Justice and accountability after Trump
Talking with civil rights lawyer Sherrilyn Ifill about reckoning with our institutions after Trump, "cosmetic" vs. "substantive" diversity, and the prospect of being nominated to the Supreme Court
It’s official now. The Electoral College, though it should not exist, does, and it met, and it has made Joe Biden the next president.
What now for Biden, who ran on a return to normalcy, but finds himself in a grave crisis that begs for transformation, not restoration?
What now for soon-to-be-former President Donald Trump, who, having subverted the rule of law for four years, will at last be subject to it?
What now for a society whose feverish enmities and reciprocal feelings of disgust will be left to fester until the next electoral go-around?
I could think of no better person to burden with my litany of what-nows than Sherrilyn Ifill, a brilliant civil rights lawyer and one of the great guardians of American democracy (such as it has been). Sherrilyn is the president and director-counsel of the NAACP Legal Defense and Educational Fund, the organization that, you know, got America desegregated. That organization. She is also, frankly, a hero of mine. She has all the intelligence and insight and clarity of mind you’d expect from one of the premier lawyers in the country. But she also has a candor and openness and willingness to think aloud beyond the law that separate her from peers.
Every time I talk to Sherrilyn, I become smarter, briefly, before reverting to my prior state. So I reached out to her in the hope of getting some insight about what lies ahead for all of us, for democracy, and for the prospects of bending that arc toward justice.
And a programming note: I will be doing my regular live chat/webinar/Zoom-where-it-happens thing today at 1 p.m. New York, 10 a.m. Pacific time, and 6 p.m. London time. They’re really compelling! Subscribe today to join us. Subscribers will get login details beforehand.
“There just has to be a reckoning”: a conversation with Sherrilyn Ifill
ANAND: You were in that recent meeting with civil rights leaders and President-elect Joe Biden. There's been some discussion of the things that civil rights leaders wanted and also Biden talking about the limitations of what he can do when there are many smart lawyers telling him he can do more than he thinks he can do. Tell me what you can about that meeting, and what it makes you think about what this presidency is going to look like.
SHERRILYN: I would say the jury is still out. I'll say this, I don't know of a president whom I've ever encountered or read about who I thought was ready-made on civil rights on day one or who stands where I stand. I didn't have an expectation that Biden would be where I am on the issues I presented.
For me, it was an opportunity for him to hear what our priorities are and what the expectations are. And, interestingly, Democratic presidents are always defensive about where they are on race. There always is a sense of “here are all the things I've done and said.” He has a sense of who he is, and our job is to push him.
ANAND: What's an example of something that you personally would love to see from him where he is not there yet but maybe could be pushed to get there?
SHERRILYN: Obviously, I care deeply about issues of policing, which does not fall completely on the lap of the federal government. A lot of work is at the local level, but the federal government plays a really powerful role. So I laid out some of the things that I expect.
I expect Title VI of the Civil Rights Act to be enforced so law enforcement that engage in discrimination do not get money from the federal government. I'd like to see a really aggressive move to re-up pattern-or-practice investigations of police departments. I also told him that there is a prison crisis in the country, and I'd like to see a bunch of pattern-or-practice investigations of unconstitutional conditions in the prisons.
ANAND: After that meeting, Eddie Glaude, the Princeton scholar, raised a question a lot of people have been wondering about. He talked about the difference between having Black faces in high places, as I believe he put it, and having substantive policies that would change the Black experience and America more generally.
What do you think we're seeing now in terms of the assembly of Biden’s team? It is a diverse team by historical standards. Do you think it is the kind of diverse team that is also a real-change team?
SHERRILYN: We’re really going to see. First of all, I'm in agreement. I'm interested in transformation. Of course, I believe in diversity. Of course, I want the cabinet to reflect the full range of talent that's out there.
But to be honest, and this is a subject I've written about for 20 years, there is also the issue of professional background diversity. The federal courts have largely become peopled with lawyers who are former prosecutors, which has entirely skewed the lens through which the law is seen. Public defenders have essentially been shut out.
