Supreme Court nominee Judge Ketanji Brown Jackson speaks during her confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill in Washington, D.C., on March 23, 2022.
Judge Ketanji Brown Jackson is inching toward confirmation as a Supreme Court Justice after sailing with strength and grace through days of racist and disrespectful attacks by GOP senators. Conservative Democrat Joe Manchin has now signaled that he will vote to confirm Jackson, showing that the often fractured Democratic senators are uniting to support her confirmation.
Although Judge Jackson is exceptionally qualified to sit on the Supreme Court, she was subjected to snide, condescending and racist attacks by Republican members of the Senate Judiciary Committee during her confirmation hearing this week. Jackson remained remarkably unflappable in the face of grueling questions and hostile, vicious assaults.
Jackson is likely to be confirmed to the Supreme Court. It is anticipated that all Democratic and Independent senators as well as Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) will vote to confirm her nomination.
But many Republican committee members mounted unfounded attacks on Jackson’s record. The GOP senators apparently sought to peel off support for Jackson’s nomination from Joe Manchin (D-West Virginia) and Kyrsten Sinema (D-Arizona). They are also pandering to their hard-right base in anticipation of the midterms and even presidential campaigns.
Some GOP committee members confronted Jackson about critical race theory (CRT), which has become a flashpoint for the Republican Party. CRT is an academic framework that analyzes how systemic racism permeates U.S. society. It identifies racism as more than the result of individual prejudice and bias, examining how racism is entrenched in laws, institutions and policies — from housing and education to employment, health care and policing, all of which reflect racial inequalities. The Republican members tried to show that Jackson’s fidelity to CRT would make her a biased Supreme Court justice.
The CRT accusations were combined with a concerted GOP effort to paint Jackson as “soft on crime,” particularly with misleading allegations that her sentences of defendants convicted of consuming or distributing child pornography were below the norm. The veiled inference was that because she is motivated by CRT, Jackson would mete out lesser sentences to Black defendants.
Indeed, in her opening statement, Marsha Blackburn (R-Tennessee) falsely told Jackson, “You have made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants. Is it your personal hidden agenda to incorporate critical race theory into our legal system?”
But it was Sen. Ted Cruz (R-Texas) who led the anti-CRT charge against Jackson. He cited language from a children’s book in the library of the private Georgetown Day School (GDS), on whose board of trustees Jackson sits. Cruz singled out Antiracist Baby by Dr. Ibram X. Kendi, complaining that it conveys to children that babies are taught to be racist, not born racist, and that they are encouraged to talk about racism and admit if they have been racist. Cruz, who absurdly claimed the elementary school was “overflowing with critical race theory” (a comment that reflects how the GOP is inaccurately slapping the name of this complex theoretical framework onto any basic discussion of race and racism), asked Jackson, “Do you agree … that babies are racist?”
After a considerable pause, Jackson said she wasn’t familiar with the book, adding that CRT is “an academic theory taught in law schools,” not in elementary schools such as GDS. “I have not reviewed any of those books, any of those ideas,” Jackson said. “They do not come up in my work as a judge, which I am, respectfully, here to address.”
She added, “I do not believe that any child should be made to feel as though they are racist or though they are not valued or though they are less than their victims, that they are oppressors. I don’t believe in any of that.”
Right-wing efforts against everything that the GOP deems as CRT have led to book banning around the country. Ironically, after Cruz condemned Antiracist Baby, it rose to the top of Amazon’s list of best-selling children’s books on racism and prejudice.
False Accusations Track Conspiracy Theory Talking Points
In preparation for Jackson’s confirmation hearing, Sen. Josh Hawley (R-Missouri) tweeted misleading accusations suggesting that Jackson was lenient in sentencing child pornography defendants because she handed out sentences below those provided for in the federal sentencing guidelines and requested by prosecutors. This attack delighted followers of the pro-Trump conspiracy theory QAnon, many of whom believe that Washington and the media are controlled by a Satan-worshipping “cabal of pedophiles.”
But even the conservative National Review, which opposes Jackson’s confirmation, pointed out that Hawley’s claim “that Judge Jackson is appallingly soft on child-pornography offenders” appears “meritless to the point of demagoguery.”
When Hawley asked Jackson whether she regretted giving a certain defendant a low sentence, she replied, “What I regret is that in a hearing about my qualifications to be a justice on the Supreme Court, we’ve spent a lot of time focusing on this small subset of my sentences.”
