As Ketanji Brown Jackson this week sat through several days of hearings in her bid to join the Supreme Court, Democrats proudly took turns reflecting on the historic example she sets and the need for the judiciary — much like other institutions — to better reflect the diverse public it serves.
At the same time, some Republicans repeatedly suggested that the first Black female high court nominee was soft on crime and questioned whether critical race theory — an academic framework centered on the idea that racism is systemic — influenced her thinking as a judge.
The disparate treatment underscored the extent to which race hovered over the four grueling days of Jackson’s confirmation hearings this week, serving as both a source of ebullience for the judge’s supporters and an avenue for contentious questions that sometimes carried racial undertones.
“This confirmation hearing has been a reminder — and in some ways, a new Exhibit A — that for people of color, particularly those who have the audacity to try to be the first, [they] often have to work twice as hard to get half the respect,” said Sen. Alex Padilla (D-Calif.), the first Latino to represent California in the U.S. Senate.
Addressing Jackson directly, Padilla continued: “I offer that with your talent and exemplary qualifications on full display.”
For not only the nominee but also some senators, race was discussed in distinctly personal terms. Jackson recounted feeling lonely and out of place as a freshman at Harvard when, one evening, a Black woman she did not know approached her and told her to persevere. Sen. Cory Booker (D-N.J.), noting that he grew up in a Black church, repeatedly stressed how Jackson’s nomination was a source of pure joy he wanted to loudly proclaim.
But at the same time, the issue of crime — a core component of the GOP’s midterm elections strategy — and whether Jackson was sufficiently tough on it was a common refrain, despite her endorsements from prominent police groups. The Republican National Committee fired off numerous tweets linking Jackson to critical race theory, including an animated graphic that included a photo of her and her initials in large letters, which then were crossed out and replaced with “CRT.” Some senators referred to Jackson as “articulate,” a seemingly well-meaning phrase that is often considered a microaggression against Black Americans.
It is unclear how much the hearings will persuade the small number of senators who are considered genuine swing votes either for or against Jackson, who is still on track to be confirmed as soon as early next month. The Judiciary Committee plans to report out her nomination on April 4, and Jackson could be confirmed later that week as long as enough Democratic senators are healthy and are present to vote. Jackson’s hearings concluded Thursday with outside witnesses who testified either for or against her confirmation, as well as American Bar Association officials who told senators how they arrived at their “well-qualified” rating for Jackson.
At the outset, some of the Republican senators who would go on to question Jackson most aggressively acknowledged they could be perceived as racist in doing so.
“On our side, it’s about, we’re all racist, if we ask hard questions,” Sen. Lindsey O. Graham (R-S.C.) said earlier this week. “It’s not going to fly with us. We’re used to it by now, at least I am. So it’s not going to matter a bit to any of us. We’re going to ask you what we think you need to be asked.”
Similarly, Sen. Ted Cruz (R-Tex.) stressed in his opening remarks: “It’s not about race.”
“We will see Democrats and the media suggest that any senator that is skeptical of your nomination, that questions you vigorously, or that dares to vote against you must somehow harbor racial animus,” he said.
Those proclamations were being delivered in front of an audience that included several lawmakers from the Congressional Black Caucus (CBC), who had been preparing since Justice Stephen G. Breyer announced his plans to vacate his seat this year to mount a full-throated defense of whoever President Biden ultimately chose. CBC members — most of them women — shuffled in and out of the hearing room all week in a show of support for Jackson. The caucus’s chair, Rep. Joyce Beatty (D-Ohio), testified on Jackson’s behalf before the committee Thursday.
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Cruz’s exchanges later with Jackson would be among the lines of questioning that were the most overtly focused on race. With blown-up posters displayed prominently behind him, the senator fired off a fusillade of questions trying to tie Jackson to critical race theory, a doctrine used by academics to examine systemic racism that, in politics, has become shorthand for broader culture war targets involving race.
“Critical race theory frames all of society as a fundamental and intractable battle between the races. It views every conflict as a racial conflict,” Cruz pressed Jackson, his former Harvard Law classmate. “Do you think that’s an accurate way of viewing society in the world we live in?”
Jackson responded that she has never studied critical race theory, and gently hinted that the doctrine did not appear to be relevant in the very public job interview she was undergoing.
“It doesn’t come up in the work that I do as a judge,” Jackson told Cruz.
Cruz then quizzed Jackson about the book “Antiracist Baby” — on the reading list at Georgetown Day School, the private school in Washington on whose board Jackson serves — and asked whether the contents of the book were appropriate. (Jackson noted that she has not reviewed them.) Sen. Marsha Blackburn (R-Tenn.) later returned to the issue of book selection at Georgetown Day, insisting to Jackson that, as a board member, she must have heard from parents who “came to you and said, ‘Have you seen these books?'”
