The Senate Judiciary Committee is set to begin confirmation hearings on Tuesday for William Barr, President Trump’s nominee to lead the Department of Justice. Given that the president is holding the country hostage over his vanity project at the Southern border resulting in the longest ever government shutdown, it is no surprise that Barr’s nomination has largely flown below the radar.
The limited media coverage surrounding Barr has focused on his deeply troubling attacks on the Mueller investigation and his expansive views on presidential power. Considering how Trump is undermining the rule of law and our democracy, these are crucially important aspects of Barr’s record to question. But at tomorrow’s hearing, senators must also interrogate Barr about his commitment to a critical duty of the Justice Department: enforcing federal civil rights laws.
The attorney general — our nation’s top law enforcement official — is responsible for making real the promise of equal justice under law. As head of the Justice Department’s Civil Rights Division for more than two years during the previous administration, I know firsthand how the attorney general sets the tone and direction for our country and its mandate of equal protection under the law. In the Age of Trump, senators must insist on an independent leader who will honor the department’s commitment to civil rights and the fair and impartial administration of justice.
That is no simple task. It will require senators to use the hearing to elevate the department’s civil rights enforcement role and former Attorney General Jeff Session’s virulent anti-civil rights record. Senators must obtain assurances from Barr that he will embrace and enforce our federal civil rights laws, not seek to undermine them. Barr has the burden to demonstrate he will respect the Civil Rights Division’s mandate to rigorously enforce these laws without inappropriate political interference. And he must commit to the notion that public safety extends to all people regardless of status, race, or background.
Based on what we know, senators will have plenty to explore in Barr’s record. As attorney general, Barr endorsed a draconian approach to law enforcement that helped build the system of mass incarceration we have today, which continues to decimate poor Black and Brown communities. Yet, he denied evidence of racial disparities, telling a reporter, “Our system is fair and does not treat people differently.” It was untrue then and it is still untrue now. Barr later backed a 1992 Justice Department report, The Case for More Incarceration, as the prison population in the United States soared. The report irresponsibly stated, “We are incarcerating too few criminals, and the public is suffering as a result.” He also co-chaired a commission in the mid-1990s that recommended abolishing parole.
This is all particularly alarming because it appears that Barr was strident even for the time. And his views do not appear to have evolved — even as the country has. In 2015, Barr signed a letter opposing the Sentencing Reform and Corrections Act, which would have modestly reduced mandatory minimum prison sentences for non-violent drug offenders. Ending mass incarceration is now a popular and bipartisan issue, so much so that even the most recent and highly polarized 115th Congress overwhelmingly passed a law last month that makes important improvements to the federal prison system. That law, the FIRST STEP Act, will be implemented by the Justice Department. Senators must press Barr on whether he will fully and faithfully carry out that charge.
Barr’s hostility toward immigrants suggests he will dutifully defend the administration’s inhumane immigration policies. Barr expressed support for Trump’s discriminatory Muslim ban, calling it “squarely within both the president’s constitutional authority and his explicit statutory immigration powers.” He also praised Sessions for “breaking the record for prosecution of illegal-entry cases.” As attorney general, Barr demanded a superfluous border wall of his own: a steel fence separating San Diego, California, and Tijuana, Mexico, that was neither effective nor advanced judicious reform. He also supported George H.W. Bush’s inhumane policy of prohibiting HIV-positive immigrants approved for political asylum from entering the United States. The Senate must ask him about these positions and determine whether he will challenge the Trump administration’s extreme policies that demonize immigrants or continue them.
Barr has publicly said Roe v. Wade should be overturned. He also criticized a Washington, D.C., law that prohibited Georgetown University from discriminating against LGBTQ student groups, whose conduct he called “immoral.” And last year, Barr expressed support for a Sessions memo that expands the ability of religious institutions to discriminate against LGBTQ people, women, and religious minorities. Tomorrow, Barr has the burden to demonstrate to the committee that he will protect civil rights and end the harmful policies and priorities of Sessions’ tenure.
In two short years, Sessions spearheaded the repeal of DACA and the policy that ripped immigrant children from their parents. He restarted the disastrous War on Drugs, denied transgender people their humanity, and excused systemic police misconduct. He also reversed longstanding positions of the Civil Rights Division to advance his anti-civil rights agenda. The fact that Barr recently called Sessions “an outstanding attorney general” is a strong indication that a Barr Justice Department would look very much like the Sessions Justice Department. That is a terrifying prospect.
We can reverse course, but only if the Senate holds fast to its responsibility to ensure that the next attorney general is committed to robust enforcement of the nation’s civil rights laws. These confirmation hearings will lay important groundwork for future oversight, signaling what the Senate deems important and expects of an attorney general. The nation has continued its steady march toward equal justice in the more than 25 years since Barr was attorney general. In next week’s hearing, Barr must promise 21st century leadership. He must show that he will not be Sessions 2.0. And he must prove that his loyalty will be to the Constitution and the American people, not to the narrow-minded president who appointed him.
Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, was head of the Civil Rights Division at the Justice Department from 2014 to 2017.