President Biden has chosen for top positions at the Justice Department three advocates who have spent their lifetimes in the civil rights arena and the last four years in particular combatting the Trump-era’s most egregious assaults on democracy.
When then-President Trump put forward judicial nominees who had shown hostility to voting rights, Vanita Gupta organized the civil rights community pushback that helped sink the confirmations of at least two of them.
When the administration stood up a sketchy “election integrity” commission to validate Trump’s false voter fraud claims, Kristen Clarke spearheaded one of the early legal challenges that contributed to the panel’s eventual demise.
And when Trump hijacked the U.S. foreign policy apparatus to smear his 2020 presidential opponent, Pam Karlan testified in House impeachment proceedings about the implications that gambit had for democracy.
Now all three have been selected for key DOJ positions from which they can revitalize the department’s role in the voting rights space — at a time when the threats to democratic participation are historically daunting.
Not only do they bring a complementary set of skills and experience that Judge Merrick Garland himself hailed in his attorney general confirmation hearing last week. All three did previous stints at the Department of Justice that will allow them to hit the ground running. And in this environment, the Biden administration will have no time to spare: the department will be facing an onslaught of restrictive voting laws, a historically challenging redistricting cycle, and a legal minefield with the Trump-ification of the federal judiciary.
“These are hard positions to be in,” said Allison Riggs, who leads the voting rights program at the Southern Coalition for Social Justice. “They will be aggressive advocates, and I think they will use their enforcement authority more than they have in the past.”
Already at the Justice Department because she was selected for a top civil rights division position that doesn’t require Senate confirmation, Karlan has signaled the beginning of a new era by rescinding the department’s bogus Trump-era request for census citizenship data. The move put the final nail in the coffin of that administration’s plan to weaponize the data against immigrant political power. Clarke will supervise the division if she is confirmed its assistant attorney general. Gupta, who occupied Karlan’s role during the final years of the Obama presidency, has been nominated for associate attorney general, the number three leadership position where she is expected to oversee not just DOJ civil rights work but several other department divisions.
Assuming that the two nominees who will require Senate approval can survive their confirmations — and there are signals that Republicans may put up a fight — this element of Biden’s leadership team will represent a “breakthrough,” said Michael Waldman, the president of the Brennan Center, a think tank focusing on justice issues and voting rights.
“They are not just people who are mildly sympathetic to these concerns,” Waldman told TPM. “They have a long national track record on this issue and it reflects an elevation of the issues of voting rights and civil rights within the department.”
A Shared Background That ‘Speaks To Their Priorities’
Though they have carved out different paths for themselves in the voting rights world, all three spent at least some of their legal practice working for the NAACP Legal Defense and Education Fund. The choice to spend at least some of their career as the nation’s oldest civil rights legal organization is one they have in common and “speaks to their priorities,” said Justin Levitt, who led the Obama DOJ’s civil rights division.
Their backgrounds are a contrast to the other types of lawyers who have filled top-level department roles in the past, often entering government after working at big firms.
“When they’re not performing government public service, they’re performing other public service,” Levitt said of Gupta, Clarke and Karlan.
Gupta was fresh out of law school and had only been at the NAACP-LDF for a few weeks when she began working on the case that made her a nationally known civil rights lawyer. She fought to overturn questionable and possibly racially-motivated drug charges brought against dozens of people, most of them Black, in a small Texas town. (Hollywood has long eyed making a movie about the case, and at one point, Halle Berry was signed on to play the role of Gupta.)
Gupta has said that her work on voting rights started in earnest when, after joining the ACLU in 2007, she launched a criminal justice reform initiative that included a focus on restoring the franchise for ex-felons.
She wasn’t expecting the call she got in 2014 to join the Obama Justice Department, as she had spent her “whole life suing the government,” she later recounted to Rolling Stone.
She arrived at the department 16 months after the Supreme Court’s Shelby County decision that severely hamstrung the DOJ’s Voting Rights Act enforcement. The Court gutted the VRA provision that required certain states to get federal pre-approval for election policy changes.
Her experience dealing with the Shelby County fallout informed the work she did at her next gig, after the end of the Obama administration, leading the The Leadership Conference on Civil and Human Rights. There, she oversaw the launch of All Voting is Local, which took a grassroots-oriented approach to ballot access to buttress the legal and legislative work the Conference’s other partner groups were doing.
“She saw this as a critical part of the fight for voting rights,” Hannah Fried, All Voting Is Local’s National Campaign Director, told TPM. “There’s a ton of litigation, there’s a ton of legislative work, but there’s also like: how the rules get put into place. And without the full protections of the Voting Rights Act, there was a need to rethink how the civil rights community was going to approach this work.”
Her time at the Leadership Conference also burnished her credentials as a manager who can build consensus among different points of view, a skill that will come in handy if she is confirmed to the AAG post, a job that requires juggling a whole host of responsibilities.
