The Senate on Tuesday confirmed Kristen Clarke as the first Black woman to run the Civil Rights Division at the Justice Department, where she is expected to take an aggressive stance on issues such as discriminatory voting rights laws and policing.
The 51-48 vote fell mostly along party lines.
As with some other nominees, Senate Democrats needed to take an additional procedural step to overcome Republican objections and advance the nomination from the Senate Judiciary Committee. The Senate voted 51-48 earlier Tuesday to move to a final vote on her nomination.
The vote came one year after the death of George Floyd at the knee of a Minneapolis police officer, timing that Senate Majority Leader Charles E. Schumer on Tuesday called “particularly poignant and appropriate.”
While legislation to change policing practices after Floyd's death has stalled in Congress — though there are ongoing efforts to find a bipartisan bill — Clarke and the Civil Rights Division can take quicker and more direct action.
The Justice Department opened a civil investigation last month into the Minneapolis Police Department after the murder conviction of former officer Derek Chauvin and opened a similar probe in Louisville, Ky.
The Civil Rights Division can launch those kind of “pattern or practice” investigations that look for unconstitutional policing and use consent decrees to force changes, as well as investigate and enforce discriminatory voting laws under the Voting Rights Act.
Illinois Democratic Sen. Richard J. Durbin, the chair of the Judiciary Committee, said that the Civil Rights Division under the Trump administration had prohibited the use of such consent decrees, did not bring challenges to discriminatory voting laws and rescinded guidance that strengthened protections for transgender students.
“Now we have an opportunity for a course correction in the Civil Rights Division by confirming a proven civil rights leader to head that division,” Durbin said on the Senate floor.
Clarke worked as a trial attorney in the division’s criminal and voting sections during the George W. Bush administration. She was a co-director of the NAACP Legal Defense and Educational Fund’s voting rights group, helped establish New York’s initiative to defend religious rights of workers and most recently was the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, Durbin said.
She will take the job as 47 states consider hundreds of proposed laws that voting rights advocates say would make it harder to vote. Georgia’s new election law, called SB 202, has become a flashpoint in the broader discussion about how states run elections and whether the true goal of new laws is to ensure fair elections or enact barriers for minority voters.
“It is a difficult assignment. At any time in our history, it is difficult, probably more so today than ever. She is the person for the job,” Durbin said. “At this moment in history, our country needs her combination of expertise, experience, skills and thoughtfulness to ensure the Civil Rights Division will again work for all Americans.”
Republicans, including Sens. Charles E. Grassley of Iowa, Ted Cruz of Texas and Mike Lee of Utah, raised concerns that Clarke is a partisan and suggested she would protect only the rights of Americans she agreed with. Among their arguments, they said she has disparaged groups that have pursued religious rights and has called for defunding the police.
“I don’t think she’s the right person for this job at this time,” Grassley said on the Senate floor. “A nominee to lead the Civil Rights Division should be nonpartisan, independent and upfront about her beliefs. Unfortunately I think Ms. Clarke misses on all three marks.”
Senate Minority Leader Mitch McConnell brought up Clarke’s characterization of a Trump-era Justice Department task force on religious liberty as a way for people to use religion to mask their discriminatory goals. The Kentucky Republican called that “an incredibly out-of-touch, far-left statement.”
Hawaii Democratic Sen. Mazie K. Hirono called comments from Senate Republicans part of “a vicious smear campaign” against Clarke “because they are afraid she will actually do her job.”
“They are afraid she will enforce our civil rights statutes, challenge discriminatory voting laws, combat systemic racism in policing and protect the LGBTQ community,” Hirono said on the Senate floor.
Clarke, the daughter of Jamaican immigrants, grew up in Starrett City, the nation's largest public housing complex, in Brooklyn, N.Y. She told the committee at her confirmation hearing that she feels blessed to do work that stands up for “our nation's most vulnerable communities — to close those gaps between the haves and the have-nots.
“I do this work with my son in mind, often. I think about him, a young, Black teen and the future that lies ahead of him. And my hope is that the work I do every day helps to tear down a wall here or a wall there that might make the path a little easier for him and for all kids like him,” Clarke said.
Clarke's confirmation on the anniversary of Floyd's death puts the spotlight on attempts to overhaul policing both within the administration and in Congress. And the largely party-line vote underscores how far apart both parties remain on policing and other civil rights issues.
As Clarke’s nomination moved on the Senate floor, the Floyd family met with Speaker Nancy Pelosi and other Democratic lawmakers, including Rep. Karen Bass of California, the lead House negotiator on the police overhaul bill that bears Floyd’s name.
She has been engaged in talks for weeks with Sens. Tim Scott, R-S.C., and Cory Booker, D-N.J., on how to move the House-passed bill, named the George Floyd Justice in Policing Act, through the Senate.
“Twelve months ago the world witnessed the horrific torture and murder of George Floyd,” Bass said. “We commemorate that day today by reflecting on all that has happened, not just in our nation, but in the world, in regard to an issue that African Americans have fought against — and struggled for change — for generations. Within 30 days after George Floyd’s murder, we passed the George Floyd Justice in Policing Act at the request of his daughter, who said she hoped that her father will never be forgotten. And he absolutely will not.”
Bass renewed her commitment to forge a bipartisan compromise with Republicans that can pass the Senate for President Joe Biden to sign into law.
Biden had set the anniversary of Floyd’s death as the initial deadline for the bill to reach his desk, but congressional negotiators have struggled to hammer out a compromise that would make it through an evenly divided Senate.
“We will get this bill on President Biden’s desk,” Bass pledged. “What is important is that when it reaches President Biden’s desk that it’s a substantive piece of legislation, and that is far more important than a specific date. We will work until we get the job done. It will be passed in a bipartisan manner.”
Scott, who said he was not aware of the Floyd family’s meeting with House Democrats before it happened, said that the negotiations are “going well, overall.”
But he said there is still a long way to go.
The House-passed bill would ban chokeholds by federal officers and end qualified immunity for law enforcement against civil lawsuits, as well as create national standards for policing.
The biggest point of contention remains the issue of ending qualified immunity, which shields officers from legal action taken by victims and their families for alleged civil rights violations. Many Republicans remain opposed to stripping officers of qualified immunity.
Scott said that on that key sticking point, negotiators are “still making progress.”
Texas Republican Sen. John Cornyn told reporters he remains opposed to ending qualified immunity but said he’d take his cues on the bill from Scott.
In a joint statement, Bass, Booker and Scott said that the anniversary of Floyd’s death is a “painful reminder of why we must make meaningful change.”
“While we are still working through our differences on key issues, we continue to make progress toward a compromise and remain optimistic about the prospects of achieving that goal,” they said.