Republicans lean into uphill battle against 2 little-known Biden nominees

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Marianne LeVine
·7 min read
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The GOP almost certainly can’t stop Joe Biden from getting a lineup of leading progressives confirmed to senior Justice Department posts. But Republicans — especially those eyeing the White House — are eager to make the president’s party pay a political price.

Senate Republicans have spent weeks on a messaging binge portraying Vanita Gupta and Kristen Clarke, tapped for high-ranking DOJ positions, as "extreme" and "radical" nominees who will weaken law enforcement. The GOP base is soaking it up, with Fox News host Tucker Carlson showing a keen interest in typically humdrum sub-Cabinet confirmations and focusing several segments on Clarke.

The GOP attacks are making almost no dent with Democrats who view the effort as over-hyped and verging on character assassination, but they’re not the real audience for the campaign against Gupta and Clarke.

Republicans are betting that their voters are paying attention, despite the high likelihood that both women eventually will be confirmed to Biden’s DOJ. As they make the broader case against Biden’s bipartisan brand, Republican senators view the two little-known nominees as an opportunity to bolster their argument that the president is a liberal in centrist’s clothing. And among the loudest complaints about Gupta and Clarke are coming from potential Republican presidential aspirants.

Sen. Josh Hawley (R-Mo.), widely viewed as a 2024 contender, said in an interview that the nominees “would be difficult in places like West Virginia” to explain. “They represent a far-left radical agenda that’s out of step with the American public and certainly with our respective states,” Hawley added. “We’ve got to put that before the voters. That’s what we do. And in 2022, voters will have a chance to weigh in and we’ll go from there, but we have to make the case for that.”

Sen. Ted Cruz (R-Texas), another potential 2024 White House hopeful, described the two nominations as a "test" for Senate Democrats "who tell the voters that they're moderates." National Republican Senatorial Committee Chair Rick Scott (R-Fla.) has mounted his own separate push to pressure Democrats facing competitive races in 2022 on Gupta, dubbing her a “radical" pick who'd embrace progressive calls to "defund the police."

The political jostling over the two nominees is the latest round of high-octane partisanship on the Senate Judiciary Committee, home to some of the chamber’s most brutal confirmation battles in recent years. Its roster this Congress includes several Republicans potentially in the mix for the 2024 presidential primary.

Sen. Chris Coons (D-Del.), a close Biden ally, suggested that some Republicans on the panel are “getting sharper and more partisan." Praising both Gupta and Clarke’s qualifications as well as their confirmation hearing performances, Coons chalked the drama up to "several members of the Judiciary Committee who are looking to score social media points.”

Democrats point to endorsements from law enforcement organizations and outside conservatives in defending Gupta and Clarke from GOP insinuations that the nominees are hostile toward the police. Among the groups backing Gupta is the National Fraternal Order of Police, which endorsed former President Donald Trump in both 2016 and 2020, while her Republican supporters include Bill Kristol and Grover Norquist. Clarke counts support from the executive director of the International Association of Chiefs of Police and the Major Cities Chiefs Association.

In addition, both nominees boast solid liberal establishment credentials. Gupta led the DOJ's civil rights division under then-President Barack Obama and is on leave as president of the Leadership Conference on Civil and Human Rights, a left-leaning advocacy group. Clarke is on leave as head of the Lawyers’ Committee on Civil Rights Under Law and is a well-known voting rights advocate. If they're confirmed to join the Biden administration, Gupta would be the first woman of color to hold the No. 3 spot at DOJ while Clarke would be the first Senate-confirmed woman of color to lead its civil rights division.

Echoing similar warnings issued during Neera Tanden's failed White House budget office bid, Democrats have suggested that the GOP campaigns to derail Gupta and Clarke are propelled in part by discrimination. The Republican attacks are “essentially part of a smear campaign," Sen. Richard Blumenthal (D-Conn.) said, one that's “vile and smacks of gender and race bias.”

Republicans are aware that such pushback carries political risk, and some are openly sensitive to it as they insist they're focusing on the two nominees' liberal records regarding issues like police reform, voting rights and gun control. During Gupta’s confirmation hearing, Sen. Tom Cotton (R-Ark.), another potential presidential candidate, probed her views on implicit bias and asked if someone can “oppose the nomination of a woman or a racial minority on the merits without being racist or sexist.”

All of Biden’s Cabinet nominees have gotten confirmed with at least some Republican support, including former Rep. Deb Haaland (D-N.M.), the first Native American in the Cabinet. But his sub-Cabinet nominees, particularly those with backgrounds at progressive groups, could see significant partisan jockeying over their confirmations.

One future test case will be David Chipman, Biden’s pick to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives who'd be joining the administration from the gun control group Giffords. He could face substantial GOP opposition thanks to his role in advocating for tougher gun laws. Cotton recently tweeted that Chipman is “a gun grabber who believes in wild conspiracies.”

For her part, Gupta is on track to become Biden's first nominee confirmed with no Republican votes in the 50-50 Senate, possibly requiring a tie-breaking vote from Vice President Kamala Harris. The Senate voted Thursday to move forward on Gupta's nomination after the Judiciary Committee deadlocked 11-11, with Senate Majority Leader Chuck Schumer, vowing she would be confirmed.

Sen. John Cornyn (R-Texas), a member of the Judiciary panel, has called Gupta a liar after she said at her hearing that she did not support decriminalizing all drugs. He later cited a 2012 article she co-wrote that said “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs," to which Gupta responded that her position on the issue “evolved.”

Both Gupta and Clarke have faced sharp GOP questions about defunding the police. Gupta said in June that state and local leaders should "heed calls from Black Lives Matter and Movement for Black Lives activists to decrease police budgets and the scope, role and responsibility of police in our lives.” The Biden administration said Gupta was reflecting the views of the civil rights group she has led, and Gupta told senators that she did not support defunding the police.

Cruz also dinged Clarke over an op-ed she wrote entitled “I Prosecuted Police Killings. Defund the Police — But Be Strategic.” Clarke said that headline did not represent the piece and said she does not “support taking away resources from police."

Clarke faced further Republican criticism for an op-ed she wrote as a student at Harvard University that listed baseless theories for why Blacks are genetically superior to whites. But that line of attack later cooled after Clarke made clear that her writing was designed as a satirical response to the "racist theory" that underpinned a 1994 book called The Bell Curve.

Despite the turbulence they're facing from Republicans, both nominees are likely to get confirmed. Sen. Tim Kaine (D-Va.), who introduced Gupta to the Judiciary panel, described her as an “honest broker."

“Is she a Democrat? Sure she is,” Kaine said. “And I voted for a lot of people who are really partisan Republicans — they were going to share President Trump’s philosophy, not mine. But if they had a track record that said they were professionals, I voted for a lot of them.”

Indeed, Republicans concede that there is little they can do to stop the nominees. But Cornyn said that he’s planning to reach out to moderates like Sen. Joe Manchin (D-W.Va.), whose opposition to Tanden helped derail her, to express his concerns.

"Sometimes we’ve seen," Cornyn said, "a lot of time and effort spent on one nominee, and then everybody’s exhausted. And somebody else slips on through with basically unanimous support.”