Ketanji Brown Jackson’s Confirmation and Power in America
AThe Supreme Court confirms who has power. This question becomes more relevant when the nominee happens to be the first Black woman in that same position. This seat should be owned by Ketanji Jackson BrownIt also serves as a referendum about who should influence people and how they progress.
To watch her confirmation hearings was to observe how embarrassingly hard some are willing to flail, how eager to engage in histrionics and disinformation, just to slow the coming of change—or to recast it and its potential agents as a threat. In the end, after a bruising process, the Senate on Thursday approved the nomination of Judge Ketanji Brown Jackson, making her the first Black woman who will hear cases of monumental and minute meaning brought before the nation’s highest court in the institution’s 232-year history.
Sheryll D. cashin from Georgetown University Law School was author of this piece when I first began to report it. Black Hood and White Space: Opportunities Hoarding, Segregation, and Inequality in an Age of Inequality, recommended that I start it with a story: Tell the people who are squirming in their seats about Joe Biden’s promise to name a Black woman to the Supreme Court how another President—one whom many of those seat-squirmers revere—did something similar.
Continue reading: What We Learned During Ketanji Brown Jackson’s Supreme Court Confirmation Hearings
Peter Wallison (ex-White House Counsel) was the man who provided President Ronald Reagan with the two nominees for a seat on Supreme Court’s Supreme Court. These were Antonin Scalia and Robert Bork. Wallison replied via email that he had just told the President, “If…” ScaliaWallison was an Italian-named person. Reagan responded immediately that Scalia would be his nomination. The moment has been presented as proof of the hypocrisy of those who describe Jackson’s nomination process as somehow “offensive” or unique. Reagan made comments in previous years about wanting to have an Italian American judge on the Supreme Court. This was in recognition of how important people from Italy play in this country. Wallison told me that too much has been made of what he describes as merely “a spur-of-the-moment decision,” not a calculated promise. Nevertheless, it’s worth noting that the idea that Reagan wanted a judge of Italian heritage was not criticized at the time. It wasn’t shocking that Scalia would have power; there was no widespread hand-wringing that he was taking someone else’s deserved seat, and the criticism he did face centered on his actual record.
Early evidence showed that this would not be true. Jackson immediately was made aware that Jackson’s nomination had been unfair.
After she was officially named as the nominee, her opponents turned to a wide range of racist views about intelligence, ability and race. However, it’s difficult, and often awkward work, to doubt the credentials and qualifications of the Harvard University double-major and ex-Supreme Court Clerk. Unknown cable TV host demanded her LSAT scores, saying that this would be the best way to answer questions about her suitability to the court.
Central to the arguments of many of those who disputed Biden’s decision to select a nominee from a pool of well-qualified Black women is the idea that this country’s system for distributing opportunity—and ultimately power—is already open enough, fair enough to make that kind of intentional targeting unnecessary. But one need look only at the body with the authority to approve Jackson’s nomination to see that significant gaps remain. Although the United States’ current female population is at 50.8%, its Senate has a nearly 40 percent Black, Latino, or Asian membership, they are not as diverse. Only 24 U.S. senators are currently in office. There are only 24 U.S. senators currently. Only 11 members of Congress are of color. The private sector is, in many ways, worse. In many ways, race remains an important predictor of everything. This includes when you will be born, whether you can buy a home and even when or if it is possible to retire. It is still a problem to have systemic inequalities and interpersonal racism. For 177 years, the Supreme Court has been dominated by white men and women. The job requires no special qualifications and they were not the only candidates. These were the only people considered.
Existing beneficiaries can experience discomfort when trying to redefine what it is that they want. And for those who feel entitled to power, efforts to create equality—or at least equal access to the possibility of power—can feel like oppression.
Confirmation hearings are themselves only sharpened the nation’s focus on who should have power in modern-day America, and whom the framers intended to have it.
In the supposedly august halls of the Hart Senate Office Building, there is often some element of political theater at work, and what happened at points during Jackson’s confirmation hearing seemed more befitting social media clips than any sort of job interview: For example, Senator Ted Cruz, a Republican from Texas, began his inquiry by reminding Jackson that they had been Harvard Law classmates (friendly but not friends, an apparently common condition in Cruz’s life), before proceeding to a line of questioning in which Cruz waved around a children’s book he described as being about racist babies. Like other Cruz-presented books, it is also taught and made readily available to Jackson at private schools. But Jackson didn’t write or affirm having read them, and has no say about their use at the school.) At another time during the hearings Cruz could be seen searching Twitter for mentions of his own name.
