[Senate Hearing 117-770]
[From the U.S. Government Publishing Office]
S. Hrg. 117-770
CONFIRMATION HEARING ON
FEDERAL APPOINTMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
APRIL 14, 2021
__________
Serial No. J-117-8
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
54-095 WASHINGTON : 2026
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa, Ranking
DIANNE FEINSTEIN, California Member
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Kolan L. Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Grassley, Hon. Charles E......................................... 4
Booker, Hon. Cory A.............................................. 7
VISITING INTRODUCERS
Gillibrand, Hon. Kristen E., U.S. Senator from New York.......... 5
NOMINEES
Clarke, Hon. Kristen............................................. 9
Questionnaire................................................ 536
Responses to written questions............................... 89
Additional materials......................................... 155
Kim, Hon. Todd Sunhwae........................................... 10
Prepared statement........................................... 42
Questionnaire................................................ 578
Responses to written questions............................... 44
Additional materials......................................... 62
CONFIRMATION HEARING ON
FEDERAL APPOITMENTS
----------
WEDNESDAY, APRIL 14, 2021
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
G50, Dirksen Senate Office Building, Hon. Richard J. Durbin,
Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Leahy, Whitehouse,
Klobuchar, Coons, Blumenthal, Hirono, Booker, Padilla, Ossoff,
Grassley, Cornyn, Lee, Cruz, Hawley, Cotton, and Blackburn.
Also present: Senator Gillibrand.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. Good morning. This hearing will come to
order. Today the Senate Judiciary Committee will hold a hearing
on the nominations of Kristen Clarke to be Assistant Attorney
General for the Civil Rights Division and Todd Kim to be the
Assistant Attorney General for the Environment and Natural
Resources Division, commonly referred to as ENRD. These are key
positions in the Department of Justice and once confirmed,
these nominees will play a critical role working with Attorney
General Garland and other senior Department leaders to restore
the Department's independence and integrity, take partisan
politics out of the Department's work, and faithfully execute
the law.
Ms. Clarke, Mr. Kim, you are so far away, but I wanted to
welcome you and your families especially. We are happy to have
you here today.
With passage of the Civil Rights Act of 1957, the Civil
Rights Division was founded with the task of defending the
civil rights of all Americans. The Division's attorneys work is
wide ranging and includes protecting the right to vote,
defending the free exercise of religion, combating human
trafficking, ensuring those with disabilities have equal
opportunities and access to public accommodations, and
upholding fair housing laws, rooting out employment
discrimination, protecting students against educational
integrity. It is a pretty vast agenda.
Importantly, the Division's lawyers also investigate and
prosecute hate crimes which occur far too frequently in our
communities. They are perpetrated against individuals on the
basis of race, religion, gender, gender identity, sexual
orientation, and disability. The Civil Rights Division plays a
critical role in the Justice Department. Building on the
mission that led the Justice Department's creation in the late
19th century upholding equal justice under the law, but the
Civil Rights Division today also is regrettably a shell of its
former self.
The Trump administration did more than just diminish the
Division's standing. It went so far as to use the Division to
roll back hard won civil rights. Under President Trump, the
Civil Rights Division reversed long-standing positions in key
voting rights cases. It gave its blessing to harmful voter ID
laws that were unnecessary and voter purges. The Division
pushed for and then defended the addition of citizenship
questions in the 2020 census. It abandoned the use of consent
decrees with local police departments, a vital tool that helped
promote police accountability and protect both officers and the
communities they served.
After 4 years of a Civil Rights Division hollowed out by
the Justice Department's own leaders, we find ourselves in
desperate need of restored leadership of a bold vision for
returning the Division to its founding ideals of renewed
commitment to enforcing the Nation's civil rights laws.
Fortunately, in Kristen Clarke, we have exactly the kind of
leader who can accomplish this ambitious mission.
Ms. Clarke is currently the president and executive
director of the Lawyers' Committee for Civil Rights Under the
Law, an organization, founded at the urging of President John
Kennedy, championed by his brother, Attorney General Robert
Kennedy. In her role leading the Lawyers' Committee, and indeed
throughout her career, Ms. Clarke has been a strong defender of
civil rights, from prosecuting hate crimes and human
trafficking in the Criminal Section of the Civil Rights
Division to protecting voting rights at the NAACP Legal Defense
and Education Fund to tackling employment discrimination as the
Chief of Civil Rights Bureau in the New York Attorney General's
Office. Ms. Clarke has steadfastly pursued an objective that
sadly remains elusive even to this day--equal justice for all.
In that pursuit, she has exhibited the qualities that we need
in the individual charged with running the Civil Rights
Division--humility, fidelity to the rule of law, and a
demonstrated commitment to building broad coalitions in support
of civil rights.
Sadly, some are so threatened by the prospect of
revitalized Civil Rights Division, that they have already
engaged in baseless attacks on this extremely well-qualified
nominee. This morning's Washington Post tells of many of those
attacks which you have disclosed to the public in an effort to
let them know exactly what you have faced.
Despite Clarke's deep base of law enforcement support,
groups like the Major Cities Chief's Association, the
International Association of Chiefs of Police, to individual
sheriffs, prosecutors, and State attorneys general, some are
actually trying to pain her as anti-police based on false
accusations that she represented or worked to free a man
convicted of murdering a Philadelphia officer.
Despite years of confronting online anti-Semitic hate and
work defending religious rights, including the right of workers
to receive accommodations to observe the Saturday as Sabbath,
Clarke is facing accusations of anti-Semitism, which are so
absurd that the Jewish Council for Public Affairs felt the need
to write to this Committee and say that the organization,
``considers attempts to focus on purported anti-Semitism during
Clarke's nomination process to be inappropriate.''
Attorney General Garland told us during this own hearing
that he does not believe that Clarke is an anti-Semite or
believe she is discriminatory in any sense. Clarke is the
person the Attorney General wants us to send him to lead to the
Justice Department's Civil Rights Division. She is the person
who can restore the Civil Rights Division to serve all the
American people.
For the past several weeks, stories about the trial in
Minnesota and incidents there and another State have led the
news. It is our job in the Senate Judiciary Committee to remind
America that there is a rule of law and a legal process to
protect the civil rights of all Americans. Speech and
nonviolent demonstration are protected, constitutional actions
in America. I hope we can show by our actions in this Committee
that we can lead the proper legal response to the civil right
issues of our day.
We will also hear today from Todd Kim, who likewise brings
with him an amazing wealth of experience and commitment to the
law, irrespective of personal belief and partisan politics. In
a conversation I had with Mr. Kim, I talked about the fact that
so many trial lawyers these days really cannot point to any
appearances before judges. You have an extraordinary record,
particularly on the appellate level when it comes to that.
The Environment and Natural Resources Division, originally
created as the Public Lands Division, has been in existence for
over 100 years. Every day attorneys in this Division work
tirelessly to enforce our Nation's environmental laws,
including the Clean Air Act, the Clean Water Act, and hazardous
waste laws. Every American benefits from ENRD's work to reduce
pollution and protection our Nation's most precious natural
resources. Sadly, ENRD was gutted under the Trump
Administration. Over the past 4 years, the number of
enforcement actions against polluters dropped dramatically and
civil penalties fell to an all time low. The prior Assistant
Attorney General, Jeffrey Bossert Clark, focused on politics
and a deeply partisan agenda, not the law. He prioritized
allowing polluters to act with impunity, not protecting the
environment.
Then as acting head of the Civil Division, Clark, it was
reported, conspired with Donald Trump's efforts to overturn the
results of the 2020 Presidential election. Disgraceful conduct
which this Committee is actively investigating.
What ENRD needs now is someone who will bring back
integrity, stability, and a renewed commitment to enforcing our
Nation's environmental and natural resource laws. Todd Kim is
that person. Mr. Kim is currently the Deputy General Counsel
for Litigation, Regulation, and Enforcement at the Department
of Energy. He is an experienced, award winning, appellate
litigator. He has significant expertise in environmental and
natural resources law from eight years at ENRD, and he served
for 11 years as the District of Columbia's first Solicitor
General.
Whether representing the U.S. Government under Clinton and
Bush administrations, the D.C. government, or clients in
private practice, Mr. Kim is focused on the law, not politics.
Throughout his career, Mr. Kim has been recognized for his
integrity, his humility, his deep knowledge base, and his
understanding of what it means to serve as an officer of the
court and representing the people of the United States. He has
all the qualities this Nation needs to lead the Environment and
Natural Resources Division.
I would like to turn to the Ranking Member, Senator
Grassley, of Iowa.
OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Mr. Chairman. I am glad to be
here to ask these nominees some questions. Top positions in the
Department of Justice, Kristen Clarke to be Assistant Attorney
General, Civil Rights Division. Todd Kim to be Assistant
Attorney General for Environment and Natural Resources. I thank
each of them because they both spent considerable time on the
phone with me, one recently as Monday, and the other one, a
couple of--3 weeks ago, I guess.
As I have said before, I hope that Judge Garland meant it
when he said he wants to keep politics out of the Justice
Department. I would like to see a real commitment to do that
from the nominees today. I do not want to see a return to the
Holder days, but I worry about that being down the road. I will
just give you a recent example.
The Justice Department has a Deputy Assistant Attorney
General in its prestigious Office of Legal Counsel. He was
recently tweeting criticism of the Supreme Court's opinions,
giving his views on Republican political prospects, and voter
integrity legislation. That is senior management in the
Department. It happens to be what is supposed to be the most
apolitical Division. This person was moonlighting as a
political pundit. I see that and it makes me wonder about the
judgment and the impartiality of the Justice Department's
political leadership. I hope that Judge Garland will get his
house in order. We will see if today's nominees agree with that
assessment.
Turning to the nominees, and I think that, you know, none
of us mince words around the U.S. Senate. I know that Ms.
Clarke knows that she is very controversial. That said, I do
appreciate the conversation she and I had, and I want to
commend her for being forthcoming with the Committee. I do not
doubt that Ms. Clarke is a capable attorney who is sincerely
committed to progressive causes. What I am going to want to see
is whether she can put that partisan commitment aside and do
the work of an apolitical civil rights enforcer.
For example, just last summer she wrote a piece called, ``I
Prosecuted Police Killings. Defund the Police--But Be
Strategic.'' I am sure that we will hear the usual refrain
today that nominees do not really mean it when they say defund
the police, but the fact is, it was said. Is Ms. Clarke going
to use her perch in the Civil Rights Division to strategically
defund the police by other means?
Ms. Clarke has taken positions on religious liberty that
are, I believe, limited and potentially unfair to believers.
Will she put these views aside and enforce the rights of
believers to the extent mandated by the courts? Ms. Clarke is a
strong believer in voting rights. So am I. I am also a strong
believer in secure elections. I think it is a legitimate
question whether she continued to view efforts to secure our
elections as voter suppression when she is in charge of
enforcing our voter laws, particularly voter suppression talked
about now when we had such a historical turnout for both the
loser of the election as well as the winner of the election.
Like Ms. Gupta before her, Ms. Clarke has launched many
personal attacks on Federal judges, especially Kavanaugh.
Chairman Durbin has in the past compared this practice to
Senator Ashcroft and Sessions opposing judicial nominees. I
happen to think it is a little bit different. Evaluating
judicial nominees is part of our constitutional duty. I think
it is different for litigators and aspiring government lawyers
to go around attacking Federal judges and doing it publicly.
Questioning the integrity of judges, and then eagerly appearing
before them means that you either are not looking out for your
client's best interest or that you did not really mean your
attack to begin with.
I think Mr. Kim is a lot less controversial, nominated to
run the Environment and Natural Resources Division. While it is
still called that, he has a distinguished career as a courtroom
advocate, I do not think I agree with him on much politically,
but elections have consequences and based on his record, I
think he will enforce the rule of law in the Justice
Department. I will say that some of the activities of the
Justice Department implicating his Division do concern me at
policy level. President Biden wants to shift its focus from
enforcing laws as passed by this Congress to protecting so
called ``environmental justice.'' I do not think this is
consistent with the depoliticized Justice Department that Judge
Garland promised us. I hope Mr. Kim will push back on any
instructions to go forward beyond what the law requires.
The Biden Justice Department is also in a non-precedented
practice of acceding to nationwide injunctions against
environmental rules in lower courts. I think this is an attack
on the rule of law and the Administrative Procedures Act.
President Biden is entitled to change environmental rules
consistent with statue, but he should do it through the
rulemaking process and not through litigation tricks. I hope
that Mr. Kim will push back on this as well. Regulation by
California judge can become regulation by Texas judge before
you know it.
With that, I would welcome the opportunity to ask
questions. Thank you.
Chair Durbin. Thank you, Senator Grassley. At this point,
we are going to have the formal introductions of our two
colleague--pardon me--the two nominees. First colleague,
Senator Kirsten Gillibrand, is going to join us remotely to
introduce Ms. Clarke.
Senator Gillibrand, are you with us?
OPENING STATEMENT OF HON. KIRSTEN GILLIBRAND,
A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Gillibrand. Yes, I am. Thank you, Mr. Chairman.
Thank you, Ranking Member Grassley and Members of the Judiciary
Committee. It is my honor to join you today to introduce
Kristen Clarke, nominee for Assistant Attorney General for
Civil Rights.
