Russell is an associate professor of law at Santa Clara University.
Sen. James Eastland posed a question to U.S. Supreme Court nominee Thurgood Marshall during his August 1967 confirmation hearings.
“Are you prejudiced against white people in the South?”
Eastland, a known white supremacist, could not be clearer in conveying his fears about Marshall and race.
Fifty-five years after Marshall’s hearings, U.S. Sen. Marsha Blackburn asked a similar question of Supreme Court nominee Ketanji Brown Jackson on March 22, 2022, during Jackson’s Senate Judiciary Committee confirmation hearings.
“You have praised the 1619 Project, which argues the U.S. is a fundamentally racist country, and you have made clear that you believe judges must consider critical race theory when deciding how to sentence criminal defendants,” Blackburn said. “Is it your personal hidden agenda to incorporate critical race theory into the legal system?”
Blackburn’s questions, when fact-checked, proved to be as inaccurate as they were inflammatory.
However, Blackburn – and other Republican senators – injected race-baiting into Jackson’s confirmation hearings.
President Joe Biden nominated Jackson, 51, on Feb. 25, 2022, to fill Justice Stephen Breyer’s seat, shortly after Breyer announced his retirement plans. Biden had publicly promised during his 2020 presidential campaign to nominate a Black woman to the high court.
Jackson’s confirmation hearings ended March 24. The entire Senate, which is evenly split between Democrats and Republicans, is expected to confirm Jackson after the proceedings, with Vice President Kamala Harris serving as a tie-breaking vote. It’s also possible some Republicans could vote in Jackson’s favor.
As a constitutional law professor who focuses on the Supreme Court, I find it striking that race has surfaced in such a major way in these hearings, more than five decades after Marshall’s nomination. In some respects, there has been progress on racial equity in the U.S., but aspects of these hearings demonstrate that too much remains the same.
Some common ground
Marshall was the first African American man who served on the Supreme Court. If confirmed, Jackson will be the first African American woman on the court.
The full Senate’s final vote on Marshall reflected divisions based on racial desegregation and Marshall’s past as an NAACP lawyer, rather than a straight partisan split. President Lyndon B. Johnson, a Democrat, nominated Marshall.
But most Southern Democrats voted against him. Sixty-nine senators – 37 Democrats and 32 Republicans – voted to confirm Marshall. Eleven senators – 10 Democrats and one Republican – voted not to confirm, and 20 senators – 17 Democrats and three Republicans – dodged their senatorial voting responsibilities entirely and were recorded as “not voting.”
Widespread predictions of a final Senate vote along party lines bode well for Jackson.
Jackson is now a judge on the U.S. Court of Appeals for the D.C. Circuit. Breyer and other legal experts have routinely praised Jackson’s intellect and legal experience. Jackson has also worked as a federal trial court judge, vice chair and commissioner on the U.S. Sentencing Commission, private law firm lawyer and federal public defender. She also served as a judicial clerk for Breyer.
The American Bar Association Standing Committee on the Federal Judiciary unanimously rated Jackson “well qualified,” its highest ranking.
Twenty-seven Republican senators have also previously voted to confirm Jackson for her federal court positions.
But Jackson has faced arduous and sometimes histrionic cross-examination during her hearing. Certainly, partisan hostility and political theater have marked every Supreme Court nomination for decades.
Jackson’s hearings, however, stand out. They have been drenched in questions about race, both obviously and not so obviously, most caustically from Sens. Blackburn, Ted Cruz, Josh Hawley and John Cornyn.
On March 22, Cruz questioned Jackson about the teaching of critical race theory at Georgetown Day School, a private school where she serves on the board of trustees.
Jackson, like Marshall, fielded the charged questions in a straightforward manner.
“Senator, those ideas, they don’t come up in my work as a judge, which, respectfully, is what I’m here to discuss,” Jackson said.
A preoccupation with crime
In addition to the explicit interrogations of Jackson’s views on race, her hearings – like Marshall’s – have featured a preoccupation with the nominee’s views on crime.
Republican senators have repeatedly accused Jackson of being soft on crime – specifically, that she was lenient as a trial judge in sentencing child pornographers.
Fearmongering about crime often carries a racialized connotation, whether blatant or unspoken. Media distortions and carceral inequities fuel the myth that Black and brown men are presumptively criminal.
Jackson’s actual sentencing record reveals no anomalies or disproportionate leniency when compared with that of other judges nominated by both Republican and Democratic presidents.
But Jackson’s hearing was a flashback to Marshall’s August 1967 confirmation hearing, when Sen. John McClellan questioned Marshall and suggested that he did not take crime seriously.
“First, I would ask you if you do not agree with me that the mounting incidence of crime in this country has reached a critical stage,” McClellan said. “How do you plan to deal with it? … Do you think it is reaching proportions where we will have a reign of lawlessness and chaos?”
Marshall answered the questions politely, never hinting at the offensiveness of the implication that he somehow supported crime and lawlessness.
Republicans’ treatment of Jackson
Republicans now sitting on the Senate Judiciary Committee have conflated legal representation of criminal defendants with a disregard for the rule of law and public safety.
