Kristen Clarke Is Qualified, Even If She’s Wrong
Kristen Clarke, nominated to be assistant attorney general for civil rights, has finally had her day in court, so to speak. On Wednesday, she testified before the Senate Judiciary Committee in a contentious nomination hearing. Much of the questioning from Republicans focused less on her qualifications for the post than in attacking her character, sometimes with blatantly false narratives.
This shouldn’t have come as a surprise, given the vitriol that has surrounded Clarke’s nomination. One group that tracks Biden administration nominees, BidenNoms.com, described Clarke this way: “Kristen Clarke supports cop-killers, is anti-police, consorts with bigots, and accuses black single mothers of raising criminals.” Not one word of this diatribe is true. The last calumny seems especially rich since it is based on an answer to a question in a public forum in which Clarke made the point that children born into single parent households face challenges in school and more often get into criminal activity than those who have two parents—a belief most conservatives take as an article of faith.
I know Clarke a bit. We’ve attended conferences together and chatted at length over the years. We disagree on a host of substantive policy issues. I am a long-time critic of racial preferences in college admissions, employment of all types, and public contracting, while she favors affirmative action in such settings. My Center for Equal Opportunity signed on as amicus in Shelby County v. Holder, challenging a provision of the 1965 Voting Rights Act that required certain jurisdictions to submit all voting changes to the Justice Department for preclearance based on a 50-year old formula that we believed should no longer apply. The Lawyers Committee for Civil Rights Under Law, which Clarke has headed since 2015, filed an amicus on the opposite side, which ultimately lost. In most cases, I oppose judging as racial discrimination a neutral action that is not intentionally discriminatory simply because it may have a “disparate impact” on certain groups; for example, requiring a high credit score to obtain a loan or rent an apartment. Clarke’s organization in 2020 explicitly endorsed the use of disparate impact theory in housing regulations.
If Clarke is confirmed, I expect to be a frequent critic of the policies she will implement—as I would, no doubt, for any nominee that President Biden would appoint. But the Republicans on the Senate Judiciary Committee spent little time asking her about the details of her preferred policies, choosing instead to impute to her views that she doesn’t advocate.
In a bizarro version of cancel culture, they also excoriated her for an inartful satire of The Bell Curve, a controversial study of race and intelligence by Richard Herrnstein and Charles Murray, she wrote as a 19-year-old undergraduate. Sen. John Cornyn seemed dumbstruck when Clarke refuted allegations made by the American Accountability Foundation (which publishes BidenNoms.com) that she believed “African Americans were superior to Caucasians,” apparently unaware that the charge stemmed from the satirical essay. As she explained, she was attempting “to hold up a mirror of one racist theory alongside another” to challenge both, and said that contemporaneous articles about the controversy at Harvard made clear that the article was sarcastic in intention and did not represent her views.
Sen. Ted Cruz repeatedly interrupted Clarke to claim she wants to defund the police, based on the headline of an article she wrote for Newsweek last year. Clarke noted that Newsweek’s editors, not she, wrote the headline (an almost universal practice), adding that she supports President Biden’s efforts to invest an additional $300 million for local law enforcement.
Sadly, in these hyper-partisan times, character assassination has supplanted debate over issues. We can dispute policies without portraying those with whom we disagree as racist, evil, and unfit to serve. Conservatives have often blamed the left for such tactics, but increasingly, it is the right that has taken these attacks to new lows.
Elections have consequences, one of which is the winner in a presidential race gets to pick nominees who share his governing philosophy. I don’t agree with Clarke’s view on policy, but she is eminently qualified to serve a president who does.
[Editor’s note: The views expressed in this article are the author’s and do not necessarily reflect those of any organization.]