he U.S. Senate Judiciary Committee held confirmation hearings recently for Judge Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court. The hearings were historic in considering the unprecedented nomination of a Black woman to the nation’s highest court. The Senate confirmed Judge Jackson less than a year ago when Biden nominated her to the D.C. Circuit Court. If confirmed to the Supreme Court, she would replace retiring Justice Stephen Breyer, for whom Jackson formerly clerked.
Republican members of the Senate Judiciary Committee lobbed numerous aggressive political attacks at Judge Jackson during the hearings, including accusing her of promoting critical race theory, an academic approach to history that examines systematic racial injustices. Nadia Brown interpreted these attacks as Republicans “using this opportunity … to showcase their own partisan preferences” in an election year.
Brown is a professor of government, chair of the Women’s and Gender Studies Program, and affiliate in the African American Studies program at Georgetown University. She is also the lead editor of Politics, Groups, and Identities, a journal of the Western Political Science Association, and a founding board member of Women Also Know Stuff. Her expertise focuses on identity politics, legislative studies, and Black women’s studies. She spoke with YES! Racial Justice Editor Sonali Kolhatkar about Republicans’ aggressive questioning and about the significance of Judge Jackson’s nomination.
This interview has been edited for clarity and length.
Sonali Kolhatkar: How historic is this hearing, given that we’ve never had a Black woman be nominated to the Supreme Court, let alone be confirmed?
Nadia Brown: You’re exactly right. In the Supreme Court’s history of 115 judges, 110 have been White men. So, this is an enormous moment, just the fact that she may be able to serve on the Supreme Court if she gets through [the] confirmation hearings. There were countless other Black women who were qualified before her. So, this is much more of an indictment of the American political systems and institutions than it is to say that she isn’t qualified. There were people who were qualified way before her but just never got the nomination.
Kolhatkar: Since she is the nominee of a Democratic president, she is receiving pretty favorable questioning from Democratic senators. But the Republicans are grilling her. What do you make of the Republican line of questioning?
Brown: Some of this is to be expected and anticipated, particularly if we think about these hearings as more political theater than [people] actually trying to get to learn who the nominee is. What the Republicans and Democrats are trying to do is to push their own partisan agenda to see if this nominee will confirm or will push back from partisan labels like “Liberal” or “Conservative.”
Also, this is an election year—there will be midterms in November. So, these senators are also thinking about how their questioning is going to play into what campaign ads and attack ads are going to be for the midterm elections.
It’s also important to note that there are most likely people on the Judiciary Committee serving right now who will run for president in 2024. So, they’re using this opportunity as a way to have a platform, to grandstand, to showcase their own partisan preferences and their own political affiliations more so than interrogate Judge Ketanji Brown Jackson.
Kolhatkar: Republican Sen. Lindsey Graham, in particular, seems to be engaging in some sort of payback for the mistreatment (in his view) that Brett Kavanaugh and Amy Coney Barrett got when they had their Senate confirmation hearings. In Kavanaugh’s case in particular, there is so little comparison considering that Dr. Christine Blasey Ford testified ahead of his hearing, accusing him of sexually assaulting her. Why is Graham, who has indicated he will vote against Judge Jackson, asking her about these previous, unrelated nominees?
Brown: The context is different, the people are different, the players are different. This really is a case of “whataboutism” that has nothing to do with Judge Jackson. It has more to do with Lindsey Graham himself. So, whatever unresolved issues that he has, that’s been on full display here.
Another thing to note from Graham’s opening statement is that he feels that he’s been wronged by the Biden administration, that his choice, a South Carolinian named Michelle Childs, was not selected to be the nominee. He said as much that “dark money” and “Liberals on the far Left” wanted to sink his choice and put up Judge Jackson, and he said during his opening statement that he was going to ask her about some of these things.
These are vendettas that Graham has brought up. They have nothing to do with Judge Jackson, nothing at all. And it is ludicrous to think that she would use their time to respond to them, because she simply can’t. These things don’t have anything to do with her. They are all things that Graham is using his platform to [promote].
