Under the Obama administration, the Justice Department’s civil rights division was rebuilt into what former Atty. Gen. Eric H. Holder Jr. called the agency’s “crown jewel.”
But many civil rights advocates and legal scholars voiced concern Friday that the unit faces an uncertain future under the leadership of President-elect Donald Trump and his pick to be the next attorney general, Sen. Jeff Sessions (R-Ala.).
They predict the Justice Department in the coming years will be less likely to sue states over voting restrictions that target the poor or minorities, to hold police departments accountable for abuses or fight in court for the rights of transgender people.
Also vulnerable are Justice Department guidelines set under President Obama that sought more lenient sentences for nonviolent offenders and restricted racial profiling and surveillance of Muslims.
Among the biggest objections to Sessions, civil rights groups say, is that he has voted against expanding rights for gays and lesbians, spoken dismissively of the 1965 Voting Rights Act and was denied a federal judgeship in 1986 over racially insensitive remarks he made. Now he is in line to take charge of federal civil rights enforcement.
Advocates say a retreat from the Justice Department’s aggressive posture on civil and voting rights would come at a pivotal time. The country is grappling with the aftermath of widespread unrest and frustration sparked by the killings of unarmed black men by police officers in cities and towns across the nation.
In recent years, minorities have increasingly turned to the Justice Department, an agency of more than 100,000 employees and a $27.8-billion budget, to address discrimination by police and state and local governments.
Sessions “must be committed to equal justice under law for all,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “His record is one that demonstrates deep opposition to our nation's civil rights law … At a time when our country is gripped by a spike in hate crimes, we need an attorney general who will not fan the flames of hate.”
Because Trump has released few policy papers or proposals dealing with criminal justice matters, civil rights advocates and former Justice Department officials have been left to guess about his positions through his tweets, campaign speeches and three debate appearances.
Sessions’ positions, on the other hand, are better known. He voted for a constitutional amendment banning same-sex marriage and against expanding hate crimes to include sexual orientation. He opposed an update to the Voting Rights Act after a 2013 Supreme Court ruling struck down key elements of the historic law. He has been critical of bipartisan efforts to reform sentencing in drug cases.
The senator also has been somewhat supportive of one of Trump’s most controversial proposals — banning Muslims from entering the United States. Sessions has said that Trump has sparked an “appropriate” discussion by proposing the ban, though he acknowledged that such a proposal would be “treading on dangerous ground.”
“At the same time, we’re in an age that’s very dangerous and we’re seeing more and more persons enter and a lot of them have done terrorist acts,” he told Breitbart News in December of last year.
In addition to his policy positions, civil rights groups are deeply concerned about his past. In 1986, when he was tapped by President Reagan to become a federal judge at age 39, Sessions’ nomination was rejected by the Senate Judiciary Committee after it emerged he made racially charged remarks.
Justice Department lawyers and colleagues at the time said Sessions had once agreed that a white lawyer was a “disgrace” to his race for handling civil rights cases, referred to a black attorney as “boy,” and called the National Assn. for the Advancement of Colored People and American Civil Liberties Union “un-American.”
Sessions denied having made those statements or said he did not recall them.
"Jeff Sessions has a decades-long record – from his early days as a prosecutor to his present role as a senator – of opposing civil rights and equality,” said Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund. “It is unimaginable that he could be entrusted to serve as the chief law enforcement officer for this nation's civil rights laws.”
Republicans and conservatives cheered Sessions’ appointment, saying they are enthusiastic about what they see as a reversal of Obama administration policies in the civil rights arena that they believe went too far, particularly in the investigations of police departments, lawsuits against states over voter ID laws and the refusal to defend a federal law prohibiting the recognition of same-sex marriages.
“He will restore honor to a department that, under President Obama, perpetually pushed a political agenda while neglecting to enforce the law,” said Sen. John Cornyn, a top Republican in the Senate. “It's time to end the politicization of the Justice Department and start defending the rule of law.”
Conservatives expressed skepticism over civil rights groups dire warnings. Hans Von Spakovsky, a senior legal fellow at the conservative Heritage Foundation think tank, said he believed the civil rights division will continue to bring voting rights cases as merited, but that the department had gone too far under Obama in suing states over their voter ID laws despite a Supreme Court ruling upholding such requirements.
Von Spakovsky said the department’s investigations into local police departments appeared to be an effort to impose federal standards, rather than correct violations of civil rights.
“They are not a national police agency with supervision over local police departments,” Von Spakovsky said. “All of the factors that go into these reports had nothing to do whatsoever with the questions of whether local law enforcement was violating people’s rights. They have seen it as a way of forcing their pet views on social policy onto towns and cities.”
In the last eight years, the Justice Department has investigated nearly two dozen police forces over allegations of civil rights abuses; two high-profile inquiries — involving the Baltimore and Chicago police departments — remain unresolved, though the Baltimore government and the Justice Department have reached an agreement in principle to overhaul the city’s troubled police force. The Justice Department would like to finalize a consent decree with Baltimore before Atty. Gen. Loretta Lynch, who took over from Holder in April 2015, leaves office.
The civil rights division is also conducting criminal investigations into the high-profile deaths of two black men that occurred during encounters with police officers: Eric Garner, who died after being put in a chokehold by a New York City police officer in 2014, and Freddie Gray, who suffered fatal injuries after being arrested by Baltimore police last year. A Justice Department spokesman declined to discuss the status of those inquiries.
Civil rights advocates point to Trump’s statements during the campaign as evidence that he plans to take the Justice Department in a different direction, reshaping the work of the 400-attorney civil rights division.
Trump, for example, has backed “stop and frisk” policies in his hometown of New York that have been ruled unconstitutional by a federal court. He says such aggressive tactics reduced crime.
Under Obama, the Justice Department generally opposed such tactics if they disproportionately affected certain communities.
The president-elect has appeared less resistant to allowing law enforcement agencies to use racial profiling, particularly to prevent terrorism.
And he has challenged what he called the Justice Department’s “rollback of criminal enforcement.” That comment was an apparent jab at efforts by Justice Department officials to refocus prosecutors on seeking more lenient punishments for nonviolent drug offenders in an effort to deal with overcrowded prisons and to mete out punishment more fairly.
Whipsaw-like changes are not new to the civil rights division, which was founded in the late 1950s. When Obama took office in 2009, Holder found a civil rights division in disarray and demoralized, according to Justice Department officials. One of the primary reasons was that a former head of the division had violated civil service laws by hiring conservatives and Republicans for nonpolitical positions, an inspector general found.
Holder added attorneys and pushed them to pursue cases, particularly in areas of voting rights and overseeing police departments.
It’s also unclear whether Trump and Sessions would continue Obama’s push to soften sentencing guidelines and reduce prison terms for thousands convicted of drug crimes. Previous guidelines have been faulted for falling hardest on African American offenders.
“Is he going to be a challenge on sentencing reform? Of course,” said Holly Harris, executive director of the U.S. Justice Action Network, a coalition of conservative and liberal groups backing criminal justice reform.
But she added, “I’m hopeful that the movement will not have a knee-jerk and alarmist reaction to this, throw their hands in the air and take their ball and go home.”
Times staff writer Seema Mehta in Los Angeles contributed this report.
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11:15 a.m. Nov. 18: This article was updated after Trump asked Jeff Sessions to be his attorney general.
This article was originally published Nov. 17, 9:30 a.m.