In 1992, Lani Guinier had little experience being in the spotlight. Like most civil rights lawyers, she did not pursue a life of wealth or fame, and unlike many of her fellow graduates of Harvard College and Yale Law School, she did not spend her career seeking power. Guinier had made a name for herself as a litigator with the Department of Justice and the NAACP Legal Defense Fund (the author of this story is also a former LDF employee) and as a scholar at the University of Pennsylvania, but her fame was limited to her fellow civil rights attorneys, professors and a handful of government officials she had taken to court over the years.
One of those officials was a young Bill Clinton, whom Guinier sued in 1984 over the state of Arkansas’ voter registration policies. They got to know each other, and when Clinton entered the Oval Office less than a decade later, he tapped Guinier to be the assistant attorney general for the Civil Rights Division. But before the ink on the press release even had a chance to dry, Clint Bolick, a conservative legal gadfly and founder of the libertarian Institute for Justice, began coordinating a smear campaign against Guinier, pledging to become “her worst nightmare.”
The day after the announcement, Bolick published an op-ed in the Wall Street Journal assailing Guinier’s scholarship, dubbing her the “quota queen” and accusing her of supporting a “racial spoils system” in elections. While the attacks were almost entirely without merit (Guinier opposed quotas and had merely written in favor of proportional representation and supermajority stipulations), the label stuck, and over the following weeks, Bolick’s talking points were republished in countless op-eds and news stories. A once-obscure civil rights lawyer had become the poster child for Clintonian radicalism, racial division and plans to hand special privileges to nonwhites. Clinton folded and withdrew Guinier’s nomination less than two months later, calling many of her ideas “anti-democratic.”
“A distracted White House with no public relations strategy had enabled my opponents not only to define me, but to stir up fears about me as a person,” Guinier later wrote of her nomination. “Now the President was reinforcing those images with his choice of language.”
Guinier was humiliated and kept away from the job of a lifetime. For the conservative legal and political minions who carried out the attacks, it was an unambiguous win, not to mention payback for Democratic opposition to the Supreme Court nominations of Robert Bork and Clarence Thomas. In the three decades since, the right has only doubled down on the strategy they used for Guinier.
“Confirmations for the civil rights division and the confirmation process in the modern day is obviously not for the faint of heart,” said Debo Adegbile, who was nominated by President Barack Obama to run the civil rights division in 2013, but was voted down after a similar rightwing propaganda campaign.
President Joe Biden has selected not one, but two civil rights lawyers to face the gauntlet next: Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, is his choice to run the civil rights division, while Vanita Gupta, the division’s previous leader under the Obama administration now serving as president and CEO of the Leadership Conference on Civil and Human Rights, is his choice to be associate attorney general, the third-highest position in the Justice Department. Both nominees have strong credentials, with degrees from top law schools, years of experience in litigation for both the government and civil rights groups, and strong reputations in the legal world.
Just don’t expect any of that to matter to the right.
A tradition of stoking racial division
Civil rights has rarely been a unifying political issue in American politics, but legal experts track something of a bipartisan “consensus” on civil rights enforcement from the division’s establishment in 1957 (which overcame Sen. Strom Thurmond’s record-breaking 24-hour filibuster) until the 1980s. When Ronald Reagan took office, he nominated a young conservative lawyer named William Bradford Reynolds to run the division; he quickly began undoing the work of his predecessors.
“William Bradford Reynolds was a rigid ideologue who turned his back on civil rights enforcement, including the Voting Rights Act and equal opportunity initiatives in employment and education,” said Wade Henderson, who served as president and CEO of the Leadership Conference on Civil and Human Rights from 1996 to 2017, and has returned to the group in an interim role in Gupta's absence. “There was a hate crime statute on the books but he did little to enforce it. Unfortunately, the CRD took a dramatic turn to the right on his watch."
According to Henderson, the civil rights division improved somewhat under President George H.W. Bush and his civil rights chief, John Dunne. But it would be Bush’s presidency, not Reagan’s, that proved an outlier in terms of Republican attitudes on civil rights.
After stumbling through the Guinier nomination in 1993, Clinton was able to confirm his next choice, future Massachusetts Governor Deval Patrick, despite repeated attacks from Bolick and his ilk to label Patrick as a “stealth Guinier.” When Clinton named a replacement for Patrick a few years later, choosing NAACP Legal Defense Fund attorney Bill Lann Lee, he was attacked for his support of affirmative action, and never received a floor vote in the Republican-controlled Senate. Lee took office as a recess appointment, serving until the end of Clinton’s presidency.
