Tuesday, March 22, 2022

Who’s Afraid of Ketanji Brown Jackson? (Sherilyn Ifill, NY Times)

Revealing day at the Senate Judiciary Committee.  The whole world is watching, as a few  rebarbative racists show animus as they misrepresent the record of a magnificent jurist,  Ketanji Brown Jackson. From The New York Times:

Who’s Afraid of Ketanji Brown Jackson?

Ketanji Brown Jackson
Credit...Erin Schaff/The New York Times

Ms. Ifill is a lawyer and author. She is the president and director-counsel of the NAACP Legal Defense and Educational Fund.

The nomination of the first Black woman to serve on the Supreme Court is a long overdue moment of historic consequence. Another glass ceiling has been shattered — and at the most powerful judicial institution in our country. In its 232-year history, only seven of the 115 justices who have served have not been white men. When she is confirmed, Judge Ketanji Brown Jackson will be the eighth.

For Black women in particular, the powerful symbolism of her nomination runs deep. We felt it as we watched a spectacularly accomplished Black woman with natural hair speak eloquently about her parents — both former public schoolteachers who attended historically Black colleges and universities — and about the strength of her faith and ambition that she needed to overcome the inadequate expectations of many around her.

Judge Jackson comes with unassailable traditional credentials that rival those of the chief justice with whom she will serve. But she also comes with unique perspectives and experiences — as a former public defender, as a member of the United States Sentencing Commission, as a Southerner and as a Black woman — that have shaped her vision of the law in ways that are underrepresented, to put it mildly, on the current court.

Predictably, Judge Jackson’s nomination to the court has not been met with universal praise. Even before she was announced as the nominee, the pledge by President Biden to appoint a Black woman to the court was attacked by many on the right. The familiar weapons of the trade were unsheathed in an effort to discredit the legitimacy of the nominee — whoever she might be.

Lamentations ranging from the supposed fear that the nominee would be a “lesser-qualified” candidate and an “affirmative action nominee” to charges that the process had been politicized by Mr. Biden’s pledge were given weeks of airtime. It was a disgrace. But that outrage and now the embarrassingly anemic effort to challenge the qualifications of Judge Jackson are important to understand for their own symbolism and significance.

This was evident in earlier confirmation hearings when Judge Jackson was asked by Senator Tom Cotton of Arkansas, “Have you ever represented a terrorist at Guantánamo Bay?” And she was asked about race in her decision making by Senator John Cornyn of Texas: “What role does race play, Judge Jackson, in the kind of judge that you have been and the kind of judge that you will be?” We have seen these tactics before.

“Are you prejudiced against white people in the South?” In 1967 this question was posed by the notorious segregationist Senator James Eastland of Mississippi to the solicitor general of the United States, Thurgood Marshall, on the occasion of his confirmation hearing for the Supreme Court. Justice Marshall was, of course, the most consequential lawyer of the 20th century. His work and leadership of the team at the NAACP Legal Defense and Educational Fund resulted in the Supreme Court’s decision in Brown v. Board of Education, which hastened the end of legal apartheid in the United States.

Obviously, there could be only one answer to Senator Eastland’s question. But the purpose of the question was not to elicit an answer. That said, Justice Marshall handled it superbly: “Not at all. I was brought up, what I would say way up South in Baltimore,” he responded. “I don’t know, with the possible exception of one person,” he added, “that I have any feeling about them.” Obviously, he could have said more. But successful Black people navigating hostile white spaces are well experienced in the art of deflecting.

The point of Senator Eastland’s projection was to brand the elevation of Justice Marshall to the Supreme Court as a danger to white people. Others, like Senator Strom Thurmond of South Carolina, participated in this project as well. And so, although this was Justice Marshall’s third confirmation hearing in a decade, other senators used their questions to suggest that he was a bigot and was not intellectually qualified and to brand him, a vehement anti-Communist, as a Communist sympathizer.

A year earlier, Constance Baker Motley, the first Black woman to serve as a federal judge, had her confirmation held up for seven months amid charges that she was a Communist sympathizer when she was younger. By the time of her nomination, she had become the most accomplished female litigator in the country. She had been hired by Justice Marshall at the NAACP Legal Defense and Educational Fund at a time when few firms would hire female lawyers, let alone Black female lawyers.

She had successfully litigated cases desegregating Clemson University, the University of Georgia and the University of Mississippi. She had represented the Rev. Dr. Martin Luther King Jr. in Albany, Ga., and Birmingham, Ala. She was the first Black woman lawyer to argue before the Supreme Court — winning nine of her 10 cases there. After leaving the Legal Defense and Educational Fund, she served in the New York State Senate and was the borough president of Manhattan.

And yet she faced a barrage of attempts to discredit her and her extensive experience. As shameful as these tactics were, they were revealing. Senator Eastland was not wrong about the threat constituted by Justice Marshall’s and Judge Motley’s elevations. The advancement of Black people into positions of power traditionally held by white people is a threat to white supremacy. It frustrates a narrative about merit, threatens the expectation of unlimited control and power, and opens the door to see things through a different lens.

When that Black person is one who has fought for racial justice or who unapologetically brings experiences and perspectives to the table that have the potential to interrupt prevailing approaches to how the law is understood and applied, it opens a portal to see aspects of our society that are all too often beyond the range of vision of those in power. Reflecting on what Justice Marshall brought to the conference on the court, Justice Byron White wrote, “He characteristically would tell us things that we knew but would rather forget; and he told us much that we did not know due to the limitations of our own experience.”

That is why, even though Judge Jackson’s confirmation is unlikely to change the outcome of issues before the court, firmly in the grip of its conservative majority of six, she has the potential to widen the perspective that is brought to how these issues are debated and discussed at the court’s conference. This is how change begins — by destabilizing comfortable narratives, with the inclusion of those who have not been seen. Thus, Judge Jackson, a highly respected judge whose record the NAACP Legal Defense and Educational Fund Inc. is continuing to review but who can hardly be described as radical, has already been accused of being a tool of the left wing, and her two and a half years of noble service as a public defender has been cast as evidence of her being soft on crime.

These attacks by her opposition constitute a shrewd recognition that even a judge without the kind of civil rights pedigree of Justice Marshall or Judge Motley has the potential to disrupt what might be seen as a clear path to dismantling longstanding civil rights and criminal justice protections. And we have seen the impact of such disruption. Justice Sonia Sotomayor was a prosecutor before becoming a judge. But her voice has emerged as a powerful and riveting counterpoint to the conservative majority. Her dissents sting. And they are meant to.

Every chink in the armor of racial and gender exclusion produces outsize opposition precisely because of its potential to destabilize existing norms and systems. Judge Jackson surely recognized this when she honored Judge Motley in last week’s news conference announcing her nomination, when she stated that she shares Judge Motley’s commitment to equal justice under law. There will be inspiring moments, and there will be ugly and unwarranted attacks during Judge Jackson’s confirmation hearing. But she will be confirmed. And something on the court, and in our expectations of it, will change.

Sherrilyn A. Ifill (@Sifill_LDF) is the president and director-counsel of the NAACP Legal Defense and Educational Fund. She is the author of “On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century.”

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