“We’re emerging from 2020, a year in which we experienced a national reckoning with racism and hate and other problems tearing at the fabric of communities across our country,” Clarke said. “The Justice Department stands to play an important role in moving our nation forward.”
Clarke, currently president and executive director of the National Lawyers’ Committee for Civil Rights Under Law, has been involved in issues such as economic justice, voting rights, and criminal justice throughout her career.
As head of the group, those efforts intensified in 2020 ahead of the election, when Clarke spearheaded numerous voting rights suits to protect access to voting-by-mail —including litigation in Fulton Co., Ga., to stop 14,000 voters from being purged, and a lawsuit against Postmaster General Louis DeJoy and the United States Postal Service, claiming changes he implemented would make it more difficult for mail ballots to be delivered on time.
“The work that I’ve done to ensure that all communities enjoy equal access to the ballot has resonance for me,” Clarke said. “If we can figure that piece out, we stand to make headway in terms of opening access to other core civil rights in our country.”
Advocates also pointed to Clarke’s work to hold white supremacist groups accountable for confrontations with Black Lives Matter protesters. The Lawyers Committee brought suit with other groups on Jan. 4 against the Proud Boys over vandalism at a Washington, D.C., church that displayed a Black Lives Matter banner.
If confirmed at the DOJ, Clarke would be stepping into an even more public and political spotlight as a key driver of the Biden administration’s racial justice initiatives. She would also be the first Black woman to head the department’s civil rights office.
How Clarke handles that role would be closely watched, and civil rights activists say the challenges she would face are stark.
“Everything she does in this position is going to bring backlash,” said Cliff Albright, co-founder and executive director of the Black Voters Matter Fund based in Georgia.
Clarke’s first task, if confirmed, would be restoring an agency that had a diminished role under the Trump administration and its last chief, former assistant attorney general Eric S. Dreiband, civil rights advocates say.
Some civil rights leaders criticized the last administration for what they say was a failure to prosecute rising hate crimes, moves that limited the use of consent decrees to change police practices, and support for state voter ID laws that opponents called restrictive.
“In the last administration, the Civil Rights division largely sat out and was inactive on the key civil rights questions of the day, and was absent at a time when it would have been critically important for the United States to weigh in and to advance equal rights, equal justice and equal opportunity,” said Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
“Kristen is a civil rights warrior who believes deeply in the enforcement of the civil rights laws and the creation of equity, so she is going to affirmatively pursue an aggressive agenda to achieve that,” Smith, who was chief of the Special Litigation Section of the DOJ’s Civil Rights Division in the Obama administration, predicted.
Dreiband did not respond to a request for comment for this story.
Hate Crime Prosecutions
More vigorous prosecution of hate crimes should be a top priority for Clarke, Janai Nelson, associate director-counsel of the NAACP Legal Defense Fund, said.
The head of the Civil Rights Division must acknowledge that the rise in “racial attacks, racial division, and white supremacy are the greatest national threat in this country,” said Janai Nelson, associate director-counsel of the NAACP Legal Defense Fund.
“This is not a matter of party or politics,” Nelson added. “This is a matter of national security.”
But Smith cautioned the current political climate could make that work harder.
“The polarization and the rise of hate is going to make some policy objectives much more difficult to achieve,” he said.
“Her cases to stop the suppression of peaceful protesters, who were just trying to speak up for Black lives and Black futures in this country, last year was hugely important and pivotal,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center.
“I see her taking that energy to D.C.”
Civil rights advocates also expect the DOJ to beef up enforcement of voting rights under Biden. But that could force Clarke to navigate a political minefield amid a broader fight over voting rights.
Civil rights groups are urging Democrats in Congress to pass the John Lewis Voting Rights Advancement Act (S. 4263), which would create a process for reviewing state changes to voter laws. In many Republican-led state legislatures, though, lawmakers are pursuing new restrictions on ballot access.
“There are many states trying to attack voting rights through legislation because they know there’s a chance that an amended voting rights measure will pass,” said Albright from the Black Voters Matter Fund. “If states try to implement these attacks, the Civil Rights division could step in with the full force of the DOJ’s legal team to enforce the act,” he added.
Clarke testified before a House Judiciary subcommittee in 2019 on the aftermath of the Supreme Court ruling in 2013 in the Shelby County v. Holder case, which weakened a key provision of the Voting Rights Act.
The administration’s promise to tackle disparities in criminal justice could also see a stepped-up role for the Civil Rights Division.
Clarke spearheaded the Lawyers’ Committee’s backing for the Justice in Policing Act of 2020, testifying before the Senate Judiciary Committee in June 2020 on the need for more police accountability. Under her leadership, the Lawyers’ Committee also condemned the DOJ for delaying the execution of a consent decree for the Baltimore Police Department in 2017.
Advocates pointed to Clarke’s work to highlight police brutality cases, but said at DOJ she would need to navigate a more limited role in law enforcement oversight.
“The DOJ’s authority to prosecute misconduct by law enforcement is limited. Legislation has been introduced to expand the DOJ’s authority, but in the meantime, the Police Misconduct Provision requires a ‘pattern or practice,’ not simply an isolated incident for civil enforcement,” said Keith J. Harrison, a partner at Crowell & Moring LLP in Washington, D.C.
“The high standard of proof makes these prosecutions extremely difficult.”
Navigating the challenges ahead will require support from Congress, said Katherine Giscombe, founder of Giscombe & Associates LLP, which focuses on workplace diversity and inclusion. She noted Clarke’s experience working with lawmakers on racial justice.
“Having the President of the United States and a slew of lawmakers makes a huge difference in how seriously her accomplishments and work are taken,” she said.
Rep. Ayanna Pressley (D-Mass.) is one of those supporters.
“It’s long past time we actively take on the pursuit of true justice and accountability at every level of government,” Pressley said. “Clarke is well-suited to rise to the occasion and meet this moment.”
Clarke is still awaiting a date for her confirmation hearing. The offices of the top Democrat and Republican on the Senate Judiciary Committee did not respond for comment.
For Clarke, confirmation would bring her back to the DOJ, where she worked as a prosecutor in the Criminal Section early in her career.
“It feels like a homecoming,” she said. “And there’s a lot of work to do.”