Bench Memos

Law & the Courts

Ten Questions for Merrick Garland

Merrick Garland on Capitol Hill in Washington, D.C., March 30, 2016 (Gary Cameron/Reuters)

On Monday and Tuesday, the Senate Judiciary Committee will hold its first nomination hearing of the Biden administration, for attorney general nominee Merrick Garland. Judge Garland would be vacating his seat on the D.C. Circuit to take the position. The nominee for the number three position in the Justice Department, associate attorney general, is Vanita Gupta. She has spent most of her career in the world of left-wing advocacy, including at the ACLU and more recently the Leadership Conference on Civil and Human Rights.

If confirmed, she would be setting policy on “a broad range of civil justice, federal and local law enforcement, and public safety matters,” to quote the Justice Department’s website. That raises huge red flags, because Gupta has a history of taking far-left positions on those very issues, including her support for defunding the police. During his hearing, Garland should be asked whether he agrees with Gupta on any number of issues. Here are ten of them:

  1. In the face of last year’s movement to defund the police, Gupta spoke approvingly of the “local conversations about budgets” occurring in Minneapolis and “all over the country.” Do you agree that cities should reduce funding to law enforcement?
  2. Gupta said that the Justice Department must examine “not just using a policing approach” to keep communities safe. Do you believe that the tools traditionally used by police for law enforcement do not help keep communities safe?
  3. Do you agree with Gupta that “Police reform alone is not going to solve the problem of police violence?”
  4. Gupta criticized efforts by parents of violent crime victims to strengthen criminal laws as “lawmaking by anecdote.” She asserted, “States are too broke to afford emotion-criminal justice policymaking.” Do you agree?
  5. Do you believe, to take another quote from Gupta, that the war on drugs has been “a war on communities of color?” Can we expect your Justice Department to enforce federal drug laws?
  6. Gupta argued that transgender student athletes who identify as female must be allowed to compete in girls’ sports in school. Do you agree? Is the same conclusion compelled by President Biden’s inauguration day executive order addressing that subject? Would that not destroy the opportunities for women and girls in school sports created under Title IX?
  7. During her tenure at the head of the Civil Rights Division during the Obama administration, Gupta argued that the Eighth Amendment compels the government to spend taxpayer dollars to pay for hormone treatments for transgender inmates. Is that your position as well?
  8. Gupta criticized the position that came to be the Supreme Court’s holding in Masterpiece Cakeshop v. Colorado Civil Rights Commission, i.e., that a state’s attempt to compel a Christian cake maker to design and make a cake that violated his religious beliefs about same-sex marriage violated the Free Exercise Clause. What is your assessment of that case? If another baker were to end up before the Court under similar circumstances, how would you ask the Court to rule?
  9. After the Court decided Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania last year, Gupta protested, “This troubling decision allows employers and universities to refuse to provide contraceptive coverage based on religious or moral opposition.” Do you share her view of that case? The Little Sisters had undergone a seven-year ordeal in court. Should they expect their ordeal to continue in your Justice Department?
  10. At the Civil Rights Division, Gupta did not bring a single case against any of the universities that are known to discriminate based on race in their admissions policies. And as you know, the complaint brought by the Division in October against Yale University for race and national origin discrimination in its admissions policies was just dropped by the present administration. Can we expect that your Justice Department would continue this refusal to seek remedies for such discrimination in court?

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