Though there’s not much agreement between rednecks and libs these days, there’s one foundational issue that nearly everyone seems to agree on: U.S. Senate confirmation hearings for U.S. Supreme Court nominees have devolved into meaningless drivel as senators on both sides of our widening cultural divide troll for “gotcha” moments intended to shore up their respective political bases – on live television, no less. Painfully aware that they are navigating potentially career-ending, partisan questions in real time, nominees dodge political-statements-posed-as-questions with frozen smiles and talk a lot about how much they love their mothers. Spouses sit stoically behind the nominees and try not to look pissed off at the hostile barrage of no-question questions cleverly crafted as traps. The High Court, the apex and triumph of high-minded reason over the emotions and beliefs that have so bedeviled us for over 200 years.
Judge Ketanji Brown Jackson is one of the most qualified jurists to join the modern-day Court. For starters she was a working judge unlike, say, Clarence Thomas, who joined the Court after a scant 16 months on the bench. Brown Jackson is also the survivor of two confirmation hearings for lower-court federal appointments, both of which she passed with flying colors. This time around the stakes were higher. The Supreme Court’s decisions affect everyone, so both cultural sides unsheathed their claws. It was this dynamic that fired up Senator Ted Cruz (dubbed “Lucifer in the flesh” by former House Speaker John Boehner in a televised interview) and his flip charts, which listed earlier Brown Jackson rulings that Cruz claimed were soft on crime. Though it was doubtless not his intention, Cruz’s “presentation” dramatically illustrated why the Brown Jackson confirmation was so important for every one of us; she is the only sitting justice who worked as a public defender.
President Biden made a characteristically wise choice in Brown Jackson. She has broad experience in the law, public and private, and is by all accounts thoughtful, knowledgeable, and even handed in her rulings. But the president did a disservice to both Brown Jackson herself and the nation by promising, long before anyone had heard her name, that he would nominate a “woman of color” for the next spot on the High Court.
This much-lauded but discriminatory promise was unfortunate for several reasons. Perhaps most damaging, it offers up race as a litmus test for justice confirmations, a test based, essentially, on the U.S. Census. Sooo…since there are now 2 black justices out of the total 9, those black justices make up 22.2% of the Court. Since the last U.S. Census reports that just 12.4% of the U.S. population is black, this percentage is roughly double the percentage of blacks in America today. Does this mean that the next appointment must be white to even the score? And what about Asians and Hispanics? This slice-and-dice numeric scheme is not the enlightened thinking that will drive our goal to become gender- and color-blind. We need to keep plugging away for equality before the law for everyone. As a nation we’ve come too far to believe that equality for everyone requires the creation of new divisions that further divide us.
The other fallacy about choosing candidates by race or gender is the assumption that a justice will weight his or her decisions in accordance with his or her gender or race. One need to look no further than Thomas and Amy Barrett to mercifully put that myth to rest. A black man born into poverty, abandoned by his father while still a toddler and raised rough by a cruel and authoritarian grandfather, Clarence Thomas is widely considered the most conservative justice on the Court and mistrusts social programs of any kind. He also continues to pursue, according to Slate journalist Mark Joseph Stern, his “career-long quest to replace long-established precedent with a confused, slapdash substitute based on amateur historical analysis and tendentious conservative law review articles.” And Thomas has been doing it, without evident personal growth or reflection, for more than 30 years (and counting). Amy Coney Barrett? Far-right politicians seemingly achieved the impossible by putting forth the confirmable young woman, raised in the heady years of Womens Liberation, now heralded by right-wing extremists as the essential vote to overturn Roe v. Wade.
With homelessness, drug addiction, and other scourges of poverty on the rise in the U.S., maybe the next few Supreme Court justices should be poor but unrescued by the Ivy League’s outreach programs. They might initially feel ill at ease around all those Ivy-educated justices, but would surely, over time, more closely resemble our best egalitarian selves and usher in a fuller, more welcoming perspective for all of us.