S05 E02: The Biden Scorecard Episode
Vanessa: Welcome to “Pod for the Cause,” the official podcast of The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund where we expand the conversation on the critical, civil, and human rights issues of our day. I’m your host, Vanessa Gonzalez, coming to you from beautiful Washington, D.C. And like we start off every show, we’ve got the Pod Squad where we discuss pop culture, social justice, and everything in between. And on today’s show, we have got some amazing folks. First up, Patricia Richmond, National Sentencing Resource Counsel at Federal Public & Community Defenders. Hey, Patricia.
Patricia: Hey, good afternoon.
Vanessa: And next up, we have Lena Zwarensteyn, senior director of the Fair Courts Campaign at The Leadership Conference and the Education Fund. Hey, Lena.
Lena: Hey, Vanessa.
Vanessa: In this episode, we’re talking about the Biden administration’s promises, how they’ve held up, and where communities are still looking for him to show up. Before we jump in, I just want to set the stage. As candidates, Joe Biden and Kamala Harris made direct appeals to black communities and other communities of color for their support. Given that black communities typically support Democrats in large margins, turnout from these communities is critical for an electoral victory. Furthermore, the Georgia runoffs increased black Latino and Asian voter turnout amid efforts by Stacey Abrams, Fair Fight, Black Voters Matter, and other allied groups, which was critical to the election of Raphael Warnock and Jon Ossoff, giving Democrats control of the senate.
Now, several months into the Biden presidency, we’re taking stock of how Biden and the Democratic Congress have made good on campaign promises and where they still need to show up. So let’s go ahead and dive into the conversation. Lena, I want to start with you in your work on courts. Like, when I say courts, I think people have a really clear idea of, “All right, I went to court to get my traffic tickets taken care of. I went to court for divorce,” right? You name it. It’s all these super close and personal issues, but that’s not necessarily what you work on. So can you explain a little bit about your line of work and why it’s so important when we talk about democracy and how the Biden administration and Congress show up?
Lena: So basically every single issue you care about, even if it is traffic tickets or it’s family law-related, or it is the criminal legal system, or it’s marriage equality, or it’s getting equal pay, or it is the ability to vote, or it is the ability to make decisions for you and your body with your doctor, every single issue that you care about runs through the course, and it does so in a number of ways, whether or not you ever go into a courtroom or not. And that’s because so often there are cases that judges are deciding day in, day out on these really, really crucial issues.
So take, for example, the Supreme Court recently decided that it was going to end the eviction moratorium in the middle of a global pandemic. That put thousands of families at risk and potentially unhoused, many, actually unhoused afterwards. So the things that the Supreme Court does and also these lower courts do are really, really important.
So what I have the honor of doing is working with an incredible coalition of folks who care and know so much about all of these issues and work with and on behalf of a number of the people who are actually impacted by these court decisions to make sure that the people that are making those decisions, those judges in the courtroom are fair-minded. And we want to be making sure that they have a commitment to civil and human rights and that they actually look like us. And not just those of us on the podcast, but they look like the communities that they are serving, that they do reflect real, incredible diversity that is really rich in so many of our communities, whether that is because they are rich in terms of racial diversity, economic diversity, also whether they are of faith or no faith, LGBTQ, disabled, and so much more. We really need to be making sure that those people who are making these decisions understand the problems, determine the facts appropriately and accurately, and also really understand the outcome of their decision and how that actually impacts people.
So for far too long, so many presidents… And this is a really exciting sort of area to work in because every single senator votes on every single judge. Every single president gets to make these nominations for then the Senate to actually take those votes. And so it is one of those areas where the courts can feel so far away, but who you elect as the president and those senators make a decision day in, day out on every single one of those judges that sit in those federal courts. So I think it’s one of those things where so often you think about a judge or you think about these issues and it can feel so removed, but there really is a real importance to making sure whoever is that decision-maker in that courtroom does reflect the values of your community and does look like your community.
