The Volokh Conspiracy

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David Lat on the Crystal Clanton Matter


As usual, Lat puts it very well in his "Original Jurisdiction" Substack newsletter (I've paid for a subscription, and highly recommend it):

Last fall, [Chief Judge Pryor] was widely criticized for hiring an allegedly racist law clerk—specifically, Crystal Clanton, now a 3L at George Mason aka Scalia Law. According to a 2017 New Yorker article, Clanton once texted a co-worker at Turning Point USA, the conservative nonprofit where she worked before law school, "I HATE BLACK PEOPLE. Like f**k them all…. I hate blacks. End of story."

At the time, I did not jump on the Pryor-bashing bandwagon. After noting that he's (1) a smart person who knows how to run a Google search and (2) a highly regarded Supreme Court feeder judge, I argued that Chief Judge Pryor "wouldn't want to 'waste' a clerkship on someone who would be radioactive to the justices." So I speculated that there must be more to this story—and that perhaps Justice Clarence Thomas, the nation's highest-ranking and most famous Black jurist, had vouched for Clanton to Pryor. (Clanton worked for Justice Thomas's wife, Ginni Thomas, after getting fired from Turning Point, and Chief Judge Pryor is a leading feeder judge to Justice Thomas.)

It turns out that there was more to the story. After seven members of Congress called for an investigation into Pryor's hiring of Clanton, the Eleventh Circuit referred the complaint to the Second Circuit. Chief Judge Debra Ann Livingston of that court conducted an investigation and wrote up her findings, as reported by Bill Rankin of the Atlanta Journal-Constitution:

In her ruling, Livingston cited one of the Turning Point USA's executives who said Clanton treated everyone with "kindness, respect and fairness." This person also said "the media reports are not accurate," Livingston wrote.

The Turning Point executive "had determined that the source of the allegations against (Clanton) was a group of former employees," Livingston wrote. "One of these employees was fired after the organization learned that this person had created fake text messages to be used against co-workers, to make it appear that those co-workers had engaged in misconduct when they had not."

Pryor and Maze knew about the allegations against Clanton when they interviewed and hired her. And both determined the allegations of racist behavior by Clanton were untrue and found she was highly qualified to serve as a clerk for them, Livingston wrote.

And as I had speculated, yes, Justice Thomas went to bat for Crystal Clanton:

In [a letter to the Second Circuit], Thomas said he and his wife took in the distraught Clanton after she left Turning Point USA. She lived in their home for almost a year, the justice said.

"I know Crystal Clanton and I know bigotry," Thomas wrote. "Bigotry is antithetical to her nature and character."

Thomas, who said he recommended to Pryor that he hire Clanton as a law clerk, added, "We have reached a sorry state of affairs when a young adult can be indelibly marked with today's 'scarlet letter' of defamation. This is especially true in the judiciary."

So why didn't Crystal Clanton explain all of this at the time? According to the letter that Chief Judge Pryor wrote to the Second Circuit, she stayed silent because she's bound by a non-disclosure agreement with Turning Point.

In my opinion, this was a misstep on Clanton's part. She should have explained that she was framed, non-disclosure agreement be darned. Surely she could have gotten a waiver on the NDA; Charlie Kirk, founder and leader of Turning Point, was the Turning Point executive who cleared Clanton's name.

But even if she couldn't have gotten a waiver, the reputational damage to Clanton clearly outweighed any risk of being sued on the NDA. Maybe Clanton thought that staying silent was the honorable thing to do—but her silence wound up subjecting the two judges who hired her as a law clerk to unjustified criticism and an investigation. This all could have been avoided had she simply explained she had been framed (and if she was truly concerned about getting sued on the NDA, she probably could have gotten word out through surrogates—which might still have left her open to suit, but would have reduced the likelihood of a lawsuit even further).

Again, though, please note that I'm sharing with you what I happen to believe about L'Affaire Clanton; others believe differently. Rep. Hank Johnson (D-Ga.) told the Journal-Constitution that Chief Judge Livingston's report was "nothing more than a rubber stamp that gives two influential federal judges cover for hiring a law clerk with a reported history of racist conduct." Similarly, Kathryn Rubino of Above the Law, who broke the news of Clanton's hiring, sounded skeptical notes about the claims of fabrication. So I urge you to read Livingston's report, which I personally found credible, and make up your own mind.