On her last day at the justice department in 2017, Vanita Gupta considered taking a picture as she left the agency’s headquarters on Pennsylvania Avenue. But she decided against it. Gupta, the outgoing head of the department’s civil rights division, once described as the “crown jewel” of the agency, didn’t really want to remember the moment, she told a reporter who was shadowing her for the day.
Jeff Sessions, then the incoming attorney general, was poised to unwind much of the painstaking progress Gupta, 46, and her colleagues had spent the previous four years building. It was no secret that Sessions opposed the kind of court agreements the justice department used to fix unconstitutional policing policies across the country (“dangerous” and an “exercise of raw power” in Sessions’ eyes). Nor were there any illusions that Sessions would try very hard to enforce the Voting Rights Act, already on its last legs after the supreme court gutted a key provision in 2013 (Sessions described the landmark civil rights law as “intrusive”).
Many of those concerns came to pass. Trump’s justice department not only did little to enforce some of the country’s most powerful civil rights protections for minority groups, but in several cases it opposed them. It filed almost no voting rights cases and defended restrictive voting laws, tried to undermine the census, challenged affirmative action policies, sought to roll back protections for LGBTQ+ Americans, and limited the use of consent decrees to curb illegal policing practices. Gupta took a job as the head of the Leadership Conference on Civil and Human Rights, a coalition of civil rights groups across the country, where she became one of the leading figures pushing back on the Trump administration.
Joining Gupta in that effort was Kristen Clarke, a 47-year-old former justice department lawyer who leads the Lawyers’ Committee for Civil Rights Under Law, founded in 1963 to help attorneys in private practice enforce civil rights. As her group filed voting rights and anti-discrimination lawsuits across the country over the last few years, Clarke spent hours nearly every election day briefing journalists on reports of incoming voting problems. Reports of long lines, voting machine malfunctions, translator issues – no problem was too small. The monitoring sent a message that civil rights groups would move swiftly against any whiff of voter suppression.
Now, after years of leading the fight for civil rights from outside the justice department, both women are poised to return to its top levels, where they can deploy the unmatchable resources of the federal government. Last month, Joe Biden tapped Gupta to serve as his associate attorney general, the No 3 official at the department, and Clarke to lead the civil rights division. If confirmed by the Senate, Gupta would be the first woman of color to be the associate attorney general; Clarke would be the first Black woman in her role.
“They are both independently legit civil rights champions with a long deep history,” said Justin Levitt, who worked with Gupta at the justice department and knows both women well. “They’re going to make a really spectacular, really powerful team.”
Picking two career civil rights lawyers for two of the top positions at the justice department sends an unmistakable signal that civil rights enforcement will be a top priority for the agency over the next four years. Civil rights leaders said they could not remember a prior administration in which two of the department’s highest positions were filled by civil rights attorneys, especially two such as Clarke and Gupta.
“It’s going to be really important and energizing and exciting to be able to be in conversation and discussion with people who understand the department’s role in civil rights enforcement,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund (LDF), who has worked closely with both women. “But it’s also going to be exciting, and as a matter of resources, to have the department actually do civil rights enforcement.”
Clarke: ‘dedicated to the cause of equal justice’
Born to Jamaican immigrant parents, Clarke grew up in Brooklyn and attended the Choate Rosemary Hall boarding school as an alumna of Prep for Prep, a program that places talented students of color from modest backgrounds in elite private schools.
“It’s a dichotomy that I think about all the time: what does it mean to be without access to opportunity and to be given a shot?” she told ABC News in January.
At Choate, she joined the wrestling team – the only girl to do so. “The boys on the Choate team accepted me, while the boys on the opposing team sometimes chuckled,” she said in 2017. “It was empowering having this unintended opportunity to challenge gender stereotypes about what girls were supposed to do.”
