March 21, 2022
UW expert: Ketanji Brown Jackson confirmation hearings ‘will hold a mirror up to this nation’
The U.S. Senate begins confirmation hearings today for Judge Ketanji Brown Jackson, a federal appeals court judge and President Biden’s nominee to the Supreme Court.
If confirmed, Jackson would be the first Black woman to serve as a Supreme Court justice. She would replace Justice Stephen Breyer, who announced in January he would retire this year.
Elizabeth Porter, interim dean of the University of Washington School of Law, and LaTaSha Levy, assistant professor of American ethnic studies at the UW, note the importance of Jackson’s nomination and the breadth of her legal experience, and they point out what to watch for in the hearings.
“Judge Jackson is a historically significant choice as a justice. She would be the first Black woman to serve on the Court, and only the third Black justice and the sixth female justice out of well over a hundred justices,” said Porter, who clerked for Justice Ruth Bader Ginsburg in the early 2000s. “Judge Jackson’s appointment would have enormous symbolic meaning, not only for the Court and the entire legal profession, but for our entire nation, which has a long history of using law as a tool of discrimination.”
Jackson brings a “stellar record and an extraordinary range of experiences,” including her years as a federal public defender, said Levy. That’s invaluable experience “in relation to how everyday people — non-elites — must navigate the legal system,” Levy said.
But while much attention has been focused on Jackson’s potential to be the first Black woman on the court, Levy sees many angles to both the concept of “the first,” as well as how senators in the confirmation hearings, and society at large, will respond.
“Jackson’s confirmation hearing will hold a mirror up to this nation. I suspect we will see this country’s longstanding contradictions take center stage, especially as they pertain to the myths of merit and colorblindness. The hearing will also show the extent to which our nation’s representatives actually believe in the U.S. Constitution when it comes to the right to legal representation for all,” Levy said.
Additional comments from Levy and Porter:
On what Jackson would bring to the court:
LL: “She shares a pedigree in terms of matriculating through Ivy League institutions, which satisfies the elitism of U.S. politics whereby having a degree from Harvard or Yale provides access to the levers of power, especially the Supreme Court. Coupled with her years of service on the United States Sentencing Commission, her work in public defense has given her keen insight into the devastating gaps in the legal system and the myriad ways justice is denied and unevenly applied, especially when it comes to indigent defendants who are routinely discarded and dismissed.
I also think it matters that she is a dark-skinned woman named Ketanji who wears her hair in sisterlocs. Her image is quite powerful in a culture that defines professional presentation according to Eurocentric standards and colorism. But symbolic representation has its limits.”
EP: “Judge Jackson would bring substantial experience in private practice and remarkable experience as a government attorney to her role as a justice. She currently serves as a federal appellate judge in the D.C. Circuit. Earlier, she worked as a federal district court judge, as a member of the U.S. Sentencing Commission, as a law clerk for Justice Stephen Breyer – whose seat she would take on the Court – and as a federal public defender. If confirmed, she would be the first federal public defender to serve on the Court.”
On how Jackson could make a mark on a conservative-majority Supreme Court:
LL: “Based on her record and lived experiences, I expect Jackson will argue in ways that will expand our interpretations of justice for all. Her multifaceted experiences with all sides of the legal system give her direct insight into how race, money, and access make a world of difference in the uneven distribution of justice.
LaTaSha Levy
Undoubtedly, Jackson will make an indelible contribution to the protection of women’s reproductive rights given her commitment to precedent. Other critical issues on the horizon include affirmative action, sentencing reform, voting rights and health care. I also anticipate some moderation.”
EP: “As a justice, Ketanji Brown Jackson will absolutely make a mark, even with a conservative majority. There are only nine justices, so every individual – every voice – influences the Court’s decisions. The justices’ decisions also have varying influence over time. Despite the Court’s deep respect for its own precedent, concurring or dissenting positions today may become majority opinions in the future.”