Vanessa: So thank you for that. That’s the perfect lead-in. And so I want to really talk about how important this is, and what an uphill battle, if you will, the Biden administration was staged because Trump and McConnell transformed over 25% of the federal judiciary in just four years. Correct me if I’m wrong on my numbers, but I think they acquainted 234 lifetime judges. These are people who are there until they die. And guess what. White men who comprised only 30% of the U.S. population, but nearly 65% of Trump-appointed judges are white men. Sixty-five percent. So when you talk about needing people who look like us, yes, you know that, but then you hear these statistics and that’s a little bit alarming. So can you tell us a little bit about a specific case or a specific issue where not having people who look like all of us has really impacted all of us? And then how can we actually use the courts to dismantle white supremacy?
Lena: So you’re right with your statistics. This really is an incredible challenge that we have seen. And a few administrations took seriously the opportunity to really modernize and make our courts and the judges who sit on them look like us, but the Trump administration dialed that back so, so, so much. And you’re exactly right. And this was pretty much the premier project, if you will, of Trump and McConnell. And we are now seeing, unfortunately, the real devastation and cruelty of that. That means that there are cases where there are transgendered litigants who are not even afforded basic dignity based on how judges are using their names or pronouns.
So that’s even just in the day-to-day courtroom operations, right? Like, to not even feel like you are valued as a human being in the courtroom while your case is being decided, you know you’re not going to be given a fair chance. So I think that that is really, really devastating, but we’re also seeing that certainly in a number of the cases regarding abortion. There are a number of judges who may never have to determine for themselves their own autonomy on certain decisions that they are making about whether and when to have children, etc. And they are issuing a number of really devastating decisions regarding abortion. We’re seeing that in Texas. The Supreme Court this term is also going to continue to be hearing that case, but there’s also going to be a really important case coming out of Mississippi that could also further limit the access for people who are pregnant to be able to access abortion care. That of course disproportionately impacts black women and people with lower incomes.
And so there is a special cruelty in the ways in which a lot of the cases are both on the litigation side being brought up because they’re seeing opportunity with the types of judges that are there, and then that being doubled down by the judges that are actually issuing, I think, a lot of these decisions themselves. And so certainly the decision to end the eviction moratorium where the CDC is saying that it’s really important in a global pandemic, that people not be kicked out of their house, for the Supreme Court to say, “No, I’m sorry. That’s got to end,” like, no. Like, taking that kind of power feels like it’s especially cruel right now.
So it really feels like both in terms of how the courts have been composed, which was a very intentional project. In addition to the types of issues that they are hearing, now, it’s becoming, you know, more and more of a pressure cooker for our civil and human rights and for the things that people care so much about. If you’re being discriminated against and, you know, you’re not getting equal pay compared to a male counterpart in your organization, you do want to make sure that you can actually access the courts and have a fair day there. But there are so many judges who may be finding facts in a different way. So that’s not exactly how I want to say that but…
Vanessa: No, I think that makes sense, right? The facts you can’t really fight, but you can come to them with a different lens. Since it’s empathy, I think we have seen our girl, Sonia Sotomayor, really lending in her voice about why are you doing this now. Like, she’s lived the reality that many of her colleagues on the court have not, right?
Lena: That’s right. She is just the embodiment, I think, of the types of judges that we need to have on the bench. So our federal judiciary was set up to protect the interests of white supremacy and people who have wealth. So we have to be really, really intentional about using this institution and making sure that this institution can actually be fixed so that it actually can protect all of us and provide equal justice for all of us. And so that does mean that we have to have judges who don’t only reflect a certain race or an economic status, or who only have one type of lived experience, or who have one view of the law as limited as that is. Instead, we need to be making sure that staffing, but especially when it comes to the judges that are there are able to understand and embrace that.
And do you have a mind towards making sure that equal justice is provided for everyone, not just the wealthy, the powerful? And who you run in social circles with or have throughout your life can make a huge influence on how you’re able to even assess things. So often judges are really called upon to be fact-finders, and they have a lot of discretion—what they’re thinking about, what they’re pulling in, and so on. And so having that vast level of experience demographically, professionally, experientially, I think, is an important start to that. That’s obviously only one component of trying to make sure that we’re dismantling white supremacy as much as we can.
