William Barr will likely be the next attorney general no matter what happens at his confirmation hearing Tuesday.
But his testimony before the Judiciary Committee is still an important spectacle. It is a valuable opportunity to establish the parameters of the Department of Justice’s operations for the next two or more years, as the country grapples with escalating political fractures, the possibility that foreign nationals have obtained unprecedented influence over the U.S. government, and a shaky but ongoing re-examination of the balance between public safety and private rights.
Democrats, at least, are likely to give much of their limited question time to Barr’s views of Special Counsel Robert Mueller’s authority and independence. The remarks prepared for Barr at the opening of the hearing seek to reassure senators that he will give the special counsel Investigation a wide berth.
Barr plans to say that the memo he wrote arguing Mueller lacks the authority to question a sitting president about potential obstructions of justice “was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory” and “did not address – or in any way question – the Special Counsel’s core investigation.” He also pledges in his prepared remarks to stay out of Mueller’s way while he works and then ensure public transparency whenever the investigation concludes.
Though senators will no doubt be eager to further interrogate Barr’s views on the special counsel’s authority and pin him to on-tape promises not to interfere even if the president were to ask him to do so, there are several other policy questions that should be prioritized for their importance to the nation’s future. Unlike many other Trump nominees, Barr has a lengthy public record. And since his public career traces back to more dignified and forthright eras of political rhetoric and communication, senators might stand a better chance of getting earnest answers here than they have in other theatrical confirmations.
Sentencing reform and federal prisons
Barr has publicly committed himself to stewarding the just-passed First Step Act through the various administrative processes still to be completed under that law. But he’s been critical of more ambitious prison and sentencing reform packages in the recent past. And many reform advocates were left disappointed by the limited ambitions of the FSA in its final form, with both supporters and detractors of the bill agreeing that lawmakers must continue working to rightsize the relationship between what courts intend when they impose sentences and what corrections institutions actually do to and with the people committed to their supervision.
So what does Barr believe? “Our system of justice is not broken,” he and other former law enforcement officials wrote in a 2015 letter opposing a sentencing reform proposal then under consideration. The letter specifically praises the 1990s decision to treat drug trafficking crimes as crimes of violence, with decades of additional prison time attached to drug charges where the convicted person had a gun when they were arrested — whether or not they’d ever used it to hurt anyone. The definition of “violent crime” is of central importance for any meaningful effort to fix mass incarceration, and sentencing enhancements of that sort radically reduce the reach of any reform bill aimed only at non-violent offenders. If Barr still believes in the outdated ’90s-era approach to criminal justice, the lawmakers who hope to revive the rehabilitative aims of the justice system will know they don’t have a reliable partner at DOJ.
Another piece of writing Barr contributed to suggests his mind is closed to most criticisms of police departments. A 2018 column by Barr and other former attorneys general praising Jeff Sessions’ tenure in the job describes “the spreading ‘Ferguson effect’” as a threat to public safety. Barr and his peers did not go nearly so far as Sessions did in vilifying police critics; Sessions, by the end, had taken to blaming murders on Black Lives Matter and the ACLU. But within criminal justice circles, a clear delineation has formed between those who see the public scrutiny of police officer conduct in the wake of high-profile killings as necessary, and those who use the phrase “Ferguson effect” as a derogatory apellation. The latter group tends to object to just about every proposal to combat police abuse — and to view the outcry over Michael Brown’s death in Ferguson, Missouri, as a bad-faith crusade against cops rather than the full-spectrum reassessment of a system that had monetized poverty and systematically deprived impoverished black communities of their dignity for years.
Sessions adopted an absolutist approach to beating back reforms. He made a show of abandoning and undermining court orders aimed at fixing police departments that had been shown to habitually ignore the Constitution and violate people’s bodies as well as their rights. He sabotaged the departmental office dedicated to promoting “community policing” ideals over the rough-and-tumble cowboy tactics of the “broken windows” generation. Will Barr proceed in the same cop-coddling vein? Or does he intend to chart a different version of the conservative course on these issues, one that could potentially offer at least a few opportunities for cooperation with the modern “smart on crime” movement?
Asylum vs “illegal entry”
Sessions’ eventual firing over Trump’s rage about his handling of the Russia investigation was soaked in irony, considering that the attorney general had been a doggedly effective administrative box-checker on the president’s central campaign issue. Sessions oversaw the DOJ’s end of a dramatic immigration crackdown, including by making dramatic and aggressive use of the attorney general’s statutory control over all immigration case law. He delivered the policies Trump wanted, from “zero tolerance” border prosecutions and family separation to a drastic re-imagining of how asylum law could be distorted to limit legal immigration.
Barr holds the same views Trump and Sessions share on restricting asylum. He helped craft a controversial policy by which President George H. W. Bush’s administration forced Haitian refugees detained at sea to return to the country where they were being targeted by political opponents. The Trump team has invoked that policy’s eventual victory in court as evidence that his asylum ban and his ban on incoming travel from several Muslim-majority countries is lawful. The latter ban was upheld by the Supreme Court.
