Abigail Thernstrom makes a dramatic break from her usual allies. | Composite image by POLITICO A conservative dismisses right-wing Black Panther 'fantasies'

A scholar whom President George W. Bush appointed as vice chairwoman of the U.S. Commission on Civil Rights, Abigail Thernstrom has a reputation as a tough conservative critic of affirmative action and politically correct positions on race.

But when it comes to the investigation that the Republican-dominated commission is now conducting into the Justice Department’s handling of an alleged incident of voter intimidation involving the New Black Panther Party — a controversy that has consumed conservative media in recent months — Thernstrom has made a dramatic break from her usual allies.


“This doesn’t have to do with the Black Panthers; this has to do with their fantasies about how they could use this issue to topple the [Obama] administration,” said Thernstrom, who said members of the commission voiced their political aims “in the initial discussions” of the Panther case last year.

“My fellow conservatives on the commission had this wild notion they could bring Eric Holder down and really damage the president,” Thernstrom said in an interview with POLITICO.

The criticism has focused attention not just on Thernstrom, a scholar at the American Enterprise Institute, but on the partisan nature of the Civil Rights Commission and on a story that, like the controversy over the anti-poverty group ACORN, has raged almost completely outside the mainstream media.

The facts of the case are relatively simple. Two men were captured on a video standing outside a polling place in a black Philadelphia neighborhood on Election Day in 2008. One of the men had a nightstick, if an unclear agenda — though a member of the black nationalist New Black Panther Party, he had earlier professed loathing for the Democratic "puppet" candidate, Barack Obama, who went on to overwhelmingly carry that precinct.

Three Republican poll monitors filed complaints of intimidation — itself a federal crime — but no voters attested to being turned away. The Justice Department, while Bush was still president, investigated the incident and later, after Obama took office, decided that "the facts and the law did not support pursuing" the claims against the party and against a second, unarmed man, Justice spokeswoman Tracy Schmaler said.

But the issue galvanized long-running conservative complaints — including by former Bush administration lawyers — that the government doesn’t take black racism seriously, and the incident has become a huge source of controversy among conservatives.

Fox News and other conservative media outlets have turned the Justice Department’s handling of the case into the subject of the sort of intense, contained interest that’s becoming increasingly common in an age of polarized and ideological media.

The liberal group Media Matters has counted 95 segments on Fox at least partially devoted to the story, much of it driven by “America Live” host Megyn Kelly, who focused on it during 45 segments, including one that discussed whether Fox’s own coverage had been racist.

Fox News did not return calls asking for comment on its coverage.

But the wide exposure given the controversy, said one member of the Civil Rights Commission, was reason enough for the Justice Department to pursue the case aggressively.

“Millions of people saw the clip on Fox News and YouTube,” said Todd Gaziano, a commissioner who has been the driving force behind the commission’s investigation. “Any reasonable American knows this is voter intimidation. And so the dismissal itself of an infamous case where there’s footage is more damaging to people’s perception of the rule of law than a dismissal when nobody’s paying attention.”

The commission chairman, Gerald Reynolds, said Thernstrom is attacking the commission out of pique dating back to a dispute about organizing a conference scheduled for this fall. “The allegation that there’s any interest in bringing down the Obama administration is false — and it’s a lot more; it’s personal and petty.”

Thernstrom, who had openly mocked the commission’s hearing on the case, put her dissent in writing last week in National Review, where she said the incident was “racial theater of very minor importance” and “small potatoes.”

And other conservatives have weighed in on her side.

“There are more important issues to go after Attorney General Holder on even in terms of the voting rights section itself,” said Linda Chavez, president of the Center for Equal Opportunity, who was staff director of the Civil Rights Commission in the Reagan years and called the video “damning” but relatively minor.

“Because it’s 24-hour news and cable news and Fox News — this is the kind of story, like the ACORN story, that’s got pictures that you can run over and over again,” said Chavez, who noted that she’s a Fox News contributor.

“When it comes to race, the right, like the left, can't resist getting hung up with trivia and sideshows,” said Amy Wax, a law professor at the University of Pennsylvania and the author of an influential book arguing that discrimination against blacks is no longer very meaningful. “How do the antics of these two Black Panthers make a difference?”

A leading writer on the widely read HotAir marveled at Fox’s eagerness to offer a platform to the New Black Panther Party’s ranting chairman, Malik Shabazz, crediting it to the fact that the “outrageous outrage he provokes is good for ratings and partly because, as here, his demagoguery necessarily casts the host in the role of Spokesman for Decency."

And Doug Mataconis of the conservative blog Outside the Beltway called the flap “much ado about very, very little.”

Their doubts — and the on-air qualms of some Fox contributors — have not diminished conservative outrage.

The Panthers “were there to intimidate blacks. To keep them voting for Obama and other left-wing liberal Democrats,” said Roy Innis, chairman of the Congress of Racial Equality.

“The Obama folks should realize that they are enabling [the idea] that rules of civility are different for black people. It's a tired idea, and America is less tolerant of it by the year,” said the Manhattan Institute’s John McWhorter, who simultaneously dismissed the Panthers as “a bunch of grown men medicated on photos of Huey Newton playing cops and robbers.”

A chief casualty of the dispute may be the commission itself, which was established in 1957 and has been long known as a partisan redoubt; when it was dominated by Democratic appointees, it spent much of the Bush years investigating allegations that he had stolen the 2000 election.

The commissioners serve six-year terms, and though only four can belong to one political party, sympathetic independents can round out sharply partisan majorities. The president appoints four commissioners, and congressional leaders appoint the other four.

The current controversy, said Chavez, the agency’s conservative former staff director, is more evidence that “the commission has outlived its usefulness.”

But even as the conservative commissioners debate their differences, another clear casualty of the debate has been the vestiges of a national conversation.

Many people who do not watch Fox News or follow conservative media have never heard of the issue. The disconnect was painfully clear to Rep. Brad Sherman (D-Calif.), who, when asked about the controversy at a recent town hall meeting in his district, admitted to constituents that he’d never heard of it.

“What this shows is just how polarized we’ve become as a country,” Sherman told POLITICO.

Sherman said he thought the Justice Department had “mishandled” the Panther case but blamed what he called the “manipulative cowards at Fox News” for blowing it out of proportion.

“I grew up during the Vietnam War, and you had people on both sides, but they were getting their facts from the same place,” Sherman said. “We have polarized political parties and, for the first time in 100 years, polarized journalism as well.”

CORRECTION: An earlier version of this story misidentified the Congress of Racial Equality official who commented on the New Panther Party. The quote should have been attributed to Roy Innis, who is the group’s chairman.

CORRECTION: An earlier version of this story incorrectly identified the think tank with which Abigail Thernstrom is now affiliated. She is a scholar at the American Enterprise Institute.