Last night, I wrote about Lani Guinier, Bill Clinton’s nominee to head the DOJ’s Civil Rights Division. Clinton withdrew her nomination because, in essence, she advocated voting and legislative practices that were not race-neutral. I compared Guinier with Kristen Clarke, Joe Biden’s nominee for the same position, and found Clarke to be more extreme than Guinier.
I also pointed out that, unlike Clarke, Guinier was a good-faith advocate for the positions she held. Her advocacy appeared in scholarly writings, not in unvetted hit pieces. To my knowledge, she did not viciously attack those who took positions with which she disagreed.
In this post, I want to highlight the viciousness and the dishonesty of Clarke’s attacks on some of President Trump’s nominees, especially Amy Coney Barrett.
Clarke alleged that Barrett, who has Black children, has “alarming insensitivity to racial harassment.” (See video below beginning at the 4:00 minute mark.) To support this patently false claim, she cited Smith v. Illinois Department of Transportation (7th Cir. 2019).
But that case doesn’t remotely support Clarke’s attack. Then-Judge Barrett’s decision affirmed summary judgment for the defendant in a decision issued by a lefty Obama-appointed district judge, Edmond Chang. Is Judge Chang alarmingly insensitive to racial harassment?
The plaintiff in that case alleged racial harassment in employment. The record showed that he was a poor employee, whose problems at work had nothing to do with race.
Trying to establish a basis for his case, the plaintiff offered far-fetched “expert” testimony that proved nothing and that the district court (that lefty Obama appointee) excluded. He provided evidence of the use of the “f-word,” but no evidence that the profanity related to the his race.
He pointed to a single use of the “n-word,” which Clarke emphasized in her attack on Barrett. But the use of that word was by a Black supervisor.
The plaintiff introduced no evidence that the Black supervisor’s use of the n-word changed his subjective experience of the workplace, a prerequisite for proving his harassment case. He testified that his time with the employer caused him psychological distress. But that was for reasons that predated his run-in with his supervisor and had nothing to do with his race.
The plaintiff failed to convince any of the three other judges who heard his case — Judges Chang, Manion, and Flaum — that his allegations should survive summary judgment. Chang is a liberal, Manion is a conservative, and Flaum is a moderate.
Yet, Kristen Clarke insisted that Barrett’s similar view of the case shows “an alarming insensitivity to racial harassment.” And, in addition to her dishonest testimony, her group’s public statement against Barrett cites the Smith case as evidence of Barrett’s “failure to appreciate an employer’s obvious violation of Title VII.” What a crock.
Clarke’s discussion of Smith exemplifies her dishonest, scorched earth tactics against nominees who dissent from her leftist worldview — not just Barrett, but also Neil Gorsuch, Bret Kavanaugh, and Ryan Bounds. She presents prior decisions in a false light to portray such nominees as bigots.
But none of these nominees ever advanced the view that one race is superior to another. Clarke did.
Clarke’s outfit attacked Neil Gorsuch in a letter noting that “Judge Gorsuch has written a number of opinions on employment law issues in which he has generally affirmed district court decisions dismissing claims asserted by people of color, women, and disabled people.” But in my experience, most courts of appeals “generally affirm” such district court decisions. That’s mainly because many such claims — like many claims brought by White men, — are obviously lacking in merit. The Smith case discussed above is a good example.
When Brett Kavanaugh’s nomination was before the Senate, Clarke agreed with an interviewer that confirming Kavanaugh could cause the Supreme Court to treat civil rights as the late nineteenth century Court did when it enabled the imposition of segregation. (See link at around the 4:40 mark.) She offered no support for this ridiculous view.
As for Ryan Bounds, a nominee for the Ninth Circuit, I discussed Clarke’s treatment of him in a previous post (Part Two of this series). As a student, Bounds wrote some insensitive columns about racial affinity groups. His writings were nowhere near as offensive as Clarke’s assertions as a student that Blacks are genetically superior to Whites.
Nonetheless, Clarke insisted that Bounds be disqualified based on his student writings. And she made it clear that Bounds’ apology for what he wrote all those years ago would not suffice.
None should suffice in Clarke’s case, either.