ICYMI - AAG Rachel Brand on DOJ Response to War on Free Speech on College Campuses

Associate Attorney General Rachel Brand wrote last month about the ways that college campuses are suppressing free speech and what the Trump-Sessions Department of Justice is doing to protect students' First Amendment rights:

These restrictions take a variety of forms.  For example, speech codes at many colleges ban speech that is “offensive,” a subjective standard that allows college administrators to arbitrarily ban speech they find disagreeable. For example, Georgia Gwinnett College stopped a student from speaking about his religious faith because it “disturbed the comfort of persons” – even after he had gotten a permit from the school to speak. 

Other schools claim they allow free speech but impose so many rules and procedures that it is almost impossible for speakers to reach an audience. Pierce College in Los Angeles, for example, limited students’ “free speech” to a space the size of a couple parking spots and required a permit to speak even there.  At a community college in Michigan, a student was arrested and jailed for handing out copies of the U.S. Constitution because they didn’t have a permit.

Ms. Brand gives other examples of how colleges suppress speech or enable third parties to suppress students' speech.  Then she turns to what the DOJ is doing to protect free speech rights:

The U.S. Department of Justice is not standing on the sidelines while public universities violate students’ constitutional rights – we are backing free speech lawsuits against universities that violate the First Amendment.  Thursday, we are filing a brief supporting a group of Berkeley University students who allege that the University’s policy imposing stricter rules on controversial speakers violates the First Amendment.  This is the third suit in which we have filed such a brief, and it will not be the last. 

Defending the fundamental constitutional rights of all Americans is a core part of the Department’s mission, and defending free speech rights is particularly important.  Free speech is not only a fundamental right, but, as James Madison said, the “effectual guardian of every other right.”  Free speech enables citizens to advocate for all their other civil rights and is the single most powerful bulwark against government tyranny. This is perhaps why our Founders protected it in the very first amendment in our Bill of Rights.  It is also why the Department of Justice is working so hard to protect it - free speech is too important for the Department of Justice not to speak on its behalf.  

As Ms. Brand notes, it is ironic and sad that colleges and universities, where students should be exposed to and challenged by a broad range of ideas as they hone their thinking and skills, are where free speech rights are being systematically suppressed by liberal college administrators.  We are grateful to the Trump-Sessions DOJ for recognizing and addressing this serious threat to students' constitutional rights.

Democrats Oppose a Qualified Woman (Rachel Brand) Because of President Trump and She is Conservative

Among many other topics, the Senate today debated the nomination of Rachel Brand to be Associate Attorney General, the third position in the Department of Justice.  Leader McConnell spoke of her sterling credentials:

Rachel Brand's impressive background includes experience clerking for Supreme Court Justice Anthony Kennedy, and she has already been confirmed by the Senate twice before.  She is extraordinarily talented, as Chairman Grassley noted at her hearing, and dedicated to the full and evenhanded enforcement of our laws. Ms. Brand also has the support of a bipartisan group of former senior officials at the Justice Department, including Jamie Gorlich and Seth Waxman, who in a recent letter on her behalf cited her stellar reputation for integrity, legal skills, and respect for the law.  As they pointed out, Ms. Brand's extensive private and public sector experience would serve her well as the Associate Attorney General, and they also noted she would be a trusted leader in the Department.  

After further outlining her impressive resume, Senator Kennedy of Louisiana noted that the responsibilities of the Associate Attorney General are important:

It's responsible for the oversight of the Civil Division, the Civil Rights Division, the Office on Violence Against Women, and many other important components of the Department of Justice. I think no matter what political party you happen to be in or whatever your political persuasion, we can all agree that right now it is particularly important not only to have a Department of Justice that is fully staffed, but to have it fully staffed with extraordinarily qualified people that every American can look at and go wow, is she qualified. . . . I fully support Mrs. Brand's nomination.  I sit on the Judiciary Committee, the committee of the Senate that vetted her.  She's highly respected. She's whip smart, she's well-qualified, and she is fully prepared to hit the ground running, and that is exactly what we need.

Yet, despite her credentials and how uncontroversial she should be, Democrats have obstructed and delayed her nomination, far more than similarly qualified and uncontroversial Deputy Attorney General Rod Rosenstein.  Why?  Because she is a strong, conservative woman nominated by President Trump, and Democrats are determined to attack and oppose President Trump to gain political points with their extreme liberal base in whatever way possible.  And Democrats particularly cannot allow a woman (or a minority in other cases - see Judge Thapar) who is a Republican to hold high office, as it disrupts their narrative of Republicans being anti-woman, anti-minority, etc.  

