Nomination of Kristen Clarke, controversial Biden civil rights pick, hangs in balance

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The Senate Judiciary Committee advanced the nomination of Kristen Clarke to run the civil rights division at the Department of Justice on Thursday, but her confirmation is still not certain as a handful of key moderate senators have yet to announce their stance on the nominee. 

Sens. Joe Manchin, D-W.Va., Kyrsten Sinema, D-Ariz., Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, all have yet to take a public position on Clarke's nomination. Those four are considered the most important swing votes on any nominee of President Biden's that is particularly polarizing. 

Murkowski broke ranks with Republicans to help confirm Vania Gupta as associate attorney general last month, and also voted for Deb Haaland to be Interior secretary. Manchin, meanwhile, scuttled the confirmation hopes of Neera Tanden, Biden's former nominee to run the Office of Management and Budget, when he publicly opposed her. 

Kristen Clarke delivers remarks after being nominated to be civil rights division assistant attorney general by President-elect Joe Biden at The Queen theater January 07, 2021 in Wilmington, Delaware. From 2014 to 2017 Gupta served as the head of the Justice Department’s Civil Rights Division during the Obama Administration. (Photo by Chip Somodevilla/Getty Images) ( Chip Somodevilla/Getty Images)

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None of the senators' offices took a stance for or against Clarke, who has a history of controversial comments against senators, Supreme Court justices and on policing, when contacted by Fox News multiple times Thursday and Friday. 

To be confirmed, Clarke will likely only need votes from two of those four senators, which assuming all other senators vote with their parties, would lead to a 50-50 tie that Vice President Harris could break. 

The Judiciary Committee deadlocked with an 11-11 party-line vote Thursday, which under a deal struck by Minority Leader Mitch McConnell, R-Ky., and Majority Leader Chuck Schumer, D-N.Y., will allow Clarke's nomination to advance to the floor via a simple-majority vote on a discharge petition. 

Sen. Joe Manchin, D-W.Va., speaks to members of the media prior to his meeting with CIA Director Nominee Gina Haspel, on Capitol Hill in Washington, Monday, May 7, 2018. Manchin is often a key vote on the confirmation of President Biden's executive nominees.  (AP/File)

"Ms. Clarke has the breadth and depth of civil rights experience needed to revitalize the Civil Rights Division at this critical time," committee Chairman Dick Durbin, D-Ill., said. 

Schumer also lauded Clarke in a floor speech, saying that she's "an extremely well-qualified and capable civil rights attorney who would be the first Black woman to ever fill her position at the Justice Department." 

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But Clarke also has a history of making highly controversial statements, including a 2020 Newsweek op-ed headlined: "I Prosecuted Police Killings. Defund the Police—But Be Strategic." Clarke said in a hearing before the Judiciary Committee that she did not actually mean to say police should be defunded in that op-ed, despite the fact the text of the op-ed said, "We must invest less in police" three separate times. 

Sen. Lisa Murkowski, R-Alaska, speaks during the Senate Energy and Natural Resources Committee business meeting to vote on sending the nomination of Rep. Deb Haaland, D-N.M., to be Interior Secretary, to the Senate floor in Washington on Thursday, March 4, 2021. Murkowski voted for Haaland despite reservations, but has yet to take a position on another controversial Biden nominee – Kristen Clarke to run the Department of Justice's civil rights division. (Photo by Caroline Brehman/CQ-Roll Call, Inc via Getty Images)

Sen. Ted Cruz. R-Texas, slammed Clarke before the Thursday vote. He said that Clarke is among "the most radical nominees that have ever been put forward to any position in the federal government." 

"This is not a new passion of hers," Cruz added. "She has spent her life on the extreme left wing," including hosting highly-controversial speakers when she was a student at Columbia University. 

"Kristen Clarke's disdain for law enforcement is evident," Cruz added in a Friday tweet. 

"Americans need a leader to stand up for their First Amendment rights & to safeguard the integrity of the electoral process. Kristen Clarke is exactly what the Civil Rights Division does not need," Sen. Marsha Blackburn, R-Tenn., said in a tweet around the time of Clarke's hearing. "I am extremely concerned about her ability to be impartial & fairly enforce the law."

In the hearing, Blackburn said that some of Clarke's past comments, including against the Christian civil rights group Alliance Defending Freedom, "causes me to question if you could be fair and impartial and apply the law as written and defend these rights and freedoms that are so vitally important." 

Sen. Richard Blumenthal, D-Conn., however, said Thursday that Cruz and Republicans have "mischaracterized Ms. Clarke's actual statements."

"His characterization is even more of a distortion used solely, solely to attack the Democratic members of this committee," Blumenthal said. "I assume if my colleagues will review her record including her explanation to us in the hearing that she attended and will know what her views are now, what she meant in that article  that's been cited… they will disregard his distortions of the record." 

It's unclear when the Senate will take up the discharge petition on Clarke's nomination – it's possible Schumer would wait to do so until he knows whether he has the votes to confirm her. 

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If Clarke's nomination eventually fails, it would be a blow to the administration, which has invested significant political capital in Clarke, including a ringing endorsement from Attorney General Merrick Garland. 

"I’ve read, in the last few days, these allegations about Kristen Clarke, who I’ve also gotten to know, who I also trust, who I believe is a person of integrity, whose views about the civil rights division I have discussed with her and they are in line with my own," Garland said at his won confirmation hearing, in response to a question about a controversial article Clarke wrote during college. 

"I have every reason to want her. She is an experienced former line prosecutor of hate crimes and we need somebody like that," he added.