“I don’t think it’s ever personal,” Lee told Blue Tent. “I think there’s just opposition on some civil rights matters, and so the vehicle we have under our system of government for raising those issues often is a confirmation battle.”
While Guinier, Patrick and Lee all took on fierce attacks from the right, Republicans have only become more vicious in opposing civil rights nominees since the 1990s.
Like those before him, when LDF and Senate Judiciary Committee lawyer Debo Adegbile was nominated to run the division in 2013, his credentials were without question; he had litigated civil rights cases for more than a decade, including two landmark voting rights cases in front of the Supreme Court. But his confirmation was derailed because of his work on behalf of Mumia Abu-Jamal, the infamous Black journalist and activist who was convicted of murdering Philadelphia police officer Daniel Faulkner in 1981. Abu-Jamal was sentenced to death and became a cause celebre for left-wing activists, many of whom believed he was framed by a notoriously abusive police department. But Adgebile and LDF merely made technical arguments about the jury selection and instructions at Abu-Jamal’s trial, arguments that were vindicated by the Third Circuit Court of Appeals. The victory did not free Abu-Jamal or vacate his conviction.
Notwithstanding reality, the Abu-Jamal connection gave Republicans yet another chance to wage a trumped-up culture war, working with the Fraternal Order of Police to turn the mild-mannered Adegbile into an apologist for cop killers. The smear campaign helped swing seven Democratic senators against the nomination, including current Sens. Chris Coons, Bob Casey and Joe Manchin.
“That sheer act of providing meaningful legal counsel at the highest level to Mumia Abu-Jamal, who by virtue of the court’s decision, obviously had been denied his constitutional rights, ended up costing [Adegbile] confirmation to a position for which he was clearly qualified,” said Henderson. “And that was a very painful political reality.”
After Adegbile was voted down, Obama appointed Vanita Gupta, then an attorney with the ACLU, to lead the division. But like Lee, Gupta was nominated and never saw a floor vote in the Republican-controlled Senate, serving as acting assistant attorney general from 2014 until 2017. During her tenure, Gupta was criticized for her previous work on mass incarceration and for her aggressive police reform actions while in office. Many conservative legal writers also accused Gupta of serving in violation of federal law, having never been confirmed by the senate.
While racism is clearly at play in these recurring hit jobs against qualified nominees of color to run the government’s top racial justice enforcement arm, the Republican strategy is also pure power politics. If successful, the GOP gets a two for one: They whip up racial resentment among white constituents and help their future campaigns by throwing a wrench into voting rights enforcement.
“All people in America are covered by the Constitution,” said Henderson. “One has to ask oneself, why are measures like the Voting Rights Act needed to protect the interests of citizens of color? It is because the Constitution, including the Fourteenth and Fifteenth Amendments, is not self-executing. Without legislation in place, and a strong enforcement mechanism, too many people will be left largely exposed and unprotected. The resurgence of white nationalism in our country shows why these laws are still sorely needed.”
A potential confirmation battle, followed by a day-one mountain to climb
Confirmation hearings for Gupta and Clarke will take place in front of the Senate Judiciary Committee, where Illinois Sen. Dick Durbin is expected to be chairman. Durbin is a longtime civil rights ally and was one of Adegbile’s most ardent defenders during his 2014 confirmation battle. Leslie Proll, a civil rights lawyer and policy advocate now advising the NAACP on judicial nominations, recalled the first time she heard Durbin speak, which was at a Judiciary Committee hearing over Bill Lann Lee’s nomination.
“I was in the committee room but couldn’t see the dais because it was so packed, and I’m hearing this voice just passionately talking in defense of Bill Lann Lee and John Brown, and all this historical backdrop,” said Proll, who previously ran LDF’s policy office and served in the Department of Transportation. “I was just blown away. Finally, I was able to peer through the crowd and see it was Sen. Durbin.”
Durbin is expected to bring that same commitment to advocating for Clarke and Gupta, but both nominees face a very different landscape than their predecessors. Democrats control the Senate, albeit on a narrower margin than when Adegbile was voted down, and the summer’s massive racial justice demonstrations have helped make civil rights a top priority for both the White House and Congress. Given the historical moment, Proll predicts that this year’s hearings will be far less eventful than in the past.
“Some of the members on the Republican side will do what they always do and complain about strong enforcement, but at the end, I think civil rights is going to win out and [Clarke] is going to be confirmed quickly,” Proll said.
