Judge Merrick Garland was asked to define systemic racism, implicit bias and racism during the first day of his Senate confirmation hearing on Monday, and his answers laid out a stark contrast with the last Senate-confirmed attorney general from the Trump administration.
“I think it is plain to me that there is discrimination and widespread disparate treatment of communities of color and other ethnic minorities in this country. They have a disproportionately lower employment, disproportionately lower home ownership rates, disproportionately lower ability to accumulate wealth,” Garland said, after being asked by Sen. John Kennedy, a Louisiana Republican, to define systemic racism.
Kennedy later asked Garland, “But how do you know what you know? … If you say an institution is systemically racist, how do you know what you know? Do you measure it by disparate impact, controlling for other factors? Or do you just look at the numbers and say the system must be racist?”
“Well, now you’ve asked me a slightly different question, which I think I have a slightly different answer for,” Garland responded. “The authority the Justice Department has to investigate institutions is to look for patterns or practices of unconstitutional conduct and if we find a pattern or practice of unconstitutional conduct, I would describe that as institutional racism within that institution. That may not be the perfect definition, but that’s what I would think.”
The exchange showed how Biden’s attorney general pick will lead the Justice Department in a dramatically different direction than the course that has been charted over the last four years. Under the leadership of Jeff Sessions and William Barr, the department took a more limited role in reforming police departments accused of civil rights violations and Barr, on multiple occasions during last summer’s protests after the death of George Floyd, refused to recognize the role systemic racism plays in policing. While Garland has made prosecuting those accused of crimes during the January 6 insurrection at the US Capitol his top priority, his answers to Kennedy showed Justice may take a more expansive role in civil rights cases in the years ahead.
Kennedy also asked Garland to explain his view of the difference between people who are racist and institutional racism, as well as the “concept of implicit bias.”
“Implicit bias just means that every human being has biases. That’s part of what it means to be a human being,” Garland said. “And the point of examining our implicit biases is to bring our conscious mind up to our unconscious mind and to know when we’re behaving in a stereotyped way. Everybody has stereotypes. It’s not possible to go through life without working through stereotypes. And implicit biases are the ones that we don’t recognize our behavior. That doesn’t make you racist, no.”
Garland’s answers during his exchange with Kennedy were sharply different than one of his high-profile predecessors, who faced similar questions last summer in the throes of the summer uprisings that occurred throughout the country on the heels of the death of George Floyd.
At that time, Barr testified before the House Judiciary Committee and denied the existence of systemic racism in police departments.
Barr was pressed during that hearing by Democratic Rep. Sheila Jackson Lee of Texas about his repeated denials of institutional and systemic racism in police departments, which she said have “plagued so many.”
“I don’t agree that there’s systemic racism in the police departments generally in this country,” Barr said in that hearing.
Similarly, Barr denied that there’s systemic racism in policing during an interview in June with CBS.
“I think there’s racism in the United States still but I don’t think that the law enforcement system is systemically racist. I understand the distrust, however, of the African American community given the history in this country,” Barr said.
Barr was later confronted by Lynda Williams, the president of the National Organization of Black Law Enforcement Executives, during a closed-door meeting of national law enforcement leaders about those comments. She asked Barr in that meeting to “think differently because just because you have not experienced that, it does exist.”
In an interview with CNN in December, before Garland was nominated, Williams said that Biden’s pick for attorney general must come to the table with the understanding that they “represent something larger than themselves” and should understand that there are issues in this country “even if it does not sit right at their feet.”
Williams told CNN on Monday that Garland handled Kennedy’s questions professionally, intelligently, methodically, honestly and was real in his response.
“I’m pleased that Garland recognizes that the Justice Department is a representative of the people that it doesn’t belong to the presidency or that its serving one individual or a party that it represents the entire country,” Williams said. “I am very hopeful and optimistic that he is confirmed, and that he leads our country out of a very dark place from very dark place.”
Another civil rights leader — Derrick Johnson, the president of the NAACP — called the line of questioning from Kennedy a “waste of time.”
Johnson questioned whether Kennedy was genuine or tried to use race as a tool to trip Garland up and justify not supporting his confirmation.
“I found it unfortunate that he would focus on something not relevant to whether or not that Judge Garland is competent, and qualified to serve as attorney general, honor the Constitution and represent the people of the United States. And for him to take the time to use their line of questioning was a waste of time. We need to move forward as a nation,” Johnson told CNN. “Sen. Kennedy knows all too well the paralyzing effects of systemic racism has had on the south, in Louisiana and on this country.”
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