David Lat on the Crystal Clanton Matter

Lat does it well as usual in his newsletter “Original Jurisdiction”. (I have subscribed and I 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. A 2017 New Yorker article claims that Clanton had once text a Turning Point USA coworker, stating, “I HATE BROWN PEOPLE.” Like f**k them all…. I hate blacks. This is the end of my story.

I didn’t jump onto the Pryor-bashing train at the time. Noting that Pryor is (1) smart and can run Google searches, (2) an extremely respected Supreme Court feeder judge I suggested that Chief Judge Pryor wouldn’t “waste” a clerkship for someone who could be radioactive to 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 was a co-worker for Justice Thomas’s spouse Ginni Thomas after she had been fired from Turning Point. Chief Judge Pryor serves as an influential feeder judge to Justice Thomas.

As it turns out, This was more to the story. The Eleventh Circuit sent the complaint to it after seven Congressmen called for an investigation into Pryor’s firing of Clanton. 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:

Livingston used the example of a Turning Point USA executive to support her decision. She stated Clanton was kind, fair, and respected everyone. Livingston also wrote that this person said the media reports were inaccurate.

Livingston explained that Turning Point executives had determined that Clanton was being accused by a number of ex-employees. After the company learned that one of these workers had made fake texts to use against colleagues, in order to create the impression that they were engaging in misconduct, Livingston wrote.

Pryor und Maze were aware of Clanton’s allegations before they interviewed her and hired them. Livingston said that both Livingston and Pryor found Clanton’s allegations about Clanton’s racist behaviour untrue. Livingston also wrote that she is highly qualified to work as their clerk.

Just as I had guessed, Justice Thomas was there to support Crystal Clanton.

[a letter to the Second Circuit]Thomas stated that Clanton was left in a state of shock after her departure from Turning Point USA. According to the justice, she lived there for close to a full year.

Thomas stated, “I am familiar with Crystal Clanton. I also understand bigotry.” “Bigotry is antithetical her nature and character.”

Thomas said that he had recommended to Pryor Clanton be hired as a clerk in the law department. He added: “We are at a sad state of affairs where a young adult could be indelibly marked today with today’s scarlet letter of defamation. This is particularly true for the judiciary.

So, why did Crystal Clanton not explain this to the Second Circuit? According to Chief Judge Pryor’s letter to the Second Circuit she said nothing because Turning Point had made her a nondisclosure agreement.

Clanton failed to recognize this, in my view. Clanton should have clarified that she was being framed. She could surely have obtained a waiver from the NDA. Charlie Kirk founder and chief of Turning Point was the Turning Point executive that cleared Clanton.

Clanton suffered a reputational blow even though she could not have obtained a waiver. 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).

But, again, I want to be clear that what I believe about L’Affaire Clanton is my opinion. Others may disagree. Rep. Hank Johnson, a Georgia Democrat, stated to the Journal-Constitution Chief Judge Livingston’s report was “nothing but a rubber stamp which gives two influential federal judge cover for hiring law clerks with a history of racism.” 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.