But Proll’s hopes for a broader civil rights consensus on the Hill may run up against the sheer force of the right wing’s media outrage machine, which started going after Gupta and Clarke almost immediately.
The day after the nominations were announced, Tucker Carlson, the Fox News host and noted Bubba the Love Sponge guest, began digging into Clarke’s history. He assailed her for helping to bring Tony Martin, an anti-semitic scholar and author, to speak at Harvard as an undergraduate, and read excerpts of a letter she wrote to the school’s newspaper where she stated that Blacks held “superior physical and mental abilities.” Clarke later told the Forward, a Jewish news site, that it was a mistake both to bring Martin to campus and to defend him. She also accused her critics of ignoring the clear satirical tone of her past writing, stripping it of its full context. Clarke was responding to discussions of “The Bell Curve,” the infamous pseudo-scientific tome arguing that racial achievement gaps could be explained by genetics, and wanted to “express an equally absurd point of view—fighting one ridiculous absurd racist theory with another ridiculous absurd theory.”
Trumpist propaganda arm Breitbart has attacked Clarke as a supporter of defunding police and has tried to highlight Gupta’s openness to expanding the Supreme Court. Gupta may have sidestepped some of the ugliness of a full confirmation battle previously, but her time at the division will not go unmentioned. In his 2013 nomination for labor secretary, Tom Perez, Obama’s first civil rights chief, faced tough questioning from Republicans focused on his time running the division, including his decision to drop voting rights cases begun during the Bush administration.
“I think we are in a different atmosphere, and I think that because of this toxic atmosphere and hyper-partisan period in which we are living, the nominee to the office has to be, as they used to say, as pure as Caesar’s wife,” said Henderson.
The conservative legal hivemind has also sprung to action, with Heritage Foundation’s Hans Von Spakovsky publishing an article at Fox attacking both Gupta and Clarke as enemies of “election integrity” and race-neutral civil rights enforcement.
Von Spokavsky worked in the civil rights division during the Bush administration, when the Justice Department again turned away from its traditional civil rights duties. But Von Spokavsky and his colleagues manipulated the division beyond even the destruction of the Reagan years, politicizing hiring practices and pursuing cases based on fantastical voter fraud theories, even while the president signed an extension of the Voting Rights Act into law with bipartisan support. According to a 2009 inspector general’s investigation, acting civil rights chief Bradley Schlozman stacked the division with conservative “ideological comrades” and talked openly of refusing to hire or give key assignments to “pinkos,” “commies,” “politburo members” or “crazy libs” who were associated with any "psychopathic left-wing organization designed to overthrow the government.”
When Perez took the reins of the division in 2009, his immediate task was to clean up the Bush-era mess and establish new policies to prevent future politicization. Clarke and Gupta will have similar challenges in their respective roles. The Trump Justice Department is considered one of the most highly politicized in history, and the civil rights division is no exception. Under Trump, the Justice Department dropped consent decrees with police departments across the country, signed on to lawsuits opposing the use of affirmative action, and even wrote briefs in favor of voter suppression laws.
Writing for CNN in September, Clarke summed up Trump’s civil rights record: “In short, there is no administration that has done more to obstruct and defy the mission of the division in its 63-year existence.”
Civil rights advocates hope for advancement, not merely a return to form
The 1993 smear campaign against Guinier took most of the Clinton administration by surprise, but one person who saw something coming was a young attorney in the White House Counsel’s office named Ron Klain. Klain had flagged Guinier’s writings early on, a former White House staffer told the New Republic in 1994, and he had “balked” at her nomination. Now, 27 years later, Klain is Biden’s White House chief of staff.
While the country has made huge strides on racial justice since the Clinton years, those same cautious instincts over civil rights and law and order remain, a paradox embodied by the politics of Joe Biden. Like many moderate Democrats in Congress, Biden has blamed the left’s embrace of “defund the police” for the party’s dismal down-ballot performance in 2020. During a November call with civil rights leaders—including both Gupta and Clarke—Biden chastised those supporting the “defund the police” slogan as jeopardizing Democratic senate candidates in Georgia, but also committed to major action on police reform after the elections.
“I just raise it with you to think about, how much do we push between now and January 5—we need those two seats—about police reform. But I guarantee you, there will be a full-blown commission. I guarantee you it’s a major, major, major element,” Biden said.
In September, Biden likewise pledged to expand the civil rights division’s powers and give them an office in the White House, saying he wanted to make sure they have “access to and transparency into all police department activities across the country.”
