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February 9, 2021

"U.S. Attorney Transition Begins" ... and ... "The Justice Department Is Way Too White"

The title of this post is drawn from two recent headlines.  The first part comes from this new Justice Department press release, which states the following:

Continuing the practice of new administrations, President Biden and the Department of Justice have begun the transition process for the U.S. Attorneys.

“We are committed to ensuring a seamless transition. Until U.S. Attorney nominees are confirmed, the interim and acting leaders in the U.S. Attorneys’ Offices will make sure that the department continues to accomplish its critical law enforcement mission, vigorously defend the rule of law and pursue the fair and impartial administration of justice for all,” said Acting Attorney General Wilkinson.

Earlier this year, nearly all presidential appointees from the previous administration offered their resignations, though U.S. Attorneys and U.S. Marshals were asked to temporarily remain in place. Prior to the beginning of this U.S. Attorney transition process, approximately one-third of the U.S. Attorneys’ Offices were already led by acting or interim leadership.

President Biden will make announcements regarding his nominations to the Senate of new U.S. Attorneys as that information becomes available.

The second part is the title of this new and notable New Republic commentary authored by Ankush Khardori, which includes these passages (with some links from original retained):

One outstanding question that is likely to figure prominently in how progressives evaluate Biden’s eventual nominees is whether, and to what extent, the administration will try to address the unfortunate lack of racial diversity within the department, particularly in those top prosecutor positions.  This is a long-standing problem that got strikingly worse under Donald Trump.  Biden’s nominations of Lisa Monaco, Vanita Gupta, and Kristen Clarke for senior positions in the department have been a positive sign — that trio not only brings variety across lines of race and gender, they also happen to be as well-qualified a group as any you could assemble — but it remains to be seen how much progress the administration will make beyond these first big moves.

The lack of racial diversity among federal prosecutors is a significant problem, one that’s reflected throughout every segment of the legal profession.  It has shown little sign of abating.  A recent study once again confirmed the truly dismal state of affairs in the private sector: About 92 percent of law firm partners are white, just 2 percent are Black, and pretty much no one in a position of power seems to care.  President Biden has the opportunity to reverse these trends, which would not just benefit the lawyers who are currently struggling to advance in their careers — it would significantly improve the world for the Justice Department’s legal clients: the American people....

Last year, BuzzFeed’s Zoe Tillman found that just seven of the 93 U.S. attorneys at the time were nonwhite.  These problems weren’t as pronounced in the top ranks during the Obama administration, but the broad lack of diversity nevertheless persisted at every level even then.  In 2015, for instance, Stanford Law School released a study that found that just 13 percent of all assistant U.S. attorneys were Black or Latino....  [T]here are significant public policy implications that flow from the imperative to improve diversity at the department, including among the U.S. attorneys throughout the country.  These are really federally appointed local prosecutors — among the most prominent and consequential political and legal figures in their communities.  It is vital to have people in these positions who represent the diversity of our country and their communities, and who can tailor and calibrate their local enforcement priorities accordingly....

Biden’s first big hires suggest that he understands that there is value to diversity in the Justice Department’s ranks, but this is not simply a matter of optics.  The stakes here — and the potential for significant forward progress in the federal law enforcement apparatus — are very real.  For an administration that seems to want to aggressively address the many serious problems left and exacerbated by the Trump administration, empowering a new group of U.S. attorneys who look like and can relate to the communities that they’ll be serving will not just mark a sharp start to a new era, it will provide the foundation for a more durable and just future. 

February 9, 2021 at 03:26 PM | Permalink


This problem of diversity is easiest to fix at the U.S. Attorney level. Not that it is necessarily simple, but there are women and people of color who are strong candidates for these positions.

At the line prosecutor level, there is a little bit of a chicken and egg problem. We want a more diverse group because these are the folks who make the decisions in individual case. But the reason that we want diversity is a perception that the current decisions reflect the implicit gender and racial bias of the current group holding these positions. But the very perception of bias also leads young attorneys of color to want to fight these offices from the outside rather than volunteering for the harder task of slowly changing them from within. In other words, to get a more diverse workforce, you need more diverse applicants. And to get more diverse applicants, you need a more diverse workforce.

Posted by: tmm | Feb 9, 2021 6:18:55 PM

tmm makes excellent points, but surely having diverse folks at the top can only help to address the problem at the rank-and-file level?

Posted by: hardreaders | Feb 9, 2021 10:24:16 PM

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