Vanita Gupta’s obfuscation

Carrie Campbell Severino accurately described Vanita Gupta’s testimony before the Senate Judiciary Committee as rife with “obfuscation and double standards.” The same can be said of the DOJ nominee’s answers to written questions by Senators. In this post, I will highlight some of the obfuscation. I will discuss double standards in a follow-up post.

The following examples are from the answers, if you can call them that, to Sen. Ted Cruz’s questions. They are typical:

QUESTION: Under your leadership, the Civil Rights Division investigated and prosecuted employers who discriminated against employees because of their gender identity. Title IX of the Civil Rights Act prevents sex-based discrimination by any educational program receiving federal funds. Title IX has led to the growth and flourishing of women’s sports. Do biological men possess a physiological advantage compared to biological women in competitive sports?

RESPONSE: As the President’s Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation provides, every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation. If confirmed, I will enforce federal law and, as Attorney General Garland has explained, advance the Administration’s policy program consistent with the Department’s objective assessment of the law. I understand that a number of pending legal challenges concern the rights of transgender individuals to participate in schools’ athletic programs, and that the Department recently withdrew some filings that the prior Administration made in some of those cases. Because I am not in the Department, I have not been privy to any ongoing conversations about such matters.

Gupta’s mashup of cliches is 100 percent non-responsive to Cruz’s question. Biological men as a group obviously have a physiological advantage over biological women as a group. Gupta’s unwillingness to admit this shows that she supports the war on women’s sports inherent in permitting biological men to compete against biological women.

QUESTION: You have criticized state legislative efforts to protect minors from permanent and serious sex-alteration surgical procedures, what you refer to as “transgender health care.” Further, you have called on the NCAA to relocate youth sporting events from Idaho because the state passed a measure permitting only biological females to participate in female athletic competition. Do you believe that single-sex facilities, such as gyms and spas, should be forced to open same-sex facilities to transgender women, even if it comes at the expense of the privacy interests of biological women?

RESPONSE: As the President’s Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation provides, every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation. If confirmed, I will enforce federal law and, as Attorney General Garland has explained, advance the Administration’s policy program consistent with the Department’s objective assessment of the law.

Another entirely non-responsive answer. We can infer from her unwillingness to answer that Gupta is fine with requiring that women’s only facilities be open to transgender women, at the expense of the privacy interests of biological women. Gupta just isn’t honest enough to acknowledge that this is her position.

QUESTION: The Leadership Conference is an advocacy organization that pushes the bounds of existing law. Can you name a single legal position that the Leadership Conference has supported under your tenure that you believe it would be inappropriate for the Department of Justice to adopt or defend?

RESPONSE: If I am confirmed as Associate Attorney General, my mandate will be to enforce the law and Constitution of the United States.

In this response, Gupta does not dispute that the Leadership Conference, which she led, is an advocacy organization that pushes the bounds of existing law. There’s no way could. Moreover, Gupta does not name a single legal position taken by the Leadership Conference that she thinks would be inappropriate for the Justice Department to adopt or defend.

Yes, Gupta’s mandate is to enforce the law. But Cruz didn’t ask her whether she will violate the law. His question goes to how hard she will push the law’s bounds. It seems evident from her answer that she will push them at least as far as the Leadership Conference has tried to do.

Gupta should be presumed to support every radical position adopted by the Leadership Conference under her watch, and to intend to impose all of them if confirmed. Sen. Cruz gave her the opportunity to say otherwise, but she declined.

QUESTION: The Southern Poverty Law Center is a currently a member of the Leadership Conference. Does this mean you believe the SPLC is currently a credible organization?

RESPONSE: If confirmed, the Southern Poverty Law Center’s membership in the Leadership Conference will not influence my oversight of the Civil Rights Division. The Department of Justice’s decisions regarding investigations and prosecutions must be based on a careful review of the specific facts and law of each particular case and must be made in consultation with other Department leaders and career lawyers.

QUESTION: Will you commit to ensuring that Department of Justice attorneys do not rely in whole, or in objectionable part, on the SPLC’s “hate group” list?

RESPONSE: The Department of Justice’s decisions regarding investigations and
prosecutions must be based on a careful review of the specific facts and law of that particular case and must be made in consultation with other Department leaders and career lawyers.

The Southern Poverty Law Center is a vicious radical leftist outfit bent on smearing and silencing conservative voices. It’s even worse than the Leadership Council that Gupta ran.

Gupta obviously believes the SPLC is a credible civil rights organization. Otherwise, it wouldn’t be part of the operation she led. Yet, Gupta was unwilling to say one way or the other whether she considers the SPLC credible.

Nor, in her response to Cruz’s pointed follow-up question, would she commit to ensuring that DOJ attorneys not rely on SPLC’s odious “hate group list.” The hate list is the vehicle through which the SPLC wages war on conservatives. It includes such groups as Alliance Defending Freedom, the Ruth Institute, and the Family Research Council.

By refusing to commit that the list doesn’t inform DOJ policy, including criminal prosecutions, Gupta effectively refused to disavow that the DOJ will wage war on conservatives generally, and groups like those I just mentioned, in particular.

In separate questions, Cruz asked Gupta whether she considers any of these three organization “hate groups.” She wouldn’t say.

QUESTION: During your hearing, you implied that Judge Ada Brown, a federal district court judge in Texas nominated by President Trump, refused to say that Brown v. Board is the law of the land. Do you wish to clarify your testimony on that point?

RESPONSE: I have tremendous respect for judges, and I take very seriously the independence and integrity of the federal judiciary. For decades, including during my tenure there, the Leadership Conference has reviewed the civil rights records of judicial nominees in Republican and Democratic administrations. When it opposed a nominee, it provided a public statement explaining its reasons, which were based on a holistic evaluation of a nominee’s record on civil rights. The Leadership Conference did not oppose the vast majority of the prior administration’s judicial nominees. As the head of the Leadership Conference, I often communicated the organization’s position on judicial nominees.

On its face, this statement is almost comically non-responsive. It can be construed, perhaps, to mean that Gupta does not wish to clarify her testimony about Judge Brown. In that case, an honest answer to Cruz’s question would have been “no.” Unfortunately, Gupta doesn’t do honest answers.

The issue of Brown v. Board as “the law of the land” leads to the problem of Gupta’s double standards, which I will discuss in a follow-up post.