One year in high school, Clarke and about a half dozen of her classmates piled into a van and drove to see a court hearing in Sheff v O’Neill, a landmark school desegregation case. “It was a moment in which the seeds of interest in civil rights lawyering were planted and it sparked a deep curiosity about the power of lawyers as agents of social change. It nagged at me from the very moment that I left Choate until the moment I started law school,” she said in 2017.
That curiosity stuck with Clarke through college at Harvard and law school at Columbia. As a young lawyer, she joined the justice department, where she worked on prosecuting police misconduct, brutality and hate crimes, as well as on voting rights issues. She went on to work at the LDF – the same civil rights group that helped file the O’Neill case – before leading the civil rights bureau in the New York attorney general’s office. She took over the Lawyers’ Committee in 2016.
“She’s dedicated to the cause of equal justice and racial justice and voting. She’s unrelenting in terms of her sticking to the task,” said Ezra Rosenberg, co-director of the Voting Rights Project at the Lawyers’ Committee.
As a lawyer, Clarke is “fearless” and thinks outside the box, Ifill said. When the Proud Boys, a far-right group, vandalized a historically Black church in Washington DC last year, Clarke and the Lawyers’ Committee sued them for damages. And in 2017, when Trump launched a White House panel to investigate supposed voter fraud, Clarke quickly began pushing her organization to find ways to challenge it, said Jon Greenbaum, the group’s chief counsel.
The Lawyers’ Committee wound up being one of the first groups to challenge the commission. Relying on a little-known statute, the Federal Advisory Committee Act, the group forced the White House to produce records showing conservative commissioners on the panel were communicating privately. It was a critical piece of evidence that suggested the panel was not operating transparently, enraging fellow commissioners, and proved to be one of the threads that helped bring down the commission.
During the Trump administration, the civil rights division also played a key role in trying to get a citizenship question added to the 2020 census. At the Lawyers’ Committee, Clarke pushed to aggressively challenge Trump’s efforts to undermine the 2020 census in court. One of the suits blocked the administration from ending the census early and probably helped thwart an effort to have the Census Bureau compile citizenship data.
Rashad Robinson, the president of Color of Change, a civil rights group, also said it would be significant to have a Black woman like Clarke leading the civil rights division for the first time (there is already a bubbling conservative effort to try to sink her nomination).
“It’s important that we don’t just say the word intersectionality … Kristen is not going to have to read about it in a textbook. She’s not going to have to be given a long fact sheet,” he said.
Gupta: ‘holding her ground’ while seeking solutions
Gupta arrived at a moment of intense scrutiny in the fall of 2014. Two months before she started, Darren Wilson, a white police officer in Ferguson, Missouri, had killed Michael Brown, an unarmed Black teenager. There was widespread public outcry after a local grand jury declined to bring charges against Wilson, escalating pressure on the justice department to bring federal charges against him.
But there is a high bar for federal civil rights charges and an FBI investigation found little evidence to bring them against Wilson, putting Gupta and other DoJ officials in the difficult spot of having to choose whether to bring a potentially weak case. Ultimately, the department chose not to bring federal charges against Wilson, instead releasing a searing report about unconstitutional police practices and securing a consent decree to reform the Ferguson police department. It was a move that did not produce a sexy headline or satiate public outrage, but one that would lead to institutional change.
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“It took not a small amount of courage,” Levitt said. “The department’s response to Ferguson for Vanita was among the best examples that I can give of how rigorous and how sort of do the right thing regardless of the political context.” The Obama justice department would enter 15 consent decrees with police departments across the country, including major ones Gupta oversaw in Baltimore and Chicago.
Gupta’s difficult decision in Ferguson came after more than nearly a decade of civil rights work. Born in Philadelphia to immigrants from India, Gupta spoke during her nomination announcement about eating in a McDonald’s with her family when she was four and being harassed by skinheads at the next table who shouted ethnic slurs and threw food at them.
“That feeling never left me. Of what it means to be made to feel unsafe because of who you are,” she said.