Cruz and Blackburn also brought up the 1619 Project from the New York Times Magazine, which sought to reinterpret the history of the country’s founding and highlights the year in which the first enslaved Africans arrived in America. Jackson had cited the journalism in a 2020 speech, saying the project had a “provocative thesis.”
“You have praised the 1619 Project, which argues the U.S. is a fundamentally racist country, and you have made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants,” Blackburn asserted in her opening statement Monday, when Jackson was not in a position to respond. “Is it your personal hidden agenda to incorporate critical race theory into our legal system?”
Rep. Brenda Lawrence (D-Mich.), who was sitting in the hearing room Tuesday, recalled biting her lip and clenching her fist as she watched Cruz waving around the children’s books from the dais. She said she was thoroughly impressed by Jackson’s composure, knowing full well that if she were in that seat, she would throw “every form of vocabulary” possible back at the senator from Texas.
“To watch her just pull in all the strength that she could to respond in an intelligent way to what I viewed as just asinine,” said Lawrence, who was the first Black woman to serve as mayor of Southfield, Mich. “But in our heart of hearts, we know — and I know she knows — what she does through this process is going to remove barriers for generations behind her.”
In defending Jackson, some Democratic senators invoked remarks from conservatives that began to percolate even before she was formally named by Biden as his Supreme Court pick, when some in the GOP began to portray the eventual nominee as a beneficiary of affirmative action. In doing so, Sen. Mazie Hirono (D-Hawaii) argued, Republicans were trying to undermine Jackson’s qualifications from the outset.
“Apparently, some have even claimed that you need to show your LSAT scores to determine whether you are a top legal mind,” said Hirono, referring to comments made by conservative television host Tucker Carlson. “This is incredibly offensive and condescending.”
But many Republicans feel their party could have had the distinction of installing the first Black woman on the Supreme Court if not for a Democratic-led blockade years ago — and they did not hesitate to bring up reminders of that throughout Jackson’s hearing.
Graham repeatedly invoked Janice Rogers Brown, a Black female circuit judge tapped by George W. Bush who was once considered a future Supreme Court candidate but never nominated for a vacancy. Her nomination to the U.S. Court of Appeals for the D.C. Circuit was filibustered by Democratic senators for two years until a deal brokered by what was known as the “Gang of 14” allowed her confirmation to occur.
While noting and praising the historic meaning of Jackson’s nomination that had been touted by Democrats, Graham said: “To my Democratic colleagues, I wish you had that same attitude when an African-American conservative is appointed to high office in the judiciary.”
Graham stressed that Jackson had nothing to do with what happened to Brown. But lingering resentments from Republicans about how Democrats have treated their favored diverse picks to the bench were clear.
“If this process were conducted in good faith, Miguel Estrada and Janice Rogers Brown might well be on the Supreme Court today,” said Sen. Ben Sasse (R-Neb.), referring in the first case to a Latino lawyer whose nomination to the appeals bench Democrats also filibustered. “But their opponents lied and bullied, rather than accepted principled minority judges.”
Near the end of the two-day questioning session, Booker, like others, took note of Jackson’s composure after what he considered disappointing behavior by his Republican colleagues.
“The way you have dealt with some of these things, that’s why you are a judge and I am a politician, because you have sat with grit and grace and have shown us just extraordinary demeanor, during the times where people were saying things to you that are actually out of the norm,” he said.
But the emotion Jackson visibly tried to suppress finally turned into tears as Booker spoke effusively of the delight she has brought to the Black community. He said that while Republicans may have dismissed her qualifications, those who understand her plight know she has worked aggressively to deserve a spot on the Supreme Court.
“I’m not letting anybody in the Senate steal my joy. I’m embarrassed. It happened earlier today. I just look at you, and I start getting full of emotion,” he said as Jackson wiped away tears. “You’re a person that is so much more than your race and gender.”
Sitting in the front row as Booker spoke, former senator Doug Jones (D-Ala.), too, was getting emotional. In his mind, Jones later recalled, was the 1963 Baptist church bombing in Birmingham, Ala., that killed four young Black girls. As a U.S. attorney in the early 2000s, Jones successfully prosecuted two Ku Klux Klan members responsible for the bombing.
Now he was the chief White House guide to the person who could become the first Black female Supreme Court justice.
“I just know … folks back home that were big supporters of mine and what they’re looking at and how they’re doing it and how they see it,” Jones said. “I keep thinking back to the case I prosecuted with the church bombing. You know, there are four little girls looking down on this.”