Unfortunately, we see, you know, many of the senators who are taking votes on judges like this don’t think systemic racism is even a thing. When you can’t even be in agreement that there is this problem, it’s hard to acknowledge that there is a solution and that having judges who understand the ways in which institutions themselves have been set up and/or continue to perpetuate white supremacy, it is problematic. What I’m excited to see is that we have judges and nominees who are saying I’ve dedicated my life to making sure that racism doesn’t permeate every aspect of our society or at least within the particular area of law that I’ve been practicing. So that’s really exciting to see, but we do not all agree that, you know, the institution even perpetuates white supremacy, but unfortunately it does and it was founded to do so.
Vanessa: I agree with you 100%. I would say they don’t necessarily have a disagreement with us that is rooted in reality, right, and that wants to explore the deeper meanings of these systems that were set up. You just got to read a book every now and then. That’s what you got to do. Since we talked about Biden and coming into this administration and really trying to make sure that people understand how these judges… And it’s not just the Supreme Court, right? I think people get really up in arms. I myself have been marching in front of the Supreme Court and screaming, but it’s what happens at a lower courts level. How has the Biden administration delivered or not on seating judges throughout the different bench levels?
Lena: The Biden administration came in really, really strong. I wouldn’t say that the federal court was an issue that they completely campaigned on. I do think and I was very excited to hear Pres. Biden make the commitment that it presented with the Supreme Court vacancy, he would nominate, and sure the Senate confirmed, the first black woman to serve on our Supreme Court.
Vanessa: Yeah, let’s do it.
Lena: We are ready. We need to see it and we need to be making sure that woman is committed to civil and human rights. And so that is our job from the outside no matter who is in office to make sure all of those justices have that commitment to civil and human rights, that they do hopefully look like and reflect us. That is why the Trump administration was so hard. But when the Biden administration was setting up, it was really absolutely incredible that the incoming White House counsel, Dana Remus, sent a letter to Senators saying, “Judges are a priority. We need you all to let us know in your state senators who you would wish to see nominated from your state, who are public defenders, civil rights lawyers represent vast important segments of the demographics that are not represented on the bench right now.” So that strong signal, to begin with, was huge. And then we saw quite quickly the Senate Judiciary Committee, which is now democratic, sort of, majority. Sen. Dick Durbin from Illinois is the chair of the committee. He has been absolutely incredible to be making sure that there are hearings every two weeks on these judges.
Lena: And then Leader Schumer, who determines what gets brought up on the Senate floor, has really been moving along at a quick pace to make sure that a number of these nominees are confirmed in quick order. It can take a while, but it is so, so, so important. Vanessa, you said earlier, these judges serve for life, so these folks are going to be issuing decisions much longer than Pres. Biden will be in office, much longer than probably I will even be working, much longer than so many of us in our careers. This is not a three to five-year gig. This is not even a six to eight-year gig. Many of these judges serve for 40 years or more, so it really is so, so, so important.
What I’m excited about is that I think pretty much right now, as we’re talking, the Senate is confirming another lifetime nominee to our courts. And so there have been 18 lifetime nominees confirmed. Six of them to the circuit courts, 12 to the district courts. And that is so important because most cases never reach the Supreme Court. If you do go to federal court, the decision will be made by the district court. Maybe you appeal it, and it goes to the appellate courts, which oversee a larger jurisdiction in terms of the number of states and very rarely… The Supreme Court only hears about 75 to 80 cases a year. Rarely does it go to the Supreme Court.
So whoever is making the decision that the lower courts is often also what’s referred to, if it does go up, so the appellate courts will look at what the district court did. The Supreme Court will look at what the appellate court and district court did. And so it’s really exciting. But I want to highlight though, of those 18 confirmed judges, six of them were circuit court nominees. The first five were all women. The first four were all black women. Unfortunately, all four of those black women doubled the number of black women on our appellate courts. That’s how few there were across the country. There were only four and it doubled just in the past few months because of what the Biden administration and the Senate majority has been able to accomplish, which is absolutely significant.
