Dems’ Top Impeachment Witness Is Pulling the Strings at the Biden Justice Department

Pamela Karlan garnered attention as an advocate for impeaching President Trump

Kevin Daley • July 14, 2021 1:00 pm

A top impeachment witness for House Democrats is quietly emerging as an integral figure in President Joe Biden’s Justice Department.

Pamela Karlan’s spirited testimony made waves during the first impeachment of former president Donald Trump. Now the number-two official in the Justice Department’s civil rights division, Karlan has helped formulate the department’s response to schoolhouse controversies involving LGBT rights and voting reforms in red states.

Karlan’s profile has been eclipsed by her superiors and their hotly contested confirmations. Once favored by progressives for the Supreme Court, Karlan has admitted that her leftwing commitments and snarky personal style probably foreclosed a judicial career. But those characteristics made her ideal for a moment when progressives are looking to Biden’s Justice Department as a redoubt against a conservative Supreme Court and alleged attacks on the franchise.

“Pam Karlan is one of the great civil rights lawyers of our time,” University of Virginia law professor George Rutherglen told the Washington Free Beacon. “As an advocate and as a scholar, she takes daring and original positions and backs them up with sound argument and an encyclopedic knowledge of the law. She was a great addition to the University of Virginia when she was here and she is a great addition to the Biden Department of Justice now.”

Karlan notched an early victory in March when she circulated a three-page memo to federal officials on Title IX, the federal civil rights in education law. The memo is the linchpin of a new regulatory regime that will likely allow transgender students to participate in women’s sports and access their preferred bathroom facilities.

It was a natural move for Karlan, who argued the Bostock v. Clayton County case before the Supreme Court and helped write legal papers the LGBT litigants submitted to the justices. The Court ruled in Bostock that a workplace civil rights law that bans discrimination “based on sex” covers LGBT people, even though that law makes no explicit mention of gay and transgender employees.

The Karlan memo says the Court’s logic in Bostock ought to color the reading of Title IX, which prohibits discrimination on the basis of sex. Though the memo stops short of broaching athletics or bathroom access, it provides the analytical framework for others to reach that result. It also marked a break from the Trump administration, which in its waning days issued guidance to the effect that Bostock was limited to the specific context of hiring and firing.

Three months after the Justice Department circulated the memo, the Education Department issued its own guidance document fully embracing Karlan’s reasoning, which cites the Karlan memo in support of its conclusions.

Karlan has been a major figure in LGBT impact litigation since the 1980s, when she clerked for Justice Harry Blackmun on the Supreme Court. In a 1995 oral history of his tenure, Blackmun revealed Karlan was the primary author of his dissent in Bowers v. Hardwick, a 1986 decision in which a 5-4 Court upheld a state law criminalizing sodomy.

Karlan is also a top signatory on the Justice Department’s legal challenge to Georgia’s new voting law along with her boss, assistant attorney general Kristen Clarke. The case is being litigated in part under Section 2 of the Voting Rights Act. A June decision from the Court is sure to make the Justice Department recraft its claims, as the decision establishes that Section 2 isn’t as broad as the department’s suit assumes.

A leading expert on the Voting Rights Act, Karlan will be an invaluable resource for Clarke and other DOJ leaders as they amend their claims in light of the Court’s decision. In a previous tour at the department, Karlan led the civil rights division’s voting rights section. She was also counsel of record for the Mexican American Legislative Caucus in a long-running Supreme Court fight over Texas’s legislative map following the 2010 census.

By her own account, Karlan combines her scholarship and practical experience with a tenacious, irreverent personality. She said as much during her 2009 Stanford Law commencement address, hitting with striking prescience on the Biden Justice Department’s top priorities.

“Would I like to be on the Supreme Court? You bet I would. But not enough to have trimmed my sails for half a lifetime,” she said.

“I don’t regret taking sides on questions involving the Voting Rights Act,” Karlan added. “I don’t regret helping to defend the constitutional rights of criminal defendants. I don’t regret litigating cases on behalf of gay people. I don’t even regret being sort of snarky.”