She went to college at Yale and then graduated from New York University School of Law before taking her job at LDF. She later took a job at the ACLU, where she stayed focused on criminal justice issues, starting the organization’s smart justice initiative, focused on mass incarceration.
“She’s a tremendous lawyer, a tremendous advocate and she’s clear about having a racial justice lens when reviewing policy,” said the Rev William Barber, a well-known North Carolina civil rights leader.
In 2003, as a young lawyer at LDF and fresh out of law school, she earned national attention for her work overturning convictions in Tulia, Texas, where dozens of people were arrested in a sting operation based on unreliable testimony from an undercover officer. She collected so many documents she had to buy a new suitcase to bring them all back from a visit to the city, she said in an NYU alumni interview.
‘‘I’m definitely a magnet for the kinds of situations where you’re not in a comfortable setting, a new setting,’” she told the New York Times in 2003, “and you’re trying to understand what the problem is and trying to solve it.” (The same Times story noted there was speculation even then that Gupta, 28 at the time, could end up on the US supreme court.)
Gupta has used examples from her own life to advocate for criminal justice reform. In a 2013 op-ed arguing that the American criminal justice system was too focused on the wrong things, she wrote that her own grandmother had been murdered when she was 18 during a robbery in India.
“The killing remains unsolved, and the anguish it caused my family will never fade away,” she wrote. “But in America, our criminal justice system has too often focused on vengeance and punishment (and racial suspicion) rather than on crime prevention, restitution for victims and the social and economic reintegration of released prisoners into our communities so that they do not turn to crime again.”
Gupta has developed a reputation as someone who can find common ground across the political spectrum. At the ACLU, for example, she worked with the American Legislative Exchange Council, a group known for pushing a conservative agenda, on criminal justice issues, even over progressive objections. “Vanita smiled and listened and said, ’I understand your concerns,’ but never wavered,” Anthony Romero, the executive director of the ACLU, said in 2015. The conservative activist Grover Norquist and the former NRA president David Keene have been among her supporters.
“She has this thing, this secret magic that allows her to talk to almost anyone, to gain their confidence,” Ifill said. “She just has this incredible ability and engenders the trust because she is a straight shooter. It’s not manipulative or tactical. She just is very solutions-oriented while holding her ground for what is right.”
The first steps towards change
Even though civil rights groups will have allies in two top justice department positions, they do not expect change overnight. The department is careful and deliberate in the matters it chooses to get involved in, part of the reason it has so much authority in court. Greenbaum, the Lawyers’ Committee attorney, said that redirecting the agency’s vast bureaucracy can be a bit like turning around an aircraft. Clarke, Gupta and the rest of the department will also face a federal judiciary dramatically reshaped by Trump that may be increasingly hostile to civil rights issues.
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Advocates pointed to voting rights and policing as two areas where they expected a significant change in enforcement priorities. This year will also be the first time US states redraw district lines without the full protections of the Voting Rights Act – a process likely to be closely watched by Clarke and voting section lawyers to ensure it is free of racial discrimination.
“The first thing is to untangle and undo the kinds of efforts that the Trump administration engaged in that were anti-civil rights efforts,” Ifill said. “Then Vanita and Kristen have to take stock, they have to staff up, they have to take stock of what has happened in the building, they have to set a progressive agenda.”
“We don’t just want restoration to the Obama years without a recognition of how much has changed. Things that may have felt like big steps in the Obama years, the country has moved as a result of so much new information,” said Robinson. “New data and the changing sentiment around criminal justice and policing – what does it mean to truly hold police departments accountable?”
It will also be an adjustment for civil rights groups, who will turn to lobbying the same people they fought with for four years to make systemic changes.
After Biden announced Gupta’s nomination last month, Robinson said, he had texted her with a note of congratulations and an eye towards the future. “I hope you will remember fondly working closely with me and my warm smile and dimples when I am pushing back on and pushing hard on things we need to do,” he wrote in the message.
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