— -- President Barack Obama’s Justice Department has been unabashed in its use of federal resources to sue state and local governments over alleged discrimination, even hosting press conferences to announce lawsuits against the city of Ferguson, Missouri, for racially motivated policing practices and against North Carolina for its so-called bathroom bill targeting transgender individuals.
But Donald Trump’s nominee to become the next attorney general, Sen. Jeff Sessions, R-Ala., may think twice before bringing such cases. In the past, he urged caution in how the Justice Department brings “its tremendous resources to bear” in court.
“It is a power that ought not to be abused,” Sessions warned a top Justice Department official in 2002. “Just because someone says it’s [a matter of] civil rights, maybe they haven’t done their homework. Maybe they haven’t studied the facts or researched the laws quite enough.”
During a Senate hearing reviewing the department’s civil rights division, Sessions expressed particular concern over legal action taken by the Justice Department under Bill Clinton years earlier.
He questioned the wisdom of a civil rights division lawsuit in 1999 that forced a North Carolina high school to drop its Native American mascot, and he cited a failed federal lawsuit a year earlier that accused the city of Torrance, California, of discriminating against minorities applying for jobs as police officers and firefighters.
“The civil rights division persisted, sued, and a federal judge found the suits so unfounded and frivolous that she ordered the government to cover Torrance’s legal fees of approximately $2 million,” Sessions said in the May 2002 hearing. “You should be aggressive. You should not allow and tolerate racial discrimination in America. But at the same time, you want to be professional and balanced.”
Under Attorneys General Eric Holder and then Loretta Lynch, the Obama Justice Department has used “fact-driven investigations” and legal action to “drive real reform,” one department official recently said.
Most notably, the Justice Department filed a lawsuit in February against Ferguson, looking to overhaul “clear racial disparities” in its policing, as a civil rights division report put it.
A month later, Ferguson agreed to a series of reforms, including the appointment of an independent monitor to oversee implementation of the agreement, known as a consent decree.
In all, Obama’s civil rights division has opened 23 investigations into law enforcement agencies and is currently enforcing 19 agreements with police departments.
Sessions has recognized that “within every department there are some officers who subtly, if not otherwise, are biased in the way they go about enforcing the law,” and he has said it’s vital that such bias be addressed.
In fact, he told a Justice Department official during the 2002 hearing that the civil rights division “has played an important role in delivering on this promise [of equality] by enforcing Congress’ civil rights laws in housing, employment and in the voting booth.”
Sessions said the civil rights division’s efforts “made civil rights a reality for poor minorities in the South and around the country,” but since then he has said little about using federal law to protect the civil rights of those discriminated against based on their sexual orientation, gender or disability.
For years he opposed the Matthew Shepard Act — which expanded the definition of hate crimes to include such discrimination.
Earlier this year, when the Justice Department was publicly criticizing North Carolina for its law barring people from using bathrooms that don’t correspond to the gender indicated on their birth certificate, Sessions was relatively quiet on the matter. But Trump weighed in publicly, telling Fox News that “the federal government should not be involved.”
In 2002, Sessions said, “There must be a consideration of balance” in the cases the Justice Department brings, and he expressed concerns over several lawsuits from the Clinton era, including a case out of the senator’s home state of Alabama.
In that case, the Justice Department unsuccessfully claimed that a white politician was elected in a predominantly black district of Dallas County only because more than 50 white voters were improperly moved into the voting region, according to The Montgomery Advertiser, a local newspaper.
“[We] lack the power to remedy the damage done to race relations in Dallas County by the unfounded accusations of purposeful discrimination made by the Department of Justice,” Sessions quoted the court as saying in its ruling.
Years later, race was at the core of a controversy over why the Obama Justice Department decided to abandon charges against members of the New Black Panther Party who allegedly intimidated voters outside a polling station in Philadelphia on Election Day in 2008.
Department attorneys had decided the evidence was not strong enough to warrant continued prosecution, but Sessions accused the Justice Department of playing politics and failing “to ensure that guilty parties did not disenfranchise other voters in the future,” as he put it during an April 2010 Senate hearing.
The department’s inspector general later exonerated the Obama Justice Department, saying “the legal and factual reasons” that prompted the case’s dismissal “were well considered” and there was no evidence that the case was abandoned “for improper political reasons.”
Holder came into the Justice Department promising to “reinvigorate” a department that had been rocked by a series of political scandals under George W. Bush’s administration, including what the inspector general found was “inappropriate” hiring practices based on politics in the civil rights division.
Many critics at the time said the division had deserted of its traditional mission to protect minorities, no longer prioritizing cases that targeted discrimination against black men and women.
But Sessions has rejected that sentiment, telling lawmakers in April 2010, “I don’t think it’s fair to say the previous administration shut down civil rights enforcement.”
And the Justice Department’s inspector general seemed to agree three years later, saying a review of civil rights division cases during the Bush administration “found insufficient evidence to conclude that improper racial or political considerations affected division leadership’s enforcement decisions.”
A representative for Sessions declined to comment for this article, and others did not respond to emails seeking comment.