CNN's Laura Coates dares the right to come after Joe Biden's Supreme Court pick

CNN legal analyst and former prosecutor on why conservatives fear empowered Black women within the justice system

Published February 21, 2022 10:12AM (EST)

Laura Coates (Larry French/Getty Images for SiriusXM)
Laura Coates (Larry French/Getty Images for SiriusXM)

"The pursuit of justice creates injustice," is the paradoxical line that opens CNN legal expert Laura Coates' bestselling new book, "Just Pursuit: A Black Prosecutor's Fight for Fairness." I spoke to Coates for "Salon Talks" about her fight for fairness as a federal prosecutor, how she has handled criticism as a prosecutor and her take on the prospective Black female Supreme Court justice President Biden has promised to nominate.

"I always found it to be very shocking that people have the impression that you could either be an advocate and proponent for civil rights or a prosecutor," Coates said. "You have to be both and you have to wield the discretion that you have with an eye towards what is fair." She added that the true goal of a prosecutor should not be how many convictions you rack up, but how strongly you fight for fairness, because that, as she explained, "is the predicate for any real justice system." But in that pursuit of fairness, injustice can emerge.  

Her work as a federal prosecutor also included a stint in the voting rights section of the Department of Justice, where she fought against efforts to disenfranchise voters of color. At that time, however the Voting Rights Act was in full force, and had not yet been gutted by the Supreme Court in the infamous Shelby County v. Holder decision of 2013. Coates made it clear that many of the voter suppression laws passed by Republican-dominated state legislatures since January 2021 would not have been permitted if the Voting Rights Act's pre-clearance provision was still in effect — the very section of the law invalidated by the Shelby County decision. As Coates noted, the GOP's attack on voting rights has made it feel like America has gone backward in time to the days before 1964.

On the issue of Biden's yet-to-be-named Supreme Court justice, Coates made a passionate case for why nominating a Black woman is an important move, not just for diversity's sake, but for substantive reasons. "When we're talking about voting rights cases, I want a Black woman on the bench," Coates said, and also "when we're talking about issues related to abortion bans that relate to and impact disparately Black and brown people." She acknowledged that the forthcoming nominee's integrity will be questioned: "We know it's coming, but I have to just sort of smile and put America on display and say I dare you to challenge the dignity of these particular women." Watch or read my "Salon Talks" with Laura Coates below.

This transcript has been lightly edited for clarity and length.

In your book, you talk about leaving private practice as a civil litigator to join the Department of Justice. Share with us a little about that.

It felt like a calling for me because I had always been very interested in civil rights, not only because, of course, I'm a student of history and I revere those who have come before me, but also as a Black woman in America. I think about just how impactful civil rights have been over the course of my generation, my parents' generation, my grandparents, my children and their children as well. I knew the story of Ruby Bridges more than I knew the stories of Dr. Seuss and all of his characters because it was taught in my home. It was an idea of being a constant, fluid forward journey, not just an era confined to some particular decade. When I really thought about what I wanted to do with the practice of law, I was instantly drawn and compelled to go, and I was glad that the calling could be received.

The first line of your book is, "The pursuit of justice creates injustice." You give us an example right away, in the first chapter, of a man who was a victim of a crime. It turned out he was an undocumented alien.

You know, I think people often think to themselves, when I wrote that first line, how could the pursuit of justice create injustice? I mean, it just seems very counterintuitive to people. I myself did not realize that when I first went from being in private practice to a civil rights attorney's office to actually being assistant U.S. attorney. I can tell you that the reason I put it out there is because so often people think about justice as a binary outcome, right? It's either a conviction or it's an acquittal. It's not something that you ever contemplate, what happens in between. To use the words of John Lennon, life is what happens when you're busy making other plans. Justice and injustice occurs when you're busy trying to get a conviction or trying to avoid an acquittal.

I started with the story of Manuel. He had arrived in this country illegally as a teenager, had spent decades in this country, had not so much as sneezed in the direction of a police officer, was gainfully employed, was raising his family. And because his car was stolen and he did what we want people to do, which is to report a crime when society is offended by a criminal, it's what we have — the "United States versus" — he reports it.

And because I had to run a background check on any witness who may come into a courtroom to alert a marshal, if there's a security concern or otherwise, it came up as an active deportation warrant. In that moment, I had to try to figure out what to do. It was an obvious unfairness. It was an obvious injustice that here we are knowing that the criminal code is such as it is, but we don't think of the person who commits car theft, the person who has a long rap sheet of violent crimes to be a criminal on the same level, if at all, as somebody who has illegally been in this country, trying to make a better life for himself and his family.