A testament to her bridge-building is that her nomination is getting the support of several law enforcement groups, a community she was in charge of regulating the last time she was at the DOJ. Police organizations even rebuked a conservative ad campaign seeking to tank her confirmation.
The DOJ As A ‘Powerful Change Agent’
While Gupta was helping to coordinate the civil rights community’s holistic response to the Trump administration, Clarke was often on the front lines of the legal battle.
As the president of the Lawyers’ Committee for Civil Rights Under Law, she launched pivotal lawsuits challenging the Trump administration’s manipulation of the 2020 census and its allies’ hamstringing of the U.S. Postal Service service. Those legal efforts were in addition to the expansive field the organization played on in its election litigation. In the five years since Clarke took over the organization, it has been involved in roughly 100 voting rights lawsuits, with 50 of those lawsuits surrounding just the 2020 election.
“Kristen and Vanita have led over the last four years two of the most significant civil rights organizations that were very much focused on voting rights,” Deuel Ross, a senior counsel for the NAACP-LDF, told TPM. “The expectation is that they will take those experiences to the federal government.”
Before joining the Lawyers’ Committee, Clarke led the New York Attorney General office’s Civil Rights Bureau — a position she took in 2011 after spending five years at LDF.
But it’s the five and a half year stint Clarke did first as a career attorney at DOJ, where she started at the voting section, that will bring a unique perspective to the leadership team. Clarke has had a ground-up view of the department that other Biden appointees whose past DOJ roles were in leadership positions don’t have.
While there was some work coming out of the voting section during the Trump era — largely on cases that focused on military voting and registration issues — actions to enforce the Voting Rights Act were few and far between.
Clarke, as veteran of the section, will be familiar with how voting rights enforcement fits into the department’s larger mission, and what kind of work the career attorneys are capable of doing if given the green light by their political leadership.
Even before Trump, however, there had been some frustration among private voting rights litigators that the department was not as aggressive as it could be, particularly after the Shelby County decision.
“If she is able to, with Vanita’s help, get some of the career folks in DOJ — who tend to be hyper cautious and hesitant, to stick their necks out — there’s a greater potential than I’ve seen before in my practice for the DOJ to be a powerful change agent,” Riggs, of the Southern Coalition for Social Justice, said.
The two nominees, who are both women of color, have become the targets of the influential conservative group the Judicial Crisis Network, which created a misleading ad about Gupta. A few Senate Republicans have also zeroed in on Gupta and Clarke as well.
Sen. Mike Lee (R-UT) grilled Garland at his confirmation hearing about both Gupta and Clarke, insinuating that Gupta’s past comments on systemic racism were radical and that Clarke was anti-Semitic.
But Garland defended both women, describing them as people of “integrity” with the same views about justice and the mission of the department that he had. He later added that they were part of a leadership team that he would need to be a successful attorney.
“They have skills that I do not have. They have experiences that I do not have,” he said.
‘Help the Most Folks and Limit Exposure’
For all the excitement about the commitment to voting rights Biden’s picks for the department will bring, there’s also a keen awareness that his administration will face daunting hurdles. Not only has the department’s role in voting rights enforcement been curtailed by the Shelby County decision, the federal judiciary has grown even less sympathetic to voting rights as Trump appointees have filled the bench.
Karlan, the Biden appointee who is already at the department as the principal deputy assistant attorney general for the civil rights division, has shown herself to be particularly adept in navigating challenging legal circumstances. She argued in 2019 the Supreme Court case that secured a 6-3 ruling prohibiting workplace discrimination against LGBT people.
While she has contributed similarly impactful advocacy across a host of civil rights issues, her scholarship on election issues has made her a superstar in the academic world, where she spent much of her legal career after working for NAACP-LDF. She even wrote an acclaimed legal textbook on the law and democracy. During her first go-around in the Justice Department, she worked on key post-Shelby cases that blocked restrictive laws in Texas and North Carolina.
“She’s got great judgment, she also knows how to litigate cases, not just [be in] academia,” said Gerry Hebert, a lawyer at the Campaign Legal Center who spent several decades in the DOJ’s voting section. “It’s a big leg up to have someone like that.”
Even with a renewed embrace of voting rights enforcement, the department — as it faces the first redistricting cycle without a fully functioning VRA as well as a new push for restrictive election laws — will have important decisions to make. Its new leadership will have to weigh not just where best to devote its finite resources, but how to do so in a way that’s mindful of the potential for adverse rulings that could further complicate the legal landscape for voting rights. A Supreme Court case being heard next week, for instance, on two restrictive Arizona election policies will give the conservatives justice an opportunity to further gut the Voting Rights Act.
“They’re going to want to be careful and thoughtful about where they devote their resources that are likely to help the most folks and limit exposure to the really important tools that we have” Riggs said.