young people, and the economically disadvantaged to have their vote count) is now also trying to rig the census: The Trump Administration is trying to add a question to the 2020 census asking U.S. residents to disclose if they are citizens.

If this question is added to the census, many people will be reluctant to voluntarily provide personal information to the government for fear of retribution to themselves or their loved ones. As former directors of the U.S. Census Bureau noted in an amicus brief in the Supreme Court case Evenwel v. Abbott, asking about citizenship “would likely exacerbate privacy concerns and lead to inaccurate responses from non-citizens worried about a government record of their immigration status…The sum effect would be bad Census data.”

As a result, there will be an increase in the undercount of minority populations, leading to loss of representation and millions of dollars in federal funds. Former census officials believe the citizenship question could result in as many as 6.5 million people not participating.

Senate Minority leader Chuck Schumer described the question’s inclusion as a “cynical effort to discourage people from responding to the census,” ultimately resulting in disparate damage to communities of color and immigrants. Senator Brian Schatz put it more bluntly, “They’re trying to get a lower count in communities with black and brown people so that Republicans have more representatives in the U.S. House.”

A broad coalition of states, cities, civil rights organizations and immigrant rights groups are fighting the administration in court. And federal Judge Jesse Furman recently found the addition of a citizenship question to be unlawful because of “a veritable smorgasbord of classic, clear-cut [Administrative Procedure Act] violations.” Judge Furman called Commerce Secretary Wilbur Ross’s decision to add the question “arbitrary and capricious.” He said that Ross “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices.”

This is where the record of Michael Park, a nominee to the Second Circuit, comes in. Park is the author of an amicus brief on behalf of the Project on Fair Representation, which describes itself as a “not-for-profit legal defense foundation that is designed to support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.” In his brief, Park argued that adding a citizenship question would provide “critical” data to better enforce the Voting Rights Act (VRA) and was added “at DOJ’s urging.”

In fact, evidence showed that the decision to add the citizenship question was driven by Stephen Bannon and Kris Kobach, who do not want to count noncitizens, and not by the Justice Department. Nor is it critical to enforcement of the VRA, according to John Gore, the then-acting Assistant Attorney General for the Civil Rights Division. Gore was asked the following: “You agree, right, Mr. Gore, that [citizenship] data collected through the census questionnaire is not necessary for DOJ’s VRA enforcement efforts?” Gore responded, “I do agree with that.”

It is deeply troubling that Park would defend efforts to undercount immigrant communities, and to ignore critical evidence in doing so. And while his brief was written in his capacity as a private attorney, that does not place it outside the body of work that is relevant in the context of a lifetime judicial appointment. As Chuck Grassley, said in opposing an Obama judicial nominee because of a position she took in a brief, “no one forced” her “to approve and sign [the] brief.” Well, no one forced Park to work to undermine the census.

It is more troubling, however, that Park is potentially days away from becoming a judge on the Second Circuit Court of Appeals. It appears highly likely that it is because of Park’s work to degrade the census and skew representation and federal allocations, rather than despite it, that President Trump nominated Park to a court that is just one step below the Supreme Court – and did so over the objections of Park’s home-state senators. He was reported out of the Senate Judiciary Committee on March 7, 2019, on a party-line vote.

On April 23, the Supreme Court will hear an appeal of Judge Furman’s ruling on the census question, and the Court’s decision will reverberate for decades, potentially determining the makeup of Congress and whether billions of critical federal dollars get to the people who need them. At the same time, Park, whose birthday happens to be today, is only 43 years old – and the Senate’s decision to confirm him or not will also reverberate for decades. If confirmed, he will likely serve on the court that adjudicates the rights of millions of people in New York, Connecticut, and Vermont for many years.

Indeed, if Park’s work on the census case is any indication, our constitutional rights and critical legal protections will be under assault from Park for years to come. As Jon Greenbaum, chief counsel at the Lawyers’ Committee for Civil Rights Under Law, said, “Michael Park has a demonstrated record of hostility to civil rights, and it is hard to imagine he would change his views as a judge.”

There are many reasons to oppose Michael Park. His career, thus far, has fulfilled a checklist of conservative causes – advocating against affirmative action, women’s reproductive rights, tribal rights, workers, health care, consumers, and clean water. But today, exactly one year from when the government conducts its decennial census, Park’s work to ensure an undercount of immigrants and minorities stands out as particularly disqualifying for someone who wishes to be a federal judge.