Yet they're treated the same. In the pursuit of trying to get a conviction of this particular car thief, here I was having to work with ICE to get this man deported with this active warrant. And it was one of those moments, for me, that it became crystal clear that whenever I would say "Laura Coates on behalf of the people of the United States," that included the defendant, that included the people who were in the periphery, those who were going to have collateral damage, certainly the victims of the crimes as well.  It's not that there was a viable alternative without consequences, but that should tell you something about the state of affairs in America. If we know that there is an imbalance between what is right and what is lawful, what is required and what ought never to have been the only choice, that's where progress begins.

As a prosecutor, your job is to put people in jail. But really, as you explain, the touchstone is justice. Can you touch on that a little bit, so people understand that prosecutors are not just hellbent on prosecuting for the high-fives you get in your office? It's bigger than that.

Yes. If your goal is simply to get and rack up as many attaboys or attagirls as you possibly can, I think you're in the wrong profession. We're supposed to be prosecutors who recognize that due process, the Fourth Amendment, all of our civil liberties and our constitutional rights, the idea of a healthy level of skepticism and the idea of ensuring that you can meet your burden of proof, not just rely on being a beneficiary of the benefits of the doubt that law enforcement get.

For example, the idea that an officer wouldn't get up in the morning to commit a crime or that an officer would not have stopped you had you not done something wrong. We think about these things. Or, hey, the government would not be prosecuting this person unless they really had a case. I was a beneficiary of that benefit of the doubt that's extended on my cases. The issue, though, is: Are you going to exploit that and not try to meet your burden, and rely on that to carry you through and put blinders on about injustices that might occur? 

There are instances, of course, when you've got exculpatory material and you can't withhold that, things that could prove the person's innocence, just because you'd like to get a conviction. You have to hand it over. You can't try to stack the deck against the defendant in a way that they have no opportunity for a fair trial, if you really believe that we have a presumption of innocence in this country. 

I mean, these are elements I always found shocking, in that people have the impression that you could either be an advocate and proponent for civil rights or a prosecutor. You have to be both, and you have to wield the discretion that you have with an eye toward what is fair. And the title of the book really was "Just Pursuit: A Black prosecutor's Fight for Fairness," not just for justice, because fairness really is the predicate for any real justice system. 

So often we are a legal system trying to become a justice system. That linchpin is fairness and we profess to care about those things. Then in reality, in practice we say, well, the prosecutor's supposed to be this caricature, unfeeling, robotic, only interested in the kill, so to speak. In reality, you ought to be interested in fairness.

In your book, you share an exchange where a Black female defense attorney clearly feels some contempt for you and the idea that you're helping put Black people in prison. It's a funny chapter, the way you wrote it.

Yeah. Because I was minding my own business in a restaurant, having a nice quiet lunch!

Did you ever worry that you were not helping your community, or even that you were hurting your community? Or did you actually think you were helping your community, in a certain way, because of your pursuit of justice?

I knew that was the perception. But I also knew who I am and what I stood for. But the perception sometimes can really guide the way you approach different scenarios and can guide the way people receive you and the way they're willing to cooperate or not do so. And frankly you need not even go to officers about officers. We watched the woman sho is now vice president, who before that was U.S. senator and presidential candidate, where she had to face the ideas of, could you really be on behalf of reform or the people of a community if you were the top prosecutor in a state like California? 

I found a kindred spirit in all the prosecutors in that notion, and it's really this fallacy that Black and brown people are only expected to fill one role in the justice system, either that of the defendant or maybe defense counsel and that what seat you have at the table is somehow going to convey who your allegiance is owed to and whether you have power.

That conversation we had was really about power. The idea of both of us feeling like we were in the right seats. I, as a prosecutor, felt like I was in the right seat because I had the opportunity to use my discretion, exercise it to, in many ways, be a gatekeeper, in many ways to bring my lived experience as a human being and Black woman and wife and mother and civil rights attorney to really question whether the Fourth Amendment had been followed, to question whether this was going to be a viable case, to question what was going on. And in the same instance, she thought that she was in the best position to react to those exercises of discretion.

This notion of whether to be proactive or reactive, we never can resolve it. But it does tell you why it's important to have Black and brown people and those who are civil rights advocates in all parts of our justice system, whether it's law enforcement, prosecutors, defense counsel, judges, whether it's members of Congress, state and local officials, community boards, mental health advocates, parole board. It runs the gamut on all these things.