Was Jackson really being questioned in this manner? Jackson’s ability to remain calm—even though that quality was apparently disconnected from the fate of Brett Kavanaugh’s Supreme Court Nomination in 2018. (In fact, the notion that it was he who was treated unfairly surfaced apropos of almost nothing during Jackson’s confirmation hearings.) It’s a dynamic familiar to many Black women, and one that was predicted by Brandi Colander, one of the co-founders of She Will Rise, a group that formed to hold Biden to his campaign-trail promise to nominate a Black woman to the Supreme Court should a vacancy arise. ”It was hard at moments to keep it together, honestly,” Colander, a lawyer and former Obama Administration official, texted me after attending the hearings. “You can’t react.”
Continue reading: What Black Women Saw at Ketanji Brown Jackson’s Confirmation Hearings
That’s because, for Jackson and so many Americans like her, composure—which Jackson consistently held until Senator Cory Booker, a Democrat from New Jersey, brought her to tears with a few kind words—is part of a recurrent challenge. It is an indication that she, in spite of what she has seen and learned, can still uphold the fantasm that various system that govern our society are fair, neutral and colorblind.
So, at her hearings, America bore witness to its national tendency—perhaps found most acutely among its elected officials—to demand that those whose lives have been defined by the country’s failings pretend that America has none. Associate Justice Clarence Thomas, the Supreme Court’s only other Black member, got there with less than two years of judicial experience. He instead distinguished himself among conservatives as a fierce opponent of affirmative action—from which he directly benefited—and for his time leading the federal government’s workplace anti-discrimination enforcement agency in a way that limited the scope of its actions.
It’s not just that the powerful believe the system is working. They also want assurances that nobody who has access to the levers of change will come right out and say or act as if it’s not.
The third day of confirmation hearingsCruz turned to Jackson again about the question of their alma matter, making it even more obvious the parallels between Jackson’s confirmation process and the nation’s recurrent questions over its power.
Harvard is being sued because of the way that Harvard’s admissions policy may have included race. Harvard can get its degree through Harvard. This case was sponsored and brought by conservative legal operatives, who also participated in the affirmative-action cases at the University of Texas and in the case against Alabama that overturned the Voting Rights Act. In both cases, central to their argument was the idea that—contrary to ample data indicating massive and ongoing disparities—systemic racism is no longer a major factor in American life. Instead, they argued, it’s white Americans who are placed at a disadvantage by efforts to address discrimination. They’re not alone in making this argument: Just this month, a Hill-HarrisX poll found 15% of white respondents belive white people face “a lot” of discrimination in the United States. Another 21% of white respondents believe they face “some.”
Georgetown’s Cashin predicted ahead of the hearings that many of the questions directed at Jackson would be, at their heart, geared toward one thing: Extracting a promise from the judge to recuse herself from the Harvard affirmative action case, which is pending before the court, on the grounds that she serves on a university oversight committee. Cruz asked exactly that question.
It’s not worth it. Jackson once seated will only have one vote at a conservative-dominated court. But Supreme Court dissents, Cashin explains, can draw a road map to future policy or procedure changes or shine a light on the disparities that exist, emerge, or deepen because of the court’s decision.
“A dissent can be a powerful, powerful thing,” Cashin says.
Continue reading: ‘Unconditional Love.’ See Photos of How Ketanji Brown Jackson’s Family Supported Her During Confirmation Hearings
Jackson made a verbal agreement with Cruz to withdraw herself from the hearing. Cruz assured him that there would not be any opposition in a case where meritocracy is the only way to control access to opportunity. This was a statement by a woman, who stated to the Senate Judiciary committee, that her grandparents, all children of Jim Crow South, were denied an opportunity for elementary school education..
This could have a significant impact on how American institutions can look at the requirements to gain access to power. ActuallyShe will not be allowed to speak.
Jackson’s only concrete and firm judicial commitment was in the Harvard case. In the end, a number of Republican Senators told reporters in advance of the vote that they could not sanction Jackson’s nomination. Announcements were made with the appropriate amount of solemnity that befits a violent political game. They intended their theater of dismay to be seen by their supporters. Given that the majority of the committee gave its support for Jackson’s lifetime appointment to the D.C. Circuit Court, last year. The majority of their arguments were nothing but: “She doesn’t view the world like I do.”
As Jackson joins the Supreme Court, she will do so after one of the narrowest votes in American history: Justice Clarence Thomas, the current court’s only other Black member, was confirmed 52-48. Justice Brett Kavanaugh received a 50-50 vote. Jackson was confirmed with a 53-47 vote. He is not accused of any personal or professional misconduct, unlike the men who were facing them. The accusations against Jackson and the other men were denied by both.
This was the moment that white men became a minority on the U.S. Supreme Court for the first ever time in American history. Jackson is changing not only the types of experiences that are considered when a case goes before the court but also the nature and face American power. As the last weeks have shown, this idea can be inexcusable for some.
—Mariah Espada reporting
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