At this moment in time when we are seeing an unprecedented
assault on voting rights, a horrifying rise in bigotry and
racism and anti-Semitism, and a growing national conversation
on criminal justice, it could not be more important for the
Civil Rights Division to have a leader with the experience and
qualifications to begin addressing these challenges from day
one. Ms. Clarke is that leader. She is the right person for
this job at this moment.
Ms. Clarke first became interested in civil rights law on a
high school field trip to watch the arguments in Sheff v.
O'Neill, a Connecticut school desegregation case. She has spent
her entire professional life in public service working in
virtually every area of civil rights. Her career began in the
DOJ Honors Program as a trial attorney in the Civil Rights
Division during the Bush administration where she served for
nearly 6 years. If confirmed, Ms. Clarke will return to the
Division as the first woman and only the fourth Black leader
confirmed in its 64 year history. Throughout her career, she
has litigated voting rights cases at NAACP Legal Defense Fund,
led the New York Attorney General's Civil Rights Bureau, served
as the president and executive director of the Lawyers
Committee for Civil Rights, one of the Nation's oldest civil
rights legal organizations.
Ms. Clarke has experienced standing up to hate. She has led
a team that won the $700,000 verdict against the neo-Nazi
website, Daily Stormer, over its harassment campaign targeting
the first Black female student body president of American
University, and she has worked closely with the families of
Emmett Till, Matthew Shepard, James Byrd, Heather Heyer, and
more.
She has experienced protecting religious minorities. As the
chief of the New York State Civil Rights Bureau, she led the
unit that fought religious discrimination and defended Jewish
employees' right to observe their faith. She has had experience
protecting voting rights. She has become one of the Nation's
leading voting rights lawyers representing voters in the Shelby
County, Alabama v. Holder case before it reached the Supreme
Court and working on the 2006 bipartisan reauthorization of the
Voting Rights Act.
Ms. Clarke has also worked to ensure the families in
vulnerable communities have access to fair housing
opportunities, to protect the rights of people with
disabilities, and to obtain justice for women in the workplace,
winning a $3.8 million settlement for close to 300 women in
gender discrimination sexual harassment case against Con
Edison. She has worked to build bridges between the legal and
the law enforcement community. She has worked directly with
hundreds of the Nation's leading law firms, thousands of
lawyers, the FBI, ATF, and law enforcement agencies on hate
crimes, human trafficking, and domestic violence cases.
She partnered with New York sheriffs to institute best
practices for working with communities with limited English
proficiency. She conducted a training with the National
Sheriff's Association on community policing and rebuilding
trust. She worked with the International Association of Police
Chiefs to develop strategies to enhance officers' response to
hate crimes and incidents which have since been adopted by
police forces across the globe.
Results of her collaborative work are reflected in the
support for her nomination from law enforcement, including the
Major Cities Chief Association, NOBLE, and IACP executive
director Vincent Talucci. Her unparalleled legal credentials
are complimented by her lived experience. She grew up in
Brooklyn's Starrett City housing development, the daughter of
Jamaican immigrants who instilled in her an unmatched work
ethic. Her determination and hard work in public school opened
the doors to Choate Rosemary Hall, Harvard, and Columbia Law
School. Seeing the stark access to opportunity in her Brooklyn
neighborhood and in those private schools gave her the valuable
perspective on inequity that comes to guide her work to this
day.
If confirmed, Ms. Clarke will bring the knowledge,
experience, and leadership the Civil Rights Division needs to
meet the challenges that lie ahead and, as she has said, to
make the promise of justice for all a reality. Thank you, Mr.
Chairman.
Chair Durbin. Thanks, Senator Gillibrand. We appreciate
your appearance before the Committee and introduction of Ms.
Clarke.
The formal introduction of Mr. Kim will be led by our
colleague, Cory Booker. I might add that we, with unanimous
consent, will also enter a letter from Delegate Eleanor Holmes
Norton in support of Mr. Kim as well. Senator Booker.
OPENING STATEMENT OF HON. CORY BOOKER,
A U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Booker. Mr. Chairman, thank you very much. I am
sorry I do not have the privilege of introducing both of these
extraordinary candidates. Kristen Clarke is not only a friend,
but someone that I have long worked with and admired. I have
the pleasure and the honor to introduce Todd Kim, and it is a
thrill to do so.
Before I say anything about Mr. Kim's incredible legal
career and record of public service, I should start with
perhaps one of the most important distinguishing features about
him. He is from New Jersey and born in Edison. Like me, he grew
up in the great Garden State. I am proud to be introducing him.
He is a child of immigrants who first came to the country, his
parents, as graduate students. Mr. Kim's father went on as a
research chemist while his mother directed choirs for several
local Korean-American churches.
He, unfortunately, did not go to Stanford or Yale, but he
went to an okay college for undergraduate, Harvard. Again, did
not go to Yale Law School, but went to Harvard Law. We will
forgive him for that, but there he excelled. He was the
executive editor of the Harvard Law Review, and then, so Mr.
Kim became a really skilled environmental litigator.
He spent 8 years at the Justice Department's Environment
and Natural Resources Division serving as nonpartisan career
attorney in both the Clinton and the Bush administrations. Now,
Mr. Kim has been nominated to return to that same Division and
this time, to lead it. The Environment and Natural Resources
Division is a key, if not critical, part of the Justice
Department. You cannot have justice without environmental
justice. But also, he is intending, I believe, the critical
effort to revitalize our environmental policy. The Division he
will lead enforces our foundational environmental laws to
ensure that we breathe clean air, that we drink clean water,
and that we are protected from hazardous wastes.
I have visited around this country and seen the urgencies
of environmental justice and the work still to do. He will help
ensure not only do people have environmental justice, but that
our public lands are properly managed, that our wildlife is
protected, and that our Tribal land rights are respected.
So many of our communities face environmental threat that
are also public health crises. These are often communities of
color, indigenous communities, and low income communities.
People who often wonder who is standing up to fight for them.
The single biggest factor today in America that determines
whether someone lives near a toxic waste site is the color of
their skin. When the Environment and Natural Resources Division
pursues a case and enforces our environmental laws, it is
playing a vital role in protecting the well-beings of
communities across this country. If Mr. Kim is confirmed, he
will be ready to lead the Division on day one with experience
and conviction to affirm the ideals of our Nation.
In addition to his environmental expertise though, Mr. Kim
also served for more than a decade as D.C.'s Solicitor General.
He oversaw and argued key constitutional and regulatory appeals
for the District, including three before the U.S. Supreme
Court. All in all, Mr. Kim has been the lead counsel on
hundreds of appeals. He has argued before the Supreme Court,
all 13 Federal courts of appeals, D.C.'s highest court and
State appellate courts. Since the beginning of this year, Mr.
Kim has served as Deputy General Counsel at the Energy
Department. If he is confirmed to lead the Environment and
Natural Resources Division, I believe Mr. Kim will bring a
breadth of experience in the environmental and legal issues
that the Division's lawyers confront every single day, but
crucially, he will also bring an unassailable, established
record of advocating on behalf of the American people and not
any particular political interest or personal interest. He has
a life record of pursuing justice.
I am confident that Mr. Kim along with President Biden's
other nominees, including Kristen Clarke, will play a pivotal
role in restoring the independence and integrity of the Justice
Department. And for many people who have lost hope, who
suffered illness and disease and poisoning, I believe he will
be a champion for those people so that they too can appreciate
what should be an American birthright, access to clean air,
clean water, and a healthy environment. Thank you.
Chair Durbin. Thanks, Senator Booker. I would like to ask
the two nominees to stand and be sworn.
Please raise your right hand. Do you affirm or swear that
the testimony you are about to give before the Committee will
be the truth, the whole truth, and nothing but the truth, so
help you, God?
Ms. Clarke. I do.
Mr. Kim. I do.
[Witnesses are sworn in.]
Chair Durbin. Let the record show that both nominees
answered in the affirmative and now it is time for your opening
statements. We will start with Ms. Clarke.
STATEMENT OF KRISTEN CLARKE, NOMINEE TO SERVE
AS ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS
DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, DC
Ms. Clarke. Thank you, Senator Gillibrand, for your warm
words of introduction. Before I begin, Chairman Durbin and
Ranking Member Grassley, I would like to take a brief moment to
recognize my son, Miles, my mother, and my partner, who are
with me today. I am grateful for their love and support.
My journey to this hearing room today may not be an obvious
one. It started my junior year of high school when a teacher
loaded my classmates and me into a van and drove us to a
courthouse in Hartford, Connecticut, to hear arguments in what
turned out to be a landmark school desegregation case, Sheff v.
O'Neill.
As the daughter of Jamaican immigrants growing up humbly in
Starrett City, the Nation's largest public housing complex in
Brooklyn, New York, I had never been inside a courtroom before.
That moment was a powerful display of the role that civil
rights lawyers play in our society. I was mesmerized and deeply
moved as I watched attorneys argue for more just and equitable
educational opportunities. From that moment on, I knew I wanted
to be a civil rights attorney.
I worked hard in public school. My efforts yielded some
lucky breaks that included a seat in a program called Prep for
Prep that led me to attend a prep school called Choate Rosemary
Hall, and that trajectory-changing program is why I ended up in
that van that day headed to that courthouse. Then it led to
Harvard and Columbia Law School. I turned down high-paying
corporate law firms to take my dream job in the Justice
Department's Attorney General's Honors Program, where I served
for 6 years, primarily during the George W. Bush
administration.
As a DOJ attorney, I began my legal career traveling across
the country to communities like Tensas Parish, Louisiana and
Clarksdale, Mississippi. I learned to be a lawyer's lawyer, to
focus on the rule of law and let the facts lead where they may.
When I left DOJ, I carried the words of the late Supreme Court
Justice Thurgood Marshall as my guide. ``Where you see wrong or
inequality or injustice, speak out, because this is your
country. This is your democracy. Make it. Protect it. Pass it
on.'' I have tried to do just that at every step of my career,
from the voting rights project at the NAACP Legal Defense Fund,
to the Civil Rights Bureau in the New York State Attorney
General's Office, where I was the State's top civil rights
enforcement officer.
Since 2015, I have led the Lawyers' Committee for Civil
Rights Under Law, one of the Nation's leading civil rights
legal organizations. Formed at the request of John F. Kennedy
in 1963, the Lawyers' Committee activated the private bar to
help ensure the rule of law during the turbulence of the Civil
Rights Movement. I have worked with thousands of lawyers at
major corporate law firms across the country who bring to bear
the resources of their firms to advance people's rights.
Our Nation is a healthier place when we respect the rights
of all communities. In every role I have held, I have worked
with and for people of all backgrounds, regardless of race,
national origin, religion, or disability status. I have
listened deeply to all sides of debates regardless of political
affiliation. There is no substitute to listening and learning
in this work, and I pledge to you that I will bring that to the
role if confirmed.
I would also bring to my stewardship of the Civil Rights
Division the lessons I have learned over my 20 years as a civil
rights attorney, lessons from the people impacted by my work,
lessons from the wise attorneys who have mentored me, and
lessons from being a single mother juggling the demands of this
work. But perhaps most important would be the fulfillment of
the promise I made to myself as a 16-year old girl in that
Connecticut courthouse. As I look at my own son, now the same
age I was when I entered that Connecticut courtroom, I remain
committed to the promise of working every day to build a world
of equal opportunity for all, a world where no 16-year old is
the target of hateful language, a world where no young man is
racially profiled. I dream of a world that values his mind, his
heart, and his exceptional soccer skills, and does not push him
aside because of the color of his skin. I dream of that for
every child in America.
As the head of the Civil Rights Division, I will bring the
same clear-eyed pursuit of justice that has guided me my entire
life. I would be honored for you to grant me this humbling
opportunity to serve. Thank you.
Chair Durbin. Thank you, Ms. Clarke. As a mother, I think
the reference to your son's soccer skills was probably the most
important part of your opening statement. Thank you very much.
Mr. Kim.
STATEMENT OF TODD SUNHWAE KIM, NOMINEE TO SERVE
AS ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND
NATURAL RESOURCES DIVISION, DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Kim. Good morning, Chairman Durbin, Ranking Member
Grassley, Members of the Committee. I am honored to appear
before you today for this hearing to consider my nomination to
be the Assistant Attorney General for the Environment and
Natural Resources Division at the Department of Justice. Thank
you, Senator Booker, for your generous introduction. I thank
President Biden and Attorney General Garland for this
opportunity to return to the Department where I began my legal
career.
Most of all, let me thank my family. My wife, Carolyn, and
my sons, Palden and Jigme, are here with me today. Watching
from afar are my sister, Sonna, and my parents, Chang Jung Kim
and Sookhi Yu. I am incredibly grateful and incredibly lucky to
have all of them in my life.
In the 1960s, my parents were Korean immigrants who came to
the United States to pursue graduate degrees. They both chose
Big 10 schools: my mom, the University of Minnesota; my dad,
Purdue. They met here, settled here, had my big sister in
Indiana and then me in New Jersey, and eventually became proud
U.S. citizens. Their hard work and fundamental decency have
been at the root of any success I have ever had and will always
be a model for what I would like to show my own children.
In 1984, my parents took the family on a classic RV trip to
the American West. I was 11-years old and the trip made a big
impact on me. The grandeur and beauty of Yellowstone, Grand
Teton, Arches, Mesa Verde. Every park visit testified to the
need to preserve our Nation's treasures for future generations.
