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GOP drops any subtlety in centering the Jackson nomination fight on race

Supreme Court Justice nominee Judge Ketanji Brown Jackson testifies during her confirmation hearing before the Senate Judiciary Committee on Tuesday. (Anna Moneymaker/Getty Images)

This article has been updated.

Republicans have had a tricky time trying to undercut President Biden’s nomination of Judge Ketanji Brown Jackson to the Supreme Court. On Monday, the first day of Senate Judiciary Committee hearings considering her nomination, several Republican senators offered lines of attack on her background and sentencing history. It seemed a bit scattershot. Sen. Josh Hawley (R-Mo.), for example, tried to suggest that Jackson goes easy on pedophiles, a claim that even the conservative National Review shrugged at.

On March 22, Supreme Court nominee Judge Ketanji Brown Jackson responded to charges made by Sen. Ted Cruz (R-Tex.) that critical race theory influenced her work (Video: The Washington Post)

Part of the issue, of course, is the historic nature of Jackson’s nomination. If confirmed, she would be the first Black woman to serve on the Supreme Court. Before she was nominated by Biden, Republicans expended a great deal of energy performatively lamenting that the president had pledged to nominate a Black woman, a pledge cast by many on the right not as a recognition of a historic oversight but instead as representing a sort of un-American form of affirmative action. That worked better in the abstract; once named, Jackson’s experience made it hard to cast her as a beneficiary of charity.

But then the Republican Party itself decided to weigh in, elevating a point first introduced by Sen. Marsha Blackburn (R-Tenn.) on Monday. Maybe, it suggested in a tweet, the Jackson nomination was a Trojan horse for that most nefarious of concepts … critical race theory.

We can dispatch with the allegation itself fairly quickly, and will. But it’s very important to recognize what the party is doing here. “Critical race theory” (CRT) was elevated — and expanded — as a way of talking about conservative concerns about the perception that Whites held a diminished position in American society without being explicit about that perception. Here, the subterfuge is stripped away: Republicans are being warned that a Black nominee for the Supreme Court is hoping to inculcate this anti-White agenda.

It’s not subtle.

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When considering the specific criticisms that the party is offering, it’s important to remember that the definition of CRT often used in political discussions is subjective. It’s been (intentionally) used to describe a wide range of race-related programs and ideas. “The goal is to have the public read something crazy in the newspaper and immediately think ‘critical race theory,’ ” pundit Chris Rufo, the primary architect of the right’s deployment of the term, wrote last year. “We have decodified the term and will recodify it to annex the entire range of cultural constructions that are unpopular with Americans.” So “CRT” should generally just be understood to mean “a race-related concept or idea that the right dislikes” and not anything specific or at any significant scale.

Here, though, the Republican National Committee tries to tie its attack to something specific: the actual academic regimen of critical race theory. For instance:

  • Jackson in one lecture mentioned that her parents had a book written by a proponent of the theory on their coffee table and also mentioned the New York Times’s “1619 Project” in noncritical terms.
  • In another lecture she mentioned critical race theory as one of a half-dozen aspects of law and legal theory that come into play in sentencing.

And that’s it. The first is guilt by association; the latter a recognition that critical race theory — an academic theory specifically about the intersection of race and the law — might inform legal decisions. In the same portion of that lecture, Jackson also suggests that people might consider contract law, but the RNC for some reason chose not to emphasize their concerns about her being beholden to Big Contract.

We know why, of course. For decades, Republican officials and candidates slowly moved away from explicit racial appeals to quiet or subtle ones, a pattern reflected in the “Southern strategy.” But emboldened by the increased discussion about race that accompanied the emergence of the Black Lives Matter movement, the party has started moving back to more explicit racial appeals such as that focus on “critical race theory.” Ask a Republican voter what CRT means, and they are likely to offer up some pastiche of concerns about children being taught that White people are inherently guilty or bad and that the United States is foundationally racist. CRT has been recodified to annex the entire range of cultural constructions that are unpopular with Americans, as Rufo promised — where “Americans” means “heavily conservative White Americans.”

This sits on top of a central concern of many White Republicans: that Whites and Christians are newly disadvantaged in American society. Polling has repeatedly shown that White Republicans see Whites as targets of discrimination to a similar extent as non-Whites; that in other words, “reverse” racism is rampant. CRT, then, is the in-vogue way of presenting that idea, an appealing term because it overlaps with hostility to elitism as represented by left-leaning academics. So Fox News and Republicans talk about CRT as a way of talking about how U.S. elites are trying to subjugate White Americans.

You see where this comes back to the initial response to Jackson’s nomination — or rather, the pledge to nominate a Black woman to the Supreme Court. The concern isn’t that so few non-White people have been on the bench, a centuries-long failure to ensure the Supreme Court reflects the country’s population. Instead, it’s that Biden chose to explicitly reject that pattern. Giving a non-White woman the same power enjoyed almost entirely by White men since the 1780s is seen not as leveling power structures but as taking power away from White men. This, of course, is framed as prioritizing race and gender over qualifications — which is why Jackson’s nomination dampened that line of rhetoric. (Not to mention, of course, that obtaining traditional credentials is itself downstream from race and class and that those credentials are a function of the expectations set by decades of prior justices who represented a specific race and class.)

We end up at the GOP’s tweet. A nominee for a Supreme Court vacancy seen and identified by many on the right as being granted undue elevation over theoretically more-qualified White people is now linked to CRT, the code-phrase for concerns about subjugating White power in America.

Every part of this is about race, and every part of it is already structured to let the GOP pretend that it isn’t.

Update: Asked by Sen. Ted Cruz (R-Tex.) how she understood critical race theory, Jackson dismissed the idea that it influenced her work.

“My understanding is that critical race theory — is it is an academic theory that is about the ways in which race interacts with various institutions,” Jackson said. “It doesn’t come up in my work as a judge. It’s never something that I’ve studied or relied on. And it wouldn’t be something that I would rely on if I was on the Supreme Court.”