The Selection or the Scope? An Enquiry into Judge Jackson’s Confirmation

By Anushka, Yashasvini and Sharan (Gender Equality Team)

(Picture credit ABC news)

On February 25, 2022, President Joe Biden nominated Judge Ketanji Brown Jackson to become the 116th Associate Justice of the United States Supreme Court. On April 7, 2022, Judge Jackson's nomination was confirmed by a 53-47 vote in the Senate. The moment’s historical significance cannot be overstated; in its 232-year history, only seven of the 115 justices who have served have not been white men.

Judge Jackson comes with unassailable credentials, A Harvard Law graduate, Jackson clerked for Breyer, worked at four elite law firms, served as a public defender, and served on the U.S. District Court for the District of Columbia from 2013 to 2021. She was nominated to the U.S. Court of Appeals for the D.C. Circuit and confirmed by the senate last year.

However, Jackson’s confirmation, the first Black woman justice on the high court, has been the object of fierce opposition by Republican senators. Despite her credentials, lamentations have ranged from the supposed fear that the nominee would be a “lesser-qualified” candidate and an “affirmative action nominee.” This contemptuous attitude has been reflected in Judge Jackson’s treatment during her confirmation hearings. The hearing lasted approximately 13 hours, and several Republican senators lobbed an array of criticisms against Jackson over her sentences during her term as a federal judge for nine years, her thoughts on critical race theory, and her advocacy as a representative of terror suspects at Guantanamo Bay.

Anita Hill, in a recent op-ed in the Washington Post, described her similar mistreatment by the Senate Judiciary Committee during the confirmation hearing for Justice Clarence Thomas in 1991, writing that she “was subjected to attacks on her intelligence, truthfulness and even her sanity when she testified about her experience working for the nominee at the Education Department and the Equal Employment Opportunity Commission.” She concurred in her op-ed that the confirmation process is “broken,” writing that she was still “shocked by the interrogation of Jackson, a nominee with stellar credentials and more judicial experience than any of the sitting justices when they were nominated.”

These gendered and racially tinged attacks were evident in earlier confirmation hearings when Judge Jackson 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?”

Similarly, Senator Marsha Blackburn, R-Tenn, suggested that Jackson may have a "hidden agenda," and went on to argue that Jackson "made clear" that she "believes judges must consider critical race theory when deciding criminal defendants." Blackburn asked, "Is it your personal agenda to incorporate critical race areas into our legal systems?" This line of questioning continued with Senator Ted Cruz, who questioned Judge Jackson on the public stage using Ibram X. Kendi's book "Anti Racist Baby," asking if she believed babies were racist. When pressed by Cruz on critical race theory, Jackson stated, "I've never studied critical race theory, and I've never used it. It doesn't come up in the work that I do as a judge."

(Picture credit ABC news)

Several senators also condemned Jackson for her sentences on child pornography cases, asserting that they were lighter than what is recommended by federal guidelines. To these allegations, she responded that her sentences were based on existing federal guidelines as well as other case-specific factors. Furthermore, a NYT fact check revealed that Jackson's legal recommendations, remarks and sentencing decisions were taken out of context, distorted her views, and sought to misrepresent her.

While Jackson was a member of the United States Sentencing Commission, which advises Congress on federal sentencing guidelines, bipartisan and issued the recommendations as a body. Furthermore, the recommendations were unanimous, data-driven, and in line with a 2010 survey conducted by the commission, in which 71 percent of district judges polled said they believed the mandatory minimum sentence for receipt of images was too high.

Jackson’s confirmation to the Supreme Court marks a significant departure from previous Supreme Court nominations. When Justice Breyer’s nomination by President Bill Clinton was confirmed in 1994 by an 87-to-9 vote, it subscribed to the prevailing view that nominees with the appropriate qualifications were suited to the post and that Presidents were entitled to their nominated justice. However, in contemporary times, the fight for Supreme Court confirmations have increasingly become a site of political bloodsport, spotlighting combative televised hearings where senators belonging to the opposite party attempt to discredit the President’s nominee while making partisan appeals to their core supporters.

When a person belonging to a marginalized history (in this case, a black person who has fought for racial justice), someone who can open doors to perspectives that give voice to those marginalized groups, are brought to the table, they could potentially disrupt prevailing approaches to how the law is understood and applied. It sheds light on into how little the scope of those in power really is when dealing with aspects of our society that are all too often beyond this scope. Our laws, our institutions, our systems and our society cannot therefore do without a broadening of perspectives, no matter how politically entangled such incidents become. The real politics lies not in the selection of those in power, but rather in an expansion of the scope itself.


Yashasvini Gupta, Sharan Kaur Hunjan, Anushka Sharma are part of CRRSS's Gender Equality Team.

22 views0 comments