What I think is really important to note, it’s not just quantity. It’s the quality. I already mentioned that the White House council put everybody on notice, that they wanted to see public defenders and civil rights attorneys on the bench, something that we have been calling for for decades because we do need to be making sure that that professional experience is reflected on our bench because if you only have prosecutors, if you only have people who have experience in the law in law firms, you’re cutting out incredible windows and expertise into other areas of law and how that actually works for people and those types of folks. So a number of the nominees have been public defenders, anumber of them have been civil rights lawyers, and I think it is absolutely remarkable.
And if we want to do a little bit of comparison and we don’t hold ourselves to the standards when it comes to civil rights of the Trump administration, Pres. Trump in his first year in office had a total of 18 lower court judges confirmed. So today we’re at 18 and hopefully by the end of the year, there can be more. And that’s important because as you started, Vanessa, Pres. Trump transformed 25% of the federal bench. This is a real opportunity. Every single one of these judges, every single one of these seats will make a huge difference to every single case that comes in front of them and all of the litigants that come in front of them. So if we can prioritize making sure that we have really well-qualified people who are committed to civil and human rights who look like us on the bench, it’s going to be a better day.
Vanessa: Thank you for all this, Lena. That was really rich. Appreciate it. And I understood it all. So thank you. So when we talk about people who look like us and the impact that that will have on our lives, I want to kick that over to you, Patricia, because as an expert in the field of criminal justice reform, and what does that look like, and what does that mean just in general from not necessarily the courts. Of course, that is a huge piece of this, but also the Biden administration, because we know more than a year after Mr. Floyd was killed, millions of us took to the streets worldwide to demand an end to police brutality and the systemic criminalization of black and brown communities, particularly black and brown men. We still haven’t seen any legislation. Can you help us fill in on what some of that thinking is or what we should expect or what we need to demand more of? That would be great.
Patricia: Well, I want to start by echoing a lot of what Lena had to say, because an area where this is of particular importance and by this, I mean the appointment of judges from a broad array of backgrounds is in how they handle criminal matters. Federal district court judges review decisions about who should be detained or not pretrial. They make assessments of police officer credibility and suppression hearings. They preside over trials and they impose sentences. They also carry out the everyday work of the federal courts in their day to day interactions. Do a lot to contribute to whether individuals who are appearing before them charged with federal crimes are treated with empathy and humanity or not.
And what we see a lot of in the federal courts too often is dehumanizing language, dehumanizing treatment. And when you have never yourself sat with a person who is accused of a federal crime, when you have never yourself worked with their family members to help them understand what is happening, seeing the consequences of what it means to detain a person pre-trial, gone into the facilities pretrial where people are held to meet with clients, it is impossible to develop the necessary empathy and understanding to even carry out that sort of daily work of treating people with empathy, humanity, and respect. Not to even mention the bigger, more consequential decisions, how you rule on motions, how you sentence people, whether you detain them or not. So the importance of having people from a wide variety of backgrounds on the bench can’t be overstated, and I think that’s one area where president Biden has gone far to show a commitment to reform because parody of representation in these important policy-making bodies is critical.
Now we can talk about other areas where it’d be great to see that commitment continue. For instance, the United States sentencing commission is responsible for promulgating most policies that dictate how long of prison terms people are exposed to having them posed in court. And there’s no representative from federal public defenders to speak on that commission. A lot of people are really surprised that they…
Patricia: They have an ex officio representative from the Department of Justice, which means that they participate in closed door discussions about commission data reports, policies. Defenders are shut out of that. That was not part of the discussion, and we would love to see Pres. Biden show a commitment to improving parody in professional background and representation in both the sentencing commission, who he names as commissioners and also in coming out, and supporting, and pushing for that change to get ex officio representation.
Vanessa: In this area of work that you do… And, first, thank you so much, I just learned something appalling. I feel like we’re not asking for too much, right? We’re not asking for empathy and asking for understanding for someone who is going to make changes that, let’s be clear, don’t normally affect the person in front of them. It affects the communities and the families for generations. It affects economies and jobs. You name it. That is not asking too much for the person doing that ruling to have some sense of what life is like.
