THE COLLEGE HILL INDEPENDENT


Attorneys in General

The Attorney General's role in Civil Rights

by Piper French

Illustration by Isabelle Rea & Anzia Anderson

published February 17, 2017


 

In 1986, then US Attorney for the southern district of Alabama, Jeff Sessions lost out on a judgeship for the US District Court of the Southern District of Alabama after a number of allegations surfaced that he had made racially charged remarks, including calling the NAACP “Un-American,” and addressing a Black attorney he worked with as “boy.” Coretta Scott King, the widow of Dr. Martin Luther King, Jr., wrote to Congress that Sessions' appointment would “irreparably damage the work of my husband.” Her letter is widely credited with helping to disrupt his appointment; according to the Washington Post, it became a “crucial part of the argument against Session's confirmation.”

Writing in 1986, Coretta Scott King noted that “[t]he irony of Mr. Sessions’ nomination is that, if confirmed, he will be given a life tenure for doing with a federal prosecution what the local sheriffs accomplished twenty years ago with clubs and cattle prods." During Sessions’ confirmation hearing, Democratic senators attempted to bring the letter into play again, hoping that the power of its words would work a second time. This time, when Senator Elizabeth Warren read the letter on the floor, she was silenced by Senate Republicans. Shortly thereafter, Sessions was confirmed by the US Senate as the 84th Attorney General of the United States.

This retrogression—“too racist for 1986, just racist enough for 2017,” as one viral tweet noted—is reflective of initially successful implementation, and insidious weakening, of consciously anti-racist measures such as school integration and the Voting Rights Act. The struggle for civil rights in America has never been a finished process, and the idea that America is somehow “post-race” and has successfully dealt with its racism, both de jure and de facto, is not only incorrect—it actively contributes to the erosion of what limited progress has been made.

Throughout the 20th century, the attorney general, as head of the U.S. Department of Justice, main legal advisor to the Executive, and chief law enforcement officer of the United States—essentially, America’s head lawyer—has had an intimate degree of control over the creation, direction, and enforcement of civil rights law and policy. Historically, the personal politics of the attorney general have had an enormous impact on their handling of civil rights law; according to their beliefs, they have either made it a hallmark of their tenure to champion key civil rights legislation—or they have worked to undermine it at every turn.

 

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 Though the position of the attorney general was established by Congress in 1789 under the Judiciary Act, it was only a part-time job for almost a century afterward; Attorneys Generals often entered private practice in order to compensate for their relatively lower federal salary. Only since the creation of the Department of Justice in 1870 has the role of the attorney general in American governance taken on its contemporary, more influential form.

The Department of Justice has two chief responsibilities: the enforcement of the law and the administration of justice in the US—two ostensibly synonymous goals that have at times been woefully misaligned. Amos T. Ackerman, whom President Ulysses S. Grant appointed as the first attorney general to head the department, used his office to prosecute members of the Klu Klux Klan, securing over 600 convictions within a year of the DOJ’s creation and dramatically reducing white violence against Black people in the South. George H. Williams, the subsequent AG, continued to aggressively pursue KKK convictions, exhausting his staff’s ability to take on more cases.  

In the years since, the Justice Department has not always lived up to its name, frequently functioning as a “recurring partisan battleground,” as the New York Times put it this past January. Appointed in 1961 by his brother, President John F. Kennedy, Robert F. Kennedy felt his main task was to advance civil rights across the nation—whether in the South, once he became educated in the realities of life under Jim Crow, or in his very own administration. During his time as attorney general, he presided over a systematic desegregation of the Kennedy administration itself, and oversaw the strengthening of the Civil Rights Division of the Department of Justice, which had been created only in 1957. In fact, it was RFK who persuaded President Kennedy to give his historic Civil Rights speech to the nation in 1963.  

