On January 6, the fateful day that insurrectionists stormed the Capitol, President-elect Joe Biden announced his nominees to lead the Department of Justice. That is perhaps why the news of those nominees hasn’t gotten the attention they usually garner.
But that was also the day we learned that Democrats won the two Georgia run-off elections, giving them a bare majority in the Senate. Perhaps the timing was simply a coincidence, but Biden’s nominee to be the next attorney general, Merrick Garland, will finally get the hearings—and probable confirmation—he was denied when former President Barack Obama nominated him for the Supreme Court. While Garland might not have been the first choice for that position by many liberals, there is a sense that justice will be served.
Nowhere in the federal government will the task of rebuilding after Trump’s presidency be more urgent than at the Department of Justice. Former Attorney General Jeff Sessions worked tirelessly to decimate everything accomplished by the Obama administration, while William Barr politicized the department by using it to defend Trump and his associates.
Garland has a massive task ahead of him. But Biden also announced the three leaders who will join him in those efforts—all women.
Lisa Monaco has been nominated to be Deputy Attorney General, the position previously held by Rod Rosenstein. After being a career prosecutor at DOJ, Monaco served as Assistant Attorney General for National Security and as White House Homeland Security and Counterterrorism Advisor in the Obama administration. Of particular note is that she created the first nationwide network of national security cyber prosecutors.
Vanita Gupta has been nominated to be Associate Attorney General. From 2014-2017, she served as acting director of DOJ’s Civil Rights Division. I profiled Gupta during that time. She currently serves as President and CEO of The Leadership Conference on Civil and Human Rights.
Kristen Clarke has been nominated to be the director of DOJ’s Civil Rights Division. As a prosecutor in that division, she handled hate crimes, human trafficking, police misconduct, voting rights, and redistricting cases. Clarke currently serves as president and executive director of the National Lawyers’ Committee for Civil Rights Under Law.
These three choices tell us a lot about Biden’s priorities for the Department of Justice. While all three women have demonstrated competence and experience, two of them have dedicated their entire careers to fighting for civil rights.
Fox News personality Tucker Carlson didn’t waste any time going after Clarke. That will come as no surprise to the Biden team or Clarke because attacking the person Democrats nominate to run the Civil Rights Division—which former Attorney General Eric Holder called “the crown jewel of the Justice Department”—has become a time-honored tradition on the right. President Bill Clinton’s nominee, Lani Guinier, was attacked for writings that were deemed to be too radical, and Obama’s nominee, Debo Adegbile, was smeared for being part of a team that filed an appeal to the death sentence of Mumia Abu-Jamal, who had been convicted of murdering a Philadelphia police officer.
So why have Republicans been so intent on attacking Democratic nominees to run the Civil Rights Division at DOJ? It was created in 1957, under Dwight Eisenhower, and assigned the task of enforcing federal statutes prohibiting discrimination based on race, disability, religion, and national origin. It has become the battleground for issues such as voting rights, prosecution of police brutality, and defense of affirmative action. Here is how Clarke identified the task before her.
— Kristen Clarke (@KristenClarkeJD) January 9, 2021
Under Republican administrations since Reagan, that work has been undermined. Ari Berman documented what happened in the 1980s.
The Reagan administration had already embarked on a radical makeover of the DOJ’s Civil Rights Division, which enforced the VRA. The assistant attorney general for civil rights, William Bradford Reynolds, believed that “government-imposed discrimination” had created “a kind of racial spoils system in America” favoring historically disadvantaged minorities over whites, an argument that no head of the Civil Rights Division had ever made before. During Reynolds’ tenure ending busing became more important than desegregating schools, dismantling quotas became more important than integrating the workforce or academia and preventing proportional representation became more important than achieving a multiracial government.
During George W. Bush’s presidency, the Civil Rights Division not only faced charges of corruption, but the focus also changed from promoting voting rights to voter suppression via allegations of fraud. Here is what Joseph Rich, former head of the Voting Rights Section, wrote about that:
It has notably shirked its legal responsibility to protect voting rights. From 2001 to 2006, no voting discrimination cases were brought on behalf of African American or Native American voters. U.S. attorneys were told instead to give priority to voter fraud cases, which, when coupled with the strong support for voter ID laws, indicated an intent to depress voter turnout in minority and poor communities.
Of course, lies about voter fraud have been a staple of the Trump administration. But another story that got lost amidst all of the focus on the Georgia Senate run-off elections and the insurrection at the Capitol is that Trump’s DOJ is seeking to undermine the basis for prosecuting cases of discrimination.
The Justice Department has submitted for White House approval a change to how it enforces Title VI of the Civil Rights Act, which prohibits recipients of federal funding from discriminating based on race, color or national origin. The regulation covers housing programs, employers, schools, hospitals, and other organizations and programs.
Under the change, the department would continue to narrowly enforce the law’s protections in cases where it could prove intentional discrimination, but no longer in instances where a policy or practice at issue had a “disparate impact” on minority or other groups.
Eliminating disparate impact as a standard would mean that defendants must prove that they have been victims of an intent to discriminate, something that would make cases of systemic racism impossible to prove.
Carlson had to go back to Clarke’s days as a Harvard student in the mid-1990s to find material to attack her. For example, as president of the Black Students Association, she had invited an antisemitic speaker to an event on racism. Clarke has admitted that was a mistake and apologized. Several groups—including the National Council of Jewish Women, the Jewish Democratic Council of America, and the American Jewish Congress—have stepped up to defend her against Carlson’s attacks. Here is part of a Twitter thread from Bend the Arc: Jewish Action:
Now, Tucker Carlson is using accusations of antisemitism in an attempt to smear Clarke, a Black woman & civil rights champion who has dedicated her life to combating bigotry.
This is a repeated pattern from the right — using fear & division to attack progressive women of color.
— Bend the Arc: Jewish Action (@jewishaction) January 14, 2021
The second attack Carlson waged against Clarke has to do with a letter she wrote to the Harvard Crimson in 1994 touting “the genetic differences between Blacks and whites” and explaining that “melanin endows Blacks with greater mental, physical and spiritual abilities.” At the time, views touted by Richard Herrnstein and Charles Murray in the book The Bell Curve were being used to question the intellectual ability of Black students. Clarke explained that she was attempting “to express an equally absurd point of view — fighting one ridiculous absurd racist theory with another ridiculous absurd theory.” That might not have been a wise strategy, but of course, Carlson didn’t want his viewers to know the truth about the context of her remarks.
Republicans don’t support the enforcement of civil rights laws. That is why Clarke has become the latest target of a smear campaign that is only likely to grow as she faces confirmation. But make no mistake, Biden has nominated a team that will do all that is necessary to restore the ideal of equal justice under the law.