I think in this area in particular though, people who come before judges for criminal justice issues often feel like the system is set up against me, and they themselves are often so involved in trying to take care of their individual case, which why wouldn’t you be, right? And so when we look at the larger systems and we look at where policy can really make an impact exactly like outlining where Pres. Biden can choose a commissioner, right, that pushes these kind of things through, what are some of the other areas that you would like to see them beef up a bit more?
Patricia: People who say the system is stacked against me are generally correct, because we have a system of inhumane and draconian federal criminal laws. And so we were really excited to see president Biden’s criminal justice platform, which among other things committed to ending mandatory minimums to move in away from an enforcement-first approach to drug misuse or use to ending the death penalty to improving prison conditions. So there’s a lot of hope. And as we sit here in October, there are some definite steps this administration has taken without legislation to advance that ball forward.
So in June, the Department of Justice publicly took a position to support eliminating the crack/powder disparity. Now the crack/powder disparity is one of the most broken aspects of the federal sentencing system. Back in the 1980s, Congress legislated these 100 to 1 penalties where crack would be punished 100 times more harshly than cocaine. That was based on incorrect science. It was based on racist attitudes towards drug use, and it was based on a lot of fear-mongering in the media and in Congress.
And so Congress has taken some steps to rectify that in 2010. Then Sen. Biden had introduced a bill to eliminate the crack/powder disparity. Now, when he went up to be vice president, he passed that over to Sen. Durbin who shepherded it through, and that’s the Fair Sentencing Act of 2010, which reduced the disparity to 18 to 1. But that disparity still does harm.
And so the Biden Department of Justice coming out and saying, “As a policy matter, we support legislation that would eliminate this disparity and importantly would also apply that reform retroactively.” Although it seems so obvious, it’s still a very big deal for the Department of Justice to be saying that to Congress.
Now, the other side of that is that that’s a policy we still need Congress to act and where I’d like to see where more action is by the Department of Justice and channeling that policy position into their charging decisions and their sentencing recommendations, because we’re unfortunately still seeing this Department of Justice indict cases where the mandatory minimum is triggered by the crack/powder disparity, cases where there wouldn’t be a mandatory minimum if it was treated just as cocaine rather than crack.
We’re also seeing lots of different approaches from different U.S. attorneys about whether or not they’ll recommend a sentence that would be imposed if the disparity would be eliminated or not. So that’s a place where we could really see some improvement from the administration and from this Department of Justice.
Vanessa: And to do that… I just want to make sure we’re all understanding that. So the White House, the administration has the power to essentially say to the Department of Justice and all the attorney generals throughout the states, when you look to charge someone or when those charges are coming up, you need to view it this way even though we don’t necessarily have policies. So they have the power to provide that guidance now.
Patricia: I don’t know whether the White House, as a matter of course, will dictate a particular charging policy that the attorney general should adopt, but it is typical and legitimate for the White House to expect the Department of Justice to align its policy decisions with those of the White House. The Department of Justice has a lot of discretion about what it can do when it comes to charging and sentencing, and you can see that when you look at the Obama administration. The Obama administration implemented a charging and sentencing policy which was an important step forward to eliminating some of the disparities we see in our system and making it a bit fairer, which told prosecutors not to charge mandatory minimums in certain cases that involved what they consider to be individuals who had lower level roles in an offence and who met other criteria.
I would say those criteria were too limited and they should’ve gone further. And we were hopeful to see a policy from this Department of Justice with almost a presumption against ever charging the available mandatory minimums. Even if you don’t charge a mandatory minimum in a case as a prosecutor and you think that the person committed a very serious offense, there’s still the possibility of a really lengthy sentence to be imposed. What not charging the mandatory minimum does is it puts it to the court to decide, to exercise their discretion, rather than putting that power in the hands of the prosecutor.
