July 5, 2017; New America Media
Six months in, the Trump administration seems mired in the muck of the swamp it promised to drain. One need only look at his limited success in terms of major legislative impact and policy achievements; the picture shows many difficulties and few real outcomes. Replacing and repealing Obamacare is proving harder than anticipated and remains stalled in Congress. Tax reform has yet to begin. Border control is still being litigated. Even filling the executive branch positions that the president appoints is proving to be slow going. But, President Trump has been effective in one area that may be of great concern to advocacy groups: His administration is well on the way to ending the federal government’s active role as a protector of civil rights.
Those key executive branch officials and federal judges he has appointed have already had a significant impact on limiting the federal government’s role in defending civil liberties and fighting against public and private discrimination. They reflect a consistent philosophy of a limited need for protection and a limited role for the federal government.
At the top of the list is his naming of Jeff Sessions as his attorney general. Sessions carried into his new office a history of bias and active opposition to federal voting rights activities in the South. Years earlier, Coretta Scott King had written, in opposition to Sessions being approved for a Federal judgeship, “Anyone who has used the power of his office as United States Attorney to intimidate and chill the free exercise of the ballot by citizens should not be elevated to our courts.”
According to New America Media, once confirmed as attorney general, Sessions immediately began rolling back the efforts his Department had been making over decades to protect personal rights.
He demanded the delay, if not the end, of federal consent decrees on police misconduct, a new war on low-level drug offenders, silence on criminal justice reforms, and a full-throated endorsement of private prisons. Given Sessions’ intense dislike of the Voting Rights Act, enforcement of the law is even more imperiled.
Earlier this week, the Sessions’ Department of Justice continued its active efforts to reverse the federal government’s position on voting rights. In a case now before a U.S. district court judge in Texas, the DOJ has removed itself as a plaintiff and is no longer challenging the legislative districts that, under the Obama administration, it had previously alleged were developed with discriminatory intent. According to the Atlantic, the DOJ, despite presenting “no real data” in support of it, claimed “the state legislature’s very willingness to craft a new bill handles the question of discriminatory intent.”
Its additional conclusion that the new law “advances Texas’s legitimate ‘policy objectives’ in adopting a voter ID law” has wider implications beyond just the future of voter ID in Texas. That statement seems to suggest that strict voter ID laws are legitimate and proper. It also likely sets the bar even higher for when the Justice Department will get involved in future voter ID cases.
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Sessions is not alone at the Justice Department. The administration has just nominated Eric Dreiband to lead its Civil Rights Division. New America Media described Dreiband as having “made his reputation not as a civil rights attorney nor law professor specializing in civil rights. He made his reputation doing just the opposite, as a corporate attorney who specialized in trying to beat back age, gender and racial discrimination lawsuits against corporations.” This is the pedigree of the new leader of a division already reeling from the attorney general’s positions.
The Daily Beast reports that “morale in the Civil Rights Division has cratered, according to three sources with knowledge of the inner workings. ‘They are totally freaking out,’ said a former high-ranking DOJ official speaking on condition of anonymity to protect those still working there. ‘They are doing everything they can to keep things going, but everything they do has to run through a front office mired in politics.’ Specifically, the politics of Jefferson Beauregard Sessions, whose antiquated views on voting rights, immigration and LGBT people he now has the power to put into practice on a national scale.”
Similarly, the DeVos Department of Education picked Candice Jackson, a lawyer with limited experience who once said that she faced discrimination for being white, to head up its Civil Rights Unit. According to ProPublica, Jackson has “also written favorably about, and helped edit a book by, an economist who decried both compulsory education and the landmark Civil Rights Act of 1964.” She is an “outspoken conservative-turned-libertarian” who “has denounced feminism and race-based preferences.” Her “writings during and after college suggest she’s likely to steer one of the Education Department’s most important—and controversial—branches in a different direction than her predecessors.” A few weeks ago, the Education Department announced it was scaling back its enforcement of Title IX complaints, aiming to focus on the specifics of each case rather than the systemic patterns and practices that affect more than the individual complainant.
The Trump administration’s appointments to the federal judiciary reflect similar limited willingness to preserve civil rights. The appointment of Neil Gorsuch to the Supreme Court has been followed by a series of nominations to the district and appellate benches that reflect a consistent commitment to limit the reach of the federal judiciary. Each of his nominees has come from lists vetted by the Heritage Foundation and the Federalist Society, which share a common view of a limited judiciary that has less of an interest in protecting individual rights and minorities.
This presages the profound effect that President Trump could have in reshaping the branch of the federal government that has been seen by civil rights advocates as their last bastion of protection. Because of the stonewalling of the Senate during the last years of the Obama presidency, more than 100 lower court vacancies remain to be filled. It is possible that one or more Supreme Court justices will also step down before the next presidential election. If the patterns reflected in his earlier appointments remains, the courts will no longer be a reliable buffer.
The budget proposed by the Trump administration appears to carry forward the same theme of limiting the federal role in protecting civil rights.
For decades, the heart of the EPA, Education, and Housing and Labor departments has been their civil rights compliance units. They have monitored, overseen, and most importantly enforced, compliance by corporations on fair labor practices, to eliminate racial disparities in school districts, to reduce toxic hazards in inner city neighborhoods, and to end housing discrimination. Trump’s proposed funding cutbacks and his unstated policy of benign neglect of the compliance units sends the strong message that civil rights enforcement in federal agencies is a thing of the past.
The pattern is clear: Appoint individuals who do not believe we have any civil rights issues to positions where they can guide government actions, both executive and judicial. Limit the funds allocated to the work of protecting civil rights within the executive branch. Six months into his first term, President Trump has done well at making it clear that the federal government will not be there to protect minorities. Whatever else happens with his agenda, this is a legacy he will leave when his tenure ends, and one that will live on for many years.—Martin Levine