Republican Sens. Blackburn, Lindsey Graham, Cruz, Hawley, Tom Cotton and Cornyn have gone far beyond insinuation to outright vilification of Jackson’s legal representation of criminal defendants.
Blackburn incorrectly said on March 21 that Jackson “consistently called for greater freedom for hardened criminals.”
Cornyn incorrectly accused Jackson of using the phrase “war criminal” to describe former President George W. Bush and former Secretary of Defense Donald Rumsfeld during the course of her legal work for Guantanamo detainees.
Cotton incorrectly said she “twisted the law” as a judge in applying the law of compassionate release, in which inmates can be released if they are very sick or elderly, for example. Cotton also suggested that she was “sympathetic” to a “fentanyl drug kingpin.”
Transformative change is slow
Like the Dixiecrat senators – Democratic senators from the South who believed in white supremacy – who grilled Marshall about his views on crime, the present-day Senate Judiciary Committee Republicans have repeatedly insinuated that Jackson is soft on crime for performing her job responsibilities as a defense lawyer and trial judge in a manner that has been shown to be well within the mainstream of these legal roles.
This racialized fearmongering brings to mind the divisive political tactics of the Willie Horton advertisement during the 1988 presidential campaign. That advertisement linked crime with African American men, and then linked both to Democratic presidential candidate Michael Dukakis, who eventually lost the race to Republican George H.W. Bush.
Marshall’s confirmation was a giant step forward in Supreme Court and U.S. history, but along the way he faced Senate Judiciary Committee questions that were race-baiting, arrogant, irrelevant and picayune.
Jackson’s historic hearings have unfolded in a similar way. In all likelihood, Jackson will become the next justice of the U.S. Supreme Court, representing another momentous step forward for this country. But it is also another reminder that transformative change on race, while continuing to progress, happens slowly in the U.S
Children watch a July Fourth Parade along the Walkway of Heroes and Independence Avenue on July 04, 2026 in Tappan, New York.
The Great American Grumpfest
Our nation’s 250th birthday party didn’t feel especially patriotic and wasn’t as much fun as the 200th anniversary was.
President Trump, who did his best to co-opt our holiday for his personal aggrandizement, was a major reason. The party he threw in Washington, D.C., was crankier than uplifting, and less about celebrating our shared past and a promising future than about reminding us how far we have strayed from our founders’ plan to create a republic that future Americans would keep in good working order.
Credit Trump this much. He has a singular gift for picking at scabs that other politicians would rather ignore and pushing us into reckonings we don’t need.
The thing is, Americans have seen all this before. Sometimes the makeover we were encouraged to undertake was more conservative, sometimes more liberal. Whatever direction we were pushing, however, the reckoning we had in mind this time had to be more forthright and the conclusion more definitive than it was the last time.
Our current discontents, the ones behind the reckoning President Trump has been trying to inspire, are not trivial. Included among them are immigration, birthright citizenship, exploding healthcare costs, election rigging, a gag-inducing national debt, how we educate our children, too many genders, racial differences we can’t move past, a lopsided economy that favors more well-off Americans, and historic levels of political corruption and graft. Add to these the several foreign adventures he has pushed us into or is anxious to undertake, and you have the makings of a national headache the likes of which we haven’t had in half a century.
All the elbow-throwing and overheated rhetoric we’re using today have begun to look almost normal in all the ways that bickering neighbors and feuding family members appear normal. But they have also made us look mean-spirited and have portrayed our differences as irreconcilable. To ourselves, of course, but also to many people outside the United States who might be forgiven for turning their heads and not looking at the national car wreck we Americans show no interest in avoiding.
The good news, as I suggested above, is that Americans have had a great deal of practice dealing with challenges and national car wrecks like these.
This essay begins to lay out the reasons why.
By way of illustration, we have our seemingly insatiable demand for more bad news about race in America.
Sixty years after being released from the legal constrictions that bedeviled both white and black Americans, many white people have come to believe the color that used to make them unassailable is now a sign of a moral inferiority born of a racial animus they can never wash off. Many black people, on the other hand, are insisting that America is as hopelessly stacked against them as the formerly unassailable white people’s ancestors used to tell their black ones.
The result is that many people today are buying into racist nightmares and mumbo jumbo that their black and white ancestors worked hard and effectively to put in each other’s heads.
This might be dismissed as crazy behavior if it weren’t so important to rituals Americans have long used to express their deepest fears about each other while figuring out what move they can make that won’t end with their world crashing down on everybody’s head.
Unfortunately, the kind of cultural sleight of hand we have used to ramp up our racial differences has been appropriated by people who have many other cultural fears and unresolved differences with each other. Their clumsy but culturally prescribed missteps are making all these other issues look as irremediable as our racial problems.
A good place to start an answer to how we back away from ledges is Alexis de Tocqueville’s writing on early-19th-century American democracy. He had an optimistic take on Americans’ unscripted displays of public bravado, recrimination, and payback.
For him, these were occasions when people tried to mitigate the effects of the unfair hand they were dealing someone else or had themselves been dealt by behaving in ways quite at odds with how they would otherwise be expected to act. These inversions of what Tocqueville called “the natural order of conscience” presented themselves as a loud but culturally muted challenge to the hypocrisies that people had built into the world they’d made together.