And so they do have that policy power. They do have that discretion, and we’re still, sort of, waiting for them to exercise it in a robust way. And the only other thing I’d add is this is something that you really can’t delay on. That Obama policy I mentioned didn’t issue until 2013 and because it came out a little bit late, it took a long time to actually have an impact. And what we had was, by the time Obama left, 20% of jurisdictions in the United States still weren’t adhering to that policy. They needed to move fast on that.
Vanessa: Yeah, 100%. Look, I know that we want to be respectful of Congress and balance the powers. Da, da, da, da, da. But at the same time, Democrats have the White House, the Senate, and the House of Representatives. Like, this is the time to really get this done coming out of a Trump administration where many of the values and many of the things people fought for for their whole lives were essentially decimated, right? And we saw a very real impact of the Trump administration’s rhetoric and policies on communities.
So now let’s go. Like, what is going to happen? So can you tell us what are some of those barriers that you are seeing to making these really substantial and necessary changes?
Patricia: In Congress, the barriers are pretty obvious. We have these razor thin majorities in both the house and the Senate. Any criminal justice reform legislation has to be bipartisan, and that applies even to the EQUAL Act, which would eliminate the crack/powder disparity. That passed in overwhelming majorities in the house but so far, Sen. Grassley has not gotten on that bill. Until Sen. Grassley, I think, comes on and joins that bill, it is going to be difficult even with so much bipartisan support to get it enacted into law.
That’s true of some of the other criminal justice reforms that really have a shot. This Congress, there’s a package of sentencing reforms that are considered by the Senate Judiciary Committee voted out, and those would do some important work. They would make some of the aspects of the First Step Act of 2018 retroactive to some of the reforms that made sentencing laws fairer. And the First Step Act didn’t apply to people who had already been sentenced. It would also do, you know, some other important things like ending the use of acquitted conduct by judges to enhance people’s sentences.
A lot of momentum is needed to get those through in this political environment. In terms of why we haven’t yet seen more aggressive policies, it’s hard for me to say. I’m not inside the Department of Justice. I’ve never worked there. I don’t know why it might take more time to get these promulgated. I will say we’re getting increasingly more impatient. Last week was, in particular, a tough week for us.
One thing that Pres. Biden campaigned on was ending the death penalty in his confirmation hearings, Atty. Gen. Garland also noted significant concerns about the death penalty. Last week, the Solicitor General of the United States appeared in the Supreme Court to argue in favor of the re-imposition of the death penalty on Dzhokhar Tsarnaev. Dzhokhar Tsarnaev was one of the bombers in the Boston marathon. Really there’s been no question of his guilt, but the appellate court overturned is death penalty sentence because of concerns about the information that the jurors were allowed to hear about whether or not it was appropriate to impose the death penalty.
Without appealing that, the Biden administration would have left a life sentence in place for Tsarnaev, but instead they appealed it and actively appeared in the Supreme Court last week arguing in favor of imposition of the death penalty. Even if you were to make this about the individual case, what’s so problematic about that argument is that it really would shift the law that governs the death penalty to lessen protections for individuals who are going through capital cases. So that was a low point for us to hear, that full-throated argument in favor of the death penalty from Biden’s Solicitor General’s office.
Vanessa: That is shocking. There’s always this idea of what’s incremental change versus absolute, right, and how do you get there. But it feels like if you’re going to campaign on something that’s vital to communities and to people and to communities of color in particular, such as ending the death penalty, to then argue in the Supreme Court the opposite of every promise that you’ve made, you know, what are we to expect and what are folks to say? That’s just really shocking to me, I think, that it would be so blatant. I think we’re used to some of those politics and policies being a little more in the details and so people may not catch it as quickly, but to show up at the Supreme Court and do such is pretty alarming.
I think you both have excellently made the case of why these issues are linked together and why movement from the Biden administration is so important in both areas. Obviously, I think when it comes to criminal justice reform, there is an argument to be made about why we want things codified. When you’re on one side, you always want something codified. When you’re on one side, you always want to think codified. You want it to go through [inaudible 00:32:27] happen at the same time the promise is made.
I don’t want to give them a score or a grade. We don’t have enough time for that. And also, I didn’t agree to that and tell you all about that before, but I want to say one question to each of you. So, Lena, first, what is the one area that you would like to see a higher grade from the Biden administration when it comes to your area of work?
