Bench Memos

Law & the Courts

Kristen Clarke’s Troubling Track Record on Civil Rights

Kristen Clarke, President Biden’s nominee to be assistant attorney general for the civil rights division, speaks in Wilmington, Del., January 7, 2021. (Kevin Lamarque/Reuters)

Yesterday, the Senate Judiciary Committee held a nomination hearing for Kristen Clarke to lead the Justice Department’s Civil Rights Division. She is yet another top Justice Department pick who comes from the dark-money world, currently serving as president of the Soros-funded Lawyers Committee for Civil Rights Under Law and on Demand Justice’s short list for the Supreme Court.

Clarke drew fire for her recent position in favor of defunding the police and her longer history of promoting a warped notion of civil rights.

Last year, she wrote an op-ed in Newsweek entitled, “I Prosecuted Police Killings. Defund the Police—But Be Strategic.” Senator Ted Cruz pressed her on whether she “still” believes in defunding the police. Clarke responded by claiming that she did not and added, “The impetus for writing that op-ed was to make clear that I do not support defunding the police.”

“I find that astonishing and, Ms. Clarke, frankly not credible,” replied Cruz, who then read from three paragraphs in the Newsweek piece, each beginning: “We must invest less in police . . . .” Clarke blamed an editor at Newsweek for choosing a “poor title” and noted that she wrote the op-ed “without the power of the purse string.” Neither point adds to her credibility or public confidence in her judgment regarding Justice Department spending priorities.

Clarke has courted jaw-dropping controversy for a long time, perhaps starting with a piece she wrote while a student for the Harvard Crimson repugnantly advancing a number of “theories and observations . . . regarding the genetic differences between Blacks and whites” — such as how “Melanin endows Blacks with greater mental, physical and spiritual abilities — something which cannot be measured based on Eurocentric standards.” She told Senator John Cornyn she meant that as satire responding to defenders of Richard Herrnstein and Charles Murray’s The Bell Curve, which she called a “racist book.” The piece did reference the book, but did not state that she was satirizing Murray. And if she was trying to engage in satire, that was certainly not clear to readers including the staff of the Crimson, which subsequently ran an editorial denouncing her.

Clarke also downplayed her role as merely “a student providing support” for a conference in law school at which speakers repeatedly referred to an array of death-row inmates and other convicts, including several convicted cop-killers, as “political prisoners.” The transcript of the event referred to her several times as an organizer, with speakers thanking her for her work.

Although the issue of anti-Semitism was referenced more obliquely during the hearing, shortly after her Harvard Crimson piece, Clarke invited the anti-Semitic writer Tony Martin, author of The Jewish Onslaught, to speak on campus. Under fire for the invitation, she dug in and praised Martin as someone “who bases his information [on] indisputable fact.” After she was recently announced as Biden’s nominee, Clarke admitted that the invitation to Martin was a mistake. But she would not walk back her signing of a letter in 2019 supporting Tamika Mallory, a Women’s March co-founder who, according to an investigation by Tablet, “asserted that Jewish people bore a special collective responsibility as exploiters of black and brown people.”

Clarke has raised serious doubts as to whether she believes in the race-neutral application of civil rights laws. In 2010 testimony before the U.S. Commission on Civil Rights, Christopher Coates, the former chief of the Voting Section, listed Clarke among those who “believe, incorrectly but vehemently, that enforcement of the protections of the [Voting Rights Act] should not be extended to white voters but should be limited to protecting racial, ethnic and language minorities.”

Coates maintained that in 2008, Clarke “spent a considerable amount of her time attacking the [Civil Rights Division]’s decision to file and prosecute” the case of Ike Brown, an African-American political boss in Mississippi accused of blatantly discriminating against white voters, including abuse of absentee ballots. Coates added that in another case before the Civil Rights Division, a Voting Rights Act suit against Black Panthers who showed up at a Philadelphia polling place wielding a billy club, Clarke asked a Justice Department attorney when the case would be dismissed. When Senator Mike Lee asked her about these cases, she downplayed the notion that she engaged in advocacy.

While Clarke was skeptical of the merits of those cases, Lee continued that she has “described in the past as racist” a wide range of “elements of American society” that include “police departments, federal agencies, Airbnb, election laws designed to combat fraud, the workplace, America’s DNA, the Virginia Military Institute, the health care industry, federal courts, and the Department of Justice.”

Several senators also took Clarke to task for her disparaging attitude toward religious freedom. After the Supreme Court recently enjoined New York’s severe restrictions on religious worship in Roman Catholic Diocese of Brooklyn v. Cuomo, Clarke railed against “a newly configured Supreme Court, one w/ Justices who place religious freedom above ALL else.” In the witness chair, she predictably attested to her belief in religious freedom, but talk of such generalities at a nomination hearing can be cheap. When the Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) in favor of protecting a baker’s religious beliefs about same-sex marriage, she called the result “incredibly disappointing.” She even blasted Attorney General Jeff Sessions’ announcement of a task force to implement Justice Department guidance on accommodating religious beliefs: “Jeff Sessions is launching a Religious Liberty Task Force to make it easier for people to use religion to mask their discriminatory goals. Shameful.”

What is shameful is the prospect of someone with such skewed views about civil rights heading up the Civil Rights Division.

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