Bench Memos

Law & the Courts

Vanita Gupta’s Obfuscation and Double Standard

Vanita Gupta, president and CEO of The Leadership Conference on Civil & Human Rights, testifies during the Senate Judiciary Committee hearing in Washington, D.C. June 16, 2020. (Tom Williams/Reuters Pool)

Yesterday, the Senate Judiciary Committee held a nomination hearing for two top Justice Department nominees, Lisa Monaco to be deputy attorney general and Vanita Gupta to be associate attorney general. Gupta predictably drew most of the attention because her past positions have been so extreme and inflammatory.

I discussed previously why she would be such a poor fit for Justice. Several committee Democrats accused her critics of dishonest attacks, but her own testimony toggled between obfuscation and — when confronted with her toxic use of social media — apology.

Take the issue of defunding the police. She stated yesterday that she does not want to do that, but her defenders largely limit their assessments of her record to the Obama years, when there was little appetite for such defunding on the left generally and in the administration specifically. I do not doubt that some in law enforcement who worked with her in previous years gave approving reviews of their work together. But that is no excuse for ignoring the shift in the political landscape last year that gave rise to the defund-the-police craze — to which she contributed with one comment after another.

In fact, she had made such statements to Congress, including the Senate Judiciary Committee. In testimony before the same committee last June, she did not mince words. She asserted, “While front-end systems changes are important, it is also critical for state and local leaders to heed calls from Black Lives Matter and Movement for Black Lives activists to decrease police budgets and the scope, role, and responsibility of police in our lives.”

Two days later, she asked the House of Representatives in a letter via her Leadership Conference on Civil and Human Rights to “reexamine federal spending priorities and shrink the footprint of the police and criminal legal system in this country.” That was on the same day that she said in an Arabella Investors webinar, “Localities have been overspending on criminal-justice system infrastructure and policing and divesting in housing, education, jobs, and healthcare. Some people call it ‘defunding’ the police, other people call it ‘divest/invest.’” When Senator Ted Cruz confronted her with these statements, she tried to recharacterize them as reflecting discussions with law enforcement overburdened with addressing social problems and not advocacy of defunding. The dictionary would differ as to the meaning of her actual words, and Cruz told her bluntly he has “spoken to far too many sheriffs to find” her testimony “credible.”

On other topics, Gupta continued to obfuscate or evade. She dodged Cruz’s questions as to whether she supports the Equality Act’s proposed repeal of the Religious Freedom Restoration Act’s protections. She would not answer Senator Mike Lee as to whether she would follow the Obama-era practice of allowing third-party slush funds (i.e., settlements not going to the direct victims or the U.S. Treasury) if the Trump-era regulation ending the practice is repealed, offering simply to discuss the matter in that scenario.

When Senator Tom Cotton asked her about the “racial bias” component of her statement at last year’s committee hearing that “we all have implicit bias and racial bias,” she reiterated that “we all have implicit bias,” but did not use the word “racial” this time. She even added that “it doesn’t mean we are harboring any racism at all” and that bias is “part of the human condition,” as if she were only referring to ontological bias. But last year, she did not hesitate to describe the Republican National Convention, an affair with a diverse range of speakers, as days of “racism, xenophobia, and outrageous lies.”

On Cotton’s gender-identity questions — specifically, whether she would move biological-male inmates to female prisons or have biological-male students play on female sports teams — Gupta arguably tipped her hand by citing the Biden administration’s executive order on the subject and last year’s Bostock decision, despite the fact that the Supreme Court’s opinion did not address those scenarios.

The nominee was not the only one who was evasive. The recurring line of committee Democrats that Gupta is a consensus builder was incongruous with the “harsh tone” and “coarse language” that imbued her tweeting. These words were the admissions of the nominee as she apologized for her tweets. Similar conduct just ended the nomination of Neera Tanden to be director of the Office of Management and Budget. Whether Gupta ceases toxic tweeting is less relevant than whether toxic views will shape her future decision-making.

Gupta asked for a second chance. But more than that, she appeals for a double standard. For years, she was a strident critic of conservative judicial nominees. When Ninth Circuit nominee Ryan Bounds apologized for his college writings, Gupta was merciless, asserting that “the timing of that apology suggests it is one of convenience rather than remorse, offered in a last-ditch effort to salvage his nomination . . . .” And remember, those were college writings, and Gupta is not being held to an equally stringent standard. Her objectionable comments come from well into adulthood — indeed, much of it from the very recent past before her nomination. The only thing that can save her nomination would be the senators’ application of a brazen double standard, doing unto her as she refused to do unto others.

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