At Kristen Clarke’s Senate Judiciary Committee hearing to become the first Black woman to head up the Civil Rights Division of the Justice Department—known as the “crown jewel” of the DOJ—the GOP playbook consisted of implying that a woman who has worked tirelessly within one serious institution after another is actually an institution-hating radical. Clarke, whom I’ve only ever known to be deadly serious, soft-spoken, and collaborative (I have done various public events with her over the years), faced an almost wholly unserious effort, helmed chiefly by the usual suspects, to paint her as a dangerous firebrand. Even after spending six years in the Justice Department’s Civil Rights Division during the George W. Bush administration, Clarke was still called out as being somehow opposed to the police and a threat to law and order—by some of the very same GOP senators who fueled efforts to set aside the results of the 2020 election, which culminated in the Jan. 6 attack on the Capitol.
Clarke, whose opening statement drew on her fears as the mother of a 16-year-old Black son, has been the focus of a Fox News/Tucker Carlson smear campaign to paint her as a wild-eyed lunatic who hates Jews, cops, and white people in about equal measure. Carlson has done at least six segments on her since January that were rife with reporting errors. He’s zeroed in on an almost-30-year-old op-ed that Clarke wrote at 19 to Harvard’s student newspaper promoting the genetic superiority of Black people. If a decades-old college piece is your best case for someone else’s racism as you’re doing Actual Racism in real time, you should probably think again. But Carlson and his followers seem to have also missed that her letter was a satirical response to The Bell Curve: Intelligence and Class Structure in American Life, which started from the presumption that Black people are intellectually inferior. Clarke may indeed be so fanatically serious that her efforts weren’t actually funny, but contemporaneous reporting from Harvard knew it was satire. Yet Sen. John Cornyn seemed to miss entirely that this was satire and also that it wasn’t a strong line of attack.
Sen. Mike Lee used his time for questioning to try to imply that she pressured the Justice Department not to prosecute the New Black Panthers for voter intimidation in 2008. Clarke testified that she had nothing to do with that prosecution and wasn’t at the DOJ when it was dropped. (She left the department in 2006 to join the NAACP Legal Defense and Educational Fund.) Lee then tried to read her a list of American institutions he believes she hates. She noted that she has in fact worked for several of them and that they are staffed by dedicated lawyers who adhere to the law. Sen. Ted Cruz shouted at her about the headline of a Newsweek piece she wrote after George Floyd was killed in which she expressly did not call for defunding the police willy-nilly, and in fact argued for a more complicated strategy: “I advocate for defunding policing operations that have made African Americans more vulnerable to police violence and contributed to mass incarceration, while investing more in programs and policies that address critical community needs.” Clarke had to explain several times to Cruz that she doesn’t write her own headlines and that her view—in line with that of many nonradical police reform groups—is that the police have taken on roles they were never intended to handle and “have too much contact with communities on issues they were never equipped to address.” As she put it in response to Cruz: “I do not support defunding the police. I do support finding strategies to ensure that law enforcement can carry out their jobs more safely and effectively and channeling resources to emotional health treatment and other severely underresourced areas.”
Sen. Josh Hawley went after her for her tweets saying that the Supreme Court’s COVID cases have been largely handled on the shadow docket, trying to imply that this analysis means she holds some long-standing animus against Orthodox Jews. Clarke again explained that she has devoted her civil rights career to protecting the religious rights of Jews (including pathbreaking work at the New York State Attorney General’s Office from 2011–15). She has also been the litigation machine in several lawsuits against violent and anti-Semitic white supremacists. (She sued and beat the man behind the Daily Stormer, for example.)
One imagines the GOP gotcha moment was meant to be Sen. Tom Cotton interrogating her about her hate for the police, specifically in a line of questions through which Cotton insisted that she answer whether officer Darren Wilson was “justified when he shot and killed Michael Brown in Ferguson, Missouri, in 2014.” Clarke was momentarily flummoxed, confusing Wilson briefly with Derek Chauvin. Then Cotton went on to criticize Clarke for various statements she has made about the grand jury’s failure to indict Wilson, about other police shootings of unarmed Black men, and about the need for police reform. Cotton then noted that Eric Holder’s own DOJ in 2015 did “an extensive review of Officer Darren Wilson’s conduct and concluded that it did not support a filing of criminal charges.” He used that to argue that Vanita Gupta and Holder had stated that Wilson was “justified in the shooting of Michael Brown.” And to wonder why Clarke was staking out a more unreasonable position than they held on whether Wilson was justified in shooting Brown. And to claim that “every cop in America should be terrified” of her reflexive belief that all police shootings are unjustified. Clarke tried again to explain that you can oppose police shootings of unarmed men without hating the police.
At the end of the hearing, Sen. Cory Booker offered a deep and personal tribute to Clarke’s qualifications before noting that his staff had found no statements from Gupta or Holder to suggest that Darren Wilson’s killing of Brown was justified. Indeed, what Cotton appears to have been playing fast and loose with was the DOJ announcement from March of 2015 stating that the department’s extensive federal investigation into the fatal shooting of Michael Brown “does not support federal civil rights charges against Ferguson Police Officer Darren Wilson.” What this means is simply that the extensive DOJ probe into whether the shooting was a violation of federal law that could be proved beyond a reasonable doubt determined that it was not. It was a broad finding about the applicability of a federal civil rights statute, not a determination that Wilson did nothing wrong.
Cotton, who had a tantrum today when Sen. Dick Durbin asked him to allow Clarke to answer his questions and in fact declined to do so, is a Harvard-educated lawyer in addition to being a senator. He is well aware that neither Holder nor Gupta has claimed the shooting was justified, that the federal civil rights charges available to the DOJ are far more limited than those available to state prosecutors, and also that the DOJ report made extensive findings of a pattern and practice of shockingly racist police conduct in Ferguson. This systemic policing problem is exactly the kind of thing Jeff Sessions declined to probe, though it’s an issue Clarke has been working to remedy for years. That work has nevertheless garnered her support from the police themselves. More than three dozen current and former police chiefs described her as a person of “impeccable credentials, character and credibility” in a letter supporting her nomination. The letter said that, as a federal prosecutor, “she demonstrated an uncanny ability to work closely with federal and state and local law enforcement officials.”
The rank silliness of targeting Clarke as someone hellbent on burning down American policing, justice, voting, and civil rights systems when she has built her entire career on working within those systems was the main takeaway of today. Clarke—whose parents immigrated from Jamaica, and who grew up in a federally subsidized public housing project—might even be somewhat more justified if she were advocating for burning down entire systems than would, say, Josh Hawley—yet he’s the one who doesn’t accept the 2020 federal election results. After graduating from Harvard and Columbia Law School, she went to the Department of Justice, then joined the NAACP Legal Defense Fund, then served the Office of the New York State Attorney General as head of the Civil Rights Bureau. As president and executive director of the Lawyers’ Committee for Civil Rights Under Law, she has worked like a demon to protect voting rights, minority rights, religious and women’s rights, all in precisely the way a lawyer would: through bold lawsuits and advocacy. I’ve argued that targeting civil rights lawyers for strongly worded tweets and advocacy evinces a shocking double standard for women of color in public life. But when the white men who are targeting a Black female lawyer as lawless and reckless and dangerous still won’t accept the results of the last presidential election and take no responsibility for the property damage and loss of life their words have caused, it just feels like cynicism for its own sake. That cynicism is the point. That this conversation is happening as the country is again roiled to the breaking point over racist police violence is why this transcends cynicism to become simply gross.