Sen. Lindsey Graham (R-South Carolina) grabbed the baton from Hawley and mounted a vicious attack on Jackson. “Every judge who does what you are doing is making it easier for the children to be exploited,” Graham barked. Using a shotgun approach, he peppered her with rude accusations, continually interrupting her before she could answer. (I counted at least 14 interruptions by Graham during one of his interrogation sessions.)
Over and over, Jackson patiently tried to explain that the sentencing guidelines were written before the advent of the internet and are therefore outdated, inviting Congress to update them.
Moreover, she noted, the Supreme Court held in United States v. Booker that the guidelines were no longer mandatory, just advisory. Jackson said she considers the guidelines as well as the positions of the prosecutor, the defense and the probation officer, and the unique circumstances of each case and every defendant she sentences.
After Jackson answered a question about one of the child pornography sentences she ordered, Sen. Tom Cotton (R-Arkansas) essentially called her a liar, stating, “I don’t find it credible.”
Three members of the American Bar Association’s Standing Committee on the Federal Judiciary, which provides independent nonpartisan evaluations of the professional qualifications of judicial nominees, interviewed 250 lawyers and judges who had direct knowledge of Jackson’s work. They concluded that Jackson demonstrated “the exceptional professional competence expected of a Supreme Court justice and thus merits a well-qualified rating.”
When Sen. Dick Durbin (D-Illinois) asked committee member Jean Veta about the allegations that Jackson’s sentences were too lenient, she replied, “Notably, no judge, defense counsel or prosecutor expressed any concern in this regard and they uniformly rejected any accusations of bias.” In response to Durbin’s question about charges by GOP senators that Jackson gave lenient sentences to child pornography defendants, Ann Claire Williams said, “It never came up in any of the interviews we conducted.”
Jackson Is Attacked for Her Work as a Public Defender
If confirmed, Jackson will be the only former public defender ever to serve on the court. Although this will give her a unique perspective and understanding of criminal cases, GOP senators consider it a liability.
Graham accused Jackson of aiding terrorism for representing Guantánamo Bay detainees when she was a public defender. Apparently unmindful of John Adams’s famous declaration that his representation of British soldiers charged in the Boston Massacre was his proudest moment, Graham stormed out of the hearing room shrieking that he hoped dangerous Guantánamo detainees died in custody without receiving due process.
In 2004, the Supreme Court decided in Rasul v. Bush that people indefinitely detained at Guantánamo have the constitutional right to habeas corpus to challenge their detention as enemy combatants.
In 2005, after she began working as an assistant federal public defender in Washington, D.C., Jackson and some of her colleagues were assigned to represent four Guantánamo detainees who had been designated as “enemy combatants.” They filed petitions for writs of habeas corpus on behalf of their clients. One count alleged the commission of torture, which constitutes a war crime.
Graham and Sen. John Cornyn (R-Texas) falsely accused Jackson of calling former President George W. Bush and former Defense Secretary Donald Rumsfeld “war criminals” in the petitions.
Jackson explained that lawyers who file habeas corpus petitions are required to name responsible government officials as defendants, which she and her colleagues did. The petitions alleged that the officials ordered or condoned the commission of torture, which constitutes a war crime. Jackson said she was “standing up for the constitutional value of representation.”
None of the four Guantánamo detainees Jackson represented were ever tried or convicted of a crime. All were ultimately repatriated — three to Afghanistan and one to Saudi Arabia.
Jackson and Sotomayor Will Be Kindred Spirits
Jackson’s record exemplifies her progressive bona fides. Although Jackson’s confirmation to the high court will not change its 6-3 right-wing ideological imbalance, she will surely have a considerable impact on the direction of the court. Jackson and Sonia Sotomayor, the most progressive member of the court, will likely be kindred spirits. The only women of color, they are also the only justices with experience as trial judges, which is invaluable for an appellate judge.
The Republicans on the committee distinguished themselves with their bullying racist, sexist dog whistles.
“I do think it’s a legitimate question to ask — would they be asking these questions if this were not a Black woman?” Sen. Raphael Warnock (D-Georgia), who is also Black, queried.
“This is just a master class in how Black women have to be patient, have to be fully composed in responding to things that are meant for destruction,” Nadia Brown, professor of women’s and gender studies at Georgetown University, told the Los Angeles Times.
Irin Carmon, senior correspondent at New York Magazine, tweeted, “Despite the tendentious and misleading questions from Cruz, Jackson couldn’t possibly rage and cry the way now-Justice Kavanaugh did in his confirmation hearing without destroying her career. Even an eyebrow raise could be held against her.”
Sen. Patrick Leahy (D-Vermont), former chairman of the Senate Judiciary Committee, said that in his 48 years in the Senate, he had never seen the depth of disrespect exhibited to Jackson.