Justice faces pressure for action on civil rights post-Trump

The Biden Justice Department is facing mounting pressure to address civil rights challenges and rework the agency’s priorities in the wake of the Trump administration now that it has a full slate of civil rights leaders at the helm.

The top DOJ officials who have been confirmed in recent months have pledged a renewed commitment to enforcing voting rights protections and tackling police misconduct across the country, reinvigorating legal tools that critics say went underutilized during the Trump era.

But GOP resistance to Biden’s civil rights leaders has led to concerns that work on the issue is set to become increasingly politicized, particularly as Congress weighs legislation that could expand DOJ’s power.

The Senate last week narrowly confirmed Kristen Clarke, President Biden’s pick to lead the Justice Department’s civil rights division. Clarke, the first Black woman to lead the division, will have to navigate both the routine and unique challenges her office faces amid growing political tension over both voting rights and police reform.

Republican lawmakers put up stiff opposition to her confirmation, painting her as a radical anti-police extremist, even as she garnered endorsements from law enforcement groups and conservative figures.

GOP senators put up similar resistance to Vanita Gupta’s nomination to the DOJ’s number three position. Gupta, who led the civil rights division under the Obama administration, was narrowly confirmed in a mostly party-line vote.

If personnel is policy, the appointments of Clarke and Gupta, both of whom are veteran civil rights attorneys joining the DOJ from prominent advocacy groups, signal that the Biden administration intends to take an active approach to civil rights enforcement.

The early signs are welcome for critics of the Trump administration, which significantly scaled back the department’s investigations into police departments and sided with certain voting restrictions.

“I think the fact that the Biden administration went out of its way not only to announce that it would pursue different policies, but to nominate two people who had very strong backgrounds in civil rights enforcement is very important,” said Kristy Parker, who spent 15 years as an attorney in the civil rights division, including as a deputy chief.

“It does indicate that this administration intends to do everything it can to give full effect to the idea that the Justice Department’s mission is to promote equal justice for all and equality for all Americans and the enforcement of the entire panoply of our constitutional rights.”

So far, DOJ has taken only a handful of actions in the civil rights arena, leaving it difficult for observers to discern just how aggressive it will be.

The Justice Department has kicked off major investigations into the Minneapolis and Louisville police departments following the police killings of George Floyd and Breonna Taylor.

But the department has thus far done little to tip its hand on how it will approach voting rights as a tide of GOP led states including Georgia, Texas and Flordia enact new requirements.

“I think the challenge is which fights they are going to take. There’s enough to go around,” said Gerry Hebert, a senior director with the Campaign Legal Center who spent 20 years at DOJ, including stints in the voting section.

On the police reform front, the department has begun “pattern or practice” investigations into the Minneapolis and Louisville police departments, efforts used more widely under the Obama administration that are designed to focus on departments with systemic use of force issues.

That’s left little clarity on DOJ’s overall plans on the issue.

“It would be helpful to understand what the criteria is. They’ve essentially resumed these investigations based on an incident, but they’re really reserved for systemic problematic behavior,” said Hernandez Stroud with the Brennan Center for Justice.

Inimai Chettiar, federal director for the Justice Action Network, said she expects Clarke’s arrival will mean the division will develop a “robust strategy of how and when to bring investigations.”

But she cautioned that even with picks like Clarke and Gupta, the department is being helmed by the more moderate Attorney General Merrick Garland.

“I’m not sure the new Justice Department will be very aggressive,” she said. “I think they will be reform-minded, but also not extremely to the left.”

Stroud would like to see DOJ set standardized criteria for revoking officer’s badges and creating a nationwide database in order to prevent officers with a history of dismissal from going from one police department to the next.

Both also want DOJ to increase the number of strings attached to its numerous grants to local law enforcement as a way to push for reforms.

DOJ’s efforts on criminal justice comes as Congress has ticked past Biden’s deadline for delivering a police reform bill  — something both Stroud and Chettiar see as a best bet not just for reforming police, but for giving DOJ real power to address the issue.

“I think that they are hamstrung by the existing policy frameworks and absent significant congressional action I fear that their current ability will allow them to do little to alter the rotten tree that the bad apples grow from,” Stroud said.

On voting rights, advocates see a need for Congress to forward legislation pushed by Democrats that would give DOJ renewed power to tackle restrictive state laws.

There has been a surge in restrictive state voting laws in the years since a 2013 Supreme Court decision that upended the 1965 Voting Rights Act and the regime under which the DOJ had authority to oversee state ballot rules in jurisdictions that had a history of discrimination against people of color.

Now the burden is on the DOJ to take states to court if it believes their voting laws are too restrictive and prove that they violate the Constitution. 

Meanwhile, GOP-led state legislatures across the country, spurred by former President Trump’s unsupported claims of widespread election fraud, are implementing voting restrictions that opponents say will disproportionately narrow ballot access for minority communities and Democratic strongholds.

Some were hopeful the DOJ would intervene in ongoing lawsuits against the Florida and Georgia bills, particularly after Biden said in March that DOJ was “taking a look” at the Georgia law.

And the department is already facing calls to prepare to respond to similar legislation being mulled in Texas, with eight Democratic lawmakers in the state asking “to request information regarding the Department of Justice’s efforts to protect the voting rights of Texas citizens.”

One of DOJ’s biggest actions on voting rights under Biden has been to fire a warning shot to Arizona as it audits the presidential election results, penning a letter warning that “such investigative efforts can have a significant intimidating effect on qualified voters that can deter them from seeking to vote in the future.”

Parker says that the state legislative efforts to restrict voting rights should be the top concern for the new DOJ leadership.

“I think that’s going to be an enormous challenge, and really an existential challenge,” said Parker, who’s now an attorney at the nonprofit group Protect Democracy. “Because if we get to a point where votes are being suppressed right and left and the will of the voters isn’t even being respected and honored, then we’ve lost our democracy. They are front and center in that fight.”