Lena: There just need to be more judges confirmed generally and continuing with this quality. What I’m very mindful of is that we have seen a number of excellent nominees from a number of states across the country. Where a lot of these important cases are coming out of are in jurisdictions where we see a number of vacancies but not a number of nominees yet. So I know that a lot of work goes into the selection of judges and a lot of negotiation senators do play a significant role. Sometimes other folks do too, depending on who the senators are and so on. And so I know there’s a lot of important vacancies on the 11th circuit and the 5th circuit, the 4th circuit. Those are circuits that hear a significant number of vital civil rights cases and cases that we’re discussing already today. I really want to be making sure we are seeing fantastic nominees in those places happening sooner rather than later.
The biggest barrier is really time. The people who go and have court cases don’t have a lot of time, or a lot of people are even incentivized to not even bring a case to court because there’s significant backlog and so on because we do really need to be filling these vacancies. So, for me, it is that. I will also mention it’s really important that not only in the types of judges that they do reflect 2021 and modern society, but the institution itself does. I mentioned already a dramatic number of caseload. I think this pandemic has also increased the pressures on judges themselves. We do need more judges, especially at that district court and circuit court level, in order for people to even be able to access any semblance of justice, but we really do…in order for there to be equal justice, we need to make sure that there are fair arbiters and we need to make sure that is true, whether you are bringing a case in New York or Texas.
Vanessa: Right, thank you for that. Appreciate that. And I just want to make this link again to voting. If you don’t vote, it’s not just about your immediate elected official, right? It’s about those people get to choose their judges and those judges get to, again, put into record and put into motions these really painful decisions that Patricia and her folks have to try to push back against. I think if we’re all just mindful about voting and making sure that we’re making this, kind of, global, holistic link, that would also really help raise the level of importance that this issue should have in the court, you know, when we come to elections, because I don’t think you hear a lot of talk about courts during the elections. Sorry, Lena.
Lena: No, don’t. But you’re exactly right. I mean, the courts are going to decide whether or not the John Lewis Voting Rights Advancement Act if and when it’s passed. Let’s say that when it is passed, whether it’s constitutional or not. And we’ve already seen that this Supreme Court, the composition that it is right now, eviscerate key portions of the Voting Rights Act. And so Congress can do a lot with the legislation that we really want them to pass, whether that is on climate change, on really reforming the criminal legal system in other meaningful ways that Patricia outlined we need to be doing, and so much more, but we also do need to note sometimes those final arbiters are those judges.
It’s really this incredible, sort of, cycle, but the best way we all can insert ourselves is to be voting for people who we can hold accountable for the votes that they are taking on this legislation on these judges, especially for anyone who cares about civil and human rights. That is not a partisan thing. It shouldn’t be, but we do need to be making sure that this administration, that this Senate, this House of Representatives and everybody is really making sure that they really are stepping up to fulfill the promises they make and the expectations we have.
Vanessa: So Patricia, I’m a little scared to ask you where you think they could do better because, one, I think there’s so many areas that you could start listing off in your area of work, but also by not doing better, that means people’s lives are at stake here. And I don’t think that is an overstatement. I think we know that on a daily basis, but what is one area that you would like to see immediate movement and lifting up the issue on?
Patricia: I think generally there are certain areas where the policy is playing and there’s no further deliberation needed. And it’s time for the Department of Justice and for the White House to issue those policies and get the practices in place that will start to correct the system more towards fairness like a better charging and sentencing policy, like granting clemency to people who have been peacefully on home confinement during the pandemic, and we didn’t even get into this, but who now face the real risk of being returned to prison at the pandemic’s end.
Just get those policies out. Let’s start to implement them. And then we can wrestle with the harder questions, but there’s so much low hanging fruit. And although I understand the need for careful deliberation on these matters, I also think that there is an urgent need for action. And every day that passes without it is hurting somebody. It’s hurting someone’s life in an adverse way.
