President Joe Biden's nominee for the number three position at the Department of Justice repudiated a host of positions she once held, including abolishing legal protections for police and decriminalizing drug possession.
Vanita Gupta disavowed her past stances before the Senate Judiciary Committee Tuesday, amid growing Republican opposition to her nomination. If confirmed, Gupta will serve as associate attorney general, the officer who advises department leadership and oversees key DOJ components, including the antitrust and civil rights divisions.
Confirming the number three official at the Department of Justice is usually uneventful, but opposition to Gupta's nomination has grown as her more controversial views have come to light. The nomination has also become a flashpoint for Senate Democrats, who have accused the GOP of unfairly scrutinizing Gupta because she is a woman of color.
As president of the Leadership Conference on Civil and Human Rights, Gupta told the House Judiciary Committee that Congress ought to end qualified immunity, which shields police officers from most lawsuits for alleged wrong-doing. During her confirmation hearing Tuesday, Gupta told Sen. John Cornyn (R., Texas) that her previous testimony reflected the views of the Leadership Conference, not her personal opinions.
"I would look forward to working with law enforcement, with members of this committee, as you engage these really difficult and challenging questions that we're facing as a country right now about how to ensure accountability when misconduct happens, and how to ensure that law enforcement have the support they need to do their jobs," Gupta told Cornyn.
The exchange raises more questions than it answers.
While Gupta reversed her previous stance on qualified immunity, she did not clarify where she currently stands on the issue. Moreover, her insistence that she was only conveying the views of the Leadership Coalition leaves open the possibility that she would attack police immunity again if called to do so. As associate attorney general, Gupta would implement the Biden administration's views, not her own.
Qualified immunity is a judge-made doctrine, so the Justice Department cannot end it on its own. But Biden's DOJ could put its prestige and resources behind abolition efforts by filing legal briefs opposing qualified immunity in general or its application to specific instances of misconduct.
The Supreme Court turned down about a dozen appeals in 2020 that urged the justices to rein in qualified immunity or rescind it altogether. Those petitions attracted attention in the wake of George Floyd's death and the ill-fated push for federal criminal justice reform that followed.
Gupta's retreat from her past position on drug enforcement is more straightforward. In a September 2012 op-ed for the Huffington Post, Gupta said the states ought to decriminalize possession of small quantities of illegal drugs. On Tuesday, Gupta said that the piece no longer reflects her views, though she continues to support the decriminalization of marijuana.
"After having been at the Justice Department, after having family members and experiences inform my thinking on this, I do not support the decriminalization of all drugs," Gupta said.
The Judicial Crisis Network, a conservative advocacy organization, put almost $1 million behind a digital and TV advertising campaign opposing Gupta's confirmation. Her conservative opponents have also highlighted the Leadership Conference's opaque fundraising structure, amid attacks from Judiciary Committee Democrats on so-called dark money groups.
In turn, Democrats accused Republicans of mounting bad faith attacks on Gupta and her fellow DOJ nominee, Kristen Clarke, also a woman of color.
"These nominations are, collectively, a significant moment," Senate Judiciary Committee chairman Dick Durbin (D., Ill.) said in a statement on Monday. "However, this moment also calls on all of us to reflect on why these ‘firsts' are still happening centuries after the birth of our nation. Even now, these women — especially Gupta and Clarke — are facing blatantly false attacks from far-right politicians and political groups."
The Washington Free Beacon previously reported that family-business interests will pose ethics challenges for Gupta's nomination. Her father, Rajiv Gupta, is a chemical executive who sits on several Fortune 500 company boards. The Justice Department has investigated or supervised several Gupta-advised entities in recent years, but Vanita Gupta did not address those matters in a committee questionnaire dealing with conflicts of interest.