Though he often blurs the distinction between legal and illegal paths into the United States, Trump’s promises to his political base require drastically constricting legal immigration as well as curbing illegal entry into the country. Barr’s work on the Haiti crisis suggests he’s got a flexible legal mind and is happy to employ it for the people who hire him. But senators have a lot of room to probe him for both personal and legal views on the goal Sessions, Trump allies Stephen Miller and Steve Bannon, and prominent nativist GOP elected officials like Rep. Steve King (R-IA) have all pursued for years.
Presidential character & the national interest
One virtue of Barr’s age and tenure in Washington is that he’s been quite candid on the record about his views on presidential efficacy and institutional integrity.
He’s said the fact that the first Bush administration had “no real scandals to speak of that took significant people down” is a point of personal pride, and now he’s about to join a cabinet that’s racked up scandals and investigations at a startling clip. He’s criticized Ronald Reagan’s team for running a “capricious process” for hiring important positions that meant “people got jobs they had no business getting,” and has now agreed to serve a president who put a career events planner in charge of key public housing policy work and chose a lawyer famous for patent trolling work to serve as interim AG. In the same far-reaching interview, Barr also praised the Bush team’s deep deference to DOJ, attributing it to the legacy of the Watergate scandal. Trump’s interactions with the agency have so alarmed career public servants that many began putting the conversations in writing afterward for fear no one would believe them otherwise.
The fact that Barr has to promise not to interfere with Mueller in his written testimony speaks to how far astray Trump has already gone from the Bush-era integrity he praised in that exit interview. Creative questioning on how cabinet-level appointees can delivery a high level of integrity when the person at the top of the org chart so publicly struggles with balancing the national interest and the personal ego might generate valuable insights.
The integrity and legitimacy of the federal judiciary
Supreme Court Justice Sonia Sotomayor may have Barr to thank for her present stature in the U.S. legal community. He could have stymied her career at a much earlier stage, but decided after meeting with her that she was the kind of liberal who “we could live with.”
While babysitting the judicial nominations system at the time, Barr found then-Sen. Daniel Patrick Moynihan (D-MA) a particularly frustrating partner. Moynihan refused to cooperate with Bush’s preferred system, in which senators were expected to give the White House three names for any given opening on the bench in their states with the assurance that Bush would nominate someone from those lists. When Moynihan only gave the president two names for two judgeships, it fell to Barr to meet with the pair.
“I picked one that I thought, We could live with this one. It was Sonia Sotomayor,” Barr said in a 2001 interview conducted as part of efforts to create a working archive of the Bush presidency. “I said, ‘Okay, well, tell you what we’ll do. We’ll do Sonia Sotomayor, but not the other one.’”
Barr’s early brush with the high court’s first Latinx member — who was maligned by Republicans at confirmation for believing that empathy is a valuable judicial trait — isn’t just a coincidence. It’s a reminder that earlier in life, Barr was closely involved in one of the most important intersections of politics and the law — and one that’s begun to operate more like a bar fight than a conversation.
Trump has pushed six different men and women onto the bench who were rated “not qualified” by the American Bar Association, more such nominees in his first two years than his four predecessors combined. The ABA also withdrew its qualified rating for Supreme Court Justice Brett Kavanaugh after he blew up during a hearing about accusations he’d committed sexual assault. Though the judiciary has always been at least a bit political — it is, after all, the longest-lasting mark that a president can make on the government — the ideological hijacking of the country’s future through judicial nominations has never been so flagrant. With Trump’s own power resting on incredibly thin margins of victory in a handful of states with outsized Electoral College influence, the administration’s approach to the federal bench threatens to create a lingering legitimacy crisis in the legal community writ large.
Barr’s record suggests that might bother him. But he’s also said the ABA’s ratings are politicized, too, and his expansive views on presidential power suggest it would take an extraordinary series of events for his deference to a president’s preferences to waver. Tuesday’s hearing might be the best chance Democrats have to seek a course correction on judicial nominations between now and — at earliest — January of 2021.
Employment discrimination, civil rights law, and affirmative action
The conservative movement has long been hostile to the idea of affirmative action policies to close opportunity gaps between white people and everyone else. Laws aimed at protecting minority groups — whether they stand apart from the mode because of their race, their gender, their sexuality, or any other component of identity — have always gotten similar hostility from the right.
Barr seems to share that antipathy, telling the Bush archivist interviewers that his office played a significant role in crafting the then-president’s official signing statement on the Civil Rights Act of 1991, a document the civil rights community criticized for undermining the job protections and equitable access policies of the legislation. What, then, are his present-day views on the value of a diverse staff at the Justice Department, or on the modern iteration of these policy fights in which conservatives defend the right to discriminate as a form of religious freedom? Does Barr’s institutionalist mindset mean he’s ready to bulwark the legal and policy compromises that help keep the union together against the destabilizing impulses of this unusual president, or do his own conservative personal views win out?