A Supreme Court confirmation is always about who gets to have power. But when the nominee is also the first Black woman to reach that position, that question takes new meaning. Should Ketanji Brown Jackson have this seat also becomes a referendum on what kind of people should be influential, and how the country helps or hinders their 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.
When I began reporting this piece, Georgetown University Law School professor Sheryll D. Cashin, author of White Space, Black Hood: Opportunity Hoarding and Segregation in the 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.
Former White House Counsel Peter Wallison was the person who in 1986 presented President Ronald Reagan with two potential nominees for an open seat on the Supreme Court: judges Robert Bork and Antonin Scalia. The President asked, Wallison told me recently via email, if Scalia was an Italian name; Wallison answered in the affirmative, after which Reagan immediately responded that Scalia would be his nominee. The moment has been presented as proof of the hypocrisy of those who describe Jackson’s nomination process as somehow “offensive” or unique. After all, Reagan had made previous comments about his desire to put an Italian American on the Supreme Court, in recognition of the important role that people of Italian heritage play in the 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.
In the weeks after she was named the official nominee, conservative opponents reached into a ready tote bag of racist ideas about intelligence and ability, though it is difficult and often clumsy work to question the credentials of a double Harvard University graduate and former Supreme Court clerk. One cable television host publicly called for her LSAT score, claiming this was the only way to put questions to rest about her suitability for the court, as if there were some fundamental and obvious reason to doubt.
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. The United States is 50.8% female, and nearly 40% Black, Latino and Asian, but its Senate is not and never has been anything like that. Just 24 current U.S. Senators are women of any race or ethnicity; 11 current members are people of color, the majority of them men. Private industry is in some ways far worse. Race remains a highly predictive factor in everything from when one will be born to whether one is able to purchase a home to when and if one can retire. Interpersonal bigotry and systemic disparities are still here. And for 177 years, every person ever seated on the Supreme Court was white and male. They were not and are not the only people who could do the job, which has no specific qualifications. They were simply the only ones considered.
The beneficiaries of the old system can feel their feelings of discomfort about what it means to change. 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.
The confirmation hearings 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. (It, like other books Cruz presented, is taught or made available at a private school where Jackson is on the board. But Jackson didn’t write or affirm having read them, and has no say about their use at the school.) At another point during the hearings, Cruz could be seen searching Twitter for mentions of his own name.
What was really being tested in such a line of questioning? 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.”
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. To some, it is a sign that, despite what she knows and has experienced, she can uphold the fantasy notion that the various systems that control our society are neutral, fair, 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.
During the third day of the confirmation hearings, Cruz turned again to the matter of the alma mater he and Jackson share, making all the more clear the echoes between the Jackson confirmation process and the way the country is vexed by questions about access to power.
Harvard, a degree from which can be its own key to power, has been sued over the way race is believed to factor into its admissions policies. The case has been brought and sponsored by conservative legal operatives who were also involved in both a 2016 University of Texas affirmative-action case and the 2013 Alabama case that eviscerated 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. A question from Cruz did just that.
Why bother? Jackson, once seated, will have just one vote on what will still be a court dominated by conservatives. 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.
When Cruz secured a verbal commitment from Jackson that she would recuse herself, he assured that no dissenting opinion, in a case that holds a mirror to the idea in America meritocracy alone controls access to opportunity, would be written by a woman who told the Senate Judiciary committee that her grandparents, children of the Jim Crow South, had only had the opportunity to obtain an elementary-school education.
In that case, which could change how and even whether American institutions are able to look at what it would take to make access to power actually fair, she will have no power to speak.
The Harvard case is, in many ways, the only firm and specific judicial commitment Jackson made. In the end, a number of Republican Senators told reporters in advance of the vote that they could not sanction Jackson’s nomination. The announcements were made with all the approximated solemn regret befitting a brutal political game. Their theater of disappointment was, of course, intended for an audience of their own supporters. Given that the majority of the committee gave its support for Jackson’s lifetime appointment to the D.C. Circuit Court just last year, their various rationales generally amounted to nothing more than: she does not view the world the way that 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 was confirmed by a vote of 50-48. Jackson, who unlike those men faced no accusations of personal or professional misconduct and who has far more judicial experience than either man had, was confirmed by a vote of 53-47. (Both men denied the accusations they faced.)
And with that, white men, for the first time in history, became a minority population on the U.S. Supreme Court. Jackson stands to change not just which experiences are contemplated when a case comes before the court, but the very face of American power. For some, as the last few weeks have reminded us, that idea is intolerable.
—With reporting by Mariah Espada
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