Does Biden’s Justice Department even have any power?

Democrats are sticking to old rules Republicans openly flouted — and allowing voting laws to be damaged in the process

President Joe Biden speaks during a news conference in the East Room of the White House in Washington (AP)

This week, the ex-police officer whose alleged brutality set off a summer of civil rights protests has gone on trial and a host of new Republican-backed changes to state election laws have simultaneously clamped down on minority voters’ ability to exercise their franchise. Meanwhile, the Justice Department office charged with pushing back against police brutality and voter suppression remains vacant due to paperwork delays and Democrats’ adherence to a Senate tradition that was cast aside by Republicans last fall. 

On January 7, then-President-elect Joe Biden announced that he would be nominating Lawyers’ Committee for Civil Rights Under Law president Kristen Clarke to be the 19^th Assistant Attorney General for the DOJ’s Civil Rights Division. 

Clarke, the daughter of Jamaican immigrants and a Columbia Law School graduate, would be the first Black woman to run the Justice Department division established by the 1957 Civil Rights Act to enforce federal laws prohibiting discrimination on the basis of race, sex, disability, religion, or national origin. She would also be just the second person confirmed for the position by the Senate since 2013, when Senate Republicans began blocking most of then-President Obama’s nominees at all levels and leaving the division in the hands of so-called “acting” leaders. One such former “acting” civil rights division leader, Leadership Conference on Civil and Human Rights president Vanita Gupta, is still awaiting her vote for confirmation as Associate Attorney General, the number-three official in the entire department, as is Deputy Attorney General nominee Lisa Monaco. 

Nearly two-thirds of the way through Biden’s first 100 days in office, Clarke has yet to appear before the Senate Judiciary Committee for a confirmation hearing. That leaves the Justice Department division responsible for ensuring Americans can vote freely and reining in rogue police departments leaderless.

“There is a reason why each division has its own leadership, because the intensity of the work — and the nuance — is very high,” said Silvia Albert, the director of voting and elections for Common Cause. 

Albert expressed confidence that Attorney General Merrick Garland — the only member of Biden’s DOJ leadership who is currently in place — recognizes the importance of the Civil Rights Division, but said it’s “absolutely very important” for senators to move forward with Clarke’s nomination. 

As for why Clarke’s nomination has stalled even though it was submitted to the Senate on the same day as Garland, Monaco and Gupta, Democratic Senate Judiciary Committee aides blamed a combination of Republican obstruction, late paperwork, and Senate tradition for the delay. 

Because Senate Republican Leader Mitch McConnell spent several weeks after Biden’s swearing-in refusing to allow Democrats to take over committee chairmanships despite their winning a majority after Georgia’s January runoff elections, the aide said Clarke’s nomination was stuck in line behind Garland, Monaco, and Gupta. 

But they added that Clarke’s lack of a confirmation hearing so far is due to a Senate tradition under which nominees are only granted a hearing 28 days after they submit their paperwork to the committee for review. 

“It’s a committee practice — it’s not actually a rule of the committee — which says that the committee waits 28 days from when a nominee submits his or her paperwork to when we proceed with the hearing,” said the staffer, who was granted anonymity because they were not authorized to speak publicly. “We received Miss Clarke’s paperwork two Wednesdays ago, and are setting a hearing to that date.”

Democrats’ adherence to the 28-day tradition would mean that Clarke would not have a confirmation hearing until the second Wednesday in April, at the latest. 

Albert, the Common Cause voting and elections director, suggested that Democrats should perhaps not be so deferential to such traditions. Senate Republicans made the decision to ignore that practice and push Supreme Court Justice Amy Coney Barrett’s nomination through before last November’s election, after all. 

“I don’t know about the paperwork thing, but I would say that every time somebody brings up Senate tradition I would point to a Supreme Court justice installed within two weeks, which broke all Senate tradition,” she said. 

People for the American Way President Ben Jealous suggested that Democrats probably do not want to risk open warfare across the aisle by doing away with the 28-day waiting period. But he also wondered why Democrats weren’t being more aggressive in the face of what he called a “massive obstruction of Biden’s effort to rebuild the Department of Justice in the midst of a massive GOP attack on Americans’ voting rights” by “the most active abusers of Senate tradition” in US history.

Jealous said that Republicans’ obstruction of Biden’s Justice Department nominees is connected to the push by Republican state legislatures to restrict voting with legislation such as the bill signed into law by Georgia Governor Brian Kemp last week. That’s because the DOJ has long been an effective force against attempts to suppress minority voters’ rights, he added.

“The reason the Republicans are focused on slowing everything down is because they are simultaneously focused on assaulting Americans’ voting rights,” he said. “And the last thing that you want, if your party is attacking voting rights from coast to coast, is a fully staffed, fully capable DOJ pushing back.”

When asked whether the delay in confirming Clarke could hamper the Biden administration’s efforts to protect voting rights, the Judiciary Committee staffer downplayed the necessity of a Senate-confirmed leader at this point and noted that Attorney General Garland could order the division’s career staff to begin work on litigation against the Georgia law. But Albert said having a Senate-confirmed leader atop the division is important because courts will look to it for leadership, and that leadership was absent during the Trump administration. 

“Americans and the judicial branch look to the Department of Justice as a guiding leader in the fight for justice, and I think the lack of that entity was glaring during the Trump administration,” she said. “It’s important that the Biden administration work to reinstall that entity as one that Americans and the judicial bench look to for leadership.”

Albert added that having a Senate-confirmed leader is even more important for the career attorneys who were essentially stood down from protecting voting rights or investigating police brutality under Trump. 

“These are career attorneys who have been there for multiple presidencies under multiple parties — the same people who were very active during the Obama administration in rooting out civil rights violations, and then we’re told to stand silent during the Trump administration,” she said. “The leadership does set the tone and direct the work and give the attorneys the freedom to feel like they can actually do their jobs, so it definitely is important for them to have a leader to lead them.”