On the likely challenges to Jackson’s nomination:
Elizabeth Porter
EP: “I do not see any valid challenges to Judge Jackson’s nomination to the Court. She is undoubtedly qualified, and she was confirmed by the Senate just last year for her current job as a D.C. Circuit judge. Some critics have voiced concern about her work as a public defender, particularly her work defending Guantánamo Bay detainees. I disagree with those criticisms. Public defenders are vital to a fair and impartial judicial system.”
On what to watch for in the confirmation hearings:
LL: “For one, she has already been asked what role race plays in the kind of judge she is as if white men are not raced. The irony is white men have used their power to exclude highly qualified women and minoritized populations from the halls of power for more than two centuries, and we call it merit. Since Jackson’s nomination, we have heard critics conflate Blackness with handouts and lower standards or some perverse notion of identity politics. It will be interesting to watch how Republicans will maneuver to undermine her illustrious legal career by questioning her qualifications despite the unequivocal facts on file.
Just as the election of the first Black president unveiled the ugly underbelly of American racism, I expect nothing less for the nation’s first Black female justice. The claims that her rise is the result of some “radical left” strategy to undermine American institutions is an outrageous distortion. She will be widely celebrated, but she will face racist and sexist vilification as well.”
EP: “In recent years, Supreme Court and judicial nominees have been unwilling to answer questions that might pertain, even indirectly, to cases that would come before the Court, and in that sense the hearings may not be very revealing.
I look forward to hearing Judge Jackson discuss her approach to the Constitution. In her nomination hearings, Justice Amy Coney Barrett explained that she understands the Constitution ‘to have the meaning that it had at the time people ratified it.’
In contrast to that ‘originalist’ approach, Justice Ruth Bader Ginsburg and Justice Stephen Breyer are both proponents of a ‘living Constitution’ that evolves over time to meet the needs and ideals of a changing nation and world, while remaining respectful of the past. As Justice Ginsburg explained, ‘People who were left out at the beginning – slaves, women, men without property, Native Americans – were not part of ‘We the people.’ Now, all the once-left-out people are part of our political constituency. We are certainly a more perfect union as a result of that.'”
Porter is available for media interviews at egporter@uw.edu. For additional UW experts on the Supreme Court, contact Kim Eckart at UW News, keckart@uw.edu.
Read Levy’s full remarks
On what Ketanji Brown Jackson would bring to the court:
“There are layers to what Ketanji Brown Jackson brings to the Court. First and foremost is a stellar record and an extraordinary range of experiences. She shares a pedigree in terms of matriculating through Ivy League institutions, which satisfies the elitism of U.S. politics whereby having a degree from Harvard or Yale provides access to the levers of power, especially the Supreme Court. But she also has invaluable experience in relation to how everyday people – non elites – must navigate the legal system. Most notable is the distinct experience of having served as a federal public defender. Coupled with her years of service on the United States Sentencing Commission, her work in public defense has given her keen insight into the devastating gaps in the legal system and the myriad ways justice is denied and unevenly applied, especially when it comes to indigent defendants who are routinely discarded and dismissed.
Of course, people have already noted how the appointment of a Black woman is long overdue to ensure the Court is representative of the American public. I also think it matters that she is a dark-skinned woman named Ketanji who wears her hair in sisterlocs. Her image is quite powerful in a culture that defines professional presentation according to Eurocentric standards and colorism. But symbolic representation has its limits.
I’m sure ‘Barack,’ ‘Kamala’ and now ‘Ketanji’ are names that are unsettling to assimilationists because it troubles the assumption that Black professionals can’t get ahead if they have Black sounding or “ethnic” names. Jackson’s visibility also undermines the ridiculous view that natural hairstyles, including locs, are unprofessional or unkempt. It may seem like a small thing but recent studies show African American applicants suffer job discrimination due to racist bias against “Black names”, and we actually had to pass legislation to protect the right of Black people to wear their natural hair at school and in the workplace without penalty and punishment. So, for this Black woman named “Ketanji Brown Jackson” to show up as she does, it is an affirmation.
The reality is, symbolic representation is miniscule in the fight for greater access and opportunity. Sure, the first Black woman on the Supreme Court will inspire generations of American youth, as did Justice Thurgood Marshall in the late 20th century. But there is also Justice Clarence Thomas reminding us, incessantly, that racial representation only goes but so far and not far at all. In many instances, President Obama also taught us that hard lesson. Politics matter. Symbolic representation is insufficient.