It's interesting because I transitioned, as you know, from being in the voting rights section of the civil rights division. It was a foregone conclusion to people, no one questioned my allegiance then, no one questioned for whom I was a champion. Nobody questioned whose side I was on. And then under the same umbrella of the Department of Justice as a criminal prosecutor, that was immediately questioned, the idea of "Whose side are you on?" and the audacity for me to say that I believed in civil rights and then to be standing where the stereotypical man, the stereotypical white man would have been, was one that left me scratching my head at times. But I understood that because of the fundamental distrust that we have so often with the justice system in America.

The laws on their face are racially neutral, but with their application, there's a big debate about institutional racism. The data is all there. You're three times more likely be killed by the police if you're Black versus white. The bail you get will likely be higher if you're Black versus white for the same offense. It shows up in sentencing, in chances of parole. What do you suggest, as someone on the inside? How do we effectively address institutional racism in terms of legislation?

I think one of the big disservices of the justice system, and I know it sounds odd, is its mascot. This idea of a blindfolded lady justice because somehow that conveys that if we don't see it, then it really didn't happen, right? The idea of the three monkeys in a row: Hear no evil, speak no evil, say no evil. This has helped no one over the course of history. We have to actually see and actually say what we have seen and address it. And this idea of essentially blindfolding ourselves and pretending like the justice system is the one place in this country where race has no influence whatsoever, where gender and bias mean nothing, that's preposterous. But I think it makes people feel as though, if we say phrases like, well, "no one is above the law" or "justice is blind" or that we're "colorblind" or in a "post-racial" world.

These somehow make people feel as though America is no longer the experiment that say, Justice Breyer recently reaffirmed and spoke about, talking about the Gettysburg Address upon his retirement, or the idea that we feel safer if somehow we can hold ourselves as the America on paper, out to the world, as opposed to who we are oftentimes in reality. You hear phrases like, "This is not who we are." And then there are moments when you say, well, I want to know why you think that's not who we are, because it is definitely who we've been in some places. So I think the first instance of why I wrote this book was I wanted people, when you're trying to speak truth to power, to first know what the truth is. to actually acknowledge and understand the ways in which race and bias continue to infect and infuse and disrupt our areas of justice.

We have to get out of that mindset, just as it's not a binary system where it's conviction or acquittal, and then the end justifies the means. We talk about reform. It's not just about acknowledging the impact of race. It's not just about looking at police encounters. There are so many areas we can look at. For example, the judicial adoption of qualified immunity, the idea of the Graham v. Connor decision that gives officers the "reasonable police officer" standard, rather than the reasonable person standard. There's the idea of the power of unions. There's the idea of the presumption of innocence and our bail system, up to and including issues surrounding these slogans around how to reallocate resources to officers. There's so many different aspects of it, and I think that the conversation begins by un-blindfolding the nation.

You worked with the DOJ's voting rights division. In the Shelby County v. Holder case in 2013, the Supreme Court gutted the pre-clearance provision, and since then Republicans have passed 34 laws restricting voter access in 19 states. If Shelby County had not gutted the Voting Rights Act, would you feel more confident in our election system, which would have required pre-approval of these laws to make sure there was not a disproportionate impact on people of color?

The majority of the laws that have now passed muster would not have under the pre-clearance requirements. And that's by design. It's no coincidence, right? When I was in the voting rights section, I had the benefit of Section 5 pre-clearance still being intact. I had the benefit of the Supreme Court not rendering it anemic through making it harder to challenge under Section 2, and even then it was difficult under public policy considerations, and perceptions of a political Department of Justice.

In our pandemic, we talk about prevention being better than cure. Well, you're asking people to simply treat the symptoms after someone's already been infected when it comes to voting rights cases. If we are going to actually hope to have a strong democracy, then you can't be weak on voting rights. You can't be. And you know as well as I do that it's no coincidence that our criminal justice system is tied to voting rights. It's no coincidence that people are trying to take away something they know is powerful. It's no coincidence that when there's no oversight, when the cat's away the mice come out to play. Unfortunately, we are being impacted every single day, challenged on the principles of one person, one vote, and being told, as you said, that here we are in a land of progress and it feels like 1964 all of a sudden.

RELATED: From SCOTUS to "critical race theory": There's no law or fact the GOP feels bound to respect now

A Supreme Court seat will soon be open, and President Biden has committed to nominating the first Black female justice in the history of this republic. What is the significance of that to you, and to young Black girls growing up in America now?