Vanessa: There are so many things we should’ve gotten into. You’re right. It’s just so appalling. And I know as advocates, as organizers, it gets really exhausting. To your point, this is low-hanging. The deliberation has been had. Now, like, let’s move into motion to have to push against people who made these promises and is yet to be seen. On that high note, I do want to ask you though… Patricia, when you think about your work and when you think about your experience in the road ahead, what gives you hope?
Patricia: Putting public defenders on the benches gives me hope. Having the Department of Justice say that the crack/powder disparity is broken gives me hope. Those are important steps towards structural change in our system.
Vanessa: So, Lena, I think I know the answer to this, but can you tell us what gives you hope?
Lena: What gives me hope is how hard people have been working for decades. The fight for equal justice, to dismantle white supremacy, it’s not going to happen overnight. There are challenges, when I started my career, have only gotten worse, it feels like. At the same time, we have shifted so much of what people…when it comes specifically to judges, who people think can be fair.
For far too long, it has been old, white men in robes, those are the folks who we can trust with decisions. We couldn’t, and we can’t, and many people never did. And I think we’re really seeing a huge shift in that in terms of we need judges who look like all of us in all of our communities who do come from various backgrounds. Knowing that this wasn’t an accident, that letter from the White House council wasn’t an accident, that Pres. Biden’s priority of this isn’t an accident, that Sen. Durbin’s prioritization and later Schumer’s prioritization on this isn’t an accident, it is because of years and decades of advocacy, of shifting this, of really defining equal justice and what our expectations are.
We need to keep doing it because we do have so much farther to go, but it really gives me hope. And not only because sometimes I sit in my chair and think, “What was this day like a year ago?” And a year ago we were fighting against the confirmation of Justice Amy Coney Barrett to serve on the Supreme Court after she was very quickly confirmed after the unfortunate passing of Justice Ginsburg.
Three years ago, we were just coming off of the heels of the campaign to try to keep Justice Kavanaugh off of the Supreme Court after a really, really, really difficult and traumatic course of events, leading to his ultimate confirmation. And it’s devastating that stuff can really get you down. It’s traumatic just thinking through. Especially in the situation of Justice Kavanaugh, the survivors and all of that, it was traumatic. I hear you, I am you. You know, I think we all have to make sure we are coming together, but just to be sitting here in 2021, knowing we still have so much further to go but we have already gotten this much farther because of all the work that was put in gives me so much hope in knowing that the people keep showing up.
The people who specifically in our coalition who work on this are some of the grittiest, most resilient, most strong folks who, if you feel like you get knocked down, you still pick yourself up the next day. You feel your feelings and you still keep going. And because of that, we have gotten to see a better day. And I think in a year, in 10 years, this quest for equal justice will be certainly enduring throughout my entire lifetime, probably for lifetimes to come. It’s because of the work that we have put in that we get to see the results today, and we will even more so in the future.
Vanessa: Thank you so much. I will say the two of you, the work that you do, the colleagues you work with, that is, from my perspective, what gives me some hope. I think you both are working in incredibly difficult fields where I think people…there’s a lot of experts running around out there, but you actually know it. And so above and beyond, thank you so, so much for this amazing rich conversation. I learned a lot.
Thank you for also highlighting that people still do have power. They have power when it comes to how to combat some of these racist laws in the criminal justice system. They have power when it comes to picking the judges who will help or hurt communities across the country and make really life-altering and lifelong decisions for people. So thank you, thank you, thank you.
So this has been a fantastic conversation. I want to thank you both so much for joining us here on “Pod for the Cause” and being part of our Pod Squad. So thank you.
Lena: Thanks, Vanessa.
Patricia: Thank you.
Vanessa: Thank you for listening to “Pod for the Cause,” the official podcast of The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund. For more information, please visit civilrights.org and to connect with us, hit us up on Instagram and Twitter @PodForTheCause. And also you can now text us. Text CIVIL RIGHTS to 40649 to keep up with our latest updates. Be sure to subscribe to our show on your favorite podcast app and leave a five star review. Until next time. I’m Vanessa Gonzalez. Thanks for listening to “Pod for the Cause.”