So I'm not interested in a lot of Black prosecutors being appointed to the federal bench. It's got to be infused with transformation, which is why I don't particularly enjoy the line, “I'm going to have a cabinet that looks like America.” I call that cosmetic diversity. I'm not interested in cosmetic diversity. I'm interested in substantive diversity.
ANAND: You've dealt with all manner of abuse of our constitutional system and voting system in your career. And yet I would imagine, even for you, the Texas lawsuit and all the people who signed onto it must have been quite flabbergasting. What do you make of it given your long experience of people trying to subvert voting?
SHERRILYN: Well, it's awful. But I have to say, it's like the conversation about white supremacy.
Charlottesville was terrible, it was shocking, it was awful, it was a gut punch. And it was the moment in polite company, on mainstream news shows, when people started using the words “white supremacy” again. But I wanted to ask: What is it when the legislature of a state meets, as they did in Texas in 2014, or in North Carolina or Wisconsin, and pass voter-ID laws for the purpose of keeping Black and brown people from voting? That is white supremacy. So I look at this issue the same way.
The alarm bell that there was a powerful and strong anti-democratic force happening in American politics had already been rung. That's all this voter suppression that we've been talking about, which people have been bored to sobs hearing about until apparently this past year. What did they think that was?
This is why I've tried to explain that civil rights work is democracy work. It is giving you the signs of what is broken in your democracy. So rather than seeing those cases as something to the side that has to do with Black people and Latino people, they should have been understood as a sign of democratic erosion. It was not understood as being an emergency. Now it’s understood as being an emergency.
What Trump has done is remove any sense of shame or pretense from the enterprise. And he has emboldened it, and that is frightening. But I am irritated and annoyed that there was not a mobilization of mainstream forces interested in democracy when we were yelling from the rafters about what was happening to Black voters.
ANAND: One of the dynamics of these four years has been people realizing or failing to realize that Black people and women and other marginalized folks are an early-warning system for democracy.
SHERRILYN: That's the point when I say that civil rights work is democracy work. We spend every day looking straight into the cracks and fissures in the foundation of democracy. That's what we do every day.
ANAND: In the work you do, in cases that end up in court, there is usually an individual or a group of people accused of doing something, and they either get convicted or they're not convicted.
What we're going to face after the Trump era is a very different kind of question of justice, which is justice for hundreds or even thousands of people who worked for him, enabled him, followed unjust orders, did any number of things at his behest.
With the exception of a handful of cases, that's probably not going to be primarily a criminal process. How do you think about the question of large-scale collective justice for people who engaged in this kind of democratic sabotage?
SHERRILYN: If not justice, then certainly accountability. There just has to be a reckoning. There just has to be. You can't reset unless you truth-tell and demand that people are held accountable for what they have done. And if they've broken the law, they should be held accountable for breaking the law. To the extent that they've broken norms, ethics, values, they should also be held accountable for that.
ANAND: What does that look like? Do you think it's the truth and reconciliation process?
SHERRILYN: It could be a formalized process, but there are also other institutions within our democracy that can hold people accountable. There are bar associations that hold lawyers accountable for misconduct. There are medical associations that should be holding doctors accountable for misconduct.
In South Africa, there were the truth and reconciliation hearings, and most of the attention was given to the individual hearings for individuals who committed human rights abuses and violations during the Apartheid era. But I confess that I spent a great deal of time and then, increasingly, most of my time focused on the institutional hearings. The hearings that held to account journalism, the hearings that held to account judges, the hearings that held to account the Dutch Reformed Church.
Part of determining whether we will have accountability is whether or not institutions are prepared to step up in this post-Trump era and hold themselves accountable, and also their members accountable, for their conduct. So I think everyone kind of hopes that there'll be a governmental process, but that can also be a way of institutions shrugging their own responsibility.