Jackson also brings Black excellence. And I call her excellence “Black” because her achievements remind me of a common nugget of wisdom that many Black families pass down to their children – “You have to be twice as good” as your white counterparts in order to get half as much or to even get your foot in the door. I wince at the phrase because it assumes white competitors are inherently “good” and ignores the ways in which mediocrity and incompetence, even, are deeply embedded in the legacy of white racial preferences in this country, and in every institution. The recent appointments under the Trump administration, for instance, do not rise to the level of Jackson’s accomplishments. In this case, it is quite evident that Jackson is “twice as good” even in relation to Thomas, who had a rather pedestrian career prior to his appointment. Still, Jackson’s excellence has been downplayed and her qualifications are scrutinized to the point where talking heads are now asking for her standardized test scores.
Jackson’s extensive accomplishments fly in the face of erroneous attempts to reduce her career to some misconstrued notion of “identity politics.” Most of us understood, as soon as President Biden announced that he was committed to appointing the first Black woman to the Court, she must have an impeccable record of qualifications that went above and beyond. Although Jackson has garnered bipartisan support, Black excellence often draws contempt.
Another aspect of the racial politics surrounding Jackson’s appointment is that President Obama had an opportunity to nominate her for the Supreme Court. It is likely the first Black president did not nominate a Black woman in order to avoid accusations of racial favoritism. He chose Merrick Garland instead. In comparison, Jackson’s record appears to be more diverse and substantial. Clearly appointments are not about the most qualified, and highly qualified Black women have been overlooked and discounted for decades since Pauli Murray applied for a seat on the Court in 1971. Although Obama’s choice may have been deemed “safe,” and some people will argue his hands were tied, Republicans remained hellbent on unprecedented obstruction regardless. President Biden’s positionality as a white man allowed him to do what Obama could not or chose not to do.
On how Jackson could make a mark on a conservative-majority Supreme Court:
“Based on her record and lived experiences, I expect Jackson will argue in ways that will expand our interpretations of justice for all. Her multifaceted experiences with all sides of the legal system give her direct insight into how race, money and access make a world of difference in the uneven distribution of justice.
Undoubtedly, Jackson will make an indelible contribution to the protection of women’s reproductive rights given her commitment to precedent. Other critical issues on the horizon include affirmative action, sentencing reform, voting rights and health care. I also anticipate some moderation. I do wonder how her reputation for “playing the middle” will play out on the Court. We’ll have to wait and see. But I sense that many people are hopeful she will counteract the grave threats to American democracy that have been emboldened in the past several years.”
On what to watch for in the confirmation hearings:
“Jackson’s confirmation hearing will hold a mirror up to this nation. I suspect we will see this country’s longstanding contradictions take center stage, especially as they pertain to the myths of merit and colorblindness. For one, she has already been asked what role race plays in the kind of judge she is, as if white men are not raced. The irony is white men have used their power to exclude highly qualified women and minoritized populations from the halls of power for more than two centuries, and we call it merit. Since Jackson’s nomination, we have heard critics conflate Blackness with handouts and lower standards or some perverse notion of identity politics. It will be interesting to watch how Republicans will maneuver to undermine her illustrious legal career by questioning her qualifications despite the unequivocal facts on file.
The hearing will also show the extent to which our nation’s representatives actually believe in the U.S. Constitution when it comes to the right to legal representation for all. Jackson’s role as a public defender, although crucial, might be ridiculed and discounted, and she will likely face more questions on whether or not her defense of detainees at the infamous Guantánamo Bay is a reflection of her personal beliefs on terrorism. Despite the fact that she took an oath and upheld Constitutional values by simply doing her job, it looks like her work in criminal cases will be a target.
Just as the election of the first Black president unveiled the ugly underbelly of American racism, I expect nothing less for the nation’s first Black female justice. The claims that her rise is the result of some “radical left” strategy to undermine American institutions is an outrageous distortion. She will be widely celebrated, but she will face racist and sexist vilification as well.”