As I grew older, I learned more about the rule of law and
about the role of government in promoting the public good. I
learned more about how the pollution laws are supposed to
protect the health and welfare of all of us, including every
community in America. I grew to realize that my calling was
public service to protect our shared interest in the
environment and our natural resources. The best way for me to
contribute to that effort was as a lawyer, making sure the
country's environmental laws are followed and enforced.
After graduating from law school and clerking for the
Honorable Judith Rogers of the D.C. Circuit, I applied to join
the Department of Justice through its Honors Program and asked
to be assigned to the Environment and Natural Resources
Division. I grew up as a lawyer at ENRD, working on cases
involving the Clean Water Act, the Clean Air Act, superfund
site cleanup, Native American land rights, the establishment of
National monuments, and more. I worked on cases around the
country, in the Supreme Court and every Federal circuit, civil
and criminal enforcement matters against corporations and
individuals, as well as defenses of agency actions against
challenges of all sorts. In my 7\1/2\ years there, I also
learned firsthand the skill, dedication, professionalism, and
integrity of the career staff that work day in and day out
enforcing environmental laws for the good of the American
people.
I loved my job, and frankly, I thought I would never leave
the Division, but I was unexpectedly offered another
opportunity to do public service. This time it was the chance
to serve as the first Solicitor General for my adopted home,
the District of Columbia. As Solicitor General, I would be the
chief appellate lawyer representing the people of the District.
I could not turn it down. I am, at heart, a government lawyer,
and it was an honor and a privilege to serve my community for
more than 11 years. I always hoped that someday I would have
the chance to return to the Department and to ENRD.
I am so thankful to have that opportunity today. I know
that this is a crucial moment for the Division and the Nation
with the pressing imperatives of enforcing the Nation's
environmental laws with integrity, defending Federal agencies,
honoring United States' important relationship with Native
American Indian Tribes, promoting the effective stewardship of
public lands and natural resources, and addressing climate
change and environmental justice.
The cliche for me is real. I want to leave the world and
the country a better place for my kids. I am deeply honored to
have a chance to do that and I look forward to your questions.
Thank you.
[The prepared statement of Mr. Kim appears as a submission
for the record.]
Chair Durbin. Thank you, Mr. Kim. Before turning to my
questions, I will lay out a few of the mechanics we will follow
in this hearing.
Senators will have 5 minutes to question nominees. We will
work right through questioning without any breaks. Let me make
one more note before we get started. When we last held a
nominations hearing, I asked my colleagues to be respectful in
questioning their nominees, and they certainly obliged. I
greatly appreciate that. If nothing else, that approach led to
a more productive hearing, one in which the Committee came away
with a sense of the nominee's qualifications and vision for
their roles. And so, I will again make that request to my
colleagues, and I am sure that they will follow it.
Let me turn to questions, and I will start with Ms. Clarke.
Yesterday was a classic illustration of where we are in America
on a very important issue. Yesterday, like many days before, we
are following on a day to day basis a trial in Minnesota, and
the outcome of that trial is, of course, a topic of great
concern for all Americans, Black, white, and brown. The
question is whether there was police misconduct involved in the
death of George Floyd. On top of that, came the killing of
Daunte Wright in Brooklyn Center, Minneapolis. I do not want to
pick on Senator Klobuchar's State because sadly there are cases
like that in many States including my own. And a real question
as to the training and fitness of some people in law
enforcement.
At the same time yesterday, we had a memorial service for
one of our Capitol Hill policemen who was killed in the line of
duty on Good Friday. He was standing out at an entrance which
many of us use every single day when a man came up and hit him
with a car and killed him. Yesterday he was honored. His body
lie in repose in the rotunda. The President of the United
States came to give his honor and respect to Officer Billy
Evans.
What a contrast, the trial in Minneapolis and the memorial
service at our Nation's Capitol. Ms. Clarke, that really calls
into question what you are really asking to embark on here,
trying to find the right balance with civil rights in this
country, representing or respecting our Constitutional rights
and civil rights, but understanding as well that an organized
society needs law enforcement.
You know that this Newsweek article is going to be
presented to you to explain and I am going to give you that
chance too. I know you have been a prosecutor. You have
represented the people of the United States of America in
lawsuits. You have been actively engaged in that effort for
years. Questions were raised in this article about so-called
``defunding the police'', and I want to give you a chance to
explain what you were saying in that article. I certainly agree
with some of your suggestions. We do need more social workers.
They are a necessary part of law enforcement as far as I am
concerned, can avoid a lot of deadly confrontations. Yes, we
need more social support in schools, that goes without saying.
I think that is the right thing to do. More money in mental
health aid as well. I question, as others do, sending all this
military equipment to police departments. I want to give you a
chance to explain that article and your position in your own
words.
Ms. Clarke. Thank you for the question, Senator. First, I
want to acknowledge the grief that I know that families and
communities are experiencing today. The family of the grieving
Capitol officer who lost his life, the family of George Floyd,
and so many others. I think we are at an inflection point.
Senator, throughout my career, I have worked with law
enforcement. I started off my career in the Justice Department
and spent several years in the Criminal Section working with
the FBI. Throughout my career, I have endeavored to form
partnerships with law enforcement. Most recently, I worked with
the International Association of Chiefs of Police to develop
more effective strategies for tackling hate crimes. I am proud
to sit here today with the endorsement of a number of law
enforcement organizations, the National Association of Police
Organizations, the Major Cities Chiefs, the head of the
International Association of Chiefs of Police, the National
Organization of Black Law Enforcement Officers, and more. I can
assure this Committee that if confirmed I will bring the long
experience that I have of working to find common ground with
law enforcement to this role.
The article that you referenced, Senator, I wrote to make
clear that I do not support defunding the police. I do support
finding strategies to ensure that law enforcement can carry out
their jobs more safely and effectively and channeling resources
to emotional health treatment and other severely under
resourced areas, I think is one path forward. I know that this
Committee engages in robust bipartisan dialogue around criminal
justice reform frequently, and I look forward to being a
partner in those ongoing efforts and discussions.
Chair Durbin. Do you think our police need to invest more
money in training and in screening recruits to make certain
that those who are not ready for the job, not prepared for it,
or bring some prejudice to it are excluded?
Ms. Clarke. I support Senator President Biden's commitment
of $300 million to COPS to help ensure that police have more
resources to do their jobs. I understand the jobs that they
have are incredibly difficult, and with more resources, we can
work to ensure that they can carry out their roles more
effectively.
Chair Durbin. Thank you. Senator Grassley.
Senator Grassley. My first question was going to be about
defunding police, but you have addressed that already. I think
I would disagree with you whether or not you have advocated
defunding police, so I will go on to my second question.
You might think it is unfair to bring up something that you
organized in law school, but yesterday there was a
Congresswoman who said things along the same line, at a
conference that featured a number of speakers that called
violent radicals, including numerous cop killers, political
prisoners, and POWs. I got the name of three cop killers, two
in prison, one fleeing to Cuba, Assata Shakur, Tom Manning,
Mumia Abu-Jamal. My question to you is do you consider them
political prisoners?
Ms. Clarke. No. I am not familiar with their cases. I have
never worked on those matters. The conference that you are
referring to, Senator, was organized by the late Dr. Manning
Marable, who was the director of the Institute for Research in
African-American Studies. I was not the organizer of that
conference, but I provided logistical support as a student at
that time.
Senator Grassley. You have said, ``It is time to restore
both race and gender diversity to our Federal courts.'' Yet
Democrats in the Senate consistently voted against President
Trump's female and minority nominees, especially at the circuit
court level. You also did not support many of these nominees.
My question, pretty simple, when Democrats oppose minority or
female nominees who are rated qualified by the ABA, were they
being racist and sexist?
Ms. Clarke. Thank you, Senator. Over the 4 years of
President Trump's tenure, my organization only took positions
on about five judicial nominees, three of them Supreme Court
Justices. I believe that race and gender diversity on our
Nation's court is an important priority and goal that we should
work toward.
Senator Grassley. Is it possible in the same vein then for
Republicans to oppose President Biden's nominees on ideological
grounds without being racist or sexist?
Ms. Clarke. I believe that this body has an incredibly
important advise and consent role under the Constitution to vet
nominees. We want nominees who are qualified, but we also want
to work to ensure that the bench reflects the growing diversity
of our country. People with disabilities, women, people of
color are all people who we should see reflected on our
Nation's Federal courts.
Senator Grassley. Can I ask you to be specific though? If
Democrats can oppose it and not be racist or sexist, should not
you have the same standard for Republicans?
Ms. Clarke. I do not view this work through a partisan
lens, Senator. In looking at judicial nominees, I look at
qualifications. I have spoken about the need for diversity, but
I do not view these issues at all through a partisan lens,
Senator.
Senator Grassley. In 2017, you tweeted an article by Judge
William Pryor, who at that time was opposing a proposed court
extension plan. You said, ``the Senate should heed his call,''
end quote, and not expand the courts. Do you still oppose
expanding the number of judges? If not, why not?
Ms. Clarke. I understand that President Biden has convened
a commission to look closely at these questions. I think that
these are important questions that we should examine and look
forward to seeing the results of that commission's work.
Senator Grassley. I believe though that the conversations
you had indirectly with Pryor did not deal with the number of
Supreme Court Judges or packing the Court, but with lower court
judges. At that time you seemed to say that we should not be
expanding the number of lower court judges. Do you still hold
that position?
Ms. Clarke. Senator, I would welcome more context. I am not
recalling the context in which that statement was made, but I
do understand that President Biden has convened a commission to
look very broadly at the status of the Federal judiciary and I
look forward to seeing the results of that commission's work.
Senator Grassley. I have got 9 seconds for my last
question. During Bill Barr's confirmation hearing, you tweeted
that Barr ``must acknowledge that his work to promote mass
incarceration destroyed communities and harmed people of
color,'' end of quote. So, you know, Joe Biden promoted the
Crime bill, so the person who nominated you to this position,
did he destroy communities and harm people of color by
authorizing and authoring and pushing the Crime bill?
Ms. Clarke. The war on drugs, I think universally everyone
agrees led to the mass incarceration of people of color. And I
think that broadly we have seen many people abandon those
policies of the past. And I know that this body, the Senate,
has engaged in robust thinking around more progressive criminal
justice reform, including you, Senator Grassley. So, I just
want to acknowledge that some of the thinking of the past, I
think, has been abandoned and is putting us on a more
progressive path when it comes to race and incarceration in our
country.
Senator Grassley. Thank you very much.
Chair Durbin. That was one of your more important
legislative achievements, Senator Grassley.
Senator Grassley. You and I, together.
Chair Durbin. Senator Leahy.
Senator Grassley. And Senator Lee.
Senator Leahy. Thank you, Mr. Chairman. I am delighted to
see both of you here. Let me use my time to ask Ms. Clarke some
questions. I have heard some of these, I think, pretty tired
old arguments that you are an anti-law enforcement crusader,
but you have dedicated much of your life in law enforcement.
You served as a prosecutor at the Federal and State level for
more than half of your 20 year legal career. You have
prosecuted hate crimes, human traffickers, sex offenders. And
having been a prosecutor myself as several of us have up here,
I know the dedication it takes to do those kind of
prosecutions. That is probably why you have the support of
major law enforcement organizations across the country,
including Republicans and Democrats, 70 of them, former State
attorneys general.
Why are you so proud to have the vocal support of
organizations of individuals who, like you, devoted their
career to law enforcement?
Ms. Clarke. Thank you, Senator Leahy. I do not believe that
an effective head of the Civil Rights Division can carry out
this role without having the ability and the capacity to work
with law enforcement. I believe that there is common ground to
be found and identified with law enforcement. I have rolled up
my sleeves and I have done that work.
One of the proudest achievements during my tenure at the
Lawyers' Committee for Civil Rights Under Law was a partnership
that we forged with the International Association of Chiefs of
Police, where we brought together hate crime victims and
survivors, law enforcement rank and file and leaders, and
worked to map out effective strategies for improving the way
that law enforcement handles the investigation and handling of
hate crime incidents in their communities.
That kind of partnership, the civil rights community and
law enforcement coming together to tackle these problems is not
something that we see every day. You have my commitment,
Senator, that what I have done throughout my career, whether it
is relying on law enforcement to investigate and prosecute hate
crimes and human trafficking cases, whether it is working with
law enforcement to find common ground, that it is--these are
the principles and values that I will bring to the role if
confirmed to lead the Civil Rights Division.
Senator Leahy. Thank you. I think I know the answer to
this, but as the Senator Sponsor of the bipartisan John Lewis
Voting Rights Advancement Act, it mystified me when people
argued that restoring the Justice Department's powers under the
1965 Voting Rights Act was a partisan power grab. The voting
restrictions being contemplated by many States, which DOJ is
currently powerless to stop, would make voting harder for both
Democratic and Republican voters. A recently proposed bill in
Arizona enforcing an earlier deadline for mail-in ballots would
have nullified more Republican ballots than Democratic ballots
during the 2020 election.
Can you explain why restoring the DOJ's powers to oversee
and stop harmful changes to voting procedures is in the
interest of the American people of all parties?