In 1962, RFK ordered US marshals to Mississippi to escort James Meredith as he integrated the University of Mississippi, making Meredith the school’s first Black student. He later collaborated with President Kennedy and Lyndon B. Johnson on the landmark Civil Rights Act of 1964, which dismantled Jim Crow laws across the South, gave the Department of Justice the power to sue individual school districts in order to ensure swifter integration, and paved the way for the passage of the Voting Rights Act the following year.

The Civil Rights Act and the Voting Rights Act successfully achieved their initial goals. Nikole Hannah-Jones, reporting for the New York Times on school desegregation in Brooklyn, writes, “By 1973, 91 percent of black children in the former Confederate and border states attended school with white children.” By 1988, schools were the most integrated they had ever been, and the achievement gap between Black and white students was at its lowest since the statistic was created. According to statistics on the Department of Justice website, by November of the same year, 65 percent of Black Alabama residents were registered to vote, up from a mere 19.3 percent in 1965. In Mississippi, the jump was even more drastic: from 6.7 percent in 1965 to 74.2 percent in 1988.

 

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But the progress effected by Robert F. Kennedy and others was already being systemat-ically undone. Under President Ronald Reagan, Attorney General William French Smith publicly advocated for judicial restraint, criticizing the department’s recent history of judicial activism. Legal scholar Cornell Clayton counters this view in his book The Politics of Justice, writing that on the contrary, “the politicization of Justice Department policy became immediately evident in civil rights litigation.” In the Supreme Court case Washington vs. Seattle School District (1982), the Justice Department had originally supported the district’s challenge to Washington State’s prohibition of busing programs; under Smith, the Department found itself attempting to dismantle the very position it had been arguing in favor of.

Acting under Smith, the Assistant AG William Bradford Reynolds adopted a “colorblind” approach to civil rights law, leaning on wording from Justice Harlan’s famous dissent in the Plessy v. Ferguson (1896) Supreme Court case. That case upheld de jure racial segregation under the “separate but equal” doctrine; Harlan, the sole dissenter, wrote in response: “Our constitution is colorblind, and neither knows nor tolerates classes among citizens.”

Thus Reynolds enacted a policy of “absolute nondiscrimination” with regards to civil rights, explicitly against the race-conscious strategies employed by the Kennedy and Johnson administrations. These policies did distinguish on the basis of race, but only in order to hasten the day when such a distinction would no longer be necessary. This colorblind logic is still mobilized by conservatives who argue in opposition of race-conscious strategies such as affirmative action and busing today. Think Chief Justice John G. Roberts, writing in 2007, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (on another case involving the Seattle School District).

Reagan’s second attorney general, Edwin Meese, took the Department of Justice in an increasingly politicized direction. An extremely controversial figure, (he was forced to resign in 1988) Meese “stepped up the attack on race conscious remedies and other forms of affirmative action,” Clayton writes in Politics of Justice. He was also intimately involved with the Reagans’ War on Drugs, chairing the National Drug Policy Board and collaborating with Nancy Reagan on her infamous “Just Say No” campaign.

 

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In the years following 9/11, both the DOJ's and the nation’s focus turned away from civil rights: Bush’s attorneys general John Ashcroft—who still opposed the desegregation measures that RFK championed—and Alberto Gonzales were hounded by controversies over domestic surveillance, Abu Ghraib, and the politically-motivated dismissal of US attorneys. Still, Ashcroft took the time to drape curtains over a statue of the Spirit of Justice in the DOJ building so that it was blocked from view during televised speeches, in a tellingly symbolic move. Samuel R. Bagenstos, who worked in the Civil Rights Division of the DOJ before and after the Bush administration, reports that two thirds of the attorneys working in the Voting section of the division quit, demoralized, during those years.

