The Washington PostDemocracy Dies in Darkness

With Kristen Clarke, Republicans follow playbook in opposing Democratic nominees to Justice Dept.’s civil rights post

President-elect Biden watches as Kristen Clarke speaks to reporters in Wilmington, Del., on Jan. 7. (Photo by Demetrius Freeman/The Washington Post)

Bill Lann Lee knew he would face stringent Republican opposition when President Bill Clinton nominated him to run the Justice Department’s civil rights division in 1997. GOP senators had dubbed another Clinton nominee, Lani Guinier, the “quota queen” on affirmative action and pilloried her “strange name, strange hair, strange writings.”

“That didn’t seem like the kind of discourse that should be engaged in for a pretty important job,” Lee deadpanned in a recent interview.

Lee never got a Senate vote, though unlike Guinier, whose nomination collapsed under pressure, he spent three years on the job — two and a half as acting assistant attorney general and six months as an unorthodox recess appointee. Though Republicans were unable to fully stop him, their efforts during the Clinton years established a playbook for a decades-long strategy of opposition to Democratic nominees for the nation’s top civil rights post.

On Tuesday, the Senate will vote on Kristen Clarke, an accomplished civil rights lawyer and former Justice Department official who has engendered some of the most virulent GOP criticism of all of President Biden’s nominees. Sen. Ted Cruz (R-Tex.) said Clarke and Vanita Gupta — who oversaw the civil rights division for two and a half years during the Obama administration in an acting capacity after Republicans prevented a confirmation vote in 2014 — are “two of the most radical nominees ever put forward for any position in the federal government.”

Cruz and the 10 other GOP members of the Senate Judiciary Committee voted against sending Clarke’s nomination to the full Senate, forcing Majority Leader Charles E. Schumer (D-N.Y.) to use a rare procedural “discharge petition” to bring her candidacy forward. Sen. Susan Collins (R-Maine) cast the lone GOP vote in support of that measure, which passed 50-48.

Sen. Lisa Murkowski (R-Alaska) was absent on the discharge vote. She was the only Republican to join Democrats last month in confirming Gupta as Biden’s pick for associate attorney general — the Justice Department’s No. 3 job — and is viewed as another potential supporter for Clarke.

But Democrats argued that the overwhelming Republican opposition to a slew of nominees over the past three decades is a proxy for the party’s true mission — hobbling the core agenda of the civil rights division, which was created as part of the Civil Rights Act of 1957 under Republican President Dwight D. Eisenhower to focus on ensuring voting rights and fair housing for African Americans.

“With Republicans, I think it’s reasonable for folks to argue that the positions they’ve taken in the past indicate a broader opposition to the mission of the civil rights division,” said Rudy Mehrbani, a fellow at the Brennan Center for Justice who served in the Presidential Personnel Office during the Obama administration.

“They’re trying to use this position because it gets at, sadly, some social wedge issues that really fire up the Republican base,” he added. “They’re trying to fan those flames for future political benefits, and that’s really dangerous.”

Mehrbani called the GOP’s unanimous opposition to Debo Adegbile, whom President Barack Obama nominated for the job in 2013, “one of the low points of Republican intransigence.”

Seven Democrats joined the Republicans to vote down Adegbile’s nomination, after conservatives had attacked his work at the NAACP Legal Defense Fund in a highly publicized case involving Mumia Abu-Jamal, a Black activist who was convicted of killing a police officer in 1981.

“It’s unfortunate that the important job has become a political football,” Lee said. “In my case, the issue was my support for President Clinton’s policy of, ‘mend it, don’t end it,’ which the administration had devised before I was nominated. It became an unfortunate partisan dispute about affirmative action.”

Republicans disputed the notion that their tactics are out of bounds, pointing out that Democrats delayed the confirmation of President Donald Trump’s nominee to lead the civil rights division, Eric Dreiband, for 15 months over objections from liberal groups over his record in defending corporations against discrimination lawsuits while in private practice. Dreiband was confirmed in October 2018 and served until January 2021.

“With a lot of prior candidates, the opposition was based on a difference in priorities,” said Hans von Spakovsky, a senior fellow at the conservative Heritage Foundation. “That’s a standard part of Washington; that’s politics.”

Von Spakovsky withdrew from his own confirmation process to head the Federal Election Commission during the George W. Bush administration after Democrats criticized his work at the Justice Department, where he had pushed for more restrictive voting laws, prompting career staff in the voting section to resign in protest.

Last month, Spakovsky co-authored an essay in the conservative Daily Signal opposing Clarke’s nomination and rehashing attacks first aired by Fox News host Tucker Carlson that cited a letter she published in the Harvard University student newspaper in the mid-1990s to suggest Clarke is a Black nationalist who will not apply the law equitably — an accusation she has denied.

The civil rights division position is a “different job depending on which administration is in power,” said the legal commentator David Lat, who operates the Original Jurisdiction website. “Are we focusing on the rights of people of color? Are we focusing on religious freedom? Are we focusing on challenging affirmative action? Or are we focusing on the voting rights of minorities? That’s why the stakes are so high.”

Despite their opposition to Dreiband, Democrats said it is unfair to compare their approach to the tactics of Republicans. Wade Henderson, interim president of the Leadership Conference on Civil and Human Rights, pointed to President Ronald Reagan’s appointment of William Bradford Reynolds at the civil rights division as the turning point in the GOP’s efforts to begin opposing the founding mission of the division.

Once confirmed, Reynolds focused on rolling back affirmative action, integration policies and desegregation busing.

He became a “warrior for the ideological right wing,” Henderson said. “From that moment forward, the assault on civil rights has been carried out on the division itself, and it’s become the favorite venue of the right in a proxy war against civil rights enforcement.”

Republicans have recognized the potential political benefits of the ideological fight in casting Democratic nominees as extreme partisans who are a threat to the GOP’s largely White voting base. Cruz, Tom Cotton (Ark.) and Josh Hawley (Mo.), viewed as potential 2024 presidential candidates, have been among the most vocal Senate critics of Clarke and Gupta.

“It’s troubling in the sense that there’s more performance art in their objections than there is substance,” said Deval Patrick, the former Democratic governor of Massachusetts who headed the civil rights division from 1994-1997 after Clinton pulled Guinier’s nomination.

Patrick and Tom Perez, who was confirmed after a six-month delay during the Obama administration and served four years, were the only nominees confirmed to the post during the 16 years of the Clinton and Obama presidencies — meaning the civil rights division was headed by unconfirmed officials more than half the time.

Still, Lee said the fight over his nomination didn’t hamper him once he assumed the post in an acting capacity, as the Republican focus on him quickly dissipated.

Orrin G. Hatch “announced I would be the most overseen bureaucrat in the history of the republic,” Lee said of the former senator from Utah. “I do not recall the Senate Judiciary Committee holding one oversight hearing.”

Correction: A previous version of this story reported incorrectly that David Lat operates the Above the Law blog. Lat left that website and now runs a blog called Original Jurisdiction.