Senator Blumenthal admitted today that the opposition is not about Rachel Brand but about opposing President Trump and preventing the confirmation of Republicans to positions in the Department of Justice:

I will oppose this nomination, and I will oppose all nominations for the Department of Justice until public trust and confidence in the rule of law is restored and sustained by the appointment of an independent special prosecutor to investigate Russian interference in our last election and potential links to the Trump campaign and Trump associates.  

. . .  

But I also have disagreements with Rachel Brand.  I respect her record of public service.  I believe she is simply not the right person to serve as Associate Attorney General because of her long-standing apparently deeply held philosophy on the use and proper application of government power.  When the government engages in actions that threaten the privacy rights of innocent Americans, Miss Brand has advocated nonaction.  I believe that the United States must protect the privacy of her citizens.  And that fact is only one among many that cause me to disagree with her, but the failure to nominate and appoint an independent special prosecutor will lead me to oppose all of the nominations that are set forth by this administration, including anyone nominated for the F.B.I.  And I think it should now be clear if it was not before that such an independent prosecutor is necessary.

Setting aside the ridiculousness of the Democrats' demands for an independent special prosecutor, Sen. Blumenthal's opposition boils down to, in order: 1. Trump, 2. Russia, and 3. Ms. Brand has the audacity to be a conservative and Republican.

The Senate finally voted for cloture on the Brand nomination, with only 51 votes in favor of cloture.  Can you imagine the outrage if Republicans had delayed, obstructed, opposed, and voted against a woman nominated for a high position by a Democratic President?  Especially if for no other reason than pure politics.

Democrats Continue to Oppose, Delay and Obstruct Non-Controversial, Qualified Nominees

He has the support of Senate Minority Leader Chuck Schumer and was an Obama appointee.  He is the longest serving U.S. Attorney in the nation.  Yet, Rod J. Rosenstein has waited almost three months to finally get a chance to be confirmed as Deputy U.S. Attorney General, the number 2 position in the Department of Justice.  Cloture had to be invoked as six Democrats opposed him even getting an up or down vote!   

While the delay in confirming Rosenstein for the number 2 position at DOJ is inexcusable, the treatment of the nominee for the number 3 position (Associate Attorney General), Rachel Brand, is even worse.  As Judiciary Committee Chairman Chuck Grassley stated:

U.S. Sen. Chuck Grassley, R-Iowa, said he wasn’t sure why the nomination of Brand became a partisan issue. Brand’s nomination cleared through the judiciary committee on an 11-9 vote among party lines. 

“It’s a little more controversial than I thought it would be,” Grassley said Thursday. “She’s a pretty low-key person. ... I think she’ll get some Democrat votes on the floor of the Senate. I can’t give you a reason why it’s become somewhat partisan, because she’s well qualified.”

Chairman Grassley is understating the case.  Brand, like Rosenstein, should be non-controversial as she is extremely qualified and even an Obama appointee.   A few details from her bio as a Board Member of the Privacy and Civil Liberties Oversight Board from August 2012 to February 2017:

Rachel Brand has served as a Member of the Privacy and Civil Liberties Oversight Board since 2012. Her prior government experience includes serving as the Assistant Attorney General for Legal Policy at the U.S. Department of Justice after being confirmed by the Senate and appointed by President George W. Bush. In that capacity, Ms. Brand served as chief policy adviser to the Attorney General, handling a broad range of national security, law enforcement, and civil justice issues. She also oversaw the development of all regulations promulgated by the Department of Justice and managed the Department's role in selecting federal judges, including running the confirmation hearing preparation for Chief Justice John G. Roberts and Associate Justice Samuel Alito. Earlier, Ms. Brand served as Associate Counsel to President George W. Bush at the White House. She was a law clerk to Justice Anthony Kennedy of the Supreme Court of the United States and to Justice Charles Fried of the Supreme Judicial Court of Massachusetts.

Rosenstein was finally confirmed this evening, and the Democrats should stop their delay tactics and confirm Brand soon also.  It is time for Democrats to stop obstructing such qualified nominees.