February 23, 2021 Merrick Garland confirmation hearing

Al Drago/Getty Images
Al Drago/Getty Images

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 Department of Justice 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 Jan. 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.

Here’s a reminder on what Barr has said about it: 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 Rep. Sheila Jackson Lee, a Democrat from 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.

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