The Washington PostDemocracy Dies in Darkness

Ted Cruz told Ketanji Brown Jackson that Bushrod Washington was not ‘controversial.’ He was an enslaver.

During the first day of Ketanji Brown Jackson’s confirmation hearing, Sen. Ted Cruz (R-Tex.) criticized the Supreme Court’s actions over the past few decades. (Video: The Washington Post)
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Judge Ketanji Brown Jackson’s confirmation hearings in the Senate Judiciary Committee began Monday, though the public hardly heard from her, as senators from both sides of the aisle used their time to make partisan speeches, vaguely addressing Jackson instead of asking her questions.

Sen. Ted Cruz (R-Tex.) began his speech with an attempt to give Jackson, who if confirmed would be the first Black woman on the court, a history lesson.

“Supreme Court confirmations weren’t always controversial,” Cruz said. “In fact, Bushrod Washington, when nominated to the Supreme Court in 1798, was confirmed the very next day.”

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It is true that Bushrod Washington — a favorite nephew of George Washington who had never served as a judge before — was officially nominated to the Supreme Court on Dec. 19, 1798, and confirmed the next day by voice vote in the Senate. However, he had already been serving on the court since Nov. 9 via recess appointment from President John Adams. (Ten justices have been recess appointed, the last coming during the Eisenhower administration.)

It is also true that Washington was an enslaver. If Cruz was merely looking for an example of a nominee who was quickly confirmed, there have been about 10 nominees confirmed the same day they were nominated and at least another dozen confirmed in only one day, just like Washington, according to Senate records. Washington was neither the first nor the last to be confirmed that quickly.

Of the 31 senators at the time of Washington’s confirmation, at least 18 of them — 58 percent — were also enslavers, according to a database created and maintained by The Washington Post. (The slaveholding status of four of them is unknown, and nine do not appear to have been enslavers. One Senate seat, representing the slave state of Delaware, was vacant at the time of the vote.)

Washington served on the court for more than 31 years, longer than any of the current justices. And in those 31 years, he was definitely controversial, largely because of his actions as an enslaver.

In 1802, Washington inherited his famous uncle’s Mount Vernon estate upon the death of first lady Martha Washington. He did not inherit the people his uncle had enslaved; most of them were freed by Martha before her death, and others had been freed earlier in the first president’s will. Despite a boom in the voluntary manumission of enslaved people in the post-Revolutionary War years, and his uncle’s example, Bushrod Washington brought his own enslaved people with him to Mount Vernon.

Then in 1812, he co-founded the American Colonization Society, a group that sought to send the growing group of free Black Americans to Africa, a place a vast majority of them had never been. The society claimed the immigrants were volunteers, but according to historian Ousmane K. Power-Greene, many were pressured to leave. Some were promised freedom from their enslavers only if they left.

By and large, Black Americans and abolitionists hated colonization and actively fought against it. Washington himself complained of “unworthy persons” having conversations “with my negroes, and to impress upon their minds the belief that as the nephew of General Washington, or as president of the Colonization Society, or for other reasons, I could not hold them in bondage,” according to a 1980 paper in the Supreme Court Historical Society.

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He had also been a fairly terrible steward of Mount Vernon, an already difficult property, and in 1821, he sold 54 enslaved people for $10,000 to pay off debts. He made his buyers promise not to separate families — something his uncle detested — but regardless, the group of men, women and children were sent on a brutal trip over land, in chains, to Louisiana, which several newspapers wrote about critically, according to the historical society. One newspaper called it “excessively revolting.”

So that is who Cruz mentioned in his speech Monday. For all intents and purposes, it was a throwaway line meant only to introduce Cruz’s real historical point: what had changed from those halcyon, uncontroversial days.

“So what changed?” he continued. “Well, what changed is, starting in the 1960s and the 1970s, the Supreme Court’s role in our society changed dramatically. The Supreme Court became a policymaking body rather than a merely judicial body. … Starting in the sixties and seventies, the Supreme Court decided its place in our democracy — at least, too many justices — was to set aside the democratic decision of the people and instead mandate the policy outcomes they themselves supported.”

Cruz didn’t mention which specific cases he was referring to in this era of the court — which is, of course, best known for its many landmark rulings supporting civil rights for Black Americans, women and other historically marginalized groups.