ANAND: I can hear people saying, “Yes, but if it didn't happen because of the Iraq War and, in fact, the people who supported it are getting the important jobs in national security and the people who oppose it are on the side; if it didn't happen for Hurricane Katrina; if it didn't happen for the financial crisis; if it hasn't happened for Covid — are we a culture that doesn't do accountability anymore? That doesn't do reckoning?” Is there any reason you think we would do what you're talking about in a way that we didn't in those other cases?
SHERRILYN: I think it's a great question. And the answer is in the “we.” We are also capable of convening our own accountability structures. And if we are unsuccessful in compelling the government to do it or in compelling institutions to do it, then I think there are other platforms. There can be state truth and reconciliation commissions. There can be city truth and reconciliation commissions. There can be commissions that are created by distinguished citizens who choose to investigate and conduct hearings and present information publicly and use the Freedom of Information Act to present the data that they can get. Nothing stops us from truth-telling.
But I agree with you that each one builds on the other. The reason why it's critically important to have some governmental accountability, on child separation for example, because you can't just look forward at the destruction of families. You can't. Someone has to be held accountable for it, or else you have allowed the line to move. And now this becomes a policy position that maybe you would find repugnant and not undertake yourself, but it becomes something that can happen. It’s a policy that is available for political leaders or actors to embrace. And so we have to understand that every time we turn away from accountability, we allow the needle to move.
ANAND: Democrats continue to debate the merits of reaching out to moderates and Republicans versus concentrating on energizing their own base. How do you see that debate?
SHERRILYN: First, I'm not an evangelist. I have never thought that I had the ability, and I certainly don't have the interest, nor do I believe it is my job, to evangelize to people who don't believe in my own humanity or full citizenship. I'm not trying to convince people who are actually racist not to be racist.
I am trying to empower people, whoever they are, to be full citizens in our country. Particularly, I'm focused, of course, on Black people. And I think in this moment, when what we have seen has been so stark and so ugly, the most important job is to develop among the majority of Americans who actually rejected the idea of autocracy a sense of what our democracy needs to be.
We need to look with clear eyes at the foundation of our democracy and decide what has been missing and has to be added to the mix, what has to be strengthened, what has to be created to ensure that we never end up where we were, which was so close to being over the cliff.
That's a big enough job, and that's the job that's ahead. I don't think the job that's ahead is going to yet another diner and trying to understand what motivates the Trump voter. I just don't.
ANAND: I think there are no more diners. We've hit all the diners at this point.
SHERRILYN: You know where there are diners? There are diners in Black communities all over the country.
ANAND: Really? I thought only working-class white people in Pennsylvania ate in diners!
All of us who believe in freedom and democracy and full citizenship for all people, and who are anti-racist, and who want to see a world and a country that we can be proud of and where we can raise our children to be full and complete human beings with full dignity — there are more of us, but we're at varying levels of passion about the project of what it takes to make that happen. Our job is to work with that population at this moment and to protect ourselves against the worst impulses of the unfortunately too many who have allowed themselves to be part of this very, very ugly rise of Trumpism.
Ultimately, of course, I would hope that we would live in a country that would reverse the trend that we have seen, but I don't think the project is to go out after those people. The project is to go out after our own people and to empower people to believe that we can and that we must make long-overdue changes to our democracy, including addressing systemic racism, which is probably first and foremost.
Racism lies about like a loaded weapon — that's what Justice Jackson said in Korematsu. Racism is so convenient, it can always be deployed as the stalking horse for any autocrat, and it must be addressed.
That's the work, and that's a huge list and a huge job. So it's fascinating to me that people would want to skip over that and go to another diner and try to understand why somebody would want cruel, racist, vulgar, misogynist, incendiary, divisive autocracy.
ANAND: Have you personally been able to sustain any friendships — professional friendships, personal friendships, neighbor friendships — with people on the Trumpist right in this era?
I mean, it's one thing to talk about before he was president. But once he was president, it was revealed who he is. If you pretended not to know before or maybe you didn't know — I'm from New York, so I did know — but it's impossible now to pretend that you don't know what that project is.