Kolhatkar: He’s asking her about attacks that other people made on another potential nominee?
Kolhatkar: On Tuesday, the GOP’s official Twitter account posted a GIF of Judge Jackson with her initials, KBJ, being crossed out and replaced with CRT, which stands for “critical race theory.” What do you make of this?
Brown: I was not shocked, to be honest. The Republican Party at this moment does not have a clear identity due to the split between those that hold conservative ideologies and those who are loyal to Donald Trump. And so, what the GOP strategy seems to be in order to win the midterm elections will be drumming up cultural wars—not necessarily attacking the Biden administration on policy and putting up their own.
Instead, they are trafficking in fearmongering. And so, there is a deep-seated fear amongst many conservatives that what’s being taught to our nation’s children are things that they find offensive: Talking about racism, or slavery, or the things that people of African descent in the United States have had to endure, is somehow diminishing the legacy of America, or painting all White Americans as inherently racist without looking at the structures and institutions that support a racist White supremacist agenda. And so, that’s what’s really happening here. I’m not that surprised.
Kolhatkar: Another thing the GOP seems to be trying to do is to paint Judge Jackson as “soft on crime.” This, too, seems to be a racist dog whistle aimed at a Black woman judicial nominee, to link her explicitly to the “defund the police” and “Black Lives Matter” movements. Senator Josh Hawley, in particular, seemed to be cherry-picking her statements on child pornography cases, right?
Brown: Yes, you’re exactly right. And political scientists have found that these dog whistles and sometimes these explicit statements that paint people of color, particularly Black Americans, as being “deviant” or “criminals” or wanting to be “soft on crime” actually pay off with political advantages for those that are making the attacks. Because in Americans’ minds’ eyes, Blacks are painted as deviant, as criminal, and as a group of people that do not want law and order.
However, research shows there’s nothing farther from the truth. Actually, African Americans are more likely to say that they would like an increased police presence. What they don’t want are the negative aspects of policing that don’t pay any attention to the civil liberties or human rights of Black and Brown people. So, there’s a difference here.
But the literature is clear, that African Americans are one of the more pro-police communities in the United States. This has a lot to do with the communities that they live in. We know that social factors that add to crime, like poverty, lack of education, lack of resources to health care, and opportunities for advancement, are things that are hotbeds for crime.
Kolhatkar: Would you say they are “pro-public safety”?
Brown: Exactly, pro-public safety. The Right is trafficking these stereotypes that Black people want to commit crimes and therefore are anti-law and order. That’s not true.
Kolhatkar: Do you think the Senate hearings are a way to use Judge Jackson as a canvas against which political parties can paint their politics—which of course is abusive to her—but that ultimately, she will likely get confirmed? There don’t seem to be any real objections to her—other than a White conservative party having a problem with her skin color.
Brown: She’s been confirmed three times by many members [of the Senate] that are sitting right there on the Judiciary Committee. So, there is little conversation around her qualifications and if she’s capable of doing this job. In fact, Senate Majority Leader Mitch McConnell said as much that she’ll be confirmed but they’ll ask some questions of her. She’s undoubtedly qualified.
What’s coming into play are partisan politics. This is something that’s new. Most nominees have enjoyed a supermajority of votes. It hasn’t been until recent years that there’s been this stark split between Democrats and Republicans on their votes to confirm Supreme Court justices. This is something that’s highly unusual and is part of our political context in today’s time, and would not be true if we were talking even 15 years ago.
Kolhatkar: If Judge Jackson is confirmed, as important as it’s going to be symbolically to finally have a Black woman on the Supreme Court, in the long term, we’ll still have a court with a 6–3 Conservative–Liberal split, right?
Brown: If Judge Jackson is confirmed, she’ll be maintaining the status quo on the current court. We don’t anticipate much to change. However, the point that matters the most is that her voice will be in the room. And she has shown in her previous appointments that she was able to change the tenor and the quality of the conversation that perhaps persuaded some of her colleagues to think differently about the issues that they were discussing.
