The Slatest

Tom Cotton Demands to Know if Merrick Garland Supports Equity

The Arkansas senator tries out an anti-anti-racism message in a confirmation hearing.

Tom Cotton speaks and gestures.
Sen. Tom Cotton speaks during Attorney General nominee Merrick Garland’s confirmation hearing on Monday. Pool/Getty Images

Sen. Tom Cotton had some particular, if bizarre, questions on his mind Monday.

During the Senate Judiciary hearing for President Joe Biden’s attorney general appointment, the junior senator from Arkansas asked about nominee Merrick Garland’s stance on the death penalty. He noted Garland’s work in the Justice Department’s 1995 case against Timothy McVeigh, a white supremacist who orcehstrated the deadliest incident of domestic terrorism in American history. Then Cotton asked Garland if he regretted that McVeigh was executed in 2001, considering that he now holds a different viewpoint on the death penalty.


Garland responded saying that he supported the policy during McVeigh’s case, when he became a judge, and that he doesn’t regret that. “But I have developed some concerns about the death penalty in the 20-some years since then,” he said. Garland explained that exonerations of death row inmates, the “randomness” of the policy’s application, and the disparate impact on Black Americans and other communities of color were among what gave him pause.


Cotton pivoted to asking if Garland would support the death penalty today if someone like McVeigh or Dylann Roof, a white supremacist who murdered nine Black parishioners in a historically Black church in 2015, were to carry out another attack.

Listening to an enslavement apologist use the victims of a horrific hate crime in order to the defend the death penalty was a perverse experience that underscores much of what is known about Cotton. Yet, somehow, it got worse as his questioning moved forward.


A few minutes later, Cotton asked Garland if he believed the government shouldn’t discriminate against someone based on race and if discrimination is morally wrong. Garland answered both questions with emphatic agreement.

This was the setup for what Cotton attempted to deliver as a gotcha: “Are you aware President Biden has signed an executive order stating his administration will affirmatively advance racial equity—not racial equality, but racial equity?”

Garland replied that he was familiar with the order and that equity was defined as “the fair and impartial treatment of every person without regard to their status, including individuals who have been in underserved communities where they were not afforded that before.”

“But I don’t see any distinction,” he continued. “That’s the definition that was included in that executive order you’re talking about.”


Cotton responded by asking Garland if he thinks racial equity and equality are the same thing.

“This is a word that is defined in the executive order as I just said it. So I don’t know what else—I can’t give you any more than [the way the] executive order defined the word it was using,” said Garland.

The distinction between “equality” and “equity”—the latter of which, in the executive order, is described in terms of overcoming “inequality”—seems like a narrow thing to fuss over. Hypothetical scenarios in which a Democratic president’s nominee for attorney general might not react seriously to white supremacists committing mass murder are obviously fanciful. But if it weren’t for the narrow and the fanciful, there wouldn’t be much space for Tom Cotton to argue against racial justice at all.


This is the senator who, during a self-commissioned PR campaign against the New York Times’ 1619 Project over the summer, referred to enslavement as a “necessary evil” and introduced legislation that would bar schools that teach the project from receiving federal funds. Cotton championed the idea that the military should shut down protests during the largest anti-racism demonstrations in American history. He also compared that uprising to racist mobs trying to prevent school desegregation. He bookended the thought by introducing legislation that would prevent anyone convicted of a federal offense at a protest from receiving coronavirus-related unemployment funds. In 2015, he returned a campaign donation from a racist cited in Roof’s manifesto.

The premise of Cotton’s questioning hinged on the specter of “reverse racism” and the idea that racial equity would, somehow, be detrimental for white Americans. Achieving equity requires people to be treated based on their need in order to reach an equal outcome. Equality simply means everyone is treated the same, which ignores the impact of systemic oppression and the disparate outcomes it causes.

If anything, his issue with the distinction and his twisting of the death penalty scenarios confirms everything we know about Cotton’s views on racism.