It’s not my job to make friends with people who don't believe in my full citizenship and dignity. My job is to fight against the policies and practices and laws that those people would put into effect to oppress my people.
ANAND: It's been four years and month since your much-loved cousin Gwen Ifill passed away. I wonder what you think she would have made of the journalism of the Trump era and how it held up to the challenge?
SHERRILYN: Boy, there's some accountability that really will need to happen. That's another area where you have to actually stop and take stock and recognize what your role was. And the failure and unraveling of this democracy is a shared failure. It's not any one institution; it is the legal institution, it is journalism, it is our political system, it's our faith institutions. When I talk about accountability, that's what I mean: institutional accountability. All of them had a role in this unraveling.
Gwen was an extremely professional journalist. She believed in asking tough questions. She was much more pragmatic than I am. We would have our little disputes about things, and she'd say, Well, that's why you're a civil rights lawyer and I'm a journalist. Gwen was not an activist. She was a journalist, but she understood what that role was and that that role was not to be sycophantic and not to pretend you don't see what you see.
I miss her voice very much. I think we all did during this period. She was dying just as Trump was coming to power. I think her voice is tremendously missed, just because she had a strength and fearlessness that was needed. Fortunately, there were some people who held tight, people like Yamiche Alcindor, whom Gwen really enjoyed mentoring and who emerged from this period quite heroically.
ANAND: If you could get one free constitutional amendment enacted, what would it say?
SHERRILYN: What would be really great is if the 14th Amendment were actually enforced. If the first line that grants birthright citizenship and was done for the purpose of ensuring that Black people would be full citizens, if that was imbued with its real meaning, if equal protection was imbued with its real meaning, I'd be quite excited.
I would also delete some things. I would delete the loophole in the 14th Amendment that appears to allow incarcerated people to be stripped of their vote. I would tweak the 13th Amendment to take out some of the language that has essentially allowed slave conditions in prisons. I know lots of people would like there to be an affirmative right to vote and so forth, and I would, too. But there's a lot there that lies fallow.
ANAND: There has been this chatter about you serving on the Supreme Court one day. Given your life's work, given being a litigator, an academic, so many other things, I wonder how you feel about that very different role and whether it's something you would aspire to.
SHERRILYN: Well, if you look at my high school yearbook, under my name where it says career goal, it says Supreme Court justice. That's what I thought when I was 17. But I have to tell you, you probably have not met very many people who are literally in the place doing the thing at the very top of their game that they dreamed of doing.
For me, there couldn't be anything better than leading the Legal Defense Fund. Even through this tumultuous time, maybe especially through this tumultuous time, to see the extraordinary work that we've done. Just the work of this year, the work around Covid, around making sure that students in the rural South had education and still were having access to free lunch. Our case against the Postal Service, just getting all those ballots delivered. All of our litigation trying to expand absentee voting for Black people in the south, our litigation challenging prison conditions in Arkansas because of Covid, our affirmative action work.
It could not possibly get better in terms of what gives me bone-deep spiritual and professional satisfaction. So I don't think in those terms. Of course, I'm a human being, and we'll see what life brings me, but I am so utterly, completely satisfied. I'm also overwhelmed and exhausted at all times.
For many people, they think like I did when I was 17 — that the Supreme Court is the brass ring. It's actually not for me. I mean, it's an important position; it's powerful; it's huge. But the people who shape and develop and strategize and envision the cases that are to be brought before that court which are designed to expand and strengthen the rights of marginalized people — they are just as important.
ANAND: No disrespect to current you, but I like the answer of high school you more.
SHERRILYN: We'll see.
Sherrilyn Ifill is a civil rights lawyer and president and director-counsel of the NAACP Legal Defense and Education Fund. She is the author of “On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century.” This interview was edited and condensed for clarity.
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Photo: Matt McClain/The Washington Post/Getty