So, I assume that we’ll see this on the Supreme Court. It matters that voices are in the room, and that she’s able to persuade her colleagues to think about something differently in ways that they just didn’t think of because they didn’t have a perspective of a Black woman, a Black woman public defender, a Black woman who grew up in the South—they just haven’t had that in the room before. I think that will be the qualitative difference.
And I’ll also note that her dissenting opinions that she writes—we’ve seen this in the hearing so far, that she’s been praised for her thorough and detailed writing—I’m sure will come through, which will serve as precedent for other cases, even if she’s not in the majority at this point.
Kolhatkar: What about issues of reproductive justice? She has said that Roe v. Wade is “settled law.” The Right has used the issue of abortion to whip up support for any presidential candidate who promises to nominate anti-abortion Supreme Court justices. Would Judge Jackson’s presence on the court change the tenor of the conversation on abortion rights?
Brown: I certainly hope so. There’s much at stake, and we see this playing out in the state legislatures across the nation right now. The Right has a very clear agenda. They have a mandate, they feel, to repeal Roe v. Wade and to protect the “lives of the unborn,” as they see it. What’s different is that Judge Jackson will be in the minority and will be able to use her voice to illuminate things that perhaps the other justices might not think of. I think it’s more of a game of wait and see, but we’ll probably be able to answer this question in a couple of months, for better or worse.
Kolhatkar: Republicans have raised the issue of expanding the Supreme Court during the confirmation hearings. They call it “court packing.” It’s not clear why it’s being raised, because Judge Jackson would have very little say over increasing the size of the court, but Republicans are bringing it up nonetheless. Why?
Brown: This is something that’s looking forward to the November 2022 elections and that is a political tactic. This is not necessarily something that Judge Jackson can answer, and indeed she shouldn’t, just as Amy Coney Barrett didn’t answer this question when she was being nominated and confirmed.
There’s only one senator in living history, actually living today, that changed the size of the Supreme Court, and that’s Mitch McConnell, when he refused to bring Obama’s choice of Merrick Garland to the Senate. So, there is a kind of hyperbole that the GOP is currently [engaged in], precisely because it was only a couple of years ago when Garland was denied a confirmation hearing. So, this is something that is political and has nothing to do with Judge Jackson.
Kolhatkar: There were hundreds of Black women gathered outside the Supreme Court calling for Jackson’s confirmation.
Brown: Yeah, I was one of them!
Kolhatkar: What was that like, particularly for young Black girls who look at Judge Jackson? It’s hard to overstate the importance of the symbolism, right?
Brown: Oh, my gosh—a picture of my 2-year-old has gone viral, standing outside on the steps of the Supreme Court, holding up her little rally sign. I was totally down there at the court in “mom mode.” I had on jeans, sneakers, very nondescript. And there were other high-profile Black women that were dressed to the nines. This was a professional outing for them. And for me, although I’m a political scientist who studies Black women political elites, I was out there as “mama,” and I wanted my girls to see, to feel, to just be a part of history.
It felt like a family reunion where there were distant cousins that were giving hugs and people that you knew were family but you didn’t know quite how, that you just embraced. And there was a feeling of joy in the air, because it’s such an historic nomination, that someone who looks like us—particularly for my girls—who literally looks like us, darker skin with natural hair, is being nominated. Like me, Judge Jackson has locs. This was just something that my girls felt at a [tangible] level. To be honest, I felt it too. I’m putting a lot, perhaps, on my 4-year and 2-year-old, but I have pictures, and I hope that they will remember this as I show them these pictures and talk about this as they continue to grow.
So, in their lifetime, they will say, “I have a Black woman vice president, there’s a Black woman Supreme Court justice, and the Black woman Supreme Court justice actually looks like me.”
Just seeing yourself represented lets little girls—and little boys—know that you, too, can aspire to do this. Seeing someone in the position that you perhaps would like to be [in], or seeing someone in a position overcome all the things that you have to overcome because you share the same social location and identity, inspires people. And that’s true in political science literature that I cite, that I write about, that I read, that I teach my students. But it’s so much different to teach this to my girls and to see this in my children.