Civil rights lawyers who spoke with Blue Tent both on the record and on background expect the Biden civil rights division, no matter who leads it, to be a meaningful improvement over Trump, with many hoping for an aggressive approach, given the political moment. But Arizona State University Law Professor Michael Selmi believes that even the Obama-era civil rights division is a poor standard bearer for how the federal government should be pursuing racial justice.
“It’s almost certain to always be true now that the civil rights division is not going to be an aggressive unit,” said Selmi, who authored a Politico op-ed critical of the department in 2014. The division rarely brought major, systemic cases, Selmi argued, and was not set up to take on a larger docket or more “cutting edge” litigation, instead focusing on smaller, more winnable cases.
“Their resources really are—you know, unlimited sounds crazy—but they are not resource capped in terms of these cases,” said Selmi, who also previously worked in the civil rights division. “So they can really put resources into them in a way private parties might have a hard time doing.”
“It would surprise me if civil rights became a focus, but I hope I’m wrong on that,” Selmi said, adding in a follow-up email that he thinks the nominations of Gupta and Clarke are both good signs for the Justice Department.
Proll also agrees on the need for more systemic litigation, and likewise praised appointments of both women, a sentiment shared by many civil rights advocates, both publicly and in conversations with Blue Tent. But after a summer of mass protests demanding top-to-bottom dismantling of the criminal justice system as it stands, Clarke and Gupta’s appointments are not exactly a major breakthrough for many activists. Even if the Justice Department is able to accomplish all of Biden’s goals for police reform, the administration’s work will likely see a lukewarm reception at best from the left.
“The bad news is that Gupta and Clarke come out of the proceduralist camp that has argued for years that the task at hand is to restore public trust in the police through training and oversight, so the police can get back to arresting people,” said Brooklyn College Professor Alex Vitale, a police abolition advocate and author of “The End of Policing.”
“The good news is that both of them have made public statements that we need to rethink our overreliance on policing and look to new community investments to produce public safety,” Vitale added. “The conversation within the civil rights community is certainly moving in this direction and their organizations have been struggling with this issue producing contradictory statements in various forms. Hopefully, they will have to bend to pressure coming from the Movement for Black Lives to pull back on police reform and invest in community alternatives instead.”
Of course, the biggest opponents of the civil rights division will not be on the left, but Republicans in Congress, rightwing legal organizations and recalitrant states and municipalities. Adoration for police and opposition to reform remains a potent identity on the right, and is perhaps the current-day equivalent of affirmative action in the 1990s: Democrats support police reform in principle, but are deeply afraid of how the issue can be weaponized to stoke fear in their white constituents.
“I envision the Democratic Party still struggling with its identity in relation to this, because it’s really a radical push, and to challenge police is not an easy thing to do politically,” said John Jay College Professor Jamie Longazel, who is working on a book on the “blue lives matter” movement. “The Democrats are going to have to reconcile that: Where do they stand in relation to the police and Black Lives Matter? And there’s not much room in the middle. They’re going to have a hard time if they try to bridge that gap.”
Then there’s voting rights, where Democrats hope to move aggressively as Republicans continue to invoke conspiracies about voter fraud and a stolen election. Democracy expansion legislation is at the top of the list for many progressive lawmakers and advocacy groups, and the Justice Department and civil rights division will be responsible for implementing most theoretical proposals. Enacting and enforcing those laws would almost surely face all-out opposition from the right in congress, in the courts, and at the state and local level.
“It really does reflect the actual struggle over political power in the most blatant sense,” Henderson said. “The Voting Rights Act of 1965, as amended, has really been the source of expanded power and influence by communities of color that have been traditionally denied that protection under the existing federal structure.”
Police and voting rights are the two most visible issues for now, but Clarke’s portfolio at civil rights will also include education, employment, disability rights, LGBTQ and gender discrimination, and hate crimes, among others. As associate attorney general, Gupta will be deputized to oversee not just civil rights, but the department’s numerous other divisions, as well.
“She’s not just overseeing the civil rights division, but bringing a civil rights lens to other components of the department. I think that hasn’t gotten enough attention,” Proll said. “It’s something I hope we’re going to see more from the Biden administration, placing civil rights lawyers in nontraditional positions."
If confirmed, the task ahead for both Clarke and Gupta will be daunting. But these two career civil rights lawyers will likely never again be handed more responsibilities nor greater resources to pursue their vision of justice.
“Is the job worth it?” Lee, the former civil rights chief, posited when asked about the contentious confirmation process. “I think the job is worth it.”