Ms. Clarke. I had the privilege and honor of sitting above
the Senate floor in 2006 for the 98-to-0 vote to reauthorize
the Voting Rights Act. I know that there's six Members of this
Committee who were there for that vote, including yourself,
Chairman Durbin, Ranking Member Grassley, and Senator Cornyn. I
believe that bipartisan support for voting rights is something
that we should continue to aspire to. We know that ongoing
voting discrimination remains a real problem in our country and
the Voting Rights Act has proven to be one of our most powerful
tools passed by this body, by the Senate, to help in the effort
to ensure that eligible Americans have full access to the
ballot.
Senator Leahy. You know, I am very proud of my own State of
Vermont and Jim Condos, who is our secretary of state. He has
done everything possible to make sure everybody can vote and we
have great turnout. We--example, it was last election,
overwhelmingly elected a Republican Governor and then
overwhelmingly elected a Democratic Lieutenant Governor. I
think that is why major actors in society like the Fortune 500,
who normally many of them would be strongly in favor of
Republicans, have said this goes beyond party. We have got to
make it easier for people to vote than otherwise. Mr. Chairman,
thank you. I think we have an excellent nominee here.
Chair Durbin. Thank you very much, Senator Leahy. Senator
Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. Ms. Clarke, Martin
Luther King famously said that he had a dream of a day when his
children would be known by the content of their character and
not the color of their skin. Do you agree with that?
Ms. Clarke. Absolutely, Senator.
Senator Cornyn. Maybe there is a misprint, but I am sure
you can clear it up for me. Dating back to your days in school
when you seem to argue that African Americans were genetically
superior to Caucasians. Is that correct?
Ms. Clarke. No, Senator. I believe you are referring to an
op-ed that I wrote at the age of 19 about ``The Bell Curve''
theory, a racist book that equated DNA with genetics and race.
As a Black student at Harvard at that time, we took grave
offense to this book. It was coauthored by a Harvard professor.
We did a number of events to speak out against the book and
this op-ed opened with a satirical reference to the statement
that you just noted. Contemporaneous reporting by the campus
paper made very clear that this was not a view that I espoused.
What I was seeking to do was to hold up a mirror and put one
racist theory alongside another to challenge people as to why
we were unwilling to wholly reject the racist theory that
defined ``The Bell Curve'' book.
Senator Cornyn. This was satire?
Ms. Clarke. Absolutely, Senator.
Senator Cornyn. Where was that published?
Ms. Clarke. In the student paper, the Harvard Crimson.
There is contemporaneous reporting from that time, from that
day, that makes clear that these were not views that I
espoused, Senator.
Senator Cornyn. Do you agree with the proposition that we
ought to make it easy for people who are entitled to vote and
hard--to make it hard for people who are not legally qualified
to vote, to vote?
Ms. Clarke. I believe, Senator, that we want to ensure that
eligible, eligible Americans, are able to have a voice in
democracy.
Senator Cornyn. You mean you do not have to register? If
you are not registered, but eligible, you should still be able
to vote?
Ms. Clarke. No. Absolutely, Senator. We want to make it
easy for people to register.
Senator Cornyn. Right.
Ms. Clarke. Easy for people to vote and we want to ensure
that only eligible people are able to vote.
Senator Cornyn. Do you believe there's such a thing as
voter fraud?
Ms. Clarke. I do. I do not see that--I, as somebody who has
worked on these issues very closely, do not encounter voter
fraud very often, but it does exist, and I know that the
Criminal Division of the Justice Department exists to handle
those matters if and when they were to arise.
Senator Cornyn. Do you believe that for every illegal vote
cast in an election it dilutes and undermines the vote of
legitimate voters?
Ms. Clarke. I believe that vote fraud is exceedingly rare,
but yes.
Senator Cornyn. How do you know that?
Ms. Clarke. We very rarely hear about vote fraud in our
country. I run a nonpartisan hotline, the Election Protection
Hotline at the Lawyers' Committee. We get thousands of calls
from people who are having challenges registering, challenges
voting, and very rarely, if ever, get complaints regarding
fraud.
Senator Cornyn. The last time I was on the ballot in Texas
before 2020, there were 4.8 million people to vote. That is
2014. This last year, we had about 11 million people vote, more
than double. Do you believe that the votes of people of color
were suppressed?
Ms. Clarke. In the State of Texas, I know that there was
some litigation to address some of the barriers people faced
during the pandemic. I think those numbers reflect an
encouraging picture at the end of the day that reflect the
results of advocacy, litigation, and other efforts to make it
easier for people to vote amid the deadly pandemic.
Senator Cornyn. In Texas, we had mail-in ballots for people
65 and older, those who are disabled, those who were unable to
show up in person on election day. We had a full 3 weeks of
early voting in person and people were then able to vote on
election day. Does that indicate to you that there was any
systematic effort to deny minorities a opportunity to vote?
Ms. Clarke. Senator, I can recall very vividly reports of
long lines that stretched until 2-3 a.m. during the early part
of the pandemic in the primary season. I know that there were
some long lines during the early voting period. I think there
is still work to do, but I certainly think that those numbers
are encouraging and reflect progress in the State of Texas when
it comes to accessing the ballot amid the pandemic.
Senator Cornyn. Finally, do you still advocate defunding
the police?
Ms. Clarke. I do not advocate defunding the police,
Senator.
Senator Cornyn. Do you advocate diverting some of the
current funding for police for other purposes?
Ms. Clarke. You may be referencing an op-ed that Chairman
Grassley referenced. I do not have the power of the purse, did
not have the power of the purse behind me, so I talked about a
way to allocate a limited budget of resources in a way that can
ensure that police are able to do their jobs more effectively
and ensure community safety. I am pleased and excited that
President Biden has committed $300 million new dollars to COPS
and that we are now in a world in which we are working with
more resources to tackle these problems.
Senator Cornyn. Thank you.
Chair Durbin. Thank you, Senator Cornyn. Senator
Whitehouse.
Senator Whitehouse. Thank you, Chairman. Welcome to both of
our nominees.
Ms. Clarke, I have been on the phone recently, or actually
this being the COVID season, I have been on the Zoom recently
with a lot of the Rhode Island police chiefs. One of their most
significant concerns right now is the extent to which their
engagements with the public are often founded in a behavioral
health or mental health issue that is going on. There is a lot
of concern from the Chiefs and from line officers that they are
being put into situations that they are not as well trained for
as true mental health, behavioral health professionals, and
that there is not the same kind of support for mental health or
behavioral health crises as there should be; crisis centers,
reactions teams, and things like that, that can know with
professional expertise in behavioral health and mental health
issues what is going on and deescalate and handle what is truly
a health issue, not a criminal conduct issue for what it is.
What I would like to do is to enhance funding for those
behavioral health efforts. If we do a really good job of that,
we might actually be able to reduce some of the expenditure on
the criminal law enforcement side by bringing on people who are
more behavioral health experts. We are doing this already in
Rhode Island in the addiction space. We have added peer
recovery counselors in some police departments who can engage
and follow-up and try to get to the root cause of what is going
on, which is often founded in addiction. Would you view it as
defunding the police to invest more in the behavioral health,
mental health, and addiction issues the police so often
encounter?
Ms. Clarke. Thank you for the question, Senator. Again, I
am excited that the reality is that President Biden has
committed more money, more resources, $300 million for COPS, so
that we can help commit greater resources to all of these
issues. I know from talking to and working with law enforcement
that they want this help. They want to see more resources
committed to meeting the mental and emotional health needs of
communities. I have talked to sheriffs who have talked about
how their jails have essentially been transformed into mental
health detention centers. I have talked to sheriffs who have
talked about people who work to find their way inside the jail
so that they can get access to medication that they cannot get
elsewhere. I think this is a crisis issue and I am glad to see
that the Senate is giving attention to this issue. I am glad
that President Biden is committing more resources to meeting
the needs of law enforcement generally and look forward to
hopefully finding ways if confirmed to working with law
enforcement just as I have done throughout my career to address
these issues.
Senator Whitehouse. Thank you. Let me close out by saying
that I cannot help but notice coincidences sometimes. It seems
like a remarkable coincidence. I have seen it reported that
every single Republican controlled legislative body at the
State level in the country is moving forward with efforts to
what some would say, suppress voters, to limit the franchise.
Georgia was a particular example, but President Trump's own
election security advisor said that this was a legit, honest,
very well protected, honest election. The Georgia Republican
officials who ran that election stood up and fought President
Trump's accusations defending their work, that that was an
honest election. Nevertheless, we have this enormous surge as
if every single ship wheeled as if on command, to go after
voters.
We have Fox communications going really quite over the top
over this. I will offer an editorial of the New York Times
today as an exhibit of a good rebuttal to what some of the Fox
talking heads have been up to. We have seen this character,
Leonard Leo, who has been the architect of what I call ``the
court packing scheme'' that was run under President Trump by
big special interests move from that scheme to voter
suppression to run something called the Honest Elections
Project. I find it an interesting coincidence at the same time
that all those things are happening very bitter attacks are
being launched against you, and against Ms. Gupta, when you are
the two people who will be responsible for enforcing voting
rights. I just want to make a record of that as I close out my
time.
Chair Durbin. Without objection, the article you referenced
will be placed in the record.
[The information appears as a submission for the record.]
Chair Durbin. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Ms. Clarke, in the
fall of 2008, two members of the New Black Panther Party, which
is of course a violent hate group that focuses on racial
violence, stood outside of a polling place in Philadelphia
dressed in military attire and brandishing a billy club. In
January 2009, just a couple of months later, the Department of
Justice charged those same individuals and the New Black
Panther Party itself with criminal voter intimidation. Just a
month after that, the then new acting head of the Department of
Justice's Civil Rights Division dismissed nearly all the
charges. Do you think the U.S. Department of Justice was wrong
to prosecute those individuals who showed up at a polling place
wielding a billy club?
Ms. Clarke. I believe that the leadership of the Justice
Department had the prerogative to bring the cases that it
deemed appropriate to bring.
Senator Lee. Did you want the Department of Justice to drop
a case?
Ms. Clarke. I may have espoused that opinion publicly, but
so did many people. I think there were many people who deemed
that a weak case.
Senator Lee. Did you communicate with anyone at the
Department of Justice about that, advocating for them dropping
it?
Ms. Clarke. I did not engage in any advocacy around that
case, if that is what you are asking, Senator.
Senator Lee. Right.
Ms. Clarke. I did communicate with people regarding public
information, publicly available information about the case.
Senator Lee. There are a couple of Department of Justice
officials who have testified under oath that while you were at
the NAACP you specifically asked Laura Coates, an attorney
within the Department of Justice Civil Rights Division, when
the case would be dismissed. Is that accurate?
Ms. Clarke. Senator, I have testified under oath and I will
repeat here, I did not engage in any advocacy one way or
another around how the Justice Department should handle that
case.
Senator Lee. Okay, but you did talk to her about it? You
asked her when it would be dismissed?
Ms. Clarke. I do not recall that conversation, Senator.
Senator Lee. Do you think the Department of Justice should?
We will just step out one level of abstraction. Should the
Department of Justice prosecute cases when members of a
racially motivated hate group stand outside of a polling place
wielding billy clubs?
Ms. Clarke. I think that voter intimidation is a real issue
that should be addressed, and there are tools in the Voting
Rights Act to help address voter intimidation.
Senator Lee. Okay. Let us talk about another case. In 2006,
the U.S. Department of Justice prosecuted a Democratic
Committee official, an individual named Ike Brown, who was in
Mississippi. He was prosecuted for relentless racial
discrimination. And the court held that Brown, quote, ``had
engaged in racially motivated manipulation of the electoral
process to the detriment of white voters,'' closed quote. Now
prosecutors produced evidence indicating that Brown had paid
off notaries to illegally mark absentee ballots and published a
list of voters based on race with a warning that the voters
whom he disfavored on the basis of race would be challenged at
the polls. Did you disagree with the Department of Justice's
position to prosecute Ike Brown for voter suppression?
Ms. Clarke. Senator, in 2006 when that case was filed, I
was still at the Department. I was in the Criminal Section
serving as a Federal prosecutor.
Senator Lee. Okay. There is an official at the U.S.
Department of Justice who testified under oath that you,
``spent a considerable amount of time attacking the Civil
Rights Division's decision to file and prosecute,'' this
particular voter suppression case while you were at the NAACP.
Did you discuss the Ike Brown case with officials within the
Department of Justice's Civil Rights Division?
Ms. Clarke. No, Senator. To be clear, when that case was
filed, I was at the Justice Department serving as a dedicated
Federal prosecutor in the Criminal Section. After I left the
Justice Department, I espoused the view that the voter
intimidation claim in that case was weak and the court agreed.
That claim was ultimately dismissed by the Federal judge who
handled that case.
Senator Lee. Ms. Clark, I want to read a non-exhaustive
list of elements of the American society, elements that you
have at one point or another described in the past as racist:
police departments, Federal agencies, Airbnb, election laws
designed to combat fraud, the workplace, America's DNA, the
Virginia Military Institute, the healthcare industry, Federal
courts, and the Department of Justice. You have worked for the
Department of Justice and with the Federal courts. Were those
institutions racist when you worked there?
Ms. Clarke. Senator, I do not have the context for the list
that you just ran through.
Senator Lee. Have you described them as racist in the past?
Ms. Clarke. I generally use the term discrimination. I am a
lawyer. I follow the facts. I believe that there are instances
where you may find that one particular employer or one
particular landlord----
Senator Lee. Were they racist when you worked there?
