On Feb. 25, shortly after President Biden’s Supreme Court nominee became public, Republican Sen. Lindsey Graham tweeted that he expects a “respectful but interesting” hearing before the Senate Judiciary Committee.
If history is any guide, Graham’s right about it being interesting — but likely wrong about it being respectful.
Biden’s nominee is Ketanji Brown Jackson, the first Black woman to be nominated to the Supreme Court. Jackson is highly qualified for the role — she has two Harvard degrees, nearly 10 years of experience as a federal judge and once clerked for Stephen Breyer, the justice she’s been tapped to replace.
But research suggests that despite that stellar résumé, her identity as a Black woman — plus her professional background as a former public defender — means that she’s likely to be described less glowingly, interrupted more frequently and asked more questions about her qualifications than another nominee would be. That means we could be heading for an ugly political spectacle, with Republicans attacking Jackson’s background and grilling her about how race might inform her work.
The vast majority of Supreme Court justices have been white men. (The first Black man on the court, Thurgood Marshall, was confirmed nearly 55 years ago, and the first woman on the court, Sandra Day O’Connor, was confirmed just over 40 years ago.) So, for that matter, were the vast majority of the senators tasked with deciding whether to confirm those nominees. Perhaps as a result, researchers who study the Supreme Court confirmation process have found that when people of color and women began to be nominated to the high court, they were met with more skepticism — and treated with less courtesy — at their Senate confirmation hearings.
Mining a painstakingly assembled database of every transcribed statement made in every Supreme Court hearing held before the Senate Judiciary Committee between 1939 and 2010, political scientists Christina Boyd other Paul Collins Jr. and law professor Lori Ringhand found that although the sample size was small, there were noteworthy differences in how women and nonwhite nominees were treated. “We find that female nominees are asked more questions of competence,” Collins said. “We also find that female nominees and nominees of color are interrupted more and described in less stellar terms — words like ‘exceptional’ and ‘outstanding.’”
Usually, this treatment comes from senators of the party opposite of the president who nominated the justice. The researchers found that female nominees were more than twice as likely to be interrupted by senators of the opposite party. At some confirmation hearings, senators banter about scheduling or the nominee’s family, but the senators dispense with that earlier for female and minority nominees, which means those candidates are asked more substantive questions.
Women and minority nominees are also pressed more heavily on their judicial philosophy, which is often a coded way of questioning their competence to serve on the court. And there’s evidence that they are particularly likely to face skeptical queries about their outlook. For instance, during Justice Sonia Sotomayor’s confirmation hearings, the researchers found that nearly 20 percent of the questions asked were about her judicial philosophy — higher than any other nominee in the data except for Justice Samuel Alito and Justice Sandra Day O’Connor.
Embedded in those questions is often an assumption that female nominees and nominees of color will be biased — particularly on issues like sex-based discrimination and civil rights. During the 1967 confirmation hearings for Marshall, who would eventually become the first Black justice to serve on the Supreme Court, Senators needled him about recent Supreme Court decisions expanding rights for criminal defendants, heavily implying that they had contributed to rising crime, and targeted his record as a celebrated civil rights attorney, suggesting that he couldn’t apply the law impartially. One southern senator asked him bluntly“Are you prejudiced against white people in the South?”
There’s no reason to think that the appeal of racist dog whistles has diminished over time. The professional and personal experiences that make Jackson an appealing nominee for liberals could easily be weaponized against her by the Republicans on the committee — not just her race and gender, but her career as a public defender and work on federal sentencing. In January, during confirmation hearings for Andre Mathis, a Black lawyer nominated to the US Court of Appeals for the 6th Circuit, Republican senators tried to make hay out of three traffic tickets — all more than 10 years old — that the nominee had apparently failed to pay, claiming that he had a “rap sheet.” And in a recent hearing for Nina Morrison, a white female lawyer for the Innocence Project who had been nominated to a district-court judgment in New York, a Republican senator argued that Morrison would be more likely to “let more violent criminals go.”
Other elements of the hearings could be just as much of a no-win situation for Jackson. Republicans may also try to use her credentials against her. Graham has already commented that”[t]he Harvard-Yale train to the Supreme Court continues to run unabated.” It’s true that most of the current Supreme Court justices have degrees from Harvard or Yale. And it’s also true that Biden’s Black female judicial appointees tend to have even more highly burnished résumés than his average nominee. But while it’s certainly possible to argue that the court would benefit from more educational and socioeconomic diversity, it’s a new line for Republicans. Trump, for instance, appointed two white men who didn’t just attend Harvard and Yale — they also went to the same exclusive Washington, DC, prep school.
And as one expert pointed out in a story I wrote last year, Biden may be leaning toward Black women with unimpeachable résumés in an attempt to mitigate racist criticisms about their qualifications. And it’s hard to imagine that Republicans would be any more likely to fall in line behind Jackson if she didn’t have two degrees from Harvard.
So it’s possible that Republicans could turn Jackson’s nomination — which will have no immediate impact on conservatives’ control of the court — into a racist spectacle. That might be red meat for their base of white conservatives since, as FiveThirtyEight contributor Michael Tesler wrote last month, GOP politics is increasingly energized by fears of anti-white discrimination. Biden’s approach to selecting a nominee makes that only more likely, since he guaranteed that he would select a Black woman.
But some research suggests that racist attacks on the first Black woman to be nominated to the Supreme Court could mobilize another important political group — Black Democrats. According to a study published in 2019, Black Democrats are particularly likely to prioritize having Black Supreme Court justices, perhaps because they’ve had so little representation on the court throughout its history. There’s evidence that Justice Brett Kavanaugh’s contentious confirmation hearing boosted Republicans in the lead-up to the 2018 midterms. It’s not inconceivable that the same thing could happen for Democrats in November, depending on what happens next.
In the meantime, the bleak reality is that Jackson could be in for a very tough confirmation process. But as a Black woman lawyer who’s risen to the height of her profession in spite of all the obstacles in her way, she’s probably pretty well prepared to deal with it.