To me, it's extremely significant and not because it's diversity for diversity's sake. Have you seen the embarrassment of riches that this president has to choose from? We're not talking about people that he's picked out of oblivion and said, "I hope this meets the standard." They have surpassed it in their legal excellence. They are revered and renowned for their intellect, for their impartiality, for the idea of being able to have the integrity we want on the bench. It's high time, past time that we have the bench more reflective of the people of the United States. Women, Black women in particular have been a part of the bench and lawyers since the 1800s, and have been judges since at least the 1960s. And yet here we are, still grappling with the idea that people say, "Well, you have a woman up there. Isn't that good enough? You got two, isn't that good enough?"

Black women, as you know, continuously find themselves from the feminist, womanist movement and beyond of having to answer the question, well, ain't I a woman and ain't I qualified in so many respects? So we're talking about the standards now that will be applied, the idea of, well, are they qualified enough? Yes, they all are. And while it's an embarrassment of riches, it is an embarrassment that the intellectual wealth of Black women as legal scholars and advocates has not been fully recognized until now. For most people, when they think about a Black woman in the Supreme Court confirmation hearings, they think of Anita Hill. And we all know the treatment of Anita Hill, whose career was incredible and she herself is a force to be reckoned with in her own right, yet that's overshadowed by her relationship with respect to a man.

I think it's high time we bring that perspective to the bench. Now I don't in any way suggest that it's a foregone conclusion I will know how a Black woman will rule on every matter that comes before her. But you know what? I want a Black woman on the bench. When we're talking about voting rights cases, I want a Black woman on the bench. When we're talking about issues related to abortion bans that relate to and impact disparately Black and brown people. When we're talking about defense cases and issues about reform and issues about the treatment of defendants. I'd like somebody who has a defense-minded perspective as well on these issues. All these things are important. All these things are impactful. And it's time that we brought that perspective to the bench. This president has had his work cut out for him and that in and of itself, Dean, makes me very proud.

You have already have Tucker Carlson, Sean Hannity and others on the right, smearing a person who's not even been nominated. To me, the question isn't why should it be a Black woman, the question is why hasn't there been a Black woman in over 230 years? But what's your reaction: Do you expect them to smear this person even more in a heightened way because she is a Black woman? 

Let me say on behalf of all of them, boo, because it's time for people to actually understand what that fear comes from. And if it's a fear of one having so much integrity, so much competence and credibility, that it might actually challenge the assumptions and ridiculous comments you make, well then so be it. But I'll tell you, when we've heard people make comments like that, why on earth would you say that? Why would you essentially act, Mr. President, as if you shouldn't cast a wider net? That's not very impartial.

We've heard, even since Reagan, discussions about wanting to have a woman on the bench. Now, Black women seem different all of a sudden? We had former President Trump even outsourcing, frankly, his list of nominees to the Federalist Society, asking for somebody who would overturn Roe v. Wade. Now that is the height of what is not impartial. So if anyone comes to talk about the hypocrisy or what this could possibly mean, I hope they came with the same energy and charisma and condemnation related to those who were looking for a particular reversal of precedent as they intend to come to challenge somebody who has criteria that frankly might make the sitting Supreme Court justices go, "Let me up my game."

You're talking about former clerks and solicitors general in respect to this. You're talking about the most recently installed Supreme Court justice, Amy Coney Barrett, who — I'm not taking away from her mind at all, she is a force to be reckoned with and should be acknowledged as that, but I've heard already comments about, "Well, if somebody hasn't been on the bench for a set number of years, they ought not to have a chance." She had a very relatively short tenure compared to other justices. Justice Elena Kagan had never been a judge a day in her life before she became a Supreme Court justice. I could go on with others as well. 

So we know it's coming. but I have to just smile and put America on display and say, I dare you to challenge the dignity of these particular women. If you have things that need to be addressed, by all means let the American people know. But these coded dog whistles about why a Black woman's not qualified, or President Biden is wrong to hone in on particular criteria, that are an asset, an addition — not a credential, but an asset in addition to the credentials that are already there? Please.

Read more on Biden's upcoming Supreme Court pick:

By Dean Obeidallah

Dean Obeidallah hosts the daily national SiriusXM radio program, "The Dean Obeidallah Show" on the network's progressive political channel. He is also a columnist for The Daily Beast and contributor to Opinion. He co-directed the comedy documentary "The Muslims Are Coming!" and is co-creator of the annual New York Arab American Comedy Festival. Follow him on Twitter @DeanObeidallah and Facebook @DeanofRadio

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