Ms. Clarke [continuing]. Engaged in discriminatory conduct,
but I do not deem institutions or structures to be blanketly
racist.
Senator Lee. Were they racist when you worked there?
Ms. Clarke. I did not follow the question, sir.
Senator Lee. Was the U.S. Department of Justice a racist
institution while you worked there?
Ms. Clarke. No, Senator. The Justice Department is anchored
by dedicated career employees who work hard every day to follow
the facts and to adhere to the law.
Senator Lee. Okay. Mr. Chairman, I see my time has expired.
I would like to ask consent to submit for the record a report
from the Civil Rights Commission.
Chair Durbin. Without objection.
[The information appears as a submission for the record.]
Senator Lee. Thank you.
Chair Durbin. Thank you, Senator Lee. Senator Coons.
Senator Coons. Thank you, Chairman Durbin. Thank you, Ms.
Clarke, Mr. Kim, for appearing before us today and for
continuing your dedication to public service. We as a Nation
are facing generational crises in the areas of civil rights and
the environment, yet in both areas we also now face urgent
needs to revitalize critical work in these areas. Both of you
are accomplished public servants with impeccable qualifications
and a demonstrated commitment to the rule of law. You are, in
other words, exactly what we need in this moment, so I am proud
to support both of your nominations.
Ms. Clarke, I am a little bewildered by efforts we have
seen here so far today to paint you as somehow anti-law
enforcement, so I want to ask you a series of questions if I
could. You were, yourself, for years an actual member of law
enforcement as a Federal prosecutor. Is that correct?
Ms. Clarke. That is correct, Senator.
Senator Coons. In that role, you prosecuted cases involving
domestic violence, sex offenses, assaults, human trafficking,
hate crimes, official misconduct, is that right?
Ms. Clarke. That is correct, Senator.
Senator Coons. You worked on many of those investigations
side by side with agents from ICE, from FBI, from law
enforcement, from police departments, Federal, State, and
local, is that correct?
Ms. Clarke. Yes, yes, Senator.
Senator Coons. You have earned the support of numerous law
enforcement groups and by individual chiefs and officers, is
that correct?
Ms. Clarke. I am proud to sit here with the endorsement of
many law enforcement organizations, police chiefs, and more.
Senator Coons. In fact, our own former Senator, Sergeant at
Arms, Terrance Gainer, joined a letter signed by over 40 police
chiefs, sheriffs, other senior officers, that described your
uncanny ability to work with law enforcement and your
impeccable credentials, character, and credibility. The
executive director of the NAPO, the National Association of
Police Organizations, said that he believes that you and he--
and I am quoting, ``share a common goal of fair, effective,
ethical, and safe law enforcement.'' Is that correct?
Ms. Clarke. Yes, Senator.
Senator Coons. Thank you, Ms. Clarke. When I was in local
government, I spent 10 years at the county level and was
involved in and responsible for oversight of our county police
department, I got to know the IACP well, the International
Association of Chiefs of Police. We relied on them for
professional advice and guidance in handling some very tough
policy issues. As president of the Lawyers' Committee, you
worked closely with the IACP. You created a thorough and well-
documented action agenda to enhance the response to hate crimes
and strengthen trust between law enforcement and communities.
My impression is in that work you got to know well and work
closely with both rank and file and senior chiefs at both
policy leaders and those who were the survivors of hate crimes
themselves. The IACP executive director wrote that your
professional hallmarks are, and I am quoting, ``fairness,
communicativeness, and championing transparency.'' Is that a
correct characterization of your work with this organization?
Ms. Clarke. I would deem those to be accurate, an accurate
description.
Senator Coons. Let me just say as the Co-Chairman of the
Law Enforcement Caucus here, I know we desperately need people
who can listen to, respect, and work with law enforcement, who
can work with the communities that they serve and break down
some of the barriers that have imperiled reform, and I think
that that is exactly who you are. There have been a number of
questions about whether or not you support defunding the
police. You have said clearly and forcefully no. Let me just
ask a last question if I could in this area. If you have a
choice and you are not the person who controls the purse
strings, we are in the Senate, in the Congress. If you had a
choice between additional Federal resources to help provide the
ability for State and local law enforcement to also have
partners, resources, to respond to mental health crises, for
example. If you had that choice or you had the choice of
reducing the total funding available for law enforcement, which
of those two would you choose?
Ms. Clarke. I do not have the power of the purse string,
but if I could put my thumb on the scale, I would put it on the
side of more resources. That is what we need to tackle the
grave issues that we face today. The rise in hate and extremism
is just one example of that.
Senator Coons. That is something I look forward to fighting
for as an appropriator on the Subcommittee that funds the
Federal Department of Justice. I have talked to senior leaders
in the administration. I have talked to President Biden. I
think we can, if we choose to work together, find a way to
significantly increase as the resources available for law
enforcement and for appropriate mental health responses to
crises.
Mr. Chairman, with your indulgence, I would like to ask Mr.
Kim one question.
Chair Durbin. Certainly.
Senator Coons. Mr. Kim, if I might, we have gotten a lot of
attention to your colleague here, but I wanted to ask you one
question if I might. I am a new Co-Chairman of the
International Conservation Caucus, and I am working with
Senator Portman on reauthorizing the Presidential Task Force on
Wildlife Trafficking. Would you agree that wildlife trafficking
is not just a conservation issue? It is one that threatens the
security of our international partners because the networks
that often conduct wildlife trafficking are also involved in
other natural resources crimes, human trafficking, drug
trafficking, moving weapons, drugs, and money? Do you see it as
an important crime to investigate and prosecute?
Mr. Kim. Thank you, Senator. Absolutely, I agree with that.
Wildlife trafficking is important not only because of its
effect directly on wildlife, but also because of its documented
connections with international criminal organizations. It is
currently a priority of the Division and if confirmed, I would
hope to keep it a priority as well.
Senator Coons. Thank you. I am grateful that both of you
are willing to continue your careers in public service and look
forward to supporting your confirmation by the Senate and your
service as part of the administration. Thank you.
Chair Durbin. Thanks, Senator Coons. I would like to
acknowledge that Congresswoman Joyce Beatty, the Chairman of
the Congressional Black Caucus is present. You certainly are
welcome and thank you for joining us today.
I would like to recognize Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Welcome to both of
the nominees.
Ms. Clarke, as I look to your record, I see the record of
someone who has spent a career as a partisan advocate. Last
year you wrote an op-ed in Newsweek entitled, ``I Prosecuted
Police Killings. Defund the Police--But Be Strategic.'' Do you
still believe it is a good idea to defund the police?
Ms. Clarke. Thank you, Senator, for that question. I do not
support defunding the police. The impetus for writing that op-
ed was to make clear that I did not support defunding the
police. I spent considerable time talking about the need to
channel resources to places such as mental health treatment to
alleviate some of the burdens that we place on the doorstep of
law enforcement, some of the issues we ask them to wrestle with
that are outside their core competency, but if I----
Senator Cruz. Ms. Clarke, let me--and we have limited time,
so let me--you say you do not support defunding the police. You
just said it twice. The title of your article was defund the
police. Let us not just look to the title. Your article begins
by saying that the national protests we saw last year, ``opened
up space for transformative policy discussions.'' You then
continue to write, ``into that space,'' and this is a quote,
``into that space has surged a unifying call from the Black
Lives Matter movement, defund the police.'' Do you really
believe defund the police is a unifying call?
Ms. Clarke. I do not support defund the police.
Senator Cruz. I am reading from your article. Do you
disagree with your article?
Ms. Clarke. Amiss the demonstrations and protests, I wanted
to provide a different perspective. I do not support taking
away resources from police and putting communities in harms
way. There is a rise in hate crimes and extremism.
Senator Cruz. Okay. Ms. Clarke, you know you are testifying
under oath here.
Ms. Clarke. Absolutely.
Senator Cruz. You just said a moment ago----
Chair Durbin. Senator Cruz, please allow her to complete
her answers.
Senator Cruz. I am not going to allow her to filibuster, so
I am going to ask a question. If she wants to answer the
question that I asked, she can do so, but I am not going to----
Chair Durbin. She should be allowed. I hope you will show
respect to the witness and allow her to----
Senator Cruz. I will show respect to every witness.
Chair Durbin. Thank you.
Senator Cruz. We also have limited time, as you are aware.
You have been on this Committee long enough to know that
witnesses in avoiding questions will try to filibuster on
different topics. I am going to ask questions and I am going to
expect answers to the questions I ask. I understand the
Chairman wants to jump in and defend the witnesses, but that is
your prerogative to try to do so, but----
Chair Durbin. I will defend witnesses on either side and
Members on either side. We will be respectful in this
Committee. I hope that all Members will abide by that.
Senator Cruz. I hope and expect the same standard will be
applied to Senators on both sides. Let us return to what you
just said, you do not support cutting funds from police. I find
that astonishing and, Ms. Clarke, frankly, not credible because
I am holding the article you wrote. I actually pulled out a
highlighter and highlighted the beginning of each paragraph
going through. About midway through you have a paragraph that
says, ``We must invest less in police and more in social
workers.'' The next paragraph is, ``We must invest less in
police and more in social support to our schools.'' The next
paragraph begins, ``We must invest less in police and more in
mental health aid.'' Three paragraphs in your article you begin
with the words, ``We must invest less in police.'' You just
told this Committee under oath you do not support investing
less in police. How do you square those?
Ms. Clarke. If I may, Senator, I support the fact that
President Biden is committing $300 million new dollars for the
COPS program, $300 million new dollars for resources to the
police. I wrote that op-ed without having the power of the
purse string behind me and talked about how we can allocate a
limited pool of resources in a more effective way.
Senator Cruz. So, you believe you were wrong last year when
you called for defunding the police and investing less in the
police?
Ms. Clarke. It is a poor title chosen by the editor, but I
do not----
Senator Cruz. It is not just the title. It is your text. We
must invest less in police. Three paragraphs you begin with
those words. You wrote those words.
Ms. Clarke. Without the----
Senator Cruz. Do you agree with those words today?
Ms. Clarke. Without the power of the purse string, I wrote
those words, but President Biden is committing more resources
to police, and I think that is a great thing, Senator.
Senator Cruz. Alright. Let us shift to another topic. Your
advocacy and frankly extreme position on defunding the police
is paired with a history of not only excusing, but celebrating
murderers who have murdered police officers. It has been
reported that during law school you helped organize a
conference with speakers who referred to convicted cop killers
as political prisoners. This included Mumia Abu-Jamal, who
murdered a Philadelphia police officer, and Assata Shakur, who
was convicted of murdering a New Jersey State trooper, escaped
from prison, and is on the FBI's Most Wanted list. Did you
organize the conference and do you support celebrating those
who murder police officers as heroes and political prisoners?
Ms. Clarke. That conference you are referring to was
organized by the late Dr. Manning Marable, a noted historian
who led the Institute for Research in African-American Studies.
I was a student providing support for the institute working on
a range of projects. As to the second question, Senator, no, I
do not celebrate the loss of life in any instance.
Senator Cruz. If you say you did not organize the
conference, why did multiple speakers at the conference thank
you by name for inviting them to speak at the conference?
Ms. Clarke. Because I was a hardworking student that made
sure people were fed, mailed out invitations, provided the
agenda. I was a student providing logistical support to a
notable historian who was the one who organized that
conference.
Senator Cruz. If there is a police officer in Philadelphia
or New Jersey today watching this hearing, how are they
supposed to react to your nomination to one of the senior
positions at the Department of Justice knowing that as a
student you participated in a conference celebrating and
lionizing cop killers who murdered a Philadelphia police
officer and New Jersey State trooper? How should a cop today
watching this react to that news?
Ms. Clarke. I have never and would not ever celebrate the
loss of life or the killing of a police officer, Senator, not
ever.
Senator Cruz. Do you believe they are political prisoners?
Chair Durbin. Thank you, Senator Cruz. Thank you, Senator
Cruz. Senator Padilla.
Senator Padilla. Thank you, Mr. Chairman. A couple of
topics I want to try to cover relatively quickly, but let me
begin by a question for Ms. Clarke. This op-ed from Newsweek
has been referenced repeatedly throughout this hearing with
reference to the title, so let me be specific. Did you write
the title? Did you pick the title? Was this title your choice?
Ms. Clarke. It was not, Senator. I often defer to the
editors I work with on choosing titles. They often have good
judgment about a title that will help ensure that your thoughts
and ideas get read. It is not a title that aligns well with the
piece. I do not support defunding the police.
Senator Padilla. Thank you for that clarification. Let me
share with you at least a perspective and line of thought that
is mine, not yours. I am not going to put words in your mouth,
but you tell me if you agree or disagree with it. I speak not
just as a current Senator and former secretary of state, but
former State Senator prior to that, and for 7\1/2\ years having
served on the Los Angeles City Council, during which time the
city of Los Angeles negotiated and entered into a consent
decree to bring about reforms in the Los Angeles Police
Department. Both as a resident, someone who grew up in Los
Angeles in the 80s and 90s. The role of a police department or
a public safety agency is not just to arrest and arrest for
arrest's sake. It should be part of a comprehensive plan to
improve public safety. What better way to improve public safety
in addition to holding to account those who commit crimes than
to prevent crimes to begin with?