One of his favorite illustrations of early-American hypocrisy involved slave masters sleeping with their less-than-worthy slaves. To the best of my knowledge, he didn’t pick up on all the ways that slaves messed with their owners. Their well-chronicled and quiet resistance showed that even severely ill-treated people can exercise more control over their lives than outsiders appreciate.
Be that as it may, such inversions of a people’s “natural order of conscience” make a good public show of them wrestling with demons they can’t or may not want to shake off, but in any case, are nowhere close to figuring out how to cast out.
Implicit in these disruptions was the discomforting idea that people might flip the entire script and turn the world on its head in more permanent ways. That kind of flipping worked out better for us in our revolution against England than in our Civil War. These events taught us the value of stepping back from historically unprecedented ledges.
Americans of late have been giving loud expression to a long list of things they don’t like about each other and the last makeover they started but didn’t finish a half-century ago. The outcome of our fights today will be as revealing as they are embarrassing to everyone who imagined they could recast our country in a way that privileged their favorite kind of Americans.
Their disappointment with the accommodations they strike will be palpable, but the middling results they achieve with all their pushing and shoving won’t be anything they can’t live with.
Anthropologists who have written about such moments in other cultures less “advanced” than our own show that people find ways to work around their seemingly irreconcilable differences without ever fully resolving them. Indeed, the patches and repairs people make have the unheralded effect of reinforcing rather than undermining the legitimacy of the practices and values they thought were fundamentally flawed.
For example…
White guilt and black pessimism do more good than putting cash into the pockets of professional shamers and handwringers. They give the rest of us who don’t feel guilty or powerless more time to make the world less racially unequal. Good news.
Regarding illegal immigration, the entrance requirements for future immigrants will remain stringent. Americans will applaud the continued detention and deportation of the few illegal immigrants who commit serious crimes. Good news.
All the people who came to the United States without being legally vetted and were locked up for a time will be released in numbers small enough to avoid serious media attention. Along with the several million other good people who snuck in but avoided capture, the former detainees will go to school, find gainful employment, pay their taxes, and stay out of trouble. Many will eventually become citizens. Good news.
Investigations into election tampering and Donald Trump’s 2020 presidential loss will come to an unceremonious conclusion the day after his second term ends. Many Americans will grumble about this, but there will also be some quiet partying, too. Good and bad news.
Congressional hearings into all the grifting accomplished by people tied to the Trump administration will end without anyone having to pay a dime back to the American taxpayers. Bad news, we’ll learn to live with.
New laws and regulations will be created in the hope that the kind of corruption practiced by President Trump will not be repeated for another 250 years. Good news, I hope we’ll live long enough to enjoy.
Show trials for people who allegedly vandalized the Lincoln Memorial Reflecting Pool, if they happen, will get big television viewer ratings. Good news.
Trials for pardoned Capitol insurrectionists who committed serious crimes after their release should get more attention, but won’t. Bad news.
We will continue to hear nothing from most of the people who were pardoned for crimes they committed in the insurrection at the Capitol on January 6, 2021. They will keep their mouths shut and their heads down for the rest of their life. Good news.
The gold-gilded ornaments that Donald Trump had plastered all over the White House will be shipped to Mar-a-Lago, where the former president will sell them on eBay. Fun news.
American taxpayers end up paying for most of the new East Wing, the removal of the miniature gladiatorial arena that was built behind the White House, and the restoration of the White House rose garden. Bad news.
The Triumphal Arch was never built. Good news.
Trad wives and gay couples raise perfectly lovely children. Good but unsurprising news.
Trans men and women learn that most Americans can’t figure out who they used to be. No one gives a second thought to their use of “family bathrooms” or “unisex bathrooms” in public settings, businesses, and schools. Communities will sponsor athletic teams that have trans boys and girls just to show they can. Good news.
Budget deficits will be kicked down the road for someone else’s children to pay down. Bad news.
Federal agencies that had their budgets and employee ranks slashed during President Trump’s second term are getting some of the money and lost positions back. Good news.
Elite universities will buy their way out of DEI purgatory by competing for conservative scholars whose inflated salaries dwarf those of their liberal colleagues, who will think about suing their institutions for reverse discrimination but won’t be able to figure out who would pay for it or care. More fun news.
Okay. I’ve probably missed some ways that Americans will step back from the ledges they have been making noises about leaping off. But to the extent that my predictions pan out, the best and most important moral of the stories about us stepping away is this: everything we lost and took back, or had returned to us, will have happened without our government collapsing, civic traditions crumbling, or our people beating each other up.
The reason why is that the differences Americans have with each other really weren’t as irreconcilable as we made them out to be. The empty-sounding bromide that Americans have more that unites us than divides us turns out to be true, not just metaphorically but in fact.
Now that is really something to celebrate.
Daniel J. Monti (danieljmonti.com) is Professor of Sociology at Saint Louis University and the author of American Democracy and Disconsent: Liberalism and Illiberalism in Ferguson, Charlottesville, Black Lives Matter, and the Capitol Insurrection.