• Home
  • Opinion
  • Quizzes
  • Redistricting
  • Sections
  • About Us
  • Voting
  • Events
  • Civic Ed
  • Campaign Finance
  • Directory
  • Election Dissection
  • Fact Check
  • Glossary
  • Independent Voter News
  • News
  • Analysis
  • Subscriptions
  • Log in
Leveraging Our Differences
  • news & opinion
    • Big Picture
      • Civic Ed
      • Ethics
      • Leadership
      • Leveraging big ideas
      • Media
    • Business & Democracy
      • Corporate Responsibility
      • Impact Investment
      • Innovation & Incubation
      • Small Businesses
      • Stakeholder Capitalism
    • Elections
      • Campaign Finance
      • Independent Voter News
      • Redistricting
      • Voting
    • Government
      • Balance of Power
      • Budgeting
      • Congress
      • Judicial
      • Local
      • State
      • White House
    • Justice
      • Accountability
      • Anti-corruption
      • Budget equity
    • Columns
      • Beyond Right and Left
      • Civic Soul
      • Congress at a Crossroads
      • Cross-Partisan Visions
      • Democracy Pie
      • Our Freedom
  • Pop Culture
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
  • events
  • About
      • Mission
      • Advisory Board
      • Staff
      • Contact Us
Sign Up
  1. Home>
  2. supreme court>

Ketanji Brown Jackson’s hearings recall how race and crime featured in Thurgood Marshall’s 1967 confirmation

Margaret M. Russell
March 25, 2022
Ketnaji Brown Jackson confirmation hearing

Judge Ketanji Brown Jackson answers questions during a hearing on her confirmation to the Supreme Court on Wednesday.

China News Service/Getty Images

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.

Sign up for The Fulcrum newsletter

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

The Conversation

From Your Site Articles
  • Shalanda Young is first woman of color to manage U.S. budget - The ... ›
  • Women make strides in government, but still far from parity - The ... ›
  • Ketanji Brown Jackson gets big support as partisan gap grows - The ... ›
  • Ketanji Brown Jackson’s swearing in makes history - The Fulcrum ›
Related Articles Around the Web
  • Ketanji Brown Jackson's Daughter and That Photo - The New York ... ›
  • Opinion | The Using of Ketanji Brown Jackson - The New York Times ›
  • Who is Judge Ketanji Brown Jackson? Biden names her as his ... ›
  • Ketanji Brown Jackson nominated as first Black woman to sit on ... ›
supreme court

Join an Upcoming Event

The End of American Democracy? Session 3 of 3

Interactivity Foundation
Jan 25, 2023 at 2:00 pm EST
Read More
View All Events

Want to write
for The Fulcrum?

If you have something to say about ways to protect or repair our American democracy, we want to hear from you.

Submit
Get some Leverage Sign up for The Fulcrum Newsletter
Follow
Contributors

Reform in 2023: Leadership worth celebrating

Layla Zaidane

Two technology balancing acts

Dave Anderson

Reform in 2023: It’s time for the civil rights community to embrace independent voters

Jeremy Gruber

Congress’ fix to presidential votes lights the way for broader election reform

Kevin Johnson

Democrats and Republicans want the status quo, but we need to move Forward

Christine Todd Whitman

Reform in 2023: Building a beacon of hope in Boston

Henry Santana
Jerren Chang
latest News

Family values and societal results

Debilyn Molineaux
8h

Transpartisanship and transformation

Brenda Marinace
9h

Podcast: Why we misunderstand independent voters

Our Staff
9h

The American experiment

Kevin Frazier
24 January

The Fahey Q&A with Jasmine Hull of Deliberations.US

Katie Fahey
Courtney Fiedler
24 January

Podcast: What does the House Speaker election say about the Republican Party?

Our Staff
24 January
Videos

Video: Meet the citizen activists championing primary reform

Our Staff

Video: Veterans for Political Innovation - Who we are

Our Staff

Video: Want to fight polarization? Take a vacation!

Our Staff

Video: Kevin McCarthy is Speaker, but he's got a tough job ahead

Our Staff

Video: #ListenFirst Friday End of Year

Our Staff

Video: Minnesota Gov. Walz asks fellow Democrats to ‘Think Big’ when it comes to fixing voting issues

Our Staff
Podcasts

Podcast: Why we misunderstand independent voters

Our Staff
9h

Podcast: What does the House Speaker election say about the Republican Party?

Our Staff
24 January

Video: Chaos or calm: Building confidence in Pennsylvania elections

Our Staff
19 January

Podcast: Pushing back against polarization

Our Staff
18 January
Recommended
Family values and societal results

Family values and societal results

Big Picture
Transpartisanship and transformation

Transpartisanship and transformation

Big Picture
Podcast: Why we misunderstand independent voters

Podcast: Why we misunderstand independent voters

Podcasts
image of Statue of Liberty and American flag.

The American experiment

Civic Ed
Jasmine Hull is Chief Operating Officer for Deliberations.US.

The Fahey Q&A with Jasmine Hull of Deliberations.US

Civic Ed
Podcast: What does the House Speaker election say about the Republican Party?

Podcast: What does the House Speaker election say about the Republican Party?

Podcasts