When we talk about how it is used and abused, the term
defund the police, it is not just a level of budgeting for a
particular department. If you can invest, as others have
suggested, more in mental health, more in education, more in
economic opportunities for people, history shows, data shows
crime goes down. Is not that the ultimate objective to prevent,
if you can, crime from beginning in the first place? Your
thoughts?
Ms. Clarke. Absolutely, Senator. This is about providing
more resources to ensure public safety and to ensure that law
enforcement can do their jobs well. This is about finding ways
to work with law enforcement. Sometimes it is by way of consent
decrees. Sometimes it is by way of providing technical
assistance as we see the Justice Department doing, grant
making, training, and collaboration.
Senator Padilla. Thank you. Different topic. Questions for
Mr. Kim. I appreciate an opportunity to connect by phone
yesterday. As you know, I mentioned not just specifically the
Exide plant in Vernon, California, which has gotten a fair
amount of attention, but specifically a letter addressed to now
Attorney General Garland. A concern about this case in
particular, but more broadly, the use of nonprosecution
agreements as a tool in achieving environmental settlement. In
this particular case, there was initially an agreement for the
owners of Exide to not just leave the facility, no longer
continue the activity that was polluting a largely working
class community, but to clean up the land and the mess that
they left behind.
Through a bankruptcy court, they were allowed to simply
leave the facility and leave the taxpayers of California on the
hook for cleanup. Any comment about the Exide battery plant in
Vernon specifically or more broadly, should you be confirmed,
how you would approach what policies and considerations you
would take in entertaining nonprosecution agreements?
Mr. Kim. Thank you very much, Senator, for the question.
Not being at the Department currently, only being a nominee,
not having access to internal Department of Justice
information, I do not think I am in a position to comment
specifically on that matter, but I can say more broadly that I
would approach questions like that one including questions
about nonprosecution agreements in this particular manner. I
would consult with career lawyers and subject matter experts,
client agencies as appropriate to ensure that every enforcement
decision, whether criminal or civil, would be based on the
facts and on the law.
Senator Padilla. My time is up. Thank you, Mr. Chairman.
Chair Durbin. Thank you very much, Senator Padilla. Senator
Hawley.
Senator Hawley. Thank you, Mr. Chairman. Thank you to the
nominees for being here. Ms. Clarke, I would like to start with
you if I could and talk a little bit about the First Amendment.
As you have written that in the midst of this pandemic religion
has been used as a pretext. That is your word. To challenge
public health restrictions. You have been particularly critical
of the U.S. Supreme Court in a case called Roman Catholic
Diocese of Brooklyn v. Cuomo. That was a case involving
Orthodox Jewish communities and some Christian communities in
which the Court, a majority of the Court found, that the State
of New York had unevenly and indeed in a discriminatory fashion
applied COVID restrictions to the Jewish community and to some
of the Christian communities.
In particular, the per curiam decision of the Court says
that the Governor--that is the Cuomo--specifically targeted the
Orthodox Jewish community and gerrymandered the boundaries of
red and orange zones--those are the restrictive zones--to
ensure that heavily Orthodox areas were included. They go on to
say that the challenge rules can be viewed as targeting the
Ultra-Orthodox Jewish communities.
You said of this opinion that this is a newly configured
Supreme Court, one with Justices who place religious freedom
above all, all caps, even in the context of a deadly pandemic.
Are we to take from that that you think it is okay for
executive officials to target religious communities, religious
minorities in particular, in this case, Orthodox Jews?
Ms. Clarke. No, Senator. I think religious liberty is
important. I think fighting religious discrimination is
important. This is something I have done throughout my career.
Senator Hawley. How do you explain then your criticism of
this decision? You think that the Court should have permitted
the Governor to continue to target the Orthodox Jewish
community and to engage in disparate treatment of that
religious minority?
Ms. Clarke. Religious discrimination is always wrong. It is
something I have fought throughout my career. I do think there
is some novel issues that have arisen amid the deadly pandemic,
and I have expressed views about the steps that I think public
health officials needed to take to help bring down the death
rate and to help save lives. That would be the extent of my
commentary there, but religious liberty is important and
standing up against religious discrimination is something I
have done throughout my career, Senator.
Senator Hawley. Do you think that religious association,
synagogues, churches, mosques, should be treated less favorably
than secular institutions?
Ms. Clarke. The Civil Rights Division has in its arsenal a
number of tools--the Church Arson Prevention Act, the Religions
Land Use and Institutionalized Persons Act--to ensure actually
that churches and houses of worship are not subject to
discrimination. This is work I have done throughout my career
and that I would look forward to doing if confirmed to this
role.
Senator Hawley. You are absolutely right about DOJ's
authorities there and that is why your views concern me. In
this same opinion that you so sharply criticized, the Court
found that in one of the zones designated by Cuomo a synagogue
or church may not admit more than 10 persons. However, other
businesses like acupuncture facilities, campgrounds, garages,
things like plants manufacturing chemicals, microelectronics,
and all transportation facilities could admit as many people as
they wanted. In another zone, attendance to houses of worship
was limited to 25 people and yet the businesses in that zone
could decide for themselves how many people to admit. The
district court found that a large store in Brooklyn could
literally have hundreds of people shopping there on any given
day and yet a synagogue or a church could have no more than 25
people.
The Court concluded from this that not only was this not
equal. This was actually disparate treatment on the basis of
religion, but you criticized this as elevating religious
liberty, as putting it above public health, when in fact these
synagogues and churches were being treated in a discriminatory
fashion. How do you square that?
Ms. Clarke. My focus on the case was on the very surface
issue about how do we protect lives amid a deadly pandemic. I
ran a religious rights unit at the New York Attorney General's
Office. I know about religious discrimination and have fought
it throughout my career. I have stood up to neo-Nazis. I have
spoken out when we have seen attacks on our houses of worship.
Senator, you have my commitment that if confirmed to the role,
I will continue to just that, stand up for religious liberty
and fight religious discrimination at every turn.
Senator Hawley. Did you speak out when the Governor or New
York was targeting Orthodox Jewish communities for disparate
treatment so severe and significant that the Supreme Court of
the United States rebuked him and said it was a constitutional
violation?
Ms. Clarke. I did not work on this case or have an
opportunity.
Senator Hawley. You commented on this case at quite some
length and took the opposite opinion.
Ms. Clarke. Not at length, but I was very concerned----
Senator Hawley. I have the tweets here.
Ms. Clarke [continuing]. About the pandemic.
Senator Hawley. We can have them entered into the record.
Ms. Clarke. I was very concerned about the pandemic and
very concerned about figuring out what are the steps officials
need to take to save lives. Throughout my career, I have stood
up for religious liberty and fought religious discrimination
and will continue to do that if confirmed to the role, Senator.
Senator Hawley. My time is expired. I would just say in
closing, Ms. Clarke, I would hope that you would be concerned
about the Constitution of the United States which does not
disappear during a pandemic or when some elective executive
wants it to disappear, particularly if you are a religious
minority. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Hawley. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you to both of you for appearing today. I will start with you,
Ms. Clarke, because I have worked with you extensively on
voting rights and other issues, and I know you appeared before
our Rules Committee with Senator Blunt and I, and just did an
excellent job. I want to thank you for that. Got respect from
both sides of the aisle in terms of your testimony and how you
answered questions.
We know that we have had hundreds of voter suppression
bills be introduced across the country since the last election.
Could you briefly talk about your top priorities for voting
rights when you get what I hope very much you will get this
job?
Ms. Clarke. Thank you so much, Senator. President Biden,
Attorney General Garland have talked about the importance of
the right to vote. I will follow their lead in ensuring that
the Civil Rights Division, if I am confirmed, is using the
tools in its arsenal, the Voting Rights Act, the National Voter
Registration Act, the Uniformed and Overseas Absentee Citizens
Voting Act, to ensure that eligible Americans have access to
the ballot in our country.
Senator Klobuchar. Thank you. I thank you for mentioning
the families of both Daunte Wright as well as George Floyd.
Obviously these are tragedies in my own State and my
constituents have been through a lot with the murder of George
Floyd, with the shooting of Daunte Clark with the understanding
that--Daunte Wright, with the understanding that they have
worried in the news that there are going to be charges in that
case as well today. You also mentioned Officer Evans' family,
which I appreciated. I was someone who was at that memorial
service yesterday, stood with the police officers as his body
was taken out for the last time out of the Capitol right over
the site where he was killed, was at the funeral of George
Floyd. I think you understand that you can both advocate for
police reform and the rights of citizens and still respect
deeply police. Could you comment about that and some of the
things that you think we should be doing with police reform
which I strongly support? I see Senator Booker is here, who has
been such a leader on this. We appreciate that. Just how you
can do both things at once.
Ms. Clarke. Thank you so much for that question, Senator. I
have not shied away. As a civil rights lawyer, I have not shied
away from working with law enforcement. I needed to and relied
on law enforcement to handle my cases as a Federal prosecutor
at the Justice Department, hate crimes, human trafficking
cases, domestic violence matters that we could not move forward
without the expertise and good guidance of law enforcement. At
the New York State Attorney General's Office, I worked closely
with sheriffs, with the State police to investigate cases. At
the Lawyers' Committee where I am presently, we rolled up our
sleeves and worked with the International Association of Chiefs
of Police.
I think that there is a lot of common ground to be forged
when it comes to issues of police reform and accountability and
criminal justice reform generally. I appreciate that this role
leading the Civil Rights Division is not a policymaking role.
It is a law enforcement role. I look forward to supporting the
work of this body as it continues to wrestle with these issues
and find pathways to progressive and healthy reforms.
Senator Klobuchar. Very good. Thank you. Then I turn to
you, Mr. Kim. I had a chance encounter with your sons, Palden
and Jigme, in the hallway and I see they are very well behaved
behind you right now. I would fill my other fellow Senators in
on how they spontaneously were able to recount several
incidences from the Presidential primary debates, which was
quite impressive. Anyone who is looking for an advisor in the
future, they are sitting behind Mr. Kim right now.
We know that there were many issues of a lack of
enforcement in the Justice Department during the last
administration. Seventy percent fewer Clean Water Act
prosecutions, 50 percent fewer Clean Air cases during the first
2 years of the administration. You have had some vast
experience in this. Could you just take a second to talk about
how you actually have worked for both the Bush administration
and Democratic administrations and you have served as civil
servant at the Justice Department under Republican, Democratic
administrations. Can you talk about your history of believing
in the Justice Department and its role beyond politics and also
how that will help you to do well in this job?
Mr. Kim. Thank you, Senator. Thank you for the kind words.
Senator Klobuchar. Can you explain how your sons know all
that stuff?
Mr. Kim. I cannot explain that actually, but I can say that
if confirmed what I really hope is to reaffirm the core values
that the Department has long stood for, fairness, independence,
integrity, devotion to the rule of law. These values really
matter to me, and it excites me tremendously to have the chance
to return to the Department and try to live up to those ideals.
I have seen the statistics as well about drops in enforcement.
I am not at the Department right now, so I cannot speak to what
has happened at least directly as to any particular enforcement
decision. As Ms. Clarke, I think quite rightly said, this is
not a policy role. This is an enforcement role. I want to make
sure the rule of law is properly respected and that every
enforcement decision is based on the facts and based on the
law. That is what I hope to do if confirmed.
Senator Klobuchar. Very good. I appreciate both of you very
much and I also appreciate the choice of your mom's school at
the University of Minnesota, so very good. Thanks.
Chair Durbin. Thanks, Senator Klobuchar. Senator Cotton.
Senator Cotton. Ms. Clarke, was Officer Darren Wilson
justified when he shot and killed Michael Brown in Ferguson,
Missouri in 2014?
Ms. Clarke. There is a trial under way right now, Senator.
I, like millions of people, am sitting back and watching the
trial as it plays out, and I am prepared to accept the verdict
of the jury.
Senator Cotton. November 2020, just a few months ago, that
was not exactly what you said. You said that, ``On this day a
grand jury chose not to indict Darren Wilson for the killing of
Michael Brown. It is a powerful reminder of why we need to make
clear that Black lives matter. We must demand that the
Department of Justice resume pattern practice investigations
and expand prosecutions involving police shootings.'' I would
also point out that Eric Holder's Department of Justice, in
March 2015, conducted an extensive review of Officer Darren
Wilson's conduct and concluded that it not support the filing
of criminal charges. They issued an 87-page report that was
done under the watch of your fellow nominee, Vanita Gupta, I
might add. In fact, there have been three separate
investigations that have cleared Officer Wilson of wrongdoing.
Just last year, just last year in June you sent a letter to
Congress in which you described the Michael Brown case as
``prosecutorial decisions not to indict police because of
impenetrable qualified immunity for police and acquittals based
on racism.'' Why do you continue, despite all this evidence to
contrary from many of your fellow Democrats, to refuse to take
an answer or take a position on whether Officer Darren Wilson
was justified or not in the shooting of Michael Brown?
Ms. Clarke. Senator, if I can, I want to correct my answer.
I indicated that there was a trial still going on, which is not
the case, so I just want to offer up that correction. I think
that in general there is a need for greater police
accountability. There is a bipartisan agreement on this issue.
I know that this body did a lot of work last year.