The Obama Administration’s two attorneys general, both Black, made civil rights a cornerstone of their time in office. Eric Holder, whose office Jeffrey Toobin once described as a “shrine to civil rights,” focused especially on voting rights. Holder has been an outspoken critic of voter identification laws, promising that the Department of Justice would fight “aggressively” to ensure that their constitutionality was questioned; he successfully sued counties that failed to ensure their citizens’ right to vote. In 2012, he drew an explicit connection between new laws in Texas and voter discrimination in the Jim Crow South, saying, “we call those poll taxes.” Even after the Supreme Court did away with the most crucial provision of the Voting Rights Act in 2013—in Shelby County v. Holder—he reacted to the loss by going after states that attempted to violate the Voting Rights Act’s remaining provisions.

Holder also focused on criminal justice during his time as head of the Justice Department. In 2013, he announced a new “Smart on Crime” initiative, which reverses certain harsh sentencing policies, holdovers from the Reagan administration, which disproportionately target people of color. Meanwhile, Assistant AG Tom Perez worked to strengthen the Civil Rights arm of the Justice Department, hiring new talent to replace the attorneys who left during the Bush years. During her brief tenure as AG following Holder’s departure in 2014, Loretta Lynch oversaw the investigation of the Chicago Police Department after the shooting of Laquan McDonald, ultimately identifying his death as part of a larger pattern of racial discrimination and civil rights violation by the department.

 

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For most Americans, the Jim Crow South is perhaps the defining example of a time in the nation’s history when the law was not synonymous with justice. Sessions is a relic of this era, as his derogatory, patronizing attitudes toward Black people, resentment of white liberal activists (one of whom he reportedly described as a “disgrace to his race” ), and terrible record on voting rights indicate. Even his full name—Jefferson Beauregard Sessions the Third—contains within it a nod to two Confederate heroes, Jefferson Davis and P.G.T. Beauregard. Sessions was born in Selma; three-quarters of his township’s residents were Black, and none were registered to vote. 

 

 

The Atlanta Journal Constitution described him as “a Southern man who stayed on the sidelines during the region’s upheaval in the 1960s and beyond, who expressed little discomfort with the segregated society in which he grew up.” Sessions’s passivity in the face of a major social struggle and transformation happening literally around him speaks volumes in itself.

Sessions has called the Voting Rights Act “intrusive” (to states’ rights, presumably) and used his career to attack and undermine it. He pursued allegations of voter fraud—including one against voting rights advocates in Alabama that stood on such shaky legal footing that a jury dismissed it almost instantaneously. Congressman John Lewis, opposing Sessions’ nomination, stated: “Those who are committed to equal justice in our society wonder whether Senator Sessions’ call for law and order will mean today what it meant in Alabama when I was coming up back then, when the rule of law was used to violate the human and civil rights of the poor, the dispossessed, people of color.” Lewis was beaten nearly to death, while protesting on Bloody Sunday in 1965, while Sessions attended an all-white high school 30 miles away.

Jim Crow may have been done away with, but its inheritors persist today: mandatory minimum sentencing, mass incarceration, redistricting, and new Voter ID laws. The Brennan Center for Justice reported that Sessions, during his time in the Senate, was “one of few Republican legislators who [did] not support bipartisan efforts to reform the nation’s criminal justice system.” He has waxed nostalgic for Reagan-era policies such as the “Just Say No” campaign and declared: “Good people don’t smoke marijuana.” His views on immigration, an issue that has recently been acknowledged as a civil rights issue, are deeply troubling as well. According to the BBC, Sessions most recently framed immigration by undocumented people as “lawlessness that threatens the public safety” and “pulls down the wages of working Americans.”

In the days leading up to Sessions’ confirmation by the U.S. Senate, the Trump administration delayed two cases—a challenge to a Texas Voter ID law and an attempt to reform the Baltimore Police Department. Both represented major focuses of the Justice Department under Holder and Lynch; directors of civil rights groups called the delays “astonishing” and “deep grounds for concerns.” This type of legal action paves the way for Sessions to impose his agenda at a time when progress for civil rights in the U.S. feels more tenuous than ever.

 

PIPER FRENCH B’17 says no to Sessions.