- - Wednesday, April 14, 2021

Senate Majority Leader Chuck Schumer may soon bring to the Senate floor the nomination of Vanita Gupta, President Biden’s choice to serve as Associate Attorney General. But her declared support for defunding the police and ending qualified immunity must leave Schumer wondering if he can – or should – continue to push for her confirmation.

It must also leave vulnerable Senate Democrats — think Arizona’s Mark Kelly, Georgia’s Raphael Warnock, Nevada’s Catherine Cortez Masto, even New Hampshire’s Maggie Hassan — wondering if they want to be the deciding vote to confirm her. 

Although media reports indicate all 50 Senate Democrats may be prepared to vote for her — including even West Virginia’s Joe Manchin — in a Senate that’s evenly divided, we can’t know for certain until the vote is called.  

Two weeks ago, the Senate Judiciary Committee failed to report out Gupta’s nomination with a favorable recommendation. Instead, the committee deadlocked at 11-11, with all committee Democrats in favor, and all committee Republicans opposed. That means Senate Majority Leader Chuck Schumer can bring the Gupta nomination to the floor, but only by devoting extra floor time for debate and successfully moving a motion to discharge her nomination from the committee. 

And why did Ms. Gupta have a hard time in the committee?  

Well, if her March 9 confirmation hearing is any indication, she had trouble telling the truth when she was asked certain questions by Republican senators. 

At the committee session to discuss her nomination, for instance, Texas Republican Sen. John Cornyn argued Ms. Gupta had been deceptive during her confirmation hearing: “I believe Ms. Gupta’s deception, her lack of remorse, her dishonesty when it comes to answering straightforward questions of the committee, disqualifies her for the office of associate attorney general.”  

Ms. Gupta says she never supported defunding the police. But in her previous role as president and chief executive officer of the Leadership Conference on Civil and Human Rights, she testified last June before the same Senate Judiciary Committee, and spoke to that very issue.

There and then, she said it was “critical for state and local leaders to heed calls from Black Lives Matter and Movement for Black Lives activists to decrease police budgets and the scope, role and responsibility of police in our lives,” and called for “shifting our approach to public safety away from exclusive investments in criminalization and policing toward investments in economic opportunity, education, health care and other public benefits.” 

In other words, she supported defunding the police before adopting her current position. She was for it before she was against it. 

And that was not the only issue on which her June 2020 testimony conflicted with her current position: Last year, in addition to expressing support for defunding the police, she called for putting every police officer in legal jeopardy, by terminating qualified immunity. That’s the legal principle that shields police officers from civil lawsuits for doing their jobs. 

“End qualified immunity: Congress should end qualified immunity in Section 1983 claims,” she testified last summer, bemoaning the fact that under the current regime, “law enforcement agents may have violated a person’s constitutional rights, but they escape liability if the unlawfulness of their acts was not sufficiently obvious.” 

Asked by Sen. Cornyn at her confirmation hearing if she still supported ending qualified immunity, she responded, “I will say I don’t come in supporting it, elimination, one way or the other … My duty if confirmed as associate attorney general will be to follow the president’s lead on these kinds of policy issues, as long as they’re consistent with the law.” 

Ms. Gupta’s answers to Cornyn’s questions were so tangled that the Washington Post fact-checker described them as a “tango of previously unacknowledged flip-flops,” before awarding her an Upside-Down Pinocchio, defined as “a statement that represents a clear but unacknowledged ‘flip-flop’ from a previously-held position.” 

Ms. Gupta’s support for defunding the police and ending qualified immunity is bad enough to warrant rejection of her nomination. To make matters worse, she failed to own up to those positions when questioned about them by Republicans on the Senate Judiciary Committee.  

Voting to confirm her will be a tough vote for any vulnerable Democrat running for reelection next year — assuming she is confirmed, given that there are exactly 50 Democrats in the Senate, and each and every one of them will have to vote for her in order for her to be confirmed, each and every one of them will truly be said to have cast the deciding vote. Is that a vote Mr. Kelly, or Mr. Warnock, or Ms. Cortez Masto, or Ms. Hassan really want to own? 

Now, add to that the timing — that Mr. Biden’s nominee supports defunding the police and ending qualified immunity and will be going up for a confirmation floor vote just as the cops-versus-Blacks narrative is being reinvigorated – and it wouldn’t be surprising at all for Schumer to raise the white flag and make a quick phone call to the White House asking for another nominee for that job. At least, that’s what a smart Senate Majority Leader would do. 

• Jenny Beth Martin is the co-founder and national coordinator of the Tea Party Patriots

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