Senator Cotton. Ms. Clarke, those are all policy questions
and we can have that policy debate, but I am asking you a
simple factual question. Was Officer Darren Wilson justified or
not in the shooting of Michael Brown in Ferguson, Missouri in
2014? Vanita Gupta has said he was. Eric Holder has said he
was. Three different investigations have said he was. I am
asking you, was he or was he not justified in that shooting?
Ms. Clarke. As a private citizen based on the facts that I
know, I am not privy to the details that the Federal Government
may have been privy to in the course of its investigation. As a
private citizen, there is something that feels unfair and I----
Senator Cotton. The Department of Justice issued an 87-page
report. That is not a private--it is not grand jury sensitive
information. It is not secret. It is an 87-page report released
by Vanita Gupta when she ran the office that you aspire to
lead. It concluded that the shooting was justified.
Ms. Clarke. Alright. My view----
Senator Cotton. You obviously do not want to take the
position that the shooting was justified despite what Eric
Holder and Vanita Gupta have said, given the fact that you will
not answer the simple question, yes or no. Let us turn to
another case which is Jacob Blake.
Chair Durbin. Senator, Senator, could you please just allow
her an opportunity to respond? I will give you a----
Senator Cotton. Could you please stop the pattern of
interrupting me repeatedly? This happened the last time we had
a hearing and you called a vote in violation of this
Committee's rules.
Chair Durbin. I am sorry. I will give you additional time,
but I would like to give her a chance to complete her answer.
Senator Cotton. I have asked her a simple yes or no
question multiple times and she refuses to answer it. Thank you
though for your input. Let us turn to another case, Jacob
Blake. Was Jacob Blake armed when he was shot during an
encounter with police last year in Kenosha, Wisconsin?
Ms. Clarke. I believe the reports indicated that he may
have had a weapon on him. I am not certain of that, Senator.
Senator Cotton. He was armed with a knife. That is not in
dispute. Witnesses have said that he was armed with a knife,
but yet again, you jumped to conclusions in the aftermath of
that shooting. You repeatedly said on social media that he was
unarmed. Today would you like to take a position on whether
Jacob Blake was armed or unarmed in his encounter with the
police in Kenosha last summer?
Ms. Clarke. If the subsequent reports reveal to the public
that he indeed had a knife, I agree with that factual
statement.
Senator Cotton. Ms. Clarke, here is my concern. It is one
thing to run a left wing advocacy organization and always jump
to conclusions about police officers who have to use force to
protect themselves or to protect innocent law abiding
Americans. Those are the last people, by the way, who want to
have to use force and certainly force that results in a killing
that you always jump to those conclusions. It is one thing to
do that to a private citizen as an advocate, but you are going
to have the power of the Federal Government behind you. Based
on your pattern of comments and jumping to conclusions without
evidence, every cop in America should be terrified that the
Department of Justice is going to jump to a conclusion when
they have to make a split second decision to defend themselves
or defend innocent, law abiding citizens.
Ms. Clarke. If I can, Senator, I have done this job before.
I have served as a Federal prosecutor during the Bush
Administration. I did that work with the benefit of working
alongside, and with, expert FBI agents who helped to
investigate and review the matters before us. As a private
citizen running a nonpartisan organization, I appreciate that
it is a different role. You have my commitment, Senator, that
if I am confirmed to this position, I will do what I did as a
dedicated career attorney inside the Justice Department, which
is follow the facts and the law and be guided by the work of
FBI agents and other Federal law enforcement agents if and when
these matters arise.
Senator Cotton. Police officers all around America can see
today that you will not even agree with Vanita Gupta and Eric
Holder that Darren Wilson was justified in the shooting of
Michael Brown in 2014.
Ms. Clarke. I have not seen that report or read it
thoroughly, and I would welcome the opportunity to do so,
Senator.
Chair Durbin. Thank you, Senator Cotton. Senator Hirono,
remote.
Senator Hirono. Thank you, Mr. Chairman. Ms. Clarke and Mr.
Kim, I ask the following two foundational questions of every
nominee who comes before any of the Committees on which I sit.
Two questions. Ms. Clarke, you can answer first and then Mr.
Kim. Since you became a legal adult, have you ever made
unwanted requests for sexual favors or committed any verbal or
physical harassment or assault of a sexual nature?
Ms. Clarke. No, Senator.
Senator Hirono. Mr. Kim.
Mr. Kim. No, Senator.
Senator Hirono. Have you ever faced discipline or entered
into a settlement related to this kind of conduct?
Ms. Clarke. No, Senator.
Mr. Kim. No, Senator.
Senator Hirono. Ms. Clarke, you were a line prosecutor in
the Civil Rights Division and you have extensive experience
dealing with hate crimes. Addressing hate crimes has also been
a major focus of your work at the Lawyers' Committee. During
the pandemic, acts of hate against Asian Americans and Pacific
Islanders have been on the rise, in fact, significantly. Close
to 4,000 have been reported in the year, in the past year
coming into this year. We have heard and seen the attacks. For
example, a 65-year old Filipino immigrant was walking down a
street near Times Square in New York when a man in broad
daylight suddenly kicked her in the stomach. As she fell to the
ground, he continued to kick her and shouted, ``you do not
belong here.'' Several men, including a security guard at the
apartment building, simply watched as all this took place.
I just want to note that later today the Senate will be
voting on a bill called the COVID-19 Hate Crimes Act which I
hope will receive bipartisan support. It is one step toward
addressing the hate crimes against AAPIs.
I would like to ask you, Ms. Clarke, based on your
experience, what do you think should be done to address the
continuing incidents of hate crimes against the AAPI community?
Ms. Clarke. Thank you, Senator. I am deeply concerned about
the rise in hate that we are seeing, particularly targeting the
Asian American Pacific Islander community in our country. The
Justice Department has at its disposal the Matthew Shepherd and
James Byrd Hate Crimes Prevention Act, the Fair Housing Act,
and other tools in its arsenal to help stand up and confront
this hate. We need better data tracking. New York City is one
of the few places that is tracking data impacting the AAPI
community. We know that in March and April 2020, there were as
many anti-Asian hate crimes in that 2 month period as there
were in the previous 4 years combined. We benefit from stronger
data collection to understand where these issues are most stark
so that we can really focus law enforcement resources on
ensuring the safety of the AAPI community. I agree, Senator,
that this is a crisis that warrants all of our attention.
Senator Hirono. Part of the COVID-19 Hate Crimes Bill that
I mentioned is very much focused on data collection so we get
in a voluntary way from the States and local law enforcement to
submit this kind of data online. You would agree that these
crimes are underreported, wouldn't you?
Ms. Clarke. Yes, Senator. We need to do a better job at
data collection so that we can understand where the problems
lie.
Senator Hirono. Turning to voting rights, since January
1st, 390 voter suppression bills have been introduced across 45
States, and of course, we know what happened in Georgia. This
is the legacy of the Supreme Court's Shelby County decision in
2013, which basically gutted a major part of the Voting Rights
Act and unleashed a wave of new restrictive voting laws across
the country. In fact, right after that decision, some 13 States
proceeded to enact voter suppression laws, new ID requirements,
you name it. The Supreme Court has before it two cases from
Arizona and it is expected that the Court's conservative
majority will even more narrow the Voting Rights Act by
narrowing the effectiveness of section 2 of the Voting Rights
Act.
Basically if anyone had any questions about the motives
behind all these voter suppression laws, Justice Amy Coney
Barrett, a lawyer from--asked the lawyer from the Arizona
Republican Party why. He said that allowing more people to vote
puts Republicans, and I'm quoting, ``at a competitive
disadvantage.'' You worked in the Civil Rights Division's
Voting Section and you codirected the NAACP Legal Defense and
Education Funds voting rights docket. Why is it so important to
have robust voting rights laws at the Federal level?
Ms. Clarke. Thank you, Senator. The right to vote is one of
the most central rights in our democracy. The Voting Rights Act
exists to ensure that eligible Americans can have voice in our
democracy. The U.S. Department of Justice has long played a
central role here. If confirmed, Senator, you have my
commitment that I will use the tools that the Division has in
its arsenal to ensure that eligible Americans are able to
participate in our voting process.
Senator Hirono. As we are watching the what I would call
disparate policing in our country, the importance of consent
decrees by the DOJ is something that I have asked the various
nominees. I hope that you will also look at consent decrees as
a way to ensure that there is not this kind of disparate law
enforcement by police in our country. I think I am out of time.
I cannot tell. I cannot read that clock.
Chair Durbin. Senator, your time is concluded. Thank you
very much.
Senator Hirono. Thank you very much. I thought I would put
that thought out there.
Chair Durbin. Senator Blackburn. Thank you, Senator.
Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. I want to thank
each of you for being here today. You know, it is an important
hearing for us to have. When I talk to Tennesseans, they are
very concerned about voting rights legislation. They are very
concerned about a Civil Rights Division that is going to
overreach under current laws. Of course, they want everyone
eligible to vote to vote. Indeed, our Nation has seen historic
turnout in voting. You know, the Department of Justice has
incredible resources to investigate governments, local and
State governments over voting rights. Many times the State or
the locality do not have the money to fight back even when they
are on the right side of the law.
Ms. Clarke, let me continue along this line of questioning
because a Civil Rights Division is charged with enforcing
voting laws. I am concerned with your past statements that it
could prevent you from doing your job effectively. You have
been an outspoken critic of voter ID laws. You have said that
photo ID requirements are, and I am quoting you,
``burdensome.'' Proof of citizenship requirements are a, and I
am quoting, ``bag of tricks to suppress Black votes.'' Is that
correct?
Ms. Clarke. Thank you, Senator. I believe that we have to
look at these laws on a case-by-case basis. A photo ID law in
one State may be perfectly fine, but may have an impact in
another State on protected groups, on older people, on people
of color. I think that it is important to look at these on a
case by case basis.
Senator Blackburn. Do you think that it is fair then for
individuals to be required to show their photo ID to get a
prescription at the pharmacy?
Ms. Clarke. Yes. And----
Senator Blackburn. You think that is unfair.
Ms. Clarke. I do not think it is unfair, but I do think
that when it comes to----
Senator Blackburn. Alright. Let me move on. You have
asserted that the cost of voter ID laws outweigh any benefits.
Is that true that you tweeted that, and I am quoting, ``vote
fraud is a myth and a lie?''
Ms. Clarke. Vote fraud is something that is exceedingly
rare. We do not see it often. If it exists and if there are
reports----
Senator Blackburn. We know that it does. We know that it
does.
Ms. Clarke. I will, if confirmed, refer those matters to
the Criminal Division so that they can handle those matters.
Senator Blackburn. Okay. Okay. Tennessee has a voter ID law
and we are really just so grateful for the work that our State
and our Department of State has done to lead local and State
entities as we have reformed elections. We have cleaned up
voter rolls, required ID to vote, and restored accountability.
Despite this progress, Democrats want to crush local
governments to push through their own impractical agenda which
will undermine trust in the electoral process. I am convinced
you will be the lead warrior in that liberal agenda to destroy
local election integrity, and I fear you will use your power at
the Civil Rights Division to take away States' rights, their
constitutional duty, and Federalize control of elections.
Let me ask you about the First Amendment. I have been
listening in my office to your comments on the First Amendment.
You called, and this is particularly pointed toward religious
liberty. You called the Masterpiece Cake Shop decision
devastating and stated that religion is often used as a pretext
to ignore regulations during the COVID-19 pandemic. After the
Supreme Court blocked New York's COVID restrictions on houses
of worship, you tweeted, ``this is a newly configured Supreme
Court with--one with Justices who place religious freedom above
all else even in the context of a deadly pandemic.'' Is it true
that you even called the religious liberty organization
Alliance Defending Freedom an anti-LGBTQ hate group?
Ms. Clarke. Senator, if I could just respond to the first
point that you raise.
Senator Blackburn. Okay.
Ms. Clarke. I view voting rights issues in a nonpartisan
sense and I thank you for being one of the 390 people who voted
to reauthorize section 5 in 2006. As to your second point,
please note that I deem religious liberty incredibly important
and I have fought for religious liberty throughout my career. I
have fought religious discrimination. I led a religious rights
unit, a newly launched religious rights unit at the New York
State Attorney General's Office. If confirmed, I will give
great attention to ensuring that we stand up for religious
liberty and beat back religious discrimination using the laws
that the Division has at its disposal.
Senator Blackburn. Ms. Clarke, you did not answer the
question. Did you state--did you call the Alliance Defending
Freedom an anti-LGBTQ hate group? Yes or no?
Ms. Clarke. I do not recall that statement. I would like to
see to confirm, Senator. That is not an organization I am very
familiar with. I would love to see the context to confirm.
Senator Blackburn. Okay. If you would like to, I think it
was in a tweet and we will be happy to supply that for you.
Ms. Clarke. Thank you, Senator.
Senator Blackburn. That you can see it. See, here is the
thing. Religion is important. Religious liberty and freedom and
the First Amendment is vitally important. With the tweets that
you have made, with the statements that you have made that are
very vitriolic toward that First Amendment, it 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. Right now I hear from Tennesseans every day
who are filled with angst because they fear that their freedoms
are going to be taken away. I yield back, Mr. Chairman.
Senator Blumenthal [presiding]. Thank you, Senator
Blackburn. In the absence of the Chairman, I have been asked to
preside, and I am going to recognize myself for 5 minutes and
then if there is another Republican ready to go before Senator
Ossoff, we will go with him or her.
Ms. Clarke and Mr. Kim, both of you have extraordinary
records of public service, professional excellence, and
distinguished integrity. I think both of you are more than
qualified for your positions. I have a couple of questions for
Ms. Clarke, particularly about a very sensitive but profoundly
important topic that ought to concern all of us. A number of
our colleagues have raised questions about potential anti-
Semitism. Senator Lee in questioning Merrick Garland in his
confirmation made direct reference to you when asked about
anti-Semitism and Senator Hawley in passing just now may have
done so as well. I want to address this issue head on so that
you have an opportunity to answer it since it may be used in
the course of the debate about your confirmation, Ms. Clarke.
I just want to say right at the outset, as Merrick Garland
said, and I am quoting him, ``I am a pretty good judge of what
an anti-Semite is.'' I feel pretty much the same way. I think I
know an anti-Semitic person when I see and hear one and I have
scrutinized your record and I am absolutely fully satisfied
that there is not an anti-Semitic bone in your body, but I
would like to give you an opportunity to respond to that kind
of question. Rather than maybe answer a question just give you
a chance to speak to the Jewish community, as it were, that may
be raising this question as a result of these illusions by a
number of my colleagues unfairly referenced. I want to thank
you for your leadership in the fight against anti-Semitism at
the Lawyers' Committee and the New York Attorney General's
Office Civil Rights Bureau and just give you a chance to talk
to this issue and to the Jewish community.
Ms. Clarke. Thank you for the question, Senator. I could
not be an effective civil rights lawyer if I did not have the
ability and capacity to work with, alongside, and behalf of all
people of all backgrounds regardless of race, religion,
national background, and more. Anti-Semitism is real and it is
something that I have fought throughout my career. At the
Lawyers' Committee, we have taken on neo-Nazis like the Daily
Stormer. You mentioned my time at the New York State Attorney
General's Office where I helped to launch a religious rights
unit where among the many things that we did was we fought for
religious accommodations for Sabbath observing employees who
were denied those accommodations by their employers.
I am proud and humbled to sit here today with the support
of many Jewish organizations including the National Council of
Jewish Women, the Anti-Defamation League, the Union for
Reformed Judaism, which represents more than 2 million reformed
Jews and dozens of other organizations that I will look to,
work within the continued fight against anti-Semitism if I am
confirmed to this role. I am gravely concerned about the rise
in hate and extremism that we are seeing in this country, that
Black people are experiencing, LGBTQ people, the AAPI
community, and it is not lost on me that Jewish people continue
to suffer from anti-Semitism. This is an ill that I hope to
fight back against if confirmed to the role.
Senator Blumenthal. Thank you. Later today I hope to offer
as an amendment the No Hate Act which I introduced during the
last session and which I plan to introduce again this session.
It would spur greater reporting of hate crimes. You have just
mentioned very appropriately the rise of domestic terrorism and
hate violence in this country directed at different minorities.
The bill now on the floor which I hope will proceed today, will
stimulate, I hope, greater reporting. Can you speak to why hate
crimes reporting is so critical to addressing this growing
problem in so far as you will be head of the Division that
prosecutes hate crimes in this country?
Ms. Clarke. Thank you, Senator. The Federal Government has
vast resources, but limited resources. It is important to
understand where the fires are burning and where are the crises
that need to be tackled. We can only do that with data to
understand where we are seeing a spike or a sudden rise in
hate. I hope that if confirmed I will be able to work with
other components of the Justice Department to ensure that law
enforcement is doing a better job on the road ahead on
capturing, collecting, and reporting this data which is so
critical to the fight against hate.
Senator Blumenthal. Thank you very much. I am going to
recognize Senator Ossoff.
Senator Ossoff. Thank you, Mr. Chairman. Thank you to both
of you, two distinguished nominees. Congratulations on your
nominations to these positions. Thank you for your willingness
to serve. Thank you for putting yourselves through this
process. Thanks also to your families who are also weathering
unfortunately a storm of personal attacks directed at two
highly qualified nominees for these Federal positions.
Ms. Clarke, I want to also thank you and commend you for
your long history as an opponent of anti-Semitism and advocate
for equal justice and an ally of the Jewish people. I would
like to ask you a couple of questions regarding your
responsibilities should you be confirmed to lead the Civil
Rights Division.
I do not believe that the State should be in the business
of killing its own citizens. That is why I am an opponent of
the death penalty. When the killing of citizens is
extrajudicial, in my view, that is an egregious form of
violence and an act of tyranny. This week yet again the Nation
is grappling with the reality that, in particular, unarmed
Black men are subjected to violence at the hands of the State.
Another young Black man shot to death by a law enforcement
officer. How will you use the power of this office to end
extrajudicial killings of American citizens by law enforcement?
Ms. Clarke. Thank you, Senator. The Civil Rights Division
has been empowered by Congress to investigate unconstitutional
conduct by law enforcement and we know that this is a real and
ongoing challenge that we face. The Division has the ability to
open pattern and practice investigations into police
departments, jails, or other institutions that may be engaged
in unconstitutional conduct. There is 18 U.S.C. Sec. 242,
which is one tool that can be used to promote accountability of
law enforcement officers who use force without basis and in an
unconstitutional way. Attorney General Garland has talked about
the other tools in the Division's arsenal and I agree that in
addition we have to think about training and technical
assistance and grant making as other tools to help promote
improvements in this incredibly important area.
Senator Ossoff. Thank you, Ms. Clarke. Turning our
attention now to voting rights, Georgia recently passed what is
now an infamous law restricting access to the ballot, slashing
early voting opportunities in runoff elections, closing down
access to ballot drop boxes at hours convenient for working
class people. As has been discussed in this hearing, the Shelby
County v. Holder decision, which eviscerated the Voting Rights
Act, has removed the preclearance requirement that the Civil
Rights Division would execute requiring local and State
authorities to secure preclearance from the Department of
Justice before making such changes to election procedures and
election laws. Do you agree that it is vital that Congress
restore what will be your authority should you be confirmed to
preclear changes to voting laws and voting procedures to ensure
that there is not racial or partisan targeting and that abusive
election laws do not restrict access to the ballot?
Ms. Clarke. Thank you, Senator. History has shown that
section 5 of the Voting Rights Act has been a powerful tool in
combating and deterring ongoing voting discrimination. I know
that this body has taken up the question through the John Lewis
Voting Rights Restoration Act. I know that that process has
involved looking at the current picture of ongoing voting
discrimination in our country. If confirmed, I look forward to
providing support and being a resource for the House and Senate
as it considers modifying section 4 so that we can reinstate
the section 5 preclearance provision which again historically
has been such a powerful tool in beating back voting
discrimination in our country.
Senator Ossoff. Thank you, Ms. Clarke. Mr. Kim, with my
brief time remaining, what act of Congress might be required or
rulemaking might be required to enable the Environment and
Natural Resources Division of the Department of Justice to
regulate the emission of greenhouse gases as air pollution
under authorities in the Clean Air Act or another relevant
statute?
Mr. Kim. Thank you, Senator, for the question. Climate
change is plainly a very important issue. It is a priority of
the administration. It would be a priority of mine. I cannot
speak to policy issues. I would be in a law enforcement role,
and I would defer to the administration as to further
legislation that might be necessary, but I would note there is
already some regulation of greenhouse gases as, for instance, a
consequence of the Supreme Court decision, Massachusetts v. PA.
Senator Ossoff. Thank you, Mr. Kim. Thank you, Mr.
Chairman.
Chair Durbin. Senator Booker.
Senator Booker. Mr. Chairman, I am grateful that I am
recognized and grateful to be last and to know that this
hearing has come to an end. Mr. Kim, I have had a chance to
talk about you, but I have not had a chance to really talk to
and about my friend, Kristen Clarke. There is a tradition in
the African-American tradition of incredible artistry in the
midst of oppression. We know that it was Langston Hughes who
wrote a poem entitled ``Mother to Son,'' where he just simply
said, ``life for me ain't been no crystal stair.'' As you sit
with your son behind you, I am telling you and this Nation that
for you, life ain't been no crystal stair.
You have come up from being a low-income American facing
childhood difficulties, benefited from the grace and the
goodness that is our country, that helped to establish programs
and opportunities that understand your genius would be better
blossoming if we cared for one another and loved one another.
And God, given an opportunity, what did you do with it? You
have dedicated your life to our most sacred principles.
There is another poem that today really came to mind. I
think you may be familiar with it. ``You may try to write me
down in history with your bitter, twisted lies. You may try to
trod me down in the very dirt, but still like dust I rise.''
That could be the theme of the last year where I have seen the
most outrageous lies being touted about you that have tried to
obscure your incredible record of service. People are trying to
say you are wrong for this job, when dear God, you are what we
need in the Civil Rights Division of the Justice Department. I
want to tell people, people who think you are wrong. If you are
wrong, then John Adams was wrong, who represented British who
killed Americans at the Boston Massacre. If you are wrong for
this job, then Thurgood Marshall was wrong, who stood up for
the despised and the hated and the vilified and the overlooked
and spent his career trying to fight for those who others
ignore. If you are wrong, then Charles Hamilton Houston is
wrong, who said very strongly that either you are a lawyer for
the public interest or you are a leech upon society.
God, if you are wrong, then what are we saying to all
Americans, but in particular to that Black girl that is
somewhere in America right now who feels amidst a Nation that
still has not shed the ugly cloak of bigotry and hate, that
God, she could have an America where people every day are
fighting for her, hear her, that see her.
Today is a proud day for our country because one of its
incredible women is ascending to a position where she will get
to serve. If you are wrong for this job, then the law
enforcement agencies that have endorsed you from attorneys
generals to police officers, they are wrong. If you are wrong
for this job, then the incredible Jewish leaders from the Anti-
Defamation League to other organizations, then they are wrong.
There is nothing that should disqualify you from doing this. In
fact, the gratitude we should feel for you putting yourself out
there yet again because you want to serve this Nation that
still struggles to make real on the promise of equal justice
under the law, the promise of liberty and justice for all, and
the hope that we can become, as John Lewis so eloquently said
it, a more beloved country.
My friend, my partner, the partner of people on both sides
of the aisle that have helped make this Nation more just, I am
so grateful for you. I want to ask you as your last inquisitor
for the record of the United States of America, for history,
for those that may come on a generation from now and want to
read about this hallowed and historic Committee, is there
anything you would like to say in your final remarks?
Ms. Clarke. Thank you so much, Senator. I am humbled. I
think many people struggle to figure out what their calling is,
and I feel blessed that I figured out what my calling is at an
incredibly young age. I have proceeded through life with a kind
of laser focus on using the opportunities that I have been
given to give back to those less fortunate. I feel blessed to
wake up to do work each and every day that allows me to do just
that, to stand 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 for
him. 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. I am humbled to be
sitting in this chair and I am hopeful. I am hopeful that this
Senate will give me the opportunity to serve and to work
alongside Attorney General Garland to help make real the
promise of equal justice under law for all. Thank you very
much, Senator.
Senator Booker. Mr. Chairman, could I just submit something
for the record because I have had my staff fact checking? It
was stated that Vanita Gupta and Attorney General Holder have
stated that the shooting of Darren Wilson was justified or
Darren Wilson was justified in shooting Michael Brown. Excuse
me. We have been able to find no such statements from Vanita
Gupta and from former Attorney General Holder. This was used in
the context of a larger questioning about, I think, there was
an absolutist term used that the nominee has consistently
questioned. That also--that absolutism is not true.
At a time in America where there is an understanding that
there is often the use of force particularly--not just against
African Americans, but particularly against African Americans,
the unjustified use of force, I think she is more than
qualified to look at the facts of the case and discern. She
would not have the endorsements of--because she said police--it
was stated that police officers should be afraid. She would not
have the endorsements of so many groups, the Major Chiefs
Association, the National Organization of Black Law
Enforcement, the International Association of Chiefs of Police,
if what was said in this hearing was in any way correct.
Law enforcement, as well as civil rights activists,
understand that there needs to be a healing in this country
where the truth and due process prevail. Her record is a clear
indication that she will be that kind of leader. I wanted to
correct those things for the record. Again, my staff has been
trying to fact check the ascertations. If I am wrong, I
apologize to the Senator and I ask to see those quotes, but to
us, those things were not said.
Chair Durbin. For the sake of clarity, I invite you to join
with our staff and deliver whatever evidence you have with your
position and invite the minority as well. If they have any
information which backs up statements made on that subject, so
the record is open for that purpose. I will go--at this point,
I do not believe there are any further questions for the
witnesses, so before I adjourn the hearings, I want to enter a
number of letters into the record and make a few logistical
notes.
Both nominees enjoy support from individuals, organizations
across the spectrum, a reflection of their work experience, of
their integrity, independence, and commitment to executing the
law. Without objection, I will introduce into the record
letters of support from law enforcement, civil rights, current
and former State attorneys general, bipartisan group of former
Justice Department officials, corporate leaders, and otherwise.
Questions for the record will be due to the nominees 1 week
from today on Wednesday, April 21st, by 5 p.m. The record will
remain open until that time for submission of letters and
similar materials.
With that, if there is nothing further, this hearing stands
adjourned. I thank the nominees for their patience and
participation